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 ?3
 
 PARTIES 
 
 MORTGAGE FORECLOSURES 
 
 Their Rights and Liabihties 
 
 IN CONNECTION WITH ACTIONS AND PROCEEDINGS FOR 
 THE FORECLOSURE OF MORTGAGES. 
 
 By CHARLES H. WILTSIE 
 
 Of tb.e Koch.ester Bar. 
 
 ROCHESTER, N. Y. 
 Williamson & Higbie, Law Publishers. 
 
 1885.
 
 
 Entered according to act of Congress, in the year one thousand eight hundred and 
 
 eighty-flve. 
 
 By CHARLES HASTINGS WILTSIE, 
 
 In the oflSce of the Librarian of Congress. 
 
 T
 
 \6 
 
 HONORABLE FRANCIS A. MACOMBER, 
 
 ONE OF THE JUSTICES OF THE SUPREME COURT OF THE STATE OF 
 NEW YOR&, 
 
 this book is respectfully inscribed 
 By the author.
 
 PREFACE. 
 
 This book has been written for the use of practicing 
 attorneys wlio have to foreclose mortgages. It treats 
 directly and specially of parties to foreclosures, and 
 indirectly of their rights and liabilities in connection 
 therewith. The design of the author has been not to 
 examine the whole subject of the law of mortgages, but 
 to treat exhaustively and analj^tically a single branch 
 of that law. A personal exanaination has been made 
 of every case cited with a view to making the book 
 accurate as well as exhaustive, and as far as possible 
 original. Digests and general text-books have been 
 used very little ; the work has been written up from 
 the decisions of the courts as contained in the state 
 reports, to which access has been had in the Court of 
 Appeals library, at Rochester, N. Y. The indexes in 
 over 1,500 volumes of reports have been separately 
 examined; consequently much new matter has been 
 obtained that can be found in no other treatise on 
 mortgages. 
 
 In the foot notes the limitations and modifications 
 of general principles and the special and peculiar 
 instances are given fully. The practicing attorney is 
 famihar with general principles ; he wants the peculiar 
 mid special ca?es.
 
 VI PREFACE. 
 
 The date of every case is placed after its citation at 
 the suggestion of the publishers, a feature that it is 
 hoped will add greatly to the usefulness of the book. 
 It is believed that parties having a general treatise on 
 the law of mortgages will find this book a valuable 
 adjