Merseles v. Vreeland , 8 N.J. Eq. 223 ( 1850 )

The Chancellor.

If, under the circumstances of this case,

the mortgage should be considered as still existing, in favor of Edo P. Merselis, the complainant, (which is the main question to be decided on the hearing of the cause on the merits, after the proofs shall be taken), and I am not now sufficiently clear that it should not be so considered to authorize my acting, in reference to the question now before me, on the assumption that it cannot be so considered, one of two courses must be taken, in considering whether the injunction should be dissolved. Assuming, for the present, and for the purposes of this motion, that the mortgage may finally be held to be still subsisting, in favor of the complainant, one course is to dissolve the injunction and permit the widow to recover, from Edo P. Merselis, her judgment for the rents and profits, and to collect them from him by execution, and thus leave Merselisas, holder of the mortgage, to recover a decree for the principal and all the interest that may have accrued on the mortgage, and to sell so much of the mortgaged premises as will be required to pay the amount of such principal and interest. The other course is, to consider that the widow, she being also executrix, should, under the will, pay the interest on the mortgage debt out of the rents and profits of the lands, so long as she holds them and takes rents and profits, and does not subject them or any part of them to sale for the payment of the mortgage debt; it being admitted that the personal estate was not sufficient, after paying the other debts, to pay the mortgage debt or any part of it.

It appears to me, that when a testator gives the use of all his estate, real and personal, to his widow during her life and widowhood, and, in case his personal estate be not sufficient to pay his debts, charges his real estate with the same, and orders so'much thereof to be sold, from time to time, by his executors, as will meet the payment of the same, and appoints his widow the executrix of tho will; and there is a mortgage debt which, or any part of which, by the admission of tho widow, “the personal estate is net sufficient to pay; and tho personal estate has been exhausted in the payment of other debts ; in such case it seems to me to be the duty of the widow and executrix, either to keep down the interest of tho mortgage debt out of tho rents and profits of the real estate, or to proceed promptly to the sale of so much of the real estate as will be sufficient to pay the mortgage debt. It would do great injustice to the remainder men to permit her to delay the sale of sufficient land to pay the mortgage debt as long as she could induce the mortgagee, in view of the abundant landed security ho might have, to defer foreclosing liis mortgage; she, in the mean time, reaping and appropriating to her own use the whole of the rents and profits, and permitting tho interest to accumulate aga.inst the remainder men, tho children of the testator in this case, to an amount perhaps that would swallow up the whole of tlio mortgaged lands at her death.

As between the widow and the children, in this case, on a bill filed by the children, the widow ought to keep down the interest out of the rents and profits of the land, or proceed promptly to a sale.

But in this case I do not perceive that the Court can proceed on this ground, or with a view to such relief. The children, here, are parties defendants with tho widow, and the bill prays for no such relief. The complainant, by the shape of his bill, is willing to stand on tho ground that the mortgaged premises are sufficient to pay the amount of principal and interest that will he due on the mortgage, at the time when the same may be sold under the mortgage and a decree for sale founded thereon; and it does not appear that the children will ever seek any such relief against the widow as that she pay the interest out of the rents and profits.

In reference to the matter of interest on tho mortgage debt, therefore, and to the idea of setting off the interest accrued on the mortgage against the rents and profits sought to be recovered from Edo P. Merselis, in the action for mesno profits which wag injoined, for and during the time he occupied tho lands, there does not seem to be good reason for continuing the injunction restraining that action. As between the mortgagee and the widow, she was entitled to hold and enjoy the lands, and the rents and profits thereof, until he could get possession of the lands in due course. And if, as between the widow and the mortgagee, or Merselis, (he is to stand in the place of the mortgagee,) Merselis considers, as it appears by his bill he does, and as I suppose is true, that the mortgaged lands are abundantly sufficient to pay the mortgageand interest; then there seems to be no good reason why the widow should not be permitted to go on and recover the rents and profits received by Merselis, while he was in possession of the lands under the deed which the Supreme Court have declared to have been void. The Court before which the action for mesne profits will be tried will protect him in all his rights as to the amount to be recovered against him.

Injunction dissolved.