Weatherby v. Sparks
Supreme Court of New Jersey
On case certified from Gloucester County Circuit Court. The plaintiff declared on an overdue money bond given by defendants’ testator. The defendants pleaded that with the bond a mortgage was given for the same debt and that there had been no sale of the mortgaged premises under foreclosure proceedings. The plaintiff replied that on his presentation to the defendants of a verified claim on the bond they had given him notice in writing that said claim was disputed.
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On case certified from Gloucester County Circuit Court. The plaintiff declared on an overdue money bond given by defendants’ testator. The defendants pleaded that with the bond a mortgage was given for the same debt and that there had been no sale of the mortgaged premises under foreclosure proceedings. The plaintiff replied that on his presentation to the defendants of a verified claim on the bond they had given him notice in writing that said claim was disputed. A motion to strike out such replication has been certified to this court for its advisory opinion.
1Opinion of the Court
The opinion of the court was delivered by
Collins, J.
The plea involved in this case rests on the following statute, in force when the plaintiff took his bond, viz.: “ In all cases where a bond and mortgage has or may hereafter be given for the same debt, all proceedings to collect said debt shall be first to foreclose the mortgage, and if, at the sale of the mortgaged premises under said foreclosure proceedings, the said premises should not sell for a sum sufficient to satisfy said debt, interest and costs, then and in such case it shall be lawful to proceed on the bond for the deficiency; and…
2Cases cited2 opinions
- Hellyer v. BaldwinSupreme Court of New Jersey · 1890
- Mershon v. CastreeSupreme Court of New Jersey · 1895
3Cited by5 opinions
- Callan v. BodineSupreme Court of New Jersey · 1911
- Philadelphia Saving Fund Society v. DisstonPennsylvania Court of Common Pleas · 1937
- Cranmer v. ColeAtlantic County Circuit Court, N.J. · 1933
- Hess v. BugbeeSupreme Court of New Jersey · 1935
- Abramson v. HeymanSupreme Court of New Jersey · 1934