McGeehan, Colie and Eastwood. The opinion of the court was delivered by Eastwood, J.A.D.
Plaintiff, Atlantic Seaboard Company, appeals from a judgment of the Superior Court, Chancery Division, dismissing its action for foreclosure of a mortgage on the property of defendant, The Borough of Seaside Park, and directing that the mortgage be cancelled of record.
The facts are sufficiently stated in the opinion of the trial court, reported in 3 N.J. Super. 501. To restate them here would be unnecessary repetition. [8 NJSuper Page 190] It appears from our review of the record that the warrant to discharge the mortgage was obtained from the Tradesmens bank by the attorneys acting for the Arlington Beach Company. In fact, at the trial, Mr. Bleakly stated that he unquestionably represented the Arlington Beach Company in securing the surrender of the bond and mortgage with warrant to discharge. Thereafter Mr. Bleakly, at the instigation of William H. Cummings, conducted the negotiations resulting in the assignment of the bond and mortgage, returning to the Tradesmens bank the warrant for discharge. The two letters written by Mr. Bleakly -- one resulting in the surrender of the mortgage for discharge and the other in the assignment -- are clearly inconsistent with each other. There is not one iota of evidence in contradiction of Mr. Bleakly's testimony that he represented the Arlington Beach Company. However, when he obtained the assignment, it is quite clear that he was not authorized to nor did he act for the Arlington Beach Company. At that time, Cummings had absolutely no interest in the Arlington Beach Company nor the mortgaged premises and he did not possess any authority to alter or change the position of the Arlington Beach Company, by bringing about an unauthorized revitalization of the bond and mortgage. It is understandable why the Arlington Beach Company would want to secure the return of the mortgage for cancellation -- its bond for $150,000 was outstanding. The discharge of the mortgage terminated that liability. On the other hand, the assignment has the effect of keeping alive the liability of the Arlington Beach Company for a period of six years under the Statute of Limitations. Without any indication in the record as to the intentions of the Arlington Beach Company, there is no logical reason why that company would have acquiesced in the assignment and thus continued its liability. Plaintiff's foreclosure action is based upon default in the terms of the bond and it is attempting to collect, not the $500 allegedly advanced by Cummings, but the principal of $75,000 and interest thereon. The Chancery Division decided that the mortgage had been effectively cancelled when
it was surrendered to the attorneys for the Arlington Beach Company, that it could not be revived and directed its cancellation of record. Plaintiff concedes that had the Arlington Beach Company been the active litigant, and had it proved against plaintiff the facts upon which the decision rests, plaintiff now would have no ground for contesting the main portion of the judgment on this appeal. And, argues plaintiff, without that corporation being made a party to the litigation, those defenses cannot be asserted by the defendant.
The non-joinder of the Arlington Beach Company makes it difficult to determine this issue conclusively. Defendant asserts that it is a well settled principle that the owner of mortgaged premises as successor in title from the pledgor may raise all the defenses available to the mortgagor in foreclosure of its mortgage. Vredenburgh v. Burnet , 31 N.J. Eq. 229, 233 (Ch. 1879). But again, without any knowledge as to the position that may be taken by the Arlington Beach Company, we are unable to ascertain what defenses the Arlington Beach Company may assert; whether it finally and unalterably intended to cancel the mortgage or what other ground it may advance for having obtained the surrender of the mortgage for discharge. As Vice-Chancellor Jayne declared in Di Giovacchini v. Teich , 133 N.J. Eq. 107, 112 (Ch. 1943):
"It is undeniable that an assignee of a bond and mortgage takes it subject to all equities available between the assignor and the obligor, mortgagor, owner of the mortgaged premises and others having interests as junior encumbrancers. * * *"
"The basic reasoning is that the mortgage is a mere incident of the debt which it is intended to secure and a defense to the debt is a defense to the mortgage. * * *"
Certainly, it would seem inequitable on the facts before us to permit the plaintiff, controlled as it is by William H. Cummings, owning ninety per cent of the stock, and who was
clearly in possession of all of the facts and circumstances connected with the transaction from beginning to end to now enforce the payment of the principal and interest claimed thereon, particularly in view of the fact that the unpaid judgment of the Tradesmens bank represents Cummings' indebtedness in connection with which the bond and mortgage in question were given merely as collateral security. It was held in Kem Products Co. v. Levin , 117 N.J. Eq. 560, 564 (Ch. 1935), that:
"'It is not alone fraud or illegality which will prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose ...