
    Newton P. Kinsey, complainant-respondent, v. James L. Lee et al., defendants-appellants.
    [Argued May 29th, 1936.
    Decided October 2d, 1936.]
    
      Messrs. Lum, Tamblyn & Fairlie, for the complainant-respondent.
    
      Messrs. Ewart <& Bennett, for the defendants-appellants.
   Per Curiam.

This is an appeal from a final decree of the court of chancery, ordering the sale of certain mortgaged premises and other incidental relief.

The bill filed in the cause had as its purpose the foreclosure of a certain mortgage covering lands in the borough of Briele, Monmouth county. The First National Bank of Toms River, New Jersey, was made a party defendant because, it was alleged, the bank was the holder of a mortgage which was subsequent in lien to the mortgage sought to be foreclosed. The bank answered, claiming that its mortgage was prior in lien to complainant’s mortgage by virtue of a covenant in complainant’s mortgage providing that the lien of this mortgage would be subordinated to the lien of any mortgage that mortgagor might thereafter desire to place upon the premises, “and which said mortgage to be procured shall replace” another and admittedly prior mortgage then existing.

The learned vice-chancellor concluded that the mortgage held by defendant bank was not executed for the purpose of replacing the former mortgage, nor of raising funds to pay off the former mortgage and that therefore the mortgage held by the bank was subsequent in lien to the mortgage sought to be foreclosed and advised a decree accordingly.

A careful examination of the record and of the authorities cited by appellant upon the argument and in its brief, satisfies us that the conclusions arrived at in the court below are correct.

The decree appealed from is affirmed.

For affirmance — The Ohiee-Justice, Lloyd, Case, Bodine, Heher, Heteield, Dear, Wells, WolesKeil, Raeeerty, JJ. 10.

For reversal — None.  