ney of the complainant was filed to the effect that judgment might be entered that the mechanic's lien was subsequent to $250 of complainant's mortgage and prior to the balance of $500,-such a judgment as should have been entered if the complainant's mortgage were strictly an advancemoney mortgage, within the meaning of the act above mentioned. The complainant's bill asks that the compiainant may be relieved from that admission, and the effect of it in the judgment, on the ground that it was made under a misapprehension of the facts of the case; that at the time of making it the attorney had been informed and was under the impression that no money bad been paid to Walling at the time the deed was delivered and the mortgage taken back, and that the $500 which actually was paid was so paid at a later day. With regard to this part of the relief I am of the opinion that the complainant's remedy is by application to the court in which the judgment was rendered, and, if relievable at all, against the consent, which is in the nature of a relicta, it may be relieved there. But it cannot be relieved any where if, in point of fact, the mortgage is an advance-money mortgage, within the meaning of the act before inentioned. The question whether this mortgage was in point of fact an advancemoney mortgage, and within the act, was elaborately discussed, and I am of the opinion that it was such a mortgage. That act, in substance, is as follows: It commences with a preamble: "Whereas, it is the practice of owners of lots or tracts of land to dispose of the same to a builder or builders, taking therefor a mortgage or mortgages in excess of the purchasemoney price of said lot or tract of land, the mortgagee agreeing to pay such excess to the aforesaid builders from time to time as the building or buildings progress, such mortgages being known as 'advancemoney mortgages,' therefore

Now, I stop here to notice an argument on the part of the complainant that the inortgage here in question does not comply entirely with the definition, in that here a part of the money was paid at the time, and only a part agreed to be paid in the future. But, in equity, it would seem that the distinction must vanish, because here the mortgage was given in pursuance of an agreement previously made, and must be considered in this court according to the substance of the thing, and not according to the mere legal status of the title. However that may be, the enacting part of the statute seems to set it all at rest, for it proceeds to declare "that in all such transactions the building or buildings so erected shall be liable for the payment of any debt contracted and owing to any person or persons for labor performed or materials furnished for the erection and construction thereof, which debt shall be a lien on such building or buildings and on the land whereon they stand, including the lot or curtilage whereon the same are erected, and * * *." Now, these words commencing with "the building" and ending with "and" may be considered as expletive and omitted. Then follows the gist of the act, viz.: "That the lien for labor

performed or materials furnished for the erection and construction of any such building or buildings shall be a prior lien to the lien of any mortgage created on such building or buildings and lot or tract of ground, to secure, either in whole or in part, any advances in money to be used in and about the construction of sucb building or buildings, (except only so much of the amount of said mortgage as shall be for the purchase money of the lot or tract of land whereon the said building or buildings shall be erected.)" Here it is plain that the act declares that the mortgage shall be within the provisions of the act, and the money secured by it, except the purchase money, deferred to the mechanic's lien, whether it is made to secure either in whole or in part advances. Clearly this mortgage was made to secure, in part at least, advances, and is therefore directly within the act. The complainant relied, however, upon the proviso, which is “that nothing in this act shall interfere with a mortgage or mortgages to secure bona fide loans of money not advances as aforesaid, such bona fide loans to be paid in full, anything in this act to the contrary notwithstanding." Now, if this mortgage had been made to secure merely the purchase price,-$250 and $500,-paid at the time it was given, it may be that it would not be properly classed as an advancemoney mortgage, but as a mortgage to secure a bona fide loan of money. But I do not understand that the proviso, admitting it to apply to so much of this mortgage as was money advanced at the date of the conveyance, has the force and effect of neutralizing that part of the act which declares that the mechanic's lien shall be superior to the mortgage given to secure either in whole or in part any advances in money," etc. But the complainant makes a further answer to the defendant's contention, and alleges and proves that the $500 in cash paid in this instance to Mr. Walling was by him in turn imme. diately paid over and distributed among the very persons here and now claiming liens, so that they had the benefit of it; and upon these facts it claims that it would be inequitable and unjust, in the view of a chancellor, to permit these lienholders, after having received this money in part payment of the amounts due them, to now claim priority over it. At first I thought this contention had solidity, but upon reflection I have come to the conclusion that it has none. The mechanic's lien law gives the lien. The act in question regulates the priority of these liens, and it does this arbitrarily. There can be no doubt about the power of the legislature to do so. The act describes these mortgages as mortgages given to secure money advanced for the very purpose of paying these mechanics' liens, and it makes no exception in favor of moneys advanced not only for the purpose of being used in and about the construction of the buildings, but actually so used. It does not seem to be aimed at mortgages which, though actually intended for the purpose of raising money to pay the contractors, have not been devoted to that use, and the moneys advanced on them applied to other uses,

BANDENDISTEL et ux. v. ZABRISKIE. (Court of Errors and Appeals of New Jersey. March 6, 1893.)

