For the prosecutor, Albert Kushinsky.
For the respondent, Percy Camp.
Before Justice Perskie, at chambers, pursuant to statute.
PERSKIE, J. The basic question for decision on the facts of this case is whether the Judge of the Common Pleas Court had the statutory authority to entertain the mortgagor's application to direct the county clerk of Ocean County to cancel of record the mortgage, hereinafter described, on real estate (R.S. 2:66-1) when, as here, it is claimed that the mortgagee entered an appearance on the hearing of the application (R.S. 2:66-3) and denied that the mortgage had been paid. R.S. 2:66-1(a).
The facts which give rise to the posed question are as follows:
On October 31st, 1931, Herman J. Samuelson executed and delivered his bond to his father-in-law, Samuel Kaufman, in
the penal sum of $40,000, conditioned for the payment of the just sum of $20,000, and providing for a monthly reduction of principal, without interest, and further giving to the mortgagor the option to anticipate payments, and conditioned that the first payment should be made on November 1st, 1931. The stated bond was secured by a mortgage, on the land therein described, which mortgage was recorded in the office of the clerk of the County of Ocean on November 4th, 1931, in Book 253 of Mortgages, page 63, &c.
On October 3d, 1945, Samuelson made application to the Judge of the Common Pleas Court of Ocean County for an order directing the county clerk to cancel of record the aforestated mortgage on the authority of R.S. 2:66-1(a) and R.S. 2:66-2 to R.S. 2:66-5, inclusive. This application recites, inter alia, that Samuelson had made the last payment due on said mortgage on June 30th, 1938; that there was nothing due on the mortgage; and that Samuelson believes that he has performed every condition on his part as to the terms of the mortgage, but if upon investigation by the judge, or upon disclosure by the proofs, there is or are further amounts due from him to Kaufman, he (Samuelson) is ready and willing forthwith to pay the same to effect a cancellation of the mortgage. The judge allowed a rule to show cause and it was served on the mortgagee. On the hearing of the rule, as on the adjourned day thereof, the mortgagor and the mortgagee with their counsel appeared and each actively participated in the cause. Witnesses were sworn, including the parties, and all were examined by counsel for the respective parties. This testimony was taken subject to the determination by the judge of the question raised by counsel for the mortgagee as to the power of the court to grant the relief sought. The denial of power is based upon the facts that the mortgagee, with his counsel, appeared before the judge and actively participated in the hearing, and, therefore, R.S. 2:66-3, invoked by the applicant, is without application, since the statute only comes into play when no person representing the holder of the mortgagee's interest appears at the time specified for the hearing of the application.
Pending the determination of the stated question, application
was made to me for a writ of certiorari. Since a question of power or jurisdiction over the subject-matter was in issue, and since that issue arises under a public statute which has not heretofore received judicial consideration, and thus a debatable question was clearly presented, I allowed the writ, with restraint, on the authority of Mowery v. Camden, 49 N.J.L. 106, 109; 6 A. 438; Breen Iron Works v. Richardson, 115 ...