Frelinghuysen & Bruen v. Colden

The Chancellor. Where mortgaged premises are sold under a decree of foreclosure, the purchaser is entitled to the assistance of the court in obtaining the possession, as against parties to the suit, or those who have come into possession under them subsequent to the filing of the notice of the commencement of the suit. (2 R. S. 191, § 152.) But this court has no jurisdiction, in a summary proceeding, to determine-the rights of third persons, claiming title to the premises, who have recovered the possession of the same by legal and adverse proceedings against a party to the suit, under a 207 claim of right which accrued previous to the filing of the bill of foreclosure. In this case Pelletreau claimed a right to the possession of the premises under a title paramount to the rights acquired by the filing of the bill, against Col-den. And when he obtained that possession by due course of law, it related back to the recovery of the judgment, or at least to the issuing of the execution; so that he is not to be considered as entering under Golden, pending the suit, within the spirit and intent of that part of the decree which directs those persons who have come into possession, under a party, since the commencement of the suit, to deliver possession to the purchaser. In this case, if the only claim of the purchaser, to the possession of the premises, or to other relief in this court, depended upon the proceedings in the first suit, he would be left to his ordinary remedy, at law, by an action of ejectment against the person in possession. The petitioner’s claim to relief, if any, therefore, arises from the proceedings in the second suit, in which Pelletreau is a party as complainant. The owners of the mortgages which were given for the purchase money, whether before or after the j udgmen t of Burr,are entittled to a preference in payment, even if the conveyance and assignment from Golden to Moore was fraudulent; and Pelletreau must pay the amount due on those mortgages before he can be permitted to redeem. The petitioner, as the purchaser under the decree of foreclosure, became entitled to all the legal and equitable interest of the several parties to that suit in the two lots constituting the union race course. If Pelletreau redeems, he must, at all events, pay to the petitioner the amount of the $1000 mortgage to Cozine on the fifteen acres, and of the Eldert mortgage on the fifty-four acres, and also whatever may be justly due on the Spencer mortgage. During the controversy in this court as to the validity of the conveyance from Golden to Moore, it would be improper and unreasonable that the petitioner should be compelled to litigate the same question at law, for the purpose of obtaining the possession of the property and of recovering the mesne profits, if it should eventually appear that Pelletreau has no right to redeem, or if he should neglect to redeem after such right was established. He must therefore give up the possession to the purchaser, or give secu 208 rity to pay the mesne profits, and the damages the petitioner may sustain by his retaining the possession, if it should turn out that he has no right to redeem; or he must pay into court the amount of the Eldert and Cozine mortgages, which will belong to the petitioner in any event, even if all the allegations in the bill in the last cause should be established by the proofs. If this money is paid into court, it will dis'charge Pelletreau from any further claim for interest on that amount if he is permitted to redeem; and if it shall appear that he has no right to redeem, and that he is wrongfully withholding the possession from the petitioner, the mesne profits and damagss may be paid out of the money thus brought into court, and the residue will be refunded to Pelletreau. And in the mean time the fund may be invested for the benefit of whoever may be eventually entitled to the same. If Pelletreau shall not, within ten days after the entry of the order in this case, give to the petitioner’s solicitor a written notice of his election to comply with one of the conditions above mentioned, and actually comply with the same within twenty days thereafter, it must be referred to master Codwise, to appoint a receiver, and to take from him the requisite security. The receivership, however, must be without prejudice to the legal or equitable rights of Botts. The agreement between the petitioner and Botts was a mere contingent arrangement, depending upon the result of the litigation between Pelletreau and the petitioner. It was not intended to deprive the latter of any of his rights or remedies as against Pelletreau. And from the very nature of the agreement, it cannot be consummated until the result of this litigation is known. It therefore forms no valid objection to the relief sought for by this petition. If Pelletreau elects to give security, the amount of the bond and the sufficiency of the sureties must be settled and approved of by the master; and upon the usual notice to the petitioner to attend upon the determination of those questions.