MORTGAGE FOR PURCHASE MONEY-Set-OffCOVENANTS.

are

1. On the foreclosure of a mortgage the mortgagor cannot offset moneys that claimed to be due for taxes existing as liens upon the property at the time the premises were conveyed to him by the mortgagor, his deed containing no covenant against incumbrances.

2. The presence, in the conveyance, of a covenant for further assurance, will not confer such a right.

(Syllabus by the Court.)

Appeal from court of chancery.

Bill by Lansing Zabriskie against Gustav Bandendistel and another to foreclose a purchase-price mortgage. Complainant had decree, (20 Atl. Rep. 163,) and defendants appeal. Affirmed.

The other facts fully appear in the following statement by BEASLEY, C. J.:

The deed of conveyance to which the opinion refers did not contain any covenant for seisin or against incumbrances, but did contain covenants in the usual form for quiet enjoyment and a general warranty of title. There was also a covenant for further assurance that was in these words: "And also that the said party of the first part, and his heirs, sball and will, at any time or times hereafter, upon the reasonable request, and at the proper costs and charges in the law, of the said party of the second part, his heirs and assigns, make, do, and execute, or cause to be made, done, and executed, all and every such further and other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted, or so intended to be, in and to the said party of the second part, his heirs and assigns, forever, as by the said party of the second part, his heirs and assigns, or their counsel learned in the law, shall be reasonably advised and required."

Frederic W. Stevens, for appellants. John W. Heck, for respondent.

BEASLEY, C. J., (after stating the facts.) The object of the bill in this case

self is in no wise disputed, the defense being that certain taxes and assessments imposed by the town of Harrison were liens upon the premises at the time of such purchase, and that, by force of the covenants in the deed of the respondent, it was the equitable right of the appellant to have the amount of such incumbrances deducted from the money secured by the mortgage. There were three covenants thus relied on, viz. a covenant for quiet enjoyment, another of general warranty of title, and the third for further assurance. The special master who sat in this case in the court of chancery decided that the deduction claimed for the taxes and assessments just indicated could not be permitted by force of either of the three covenants thus specified. With respect to the covenants for quiet enjoyment and of warranty, it was deemed that, inasmuch as they were not broken until an eviction had occurred, they were to be discriminated from a covenant against incumbrances, which, if it had been present on this occasion, would, according to a train of decisions that were cited, have established the right set up by the mortgagor. When a grantor has stipulated that there are no incumbrances upon the premises conveyed, such covenant, if infringed at all, is violated by the act of Conveyance, and it is the established practice of our courts to compel the mortgagee, who seeks to foreclose for the purchase money, to submit, in some form, to an ascertainment of the damage that must necessarily arise from the existing breach of his covenant, and to reduce to that extent the claim pressed by him. In this respect this court agrees to the decision of the master. Before leaving the subject, however, it may be proper to remark that no opinion is intended to be expressed touching the equitable rule that would have become applicable in case the town of Harrison had been a party to this proceeding, and hud insisted on the enforcement of its demand for the taxes and assessments in question. It may well be that in such a conjuncture, if the court of chancery had found such tax liens to be established, and would there. fore have been compelled in this foreclosure suit to have decreed that the amount so found should be paid out of the moneys raised by a sale of the mortgaged property, it would have been proper to allow the deduction now claimed to be made by force of the covenant of warranty of title, in favor of the taxes, with its inherent inasmuch as the very decree of the court right of sale, would have been tantamount to an eviction by implication. But this is not the case before us, as the town of Harrison is not a party to the procedure, and was not present in the court below, asking it to validate its heirs; the matter being referred to for the purpose of excluding an inference that it was within the scope of our present decision.

