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defendants merely.

This latter view is, in my opinion, clearly

incorrect, since it leads to the inevitable conclusion that there

right by an answer in the nature of a cross bill, and the decree will award the proceeds to both. Under the Iowa law, the proceeds are to be applied to the payment of the first note in full, and the surplus to the second note. Crow v. Vance, 4 Iowa, 434; Veach v. Schaup, 3 Iowa, 194; Bates v. Ruddick, 2 Iowa, 423. Subsequent incumbrancers who are not made parties are not concluded by the decree and sale. The last-named case contains an exhaustive discussion of the doctrine. Sands v. Wood, 1 Iowa, 263. A person executed a note and a mortgage to secure it. The payee indorsed the note, and assigned the mortgage to the plaintiff, who brings a foreclosure action against the mortgagor and the indorser (the mortgagee), and prays judgment against both for the amount of the note. Held improper. The action to foreclose should have been against the mortgagor alone. An action on the note might be brought against both the maker and the indorser; but the two actions cannot be joined. Murray v. Catlett, 4 Greene (Ia.), 108. A mortgagor who has conveyed his equity of redemption is not a necessary defendant. Williams v. Meeker, 29 Iowa, 292, 294. Same point as in the last case. The de fendant, who is owner of the premises, cannot object that the mortgagor has not been made a party defendant. Powell v. Ross, 4 Cal. 197. When a mortgage of husband's land is executed by him and his wife, she is not a necessary party defendant in a foreclosure suit. Her joining in the mortgage was not necessary unless the land was her separate property. This decision is based upon the local law of California, which is quite different from the common-law doctrines in relation to dower. Belloc v. Rogers, 9 Cal. 123. When a mortgagor has conveyed the land, and afterwards dies, his adminis

1 Sumner v. Coleman, 20 Ind. 486; Semple v. Lee, 13 Iowa, 304. In the last case, the mortgagor and the owner to whom the land had been conveyed were both joined, and the court said the owner was a proper party, and the mortgagor

trator is a necessary party if the plaintiff seeks to recover a judgment for a deficiency; but if the plaintiff elects to rely upon the proceeds of the mortgaged premises, and asks no such judgment, the administrator is not a necessary defendant; citing and approving Bigelow v. Bush, 6 Paige, 345; Harwood v. Marye, 8 Cal. 580. When a mortgagor dies owning the land, his administrator or executor is a necessary defendant in California; the heir is not a sufficient party. In California the land goes to the administrator or executor as well as the personal property, and the title thereto remains in him until the estate is settled. Hayward v. Stearns, 39 Cal. 58, 60. Subsequent incumbrancers are not necessary parties, although their rights are unaffected by the decree unless they are joined. Davenport v. Turpin, 43 Cal. 597, 601. The title of a person to whom the mortgagor had conveyed the land is not affected by the decree in an action in which he was not made a party defendant; citing Carpentier r. Williamson, 25 Cal. 161; Schadt v. Heppe, 45 Cal. 433, 437. A mortgage was given by husband and wife on land which was common property. The husband died, and, under the peculiar law of California, these mortgaged premises were set off for the use of the widow and infant child. An action was afterwards brought to foreclose the mortgage, and it was held that the adminis trator was, under the circumstances, neither a necessary nor even proper party defendant. The premises when thus set off ceased at once to be assets of the estate, and passed beyond all control of the administrator or of the Probate Court. The present right to the possession of the land at once passed to the widow and child, and they thenceforth held it subject to the mortgage, but free from all other

was not a necessary one. The absurd result was thus reached that there was no necessary defendant; for if these persons were only proper ones, they might be omitted, and the suit go on without any defendant.

may be an action without any necessary defendant. If, however, the mortgagor has conveyed away only a portion of the premises and remains owner of the residue, the grantee of the part so conveyed is not a necessary defendant. The suit against the mortgagor alone is not a nullity; there is a title in him for the decree of sale to act upon; but the rights of the grantee would be unaffected. It follows as an evident corollary from the proposition just stated, that the mortgagor who has conveyed away the whole

