(dissenting). With deference to the views expressed in the majority opinion, I vote for affirmance substantially for the reasons set forth in the reported opinion of Judge Lane for the Chancery Division at 106 N. J. Super. 429 (Ch. Div. 1969). See also Patsourakos v. Kolioutos, 132 N. J. Eq. 87, 95 (Ch. 1942), aff’d o. b. 133 *362N. J. Eq. 37 (E. & A. 1943); Osborne, Mortgages, § 312, p. 905 (1951); 37 Am. Jur., Mortgages, § 530, at 32 (1941); cf. 1 Kocher & Trier, New Jersey Chancery Practice and Precedents, § 984, at 646 (1924).
Although the $12,500 mortgage was for the full purchase price, that transaction was nearly 4)^ years after the judgment of $1176.03 in favor of Capabianeo, against a former owner of the premises, was recorded. The proceedings to foreclose the prior mortgage of $10,600 were never pursued to a judicial sale. The mortgagee was never in possession nor were the legal and equitable estates ever united. In my view the trial court properly distinguished Sears, Roebuck & Co. v. Camp, 124 N. J. Eq. 403, 118 A. L. R. 762 (E. & A. 1938).
I fail to perceive any overriding equity in favor of defendants Bork or the American Title Insurance Company, the real party in interest, who chose to rely upon the false affidavit of Geoge Eink instead of the public records which would have revealed the Capabianeo judgment.
It is significant that Capabianeo filed an answer as a junior lienor in the foreclosure action, and he protested a dismissal thereof unless his judgment was satisfied. Had a foreclosure sale taken place, it is reasonable to assume, since the property was privately sold and financed for $12,500, that the bidding would have produced a surplus in excess of the $10,473.45 then due on the mortgage. Ordinarily a junior-lienor defendant in an action to foreclose a mortgage against multiencumbered premises should have the right to demand a foreclosure sale. See Tischler, “Strict Foreclosure in New Jersey,” 64 N. J. L. J. 141, 146 (1941).
In the instant circumstances, the “harsh remedy” of strict foreclosure should not be invoked against a diligent judgment creditor. I would therefore affirm.