Eichler v. Rubin , 140 N.J. Eq. 5 ( 1947 )

This suit was brought by Mr. Eichler to foreclose a mortgage which he held for the benefit of Mrs. Margolis under a passive trust. As soon as the amount of the mortgage debt was settled by the final decree, the owner of the land. Mrs. Jast, paid the sum due and the mortgage was canceled of record. Mrs. Jast now petitions the court to aid her in recovering possession of the premises from Mrs. Margolis.

Mr. Margolis was the grandfather of Mrs. Jast and was permitted by her to reside at the property as long as he lived. He died after the suit was started. Mrs. Margolis, as his wife, also lived there, but upon his death, her right so to do, under the agreement or arrangement between her late husband and Mrs. Jast, terminated. Yet Mrs. Jast could not recover possession so long as the mortgage, which was then in default, remained unpaid. Although the mortgage ran to Eichler without mention of the trust, it belonged to Mrs. Margolis and she had all the rights of a mortgagee. After breach of condition, a mortgagee can take possession of the mortgaged land. Bermes v. Kelley, 108 N.J. Eq. 289. And if he is already in possession under some other title which expires, he may remain in possession as mortgagee.Shields v. Lozear, 34 N.J. Law 496.

Mrs. Margolis argues that Mrs. Jast's proper remedy is an action of ejectment and not a summary proceeding at the foot of the decree in Chancery. This would be true if it appeared that she had or colorably asserted a title other than those above mentioned, but she claims none. Chadwick v. Island Beach Co.,43 N.J. Eq. 616. Upon a suit for foreclosure, the right of redemption and all equities relating thereto are settled on application in the suit itself. Atwood v. Carmer, 75 N.J. Eq. 319. The court has undoubted power by a writ of assistance to put the mortgagor in possession, when the mortgagee holds the land under the mortgage. Shields v. Lozear, supra (at p.508).

Mrs. Jast may have an order for possession substantially in the form usually employed in behalf of the purchaser at foreclosure sale.