On petitions for surplus moneys.
The controversial subject presented for determination arises from the adverse claims of the two petitioners for surplus moneys derived from a mortgage foreclosure sale.
Most of the antecedent factual events of present pertinency were imparted in Hanson v. Levy , 141 N.J. Eq. 103, 56 A.2d 411. To bring the narrative to date it is necessary additionally to divulge that during the pendency of the partition suit above cited, the holder of the second mortgage encumbering the premises in the principal sum of $3,000 foreclosed his lien, and at the sheriff's sale the property was purchased by Daube, who was the vendee named in the inter vivos contract which remained unperformed at the vendor's death. The proceeds of the foreclosure sale are in excess of the complainant's decree, resulting in a surplus fund. I am requested to determine the lawful destination of the fund.
The question may be tersely propounded in this fashion: Where the owner of real estate encumbered by a mortgage executes a valid contract to convey the premises to the vendee by warranty deed and in fact executes and delivers such a deed in escrow and dies before the consummation of the sale, whereupon the mortgage is foreclosed and the premises struck off to the vendee resulting in a fund in excess of the mortgage debt, are the decedent's heirs or the administrators of his state entitled to the surplus moneys?
In equity, a contract for the sale of land is recognized, for most purposes, as if it were specifically executed and performed. In consequence of that view, the purchaser becomes the equitable owner of the land, and the vendor the anticipated equitable recipient of the purchase money. Following the contract, the vendor is the trustee of the legal estate for the vendee.
Before the contract is consummated by actual conveyance, the lands are devisable by the vendee, and descendible to his heirs as real estate. Conformably the personal representatives are entitled to the purchase money. Haughwout v. Murphy , 22 N.J. Eq. 531, 546; Siesel v. Mandeville , 140 N.J. Eq. 490, 55 A.2d 167; Hanson v. Levy, supra.
Professor Pomeroy explains the consequential effects of the application of the doctrine: "So far as is necessary to carry out the lawful purposes of the instrument, will, deed, settlement, or contract, and to determine the property rights of all parties claiming under or through it, equity follows the doctrine into all of its legitimate consequences, and treats the property, from the time at which the conversion takes place, as to all intents of the kind and form into which it should have been changed, and determines the rights of parties to it as in that kind and form. Land directed or agreed to be sold, although yet unsold, is regarded and treated as money. It will not pass under a devise of land or of real estate. It will pass under a general gift, transfer, or bequest of personalty, or under a residuary bequest of personal property. In the absence of a will, it goes to the personal representative of the intestate who would have been or was entitled to it. It is therefore always personal assets in the hands of executors and administrators for which they are accountable * * *." 4 Pom. Eq. Jur. (5 th ed.) 489, § 1164.
This theorem is characterized as the notional or fictional doctrine of equitable conversion. It is nevertheless a firmly established tenet of equity jurisprudence.
Succinctly stated, the cardinal purpose of the doctrine is to effectuate the manifest intent of the vendor and to regard that as done which by previous contract with another, both vendor and vendee have mutually obligated themselves to do. 4 Pom. Eq. Jur. (5 th ed.) 472, § 1159.
The intention of the vendor is a predominantly significant factor. Here the vendor not only entered into the contract to convey but indeed in furtherance of it, he duly executed before his death the deed ...