This matter came on in the form of a motion by a junior encumbrancer, named as a defendant in a mortgage foreclosure suit, seeking an order directing the issuance of an alias writ of execution pursuant to the provisions of R. 4:64-4.
The court has considered the pleadings, the affidavits, the briefs and oral argument and makes the following findings of fact (all uncontroverted):
On January 11, 1968 defendants Richard Grull and Dianne Grull, husband and wife, executed a mortgage in favor of Citizens First National Bank of Ridgewood (hereinafter "bank") covering premises located in Allendale, New Jersey, which they owned as tenants by the entirety. In May 1970, the bank filed a complaint in foreclosure. Midland Park Lumber and Supply Co. (hereinafter "Midland") was made a party defendant by virtue of a judgment obtained by it against Richard Grull on October 17, 1969 in the amount of $3,574.32.
On August 3, 1970 a final judgment of foreclosure was entered in favor of the bank on its mortgage for $19,535.77. Subsequently, execution was issued to the Sheriff of Bergen
County to satisfy the amount due on said mortgage. Thereafter an agreement was reached between the bank and the Grulls whereby the bank agreed to accept periodic payments on account of its judgment and the mortgage. Pursuant to this agreement the sheriff was instructed by the bank not to proceed with the sale and to return the writ of execution to the court unsatisfied.
Defendants Grull failed to make payments as agreed and the bank obtained the issuance of an alias writ of execution. The premises were advertised for sale but thereafter adjournments were requested and granted by the sheriff. On April 19, 1972 the bank assigned its judgment to Joseph F. Grull and Velma H. Grull, the parents of defendant Richard Grull, for the sum of $17,400. On October 30, 1972 the alias writ of execution was returned unsatisfied to the court by the sheriff pursuant to instructions from the assignees (parents of Richard Grull) of the bank's judgment. At this juncture there is no action pending by the assignees to enforce the judgment by proceeding with the sale.
Defendant Midland now seeks an order for the issuance of an alias writ of execution directing the sheriff to sell the premises. In support of this motion Midland relies on R. 4:64-4, the mortgage foreclosure abandonment rule.
This rule is a carry-over from the practice under the former Chancery rules. Research discloses that the earliest Chancery rule was promulgated in April 1841 and amended in 1868. After the revision of 1910 this rule, Chancery Rule 28, provided:
When the complainant, in any bill filed to foreclose a mortgage, makes prior or subsequent encumbrancers parties to said bill, and they come in and answer, and the complainant then for four months neglects or refuses to proceed, the said defendants, or any of them, may take an order upon the complainant to show cause at any time, on ten days notice, why the said defendant or defendants shall not be allowed to proceed with the said cause to decree and execution in his name; and unless good cause being shown to the contrary, an order may be made that the said defendant or defendants shall be allowed so to proceed with the suit, and the complainant shall not be
allowed his costs. [ Kocher, Pleading and Practice in the Court of Chancery of ...