Complainant is an obligor on the bond accompanying the mortgage on which defendant instituted foreclosure proceedings, and was made a party defendant to the foreclosure. A final decree was entered in the cause and execution issued to the sheriff who sold the premises for a nominal sum. The defendants in foreclosure objected to the confirmation of the sale and upon their application for a hearing on the question of fair value, the matter was referred to a master to report thereon. Subsequently the order referring the matter to the master was amended to include the question of the financial ability of the defendants in foreclosure to refinance the property in question. Shortly thereafter the complainant was permitted to withdraw his objection to the confirmation of the sale without prejudice to his rights and with permission to institute an independent bill of complaint to determine his rights. He then filed the bill herein in which he prays, among other things, that it be decreed that his obligation on the bond is that of a surety and not that of a principal. Held, on motion to strike the bill, that the procedure to establish the fact that complainant was a surety on the bond should have been by a petition presented in the original foreclosure proceedings and not through the medium of a bill filed in an independent suit. Fruzynski v. Jablonski, 117 N.J. Eq. 117, and Boardman v. Colonial Building-Loan Association, 118 N.J. Eq. 275, followed.
PER CURIAM.
We are in accord with the conclusion of the learned vice-chancellor that the bill of complaint should be dismissed. It suffices to say that appellant, even though a mere surety, is not at liberty to compel the mortgagee to take title to the property and give him credit for the fair value thereof.
The decree is accordingly affirmed.
For affirmance — PARKER, CASE, BODINE, DONGES, HEHER, PERSKIE, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, WALKER, JJ. 12.
For reversal — None.