Franklin v. Van Cott , 11 Paige Ch. 129 ( 1844 )

The Chancellor.

The master’s report is defective in form, as it-does not show that Mrs. Yan Cott, who had appeared and filed her claim, or that the guardian ad litem of the infant defendant, attended before him on the reference, or that evidence was produced to the master that they had been duly summoned to attend. Both were entitled to notice of the proceedings before the master. And in the case of Hulbert v. McKay, (8 Paige's Rep. 652,) this court decided that in such a case the master’s report should state that evidence was produced to him that the parties entitled to notice had been duly summoned, when they did not actually appear before the master upon the reference. Where such parties do appear, that fact should be stated in the report. And in -such case, if they do not consent to the report as made, the report must be filed and the usual order entered to confirm it, before an application can be made to the court for the payment of the money in conformity to such report.

The report is also defective in substance, if the amount of the surplus moneys exceeds the amount due upon the judgment of these claimants. The order of reference directs the master not only to inquire and report as to the amount due to the party obtaining the order of reference, but also as to the lien of any other person upon the surplus moneys. The master, therefore, should ascertain the whole amount of such surplus moneys, by the certificate of the register or otherwise, and if the incumbrance of the party obtaining the reference and entitled to priority is not large enough to exhaust the whole surplus moneys, the master must go further, and ascertain who is entitled to the residue of such surplus; so that upon the coming in of the report an order may be made to dispose of the whole surplus fund. Prima facie the mortgagor, or those who are stated in the bill to be his heirs or devisees, or grantees, if he is dead or has sold the property, are entitled to the surplus. And if no one attends before the master and produces evidence of a better right, and there is no evidence before him that the person prima facie entitled has parted with his interest, the master should report that the residue of such surplus belongs to the mortgagor, or to the person prima facie entitled to it.

This case must, therefore, be referred back to the master to review his report and correct it, so as to show upon the face thereof that the persons entitled to be summoned to attend the reference either attended, or had due notice by summons to attend ; and so as also to show who is entitled to the residue of the surplus, beyond the amount due to the applicants upon their judgment. But if any persons other than these judgment creditors appear,, or have appeared upon the reference, so as to entitle them to file exceptions to the report, the report must be confirmed, by the entry of the usual order nisi, and a certificate of the fact that such order has become absolute must be produced, before an order to pay the amount reported due to these applicants can be obtained.

Order accordingly.