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Bunker v. Anderson.

"guesses" he did not receive it, but that it was intercepted before it reached him. He does not testify by whom it was written or from whom it came. Leaving the husband's testimony on the subject of the adultery, and as to all things else except the marriage, out of consideration, there is no legal evidence that the defendant was in Furman's room for any improper purpose, and there is no sufficient evidence against her.

The bill will be dismissed, with costs.

SALLY A. BUNKER, surviving executrix &c.,

v.

JOHN J. ANDERSON and others.

1. A mortgage of lands in New Jersey, drawn in New York, to executors, "their successors and assigns," containing the usual clause conveying all the mortgagor's estate, right, title, interest &c. in the premises, and recorded in full, is notice to a subsequent mortgagee and judgment creditor of the mistake and that such mortgage was intended to convey the fee.

2. An answer by a grantee of the mortgagor, that he is now informed and believes it to be true that the mortgagees agreed with the mortgagor, at the time such grantee's deed was given, to release the premises from the lien of their mortgage, without any proof of such agreement, is not available as a defence to the foreclosure of such mortgage, although no replication having been filed to such answer it must be taken to be true.

Bill to foreclose. On final hearing on pleadings and proofs.

Mr. R. J. Hopper, for complainant.

Mr. Geo. H. Coffey, for the answering defendants.

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THE CHANCELLOR.

Bunker v. Anderson.

The bill is filed to rectify and foreclose a mortgage for $10,000 and interest, given July 1st, 1865, by John J. Anderson and his wife to the complainant and another person, now dead, as executors of Thomas G. Bunker, deceased, on land in Bergen county. It was recorded in full on the 11th of August in that year. Anderson and his wife gave to Leverett H. Sage a mortgage on the same property for $5,000 and interest, in October, 1865. Sage assigned this mortgage to Benjamin B. Sherman, in 1873. William S. Banta recovered a judgment against Anderson, in the Bergen circuit court, on the 24th of June, 1878, for $1,531.55. The Philadelphia and Reading Coal and Iron Company recovered a judgment, in the supreme court of this state, against Anderson, on the 29th of April, 1878, for $1,541.17. Anderson and his wife conveyed part of the mortgaged premises to Henry Stutzer, in May, 1873. Sherman, Banta and Stutzer have answered. The last sets up an agreement on the part of the mortgagees, made with him when he took his conveyance, to release his property from the complainant's mortgage. No replication has been filed to his answer, and as to him the cause was set down on bill and answer. The contest is between the complainant and Sherman and Banta, and the question is, whether Sherman and Banta are chargeable with notice of the complainant's mortgage. As before stated, that mortgage was recorded in full. It was drawn by a New York lawyer, and the word "heirs" was erased from the blank on which it was written, and the word "successors" substituted therefor. It, indeed, conveys only a life estate, but the record was notice that the parties to the mortgage intended to convey a fee; for after the description of the land are these words:

"Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title, interest, dower and right of dower, property, possession, claim and demand whatso

Bunker v. Anderson.

ever, as well in law as in equity, of the said parties of the first part, of, in and to the same and every part and parcel thereof, with the appurtenances. To have and to hold all and singular the above granted and described premises, with the appurtenances, unto the said parties of the second part, their successors and assigns forever."

There is in this language clear evidence of an intention to mortgage the fee of the land-clear evidence of an intention to convey all the estate of the mortgagors, both at law and in equity, to be held by the mortgagees and their successors and assigns forever. This language was, indeed, found in the mortgage which the court refused to reform as against a judgment creditor, in Wheeler v. Kirtland, 8 C. E. Gr. 13; S. C. on appeal, 9 C. E. Gr. 532. But the opinion of the court of last resort in the subsequent case of Gale v. Morris, 3 Stew. 285, on the subject of notice deprives that fact of all importance. It may be remarked that in Wilson v. King, 12 C. E. Gr. 374, a case in which rectification was denied, the mortgage was given to the mortgagee in her individual capacity, and not, as in this case, to executors and their successors forever. Sage appears to have had actual notice of the existence of the complainant's mortgage. Mr. Anderson swears that Sage, when he took his mortgage, knew that he (Anderson) had given the complainant's mortgage, and Sage, who was sworn in the cause, does not deny it; and he does not say that he supposed that the complainant's mortgage was intended as an encumbrance upon a life estate merely, and not on the fee. He, as surety for Anderson, joined him in the bond which the complainant's mortgage was given to secure. The mortgagors intended to give, and the mortgagees expected to receive, a mortgage of the fee, and the lawyer by whom the instrument was drawn supposed that the mortgage conveyed a fee. The second mortgagee and the judgment creditors and Stutzer must, under the circumstances, be held to have had notice of the mistake in the complainant's mortgage.

