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Dorman v. Fisher

Decided: September 24, 1958.

ISIDOR DORMAN AND NATHAN HILLMAN, PLAINTIFFS-RESPONDENTS,
v.
MARGUERITE FISHER, DEFENDANT-APPELLANT



Goldmann, Conford and Freund. The opinion of the court was delivered by Conford, J.A.D.

Conford

The Law Division entered summary judgment in favor of the plaintiffs in an action to recover possession of certain real property sold by the plaintiffs to the defendant in 1953 by an installment contract of sale.

The premises consisted of a two-family house in Paterson, sold for the price of $5,500. The written contract executed by the parties provided for a down payment of $300, the balance payable over a period of eight years in equal monthly installments, inclusive of interest, of $68.34 on the 31st day of each month, until the full balance was paid. The purchaser agreed to pay all taxes, assessments and water charges on the property and to carry fire and public liability insurance for the benefit of the sellers in respect to their interest under the contract; also to keep the property in good repair and condition at her own expense. Upon compliance by the purchaser with all the terms of the contract she was to receive a warranty deed for the property from the sellers upon the date of payment of the final installment due.

Paragraph 6 of the contract is as follows:

"6. That time of payment shall be of the essence of this contract and if any default shall be made in the payment of any of the installments as herein provided, and if any such default shall continue for a period of 30 days, then after the lapse of said 30 days, all installments previously paid shall, at the option of the Seller, without notice or demand, be and become forfeited, irrevocably, and be retained by the Seller as liquidated damages, and thereupon this contract shall be terminated and be of no force and effect."

From an affidavit submitted on the motion for summary judgment it appears that defendant has been in default of the monthly installments since October 1956, despite demands for payment by plaintiffs. The complaint herein was filed December 3, 1957. One of the plaintiffs further deposes that when the contract was executed each of the two apartments in the house was rented, furnished, and without utilities, at $15 per week.

Plaintiffs have declared a default under the contract and purport to be exercising the right declared therein to terminate it. Possession of the premises was demanded as an incident of such termination. Defendant's sole ground of appeal is that the granting of the motion for summary judgment erroneously denied her "right to show by competent evidence that the alleged long term contract for the sale of land was in actuality intended to be an equitable mortgage." She contends that her equity in the property cannot be foreclosed without giving her the same right to redeem which a defaulting mortgagor would have in a conventional mortgage foreclosure proceeding.

The only factual showing by defendant in opposition to the motion for judgment was an affidavit which, while not denying the making of the written contract or the extended default in payments, deposes:

"6. The sellers told me that I would get the deed to the property when I made the last payment, but that after the execution of the contract I was fully responsible regarding the property as if the deed were in my name.

"7. I have been advised that recently the value of the property has greatly increased because a new state highway is to go over the property.

"8. I have had no experience with matters pertaining to purchase of property, while Isador Dorman is highly ...


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