Touching the conclusion of the master that the appellant's claim for equitable re

lief cannot be rested on the covenant for further assurance, we have to say that it is the only result which, in the opinion of this court, can be legitimately drawn from the premises. It is true that in several of the text books the proposition is broadly propounded that by force of this species of covenant the covenantor may, by a bill in equity, be compelled to remove an incumbrance upon the premises; but none of such authors have attempted the least exposition of the doctrine or its justification on any legal theory, their sole reason for its assertion being an obiter dictum of Justice Heath in the case of King v. Jones, 3 Taunt. 418. It has not been shown to us, nor has it otherwise appeared, that there is any other basis for the principle thus loosely assumed. Most assuredly there is nothing in the language of the covenant that appears in the most distant degree to hint at such a purpose; that is, to remove an incumbrance. The agreement is that the grantor, at the request and cost of the grantee, shall "make, do, and execute" "such other lawful and reasonable acts, conveyances, and assurances in the law, for the better and more effectually vesting and confirming the premises hereby granted," etc. Such language does not seem to be in any respect obscure or uncertain. The grantor is to make "other" conveyances at the cost of the grantee. What has such a stipulation to do with the removal of an incumbrance? And the object of such conveyance is not left to conjecture, but is distinctly stated; it is "for more effectually vesting and confirming the premises hereby granted." It is conceived that the plain and only purpose of this kind of cove. nants is to this effect: that the grantor and his privies shall do all acts necessary to vest in the grantee such an estate as the deed shows it was the intention to vest; and this is what the covenant itself explicitly declares.

Applying this exposition to the present case, it is entirely plain that the appellant's supposed equity has no existence. He took a deed without any covenant against incumbrances, so that the very frame of the instrument repudiates the notion that the grantor agreed to remove them. In such a situation the understanding is that the grantor does not stipulate that the premises are free from liens, but that, to the contrary, if liens exist, and the grantee shall be evicted under them, the grantor will indemnify him for such damage. The consequence is that there is no covenant, express or implied, for the removal of incumbrances, and for a court of equity to decree a removal would be to order a specific performance of a pure interpolation. There can be no deduction from the purchase money by reason of the existence of a covenant for further assurance. The master rejected the equity claimed by the appellant on the further ground that such claim was incompatible with a certain written agreement touching these taxes that was coeval with the transaction embracing the conveying and the mortgaging of this property. The instrument containing this contract was not produced, but the master found that

its purport was to the effect that, if the defendant was affected by any action on the part of the town of Harrison under these claims, the grantor would protect him, upon being notified and having an opportunity to contest them, and that, if such contest proved unsuccessful, he would pay them without putting the grantee to an action on the covenant of warranty in the deed. It is not apparent how such a stipulation as this would be advantageous to the case of the respondent. In his deed his stipulation is that be will indemnify his grantee if the latter be evicted in con. sequence of these taxes. In this alleged collateral contract he is to contest such claims in limine, and to thus prevent an eviction. There is in this latter contract a nearer approach to an undertaking to remove, in substance, these incumbrances, than there is in the former one. It is, however, unnecessary to consider its effect, as in our opinion it is not sufficiently proved. The appellant denies its existence, and says he never saw such an instrument. It is an old transaction, and the memory of the respondent with respect to it is at fault in many particulars. Its effect would be to alter the operation in part of a deed of conveyance formally executed at the same time. We think that such a paper should not be received as a ground for judicial action, unless both its existence and its contents should have been proved to the point of demonstration. It is a matter of public concern that these muniments of the title to real property should not be subject to modification by the du bious and indistinct recollections of witnesses. Consequently the agreement in question is discarded by the court, and the decree is affirmed on the other grounds stated.

BOORUM v. TUCKER et al.

(Court of Chancery of New Jersey. March 29, 1893.) FORECLOSURE OF PURCHASE-PRICE MORTGAGE SPECIFIC PERFORMANCE OF SALE VENDOR'S LIEN-WAIVER OF.

1. Purchasers at a foreclosure sale who are not parties to the suit become parties by signing the bid, and are liable to be proceeded against by petition for the specific performance of their contract.

2. Purchasers at a judicial sale are not entitled to what is called a "merchantable title," but must be content with such a title as the proceedings show that they will get.

3. This court deals with the question of enforcing a contract of sale, made with one of its officers, upon equitable principles.

4. A mortgage given by a husband to secure unpaid purchase money due the vendor upon conveyance of the land mortgaged will have precedence over the inchoate dower of his wife, though executed and delivered some time after the execution and delivery of the conveyance, unless the vendor has in the mean time done some act which amounts to a waiver of his equitable lien for the purchase money,

5. When a mortgage upon lands owned by a married man is executed by him alone, and afterwards his wife joins him in a conveyance of the land to a third person, and the mortgage is foreclosed against such third person without making the wife of the mortgagor a party, the

purchaser under foreclosure will take the land free from the inchoate dower of the wife of the mortgagor.

(Syllabus by the Court.)

Petition by George C. Boorum against Edgar Tucker and another, praying that defendants, as purchasers at sheriff's sale under an execution on a decree foreclosing a mortgage, be compelled to complete their purchase. Decree for petitioner.

