FIDELITY UNION TRUST CO. v. MATTHEWS

1. Certain defendants, grantees of the property in question, who bought it subject to a mortgage which they assumed and agreed to pay, object to the confirmation of the foreclosure sale unless complainant will give credit for the value of the property. Complainant consents to such an order, but insists that it embody a reservation that the consent shall not operate as a credit in favor of the defendant-mortgagor on account of the sum adjudged to be due by the foreclosure decree. Held, equity will not deprive the impoverished assuming grantees of their equitable right to a credit for the fair value of the property because a possibly well-to-do mortgagor may incidentally benefit. The reservation of the right to recover the full amount of the bond from the mortgagor would nullify the requirement that credit for fair value be given. The order will be entered without the reservation requested by complainant.

2. A purchaser of land who assumes and agrees to pay the mortgage debt becomes, as between himself and the vendor, the principal debtor and the vendor becomes his surety. If complainant consents to give credit for the fair value of the property against the impoverished assuming grantees, who are his principal debtors, the rules of suretyship require a like credit to be given to the surety-mortgagor.

PER CURIAM.

The order appealed from will be affirmed, for the reasons stated in the opinion filed in the Court of Chancery by Vice-Chancellor Bigelow.

For affirmance — THE CHIEF-JUSTICE, BODINE, DONGES, HEHER, PERSKIE, PORTER, DEAR, WELLS, WOLFSKEIL, RAFFERTY, HAGUE, JJ. 11.

For reversal — PARKER, CASE, JJ. 2.