Lembeck & Betz Eagle Brewing Co. v. Kelly
New Jersey Court of Chancery
On final hearing on bill, answer and proofs. The complainant, the Lembeck and Betz Eagle Brewing Company, files its bill against the defendants to foreclose a mortgage given to it by Simon Kelly, deceased. The mortgage is dated September 1st, 1896, and was given to secure the sum of $10,000 on-the 1st day-of .March, 1897, with interest payable semi-annually.
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On final hearing on bill, answer and proofs. The complainant, the Lembeck and Betz Eagle Brewing Company, files its bill against the defendants to foreclose a mortgage given to it by Simon Kelly, deceased. The mortgage is dated September 1st, 1896, and was given to secure the sum of $10,000 on-the 1st day-of .March, 1897, with interest payable semi-annually. The instrument- was duly -acknowledged by Kelly in April, 1897, and recorded as a mortgage of real estate on March 1st, 1900, three'and' one-half years-after its date,'and nearly three years after its acknowledgment.' Kelly died May 31st,…
1Opinion of the Court
Pitney, Y. C.
The position taken by the defendants, that they represent the •creditors, and are entitled to set np any defence against the -mortgage that creditors who became snch before the 'recording •of the mortgage could set up, is well established. Currie v. Knight, 7 Stew. Eq. 485.
If the mortgage would be void against creditors of Kelly if .attacked by them in his lifetime, it mpst be held void as against his executors, to the extent, at least, that it will satisfy the ■creditors.
The point taken that the assignment of the lease by way of mortgage was a breach of the covenant which at…
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