James Flemming and Mr. Chetwood, for complainant. A. C. Hartshorne and Chas. E. Hill, for respondents.

PITNEY, V. C. The complainant's bill was filed to foreclose a mortgage given by Morton Giles to the complainant, bearing date the 28th of September, 1887, to secure a bond conditioned to pay $800 on the 28th of September, 1892, with interest semiannually, with proviso that if the interest should be in arrear, etc., the whole principal should become due. The bill contains an allegation that the mortgage was given to secure a part of the consideration expressed in a deed made by the complainant, Boorum, to Giles, the mortgagor, without stating the date of said conveyance; and the mortgage itself contains this clause: "Being the same premises conveyed by the party hereto of the second part [viz. Giles] to the party hereto of the first part [the complainant] by deed of even date berewith, and this mortgage being given to secure part of the consideration or purchase money of said conveyance." The wife of Giles did not join in this mortgage. The bill further statesand it is an admitted fact for present purposes-that Giles and his wife subsequently conveyed the premises, by deed duly executed and acknowledged by the wife so as to bar her dower, to the defendant Tucker. Giles and his wife were not made parties defendant. The usual decree of foreclosure was taken, execution issued thereon to the sheriff of Monmouth county, and the sheriff, on the 26th of May, 1892, filed his report, showing that on the 23d of May he had sold the property at public vendue to A. C. H. and C. E. H. (the respondents herein) for the sum of $1,255; and upon that return the sale was duly confirmed, on the 3d of June, 1892. On the 7th of November the complainant filed his petition, setting out briefly the proceedings in the cause, the terms, in part, of the sale, showing that the purchasers above named had signed the conditions of sale, and that the sale had been reported and an order of confirmation made, and that the purchasers did not pay the balance of the purchase money at the time fixed by the conditious, nor take their deed; that they had been requested by the sheriff of Monmouth to do so, and had refused; and praying that they might be ordered and decreed to specifically perform their contract by paying the balance of the purchase money. An order to show cause was made upon that petition, and served upon the purchasers, who have separately answered the same, and the issue arising upon their answers was referred to and tried by me by evidence produced orally in open court.

The power of the court to proceed in this manner is well settled, and was not questioned. The purchasers, by signing the conditions of sale, made themselves parties to the suit, and subjected them. selves to the jurisdiction of the court, and may be proceeded against by petition. They set out in their answers, as a reason for being relieved from their contract to purchase, two defects in the title of the premises purchased: First. They say that the premises are subject to a restriction contained in the conveyance under which the complainant herein derived his title, and which still adhered in the premises. That restriction is contained in the conveyance from Gilbert Giles (not the mortgagor) and his wife to the complainant, dated the ➖➖➖ day of December, 1892, and is in these words: "And the said party of the second part, for himself, his heirs and assigns, hereby covenants with the said Gilbert Giles, his heirs and assigns, that neither the party of the second part, nor his heirs nor assigns, nor any of them, shall or will, at any time hereafter, erect or make, or suffer to be made or erected, upon the above-described premises, or any part thereof, any buildings other than those designed for the use and accommodation of private families, or do or suffer or omit to do anything upon said premises in any wise making the locality less desirable for first class private residences." Second. The respondents say the premises are subject to the inchoate right of dower of the wife of Morton Giles, the mortgagor; and in support of that they show the following facts: That the complainant, Boorum, conveyed the premises to Morton Giles by deed dated the 28th of September, 1887, and duly recorded on the 5th of November, 1887, and that Morton Giles gave back to the complainant a mortgage, other than the one upon which the foreclosure proceedings are based, dated the same 28th of September, 1887, upon the premises in question, to secure the payment of $800, part of the consideration money, which mortgage was also recorded on the 5th of November, 1887; and that that mortgage was canceled of record on the 23d of March, 1888; and that the mortgage upon which the foreclosure is based, although dated on the 28th of September, 1887, was not executed until the 15th of March, 1888, and was not recorded until the same 23d of March, 1888. The argument based on these facts is that, the original purchase-money mortgage having been surrendered and canceled of record, and another mortgage taken months after the delivery of the deed, this second mortgage, though expressed to be given for purchase money, and though actually given for purchase money, does not bar the wife's inchoate right of dower; and, further, that her joining with her husband in the conveyance of the equity of redemption to Tucker cannot be set up at any future time by the purchasers under these foreclosure proceedings as a bar to her dower, because the same was made to a stranger, and that the purchasers under these foreclosure proceedings will get no better title than was conveyed by the mortgage upon which the foreclosure pro