On appeal from the Camden County Circuit Court.
For the appellants, Isadore H. Hermann.
For the respondent, Joseph Beck Tyler.
The opinion of the court was delivered by
CAMPBELL, CHANCELLOR. This is an appeal from an order of the Camden Circuit Court striking out an answer in a proceeding to foreclose a mortgage, such proceeding having been taken under authority of the statute. 3 Comp. Stat., p. 3412, §§ 9, et seq. There is no final judgment in the proceeding, so far as the record before us discloses, but this, apparently, is not necessary because by section 14, supra, it is provided: "That all persons aggrieved by an order or decree of any Circuit Court, in mortgage cases, may appeal from the same, or any part thereof, to the Court of Errors and Appeals * * *."
It appears that the complainant was the holder of a mortgage of $10,000 covering certain property in the borough of Collingswood, Camden county; that the owner had conveyed a portion thereof to one Simon Levy, and it is said that
at the time of such conveyance the attorney for the complainant-mortgagee, for her, had offered to release the property so conveyed from the lien of her mortgage for the sum of $6,000, together with the payment of the interest due upon the entire mortgage up to the time of settlement under such sale, and also upon payment, of a proper apportionment of the taxes. This was February 1st, 1930. Title was taken and subsequently, in April, 1930, the complainant-mortgagee, filed a bill in Chancery to foreclose her mortgage, and it is asserted that upon the payment to her of the interest then due this proceeding was discontinued. On July 27th, 1931, the present proceeding to foreclose the mortgage was commenced in the Circuit Court.
The appellants, Levy, as well as the Mercantile Securities Company, filed answers.
The Mercantile Securities Company appears to hold a mortgage upon the portion of the mortgaged premises purchased by Levy, which mortgage is subject to any lien of the complainant's mortgage against such portion of the whole mortgaged property, to which Levy holds title.
Generally speaking, the answers set up the agreement to release appellant Levy's portion of the mortgaged lands in accordance with the agreement before referred to; that such agreement was accepted by Levy; that pursuant to, and under it, payments on account of principal and interest had been made; that it is a subsisting and existing agreement by which the complainant is bound, and that the appellant Levy was ready, able and willing to pay the balance of principal consideration of $6,000, amounting to $5,725 and all interest, taxes, costs and other liens, and that the complainant should not have a judgment or decree against the appellants or their lands, for more than such an amount.
Notice was given to strike out these answers upon the ...