For reversal -- Chief Justice Vanderbilt, and Justices Heher, Burling and Jacobs. For affirmance -- Justice Wachenfeld. The opinion of the court was delivered by Vanderbilt, C.J.
This is an appeal by Earl C. Ledden from adverse portions of a judgment of the Chancery Division of the Superior Court, certified by this court on its own motion pursuant to R.R. 1:10-1(a).
The pertinent facts are simple. In 1923 Ledden and his wife borrowed $2,500 from the Camden Safe Deposit & Trust Co. and gave in return their bond secured by a mortgage in similar amount on premises in Gloucester City. Along with the bond they executed a warrant of attorney for the confession of judgment in the event of default. In 1933 or 1934 Ledden and his wife separated, his wife remaining in the mortgaged premises while Ledden went to live in Philadelphia. Sometime later he returned to Gloucester City and lived there separate from his wife. After a default on the mortgage, a foreclosure proceeding was commenced in 1935 in which Ledden and his wife were named as defendants. A subpoena, under the practice then in vogue, was issued directed to Ledden and his wife and was officially returned by the sheriff with the following endorsement:
"Duly served October 7th A.D. 1935, on Earl C. Ledden, by leaving a true copy of the within writ with a member of his family above the age of 14 years, to wit: on Mary M. Ledden, his wife, and
on Mary M. Ledden, personally a true copy of the within writ at their dwelling or usual place of abode, 706 Powell Street, Gloucester City, Camden County, New Jersey."
Ledden did not appear in the foreclosure proceedings and a final decree was entered in December 1935, adjudging that there was due on the mortgage the sum of $2,619.05 plus costs and counsel fees and that the property be sold to satisfy the debt. At the sheriff's sale the Camden Safe Deposit & Trust Co. bought the property for $100 and this sale was later confirmed.
It is conceded that Ledden was not properly served. He did not actually live at the place where the subpoena was left and valid service could therefore not have been made upon him there by leaving the copy with his wife, Sweeney v. Miner, 88 N.J.L. 361 (E. & A. 1915). Ledden, however, admits that he had actual knowledge of the foreclosure sale at or about the time it took place. Based on the deficiency that existed after the foreclosure sale, a judgment for $2,820.01 was entered on the warrant for confession of judgment against Ledden and his wife in the former Supreme Court on April 18, 1936.
Sometime later the Camden Safe Deposit & Trust Co. assigned this judgment to the Federal Deposit Insurance Corp. which in turn, in settling the affairs of the Camden bank, sold it to Fred C. Ehnes.
Ledden apparently had no knowledge or notice of this judgment in personam until a levy was made pursuant to an execution issued by Ehnes on the judgment in August 1954, more than 18 years later. The property levied upon was a mortgage held by Ledden on his brother's house, an automobile belonging to Ledden, and a joint bank account in the names of Ledden and one Jennie C. Christian. The levy against the bank account was abandoned before the final hearing, and it having been determined below that the funds belonged exclusively to Jennie Christian, that portion of the judgment was not appealed from. The automobile was sold at public sale and bought by Ehnes for $10 and then resold by him for $325. The trial court on the
evidence held that the value of the car was $475 less $30 accumulated storage charges which were paid by Ehnes.
When Ledden learned of the deficiency judgment as a result of these levies he urged that it was void because he had never been served as a party in the foreclosure proceeding. Some difficulty was experienced at the trial level in getting the matter before the court. It was originally presented to the Law Division of the Superior Court in the form of an application by Ehnes in aid of execution and an application by Ledden to vacate the judgment. It should have been disposed of there, R.R. 4:41-2 & 3, but the matter was then transferred from the Law Division to the Chancery Division and Ledden was directed to file a complaint ...