claims against the estate. For the purpose of a mere foreclosure, therefore, the administrator was no longer a necessary or proper party to the action. Ordinarily, it will be remembered, the administrator is an indispensable party, since the title to the lands, as well as to the chattels, vests in him, and not in the heir, until the estate is settled and distribution made. Morris e. Wheeler, 45 N. Y. 708. In an action to foreclose a mortgage against the owner, who was a subsequent grantee, he set up in his answer that a certain named person was a judgment creditor of a former owner of the mortgaged premises, that his judgment was a lien thereon, and that he had not Leen made a party. The court held that such judgment creditor was a necessary party, and that a decree of foreclosure ought not to be rendered in favor of the plaintiff because he had not been made a defendant (!) This is certainly a most extraordinary decision; it is in direct conflict with other decisions made by the same court, and is an utter confounding of all distinctions between necessary and proper parties. The decision is so clearly erroneous that it can only be regarded as an inadvertence. Kay v. Whittaker, 44 N. Y. 565. In a foreclosure suit against the mortgagor and a subsequent grantee and owner, the latter set up in his answer, among other defences, that his wife, who has an inchoate dower right in the premises, is not a party, and that she is a necessary defendant. The answer was struck out as frivolous. The court, per Hunt J., said (p. 572): "To sustain a foreclosure suit the mortgagor is a necessary party, and generally the only necessary one. Others may be joined if it is desired to

1 Douglass v. Bishop, 27 Iowa, 214, 216. There is certainly a plain distinction between this case and the one where

cut off their interests, as a wife, a subsequent purchaser, or subsequent mortgagee. They are not indispensable parties. The action is good without them; and the only effect of their absence is that their interests are not af fected by the proceeding. Such was the condition of Mrs. W. [the wife in question], even if her husband was a subsequent purchaser or owner." This decision is entirely inconsistent with the case last before cited. While the opinion of Mr. Justice Hunt, as to subsequent incumbrancers, is entirely correct, he has fallen into an obvious error when he declares that the mortgagor is always a necessary party. Brundage v. Domestic and For. Miss. Soc., 60 Barb. 204. In a foreclosure action, a person who claims in opposition to the title of the mortgagor cannot be made a defendant so as to litigate his title and settle it. Leggett v. Mutual Life Ins. Co., 64 Barb. 23, 36. A mortgagor died. By his will, after certain legacies, he left the rest and residue, including the mortgaged premises, to trustees in trust for his children for life, remainder in fee to his grandchildren. In a suit to foreclose the mortgage, the trustees were made defendants, but the grandchildren were not. Held, that the grandchildren were necessary parties in order to cut off their right of redemption; the trustees did not, and could not represent them. Daly . Burchell, 13 Abb. Pr. N. s. 264, 268. After the mortgagor has conveyed away the land, he is not a necessary defendant; and if he dies, his heirs are not; citing Paton v. Murray, 6 Paige, 474; Van Nest v. Latson, 19 Barb. 604.

the entire premises are conveyed by the mortgagor.

of the mortgaged premises is no longer a necessary party defendant in a foreclosure action, that is, he is not indispensable to the rendition of a simple judgment of sale, if no decree for a deficiency is asked. He is however an eminently proper party; and if the plaintiff wishes a personal judgment for any deficiency which may arise upon the sale, he, or his personal representative if he is dead, is a necessary party, and may defend the action, and defeat the same by any competent defence which he may establish. The decisions do not make any distinction between the case in which the mortgagor has simply conveyed the land incumbered by the mortgage, and that in which the grantee has assumed to pay the mortgage debt, and in fact there is and can be no such distinction. Whatever arrangement the mortgagor may make with his grantee, he cannot by his own act free himself from his liability to the holder of the mortgage; he will therefore remain liable, either as principal debtor or as surety for the grantee who has assumed the payment, and will continue subject to a judg ment for a deficiency.3

§ 337. The same principle is of universal application, and embraces all successive grantees of the premises who have made themselves personally liable for the mortgage debt. Thus, if the mortgagor conveys the premises to A., who takes them simply burdened by the lien, but does not assume and agree to pay the debt, and A. afterwards conveys in the same manner to B., who again conveys to C. who is the owner when the foreclosure is commenced, A. and B. are plainly neither necessary nor proper parties; they have retained no interest in the land, and were never personally responsible for the debt. If, on the other hand, in this series of conveyances, A., B., and C. had each in turn assumed and agreed to pay the mortgage debt, C. would be the necessary defendant in any action to foreclose, because he is the owner of the land. The mortgagor, A. and B. would be proper defendants, because they are personally liable for the debt. The mortgagor's liability was created by the original instrument, bond, note, or otherwise, and he did not become freed therefrom

1 Drury v. Clark, 16 How. Pr. 424; Delaplaine v. Lewis, 19 Wisc. 476, and cases cited; Stevens v. Campbell, 21 Ind. 471; Burkham v. Beaver, 17 Ind. 367; Huston v. Stringham, 21 Iowa, 36; Johnson v. Monell, 13 Iowa, 300; Semple v.

Lee, 13 Iowa, 304; Murray v. Catlett,
4 Greene (Ia.), 108; Belloc v. Rogers,
9 Cal. 123; Williams v. Meeker, 29 Iowa,
292, 294; Story, Eq. Pl. § 197.

