Franklin Loan & Building Ass'n v. Richman

The opinion of the court was,delivered by Van Syckel, J. The only questions that can be considered under this rule are: First. Whether it was necessary to foreclose the said mortgage before judgment could be entered on the bond. Second. Whether there was such a conveyance of the mortgaged premises to the plaintiff as operated as a satisfaction of the debt due on the bond. The bond and warrant were executed to secure a loan of money; the fact that the money was an advancement of the matured value of stock in a building association does not alter its character as a loan. I find the facts to be as follows: The plaintiff commenced a foreclosure of the mortgages in September, 1883. Soon after that, Richman, in order to save the costs of foreclosure and sale, proposed to the solicitor of the plaintiff to convey the mortgaged premises to Benjamin E. Wood, who should sell the property at public sale clear of encumbrances, and with the proceeds of the sale pay the mechanics’ liens on the property and the expenses then incurred in the foreclosure suit, and apply the net balance to the satisfaction of the bond and warrant of attorney. This proposition was accepted, and the conveyance made, in [528] accordance therewith, to Benjamin E. Wood, who sold the mortgaged premises clear of encumbrance for a sum which, after paying the encumbrances prior to the said mortgages, left the sum of $730.69 still due on the said bond and warrant of attorney, for which the judgment in controversy is entered. This agreement and the execution of it precluded, and made unnecessary, compliance with the act of 1880, as amended in 1881, concerning proceedings on bonds and mortgages. Gen. Bbai., p. 2112, § 47. The proceeds of sale of the mortgaged premises having been duly applied by Wood, in accordance with his agreement with Richman, to the satisfaction of the bond and warrant so far as they would extend, the plaintiff company had a legal right thereafter to procure judgment to be entered upon the bond and warrant of attorney. The rule to show cause should be discharged, with costs.-