As to Stutzer, though his answer must be taken as true, it does not allege that the complainant agreed to release the

Ferry v. Meckert.

land conveyed to him from her mortgage, but states that he is now informed by Anderson, and that he believes it to be true, that the complainant agreed (with Anderson) to release that land from the mortgage. It appears from the answer that he did not know of the existence of the complainant's mortgage until shortly before the filing of his answer, which was more than five years and a half after he received his deed. Anderson, when he sold the property to him, told him it was free from encumbrance, and he paid Anderson a full price for it. There is no evidence in the cause on the subject of this defence set up by Stutzer, and it is not so set up in his answer as to be available to him without proof.

There will be a decree in accordance with these views.

EBENEZER L. FERRY

v.

MADELINE MECKERT and others.

A mortgage was given by M. to A. and F., partners, to secure them for goods sold and to be sold by them to M. After a dissolution of the firm, the mortgage was by delivery assigned to F., as part of his share of the assets, and by an agreement then made between M., A. and F., such mortgage was also to secure F. for any goods thereafter sold to M. M. died, leaving all his property to his wife, who was also made executrix, and proved the will. On foreclosure by F., M.'s wife was made a party defendant as devisee, but not as executrix, and by her answer admitted that the mortgage was given to secure the firm of A. and F., and F. individually, for goods sold; and that after the dissolution of the firm M. dealt with F. on the security of the mortgage, and that there is a large amount due on the mortgage; and there was proof of admissions by M.-Held, that F. could recover on the mortgage the sums due the firm of A. and F., and also his individual claims against M., their amount and also the fact that the mortgage was intended to secure them being proved by M.'s admissions.

Bill to foreclose.

proofs.

On final hearing on pleadings and

Ferry v. Meckert.

Mr. I. W. Scudder, for complainant.

Mr. C. L. Corbin, for defendants, American Trust Co. and Charles Muller.

THE CHANCELLOR.

On or about November 10th, 1863, Adolph Meckert and his wife gave to William H. Akin and Ebenezer L. Ferry, then constituting the business firm of Akin and Ferry, their mortgage of that date on certain land in Hudson county, then owned by Meckert, to secure the payment of his bond of that date, then given by him to Akin and Ferry, in the penalty of $40,000, and conditioned for the payment of $20,000 in one year, with interest. The bond and mortgage were in fact given as security to Akin and Ferry for money which Meckert then owed them for goods sold and delivered by them to him, and as security for the price of goods which it was contemplated that they would sell to him, and advances of money which they might make to him. Akin and Ferry dissolved partnership on or about the 1st of May, 1871, and, according to the bill, the debt ($10,000) then secured to the firm by the mortgage, was assigned to Ferry on account of his share of the assets, and it was agreed between him and Akin and Meckert that the mortgage should not only stand as security to him for that indebtedness, but also for any indebtedness which Meckert might after that time incur to him for goods which he might sell to Meckert or money which he might advance to him.

Meckert died on or about the 10th of October, 1876. He then owed Ferry about $20,000 (besides the debt of $10,000 before mentioned, contracted with the firm) for a balance and interest due for goods sold to him by Ferry on the security of the mortgage. The mortgage was not assigned by written assignment to Ferry by Akin until October 5th, 1876. He then assigned it by such assignment. Meckert, by his will, gave all his property to his wife, whom he thereby constituted his executrix. She proved the will.

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