2 See cases cited in last note.
8 See same cases last cited.

because others also assumed it. A.'s and B.'s liability was created by their voluntary assumption, and having been once incurred, it could not be thrown off without the consent of the creditor. If the plaintiff therefore demands a judgment for deficiency, and desires to make his security as complete as possible, he may join the mortgagor and A. and B. as codefendants in the suit to foreclose. If the mortgagor has conveyed his entire interest and afterwards dies, his administrator or executor must be joined as a defendant if a judgment for deficiency is prayed, and may be admitted to contest the validity of the mortgage and of the debt it is given to secure. It is even said by some courts that the personal representative of the deceased mortgagor is a necessary party defendant with the heirs and widow. When the mortgagor dies intestate owning the land, or when any subsequent owner thus dies, his heirs are indispensable parties; and if the objection to their nonjoinder has not been taken, the court will of its own motion order them to be brought in as defendants. No effectual decree of sale can be made without them.4

§ 338. In California, the personal representative of a deceased person succeeds at once to all lands as well as personal property; the title vests in him for purposes of administration; and if an owner of mortgaged land dies, his executor or administrator is therefore an indispensable party defendant. A mortgagor having conveyed the land to assignees in trust for the benefit of creditors, judgment creditors whose judgments were recovered subsequent to such assignment, and which were therefore not direct liens on the land, were held to be proper parties defendant in an action brought to foreclose the mortgage against the mortgagor and the trustees. These trustees having suffered a default, the judgment creditors were permitted to intervene and to contest the

1 See same cases last cited.

S$ 196, 200; Duncombe ». Hansley, 3 P.

2 Huston v. Stringham, 21 Iowa, 36; Wms. 333 (n.); Fell v. Brown, 2 Bro. C. C. Darlington v. Effey, 13 Iowa, 177. 276; Bradshaw v. Outram, 13 Ves. 234.

3 Miles v. Smith, 22 Mo. 502. If the plaintiff seeks a personal judgment for a deficiency, the personal representative of a deceased mortgagor is of course a necessary defendant; but if the plaintiff demands no such judgment, and is. contented with the security of the lan'l alone, it seems, the personal representative is not a necessary party. Story's Eq. Pl.

4 Muir v. Gibson, 8 Ind. 187; Story's Eq. Pl., § 196. In North Carolina, when the mortgagee dies, his heirs are, in general, necessary parties plaintiffs or defendants; but there are exceptions, as where the mortgagee had assigned, and died insolvent, leaving non-resident heirs. Etheridge v. Vernoy, 71 N. C. 184, 186, 187. 5 Harwood v. Marye, 8 Cal. 580.

validity of the mortgage and of the debt which it secured by setting up usury. The general proposition was announced by the court, that the cestuis que trustent are proper defendants as well as the trustees. When a mortgage was given to secure a note payable to the order of the mortgagee, and the latter indorsed and transferred the note and assigned the mortgage, the assignee cannot maintain an action against the mortgagor and maker of the note, and the indorser of the note (the mortgagee), to foreclose the mortgage and to obtain judgment against both for either the whole amount of the note or for the deficiency. A legal action may be brought against both on the note, but a foreclosure must be against the mortgagor alone.2 This last rule is exactly otherwise in Minnesota by virtue of an express statute. If the mortgage debt is secured by the obligation of any person other than the mortgagor, he may be joined as a defendant in the foreclosure suit, and a judgment for deficiency may be rendered against him alone, or jointly with the mortgagor, as the case may be.3

§ 339. The special provisions in the codes of some States requiring the assignor of a thing in action to be made a defendant under certain circumstances in a suit by the assignee, affects the general doctrine as to parties in foreclosure actions in those States. These provisions, it will be remembered, require the assignor to be made a party "when the thing in action is not assignable by indorsement," or when it is not a negotiable instrument, or when the assignment is not expressly authorized by statute so as to transfer the legal title to the assignee. It has been held in States where these provisions are in force, that if a mortgage is given to secure a negotiable note, and this note is transferred in the usual manner by indorsement, although there is no written assignment of the mortgage, the assignor need not be made a defendant. The transfer of the note by indorsement carries with it the title to the mortgage, and the assignee thus becomes legal owner of both by a form and mode of transfer which permits the action to be brought without the assignor as a party defendant. On the other hand, if the mortgage alone is

1 Union Bank v. Bell, 14 Ohio St. 200. gagees who have assigned their entire 2 Sands v. Wood, 1 Iowa, 263. interest are not necessary parties. Pullen v. Heron Min. Co., 71 N. C. 567.

3 Nichols v. Randall, 5 Minn. 304, 308. 4 Gower v. Howe, 20 Ind. 396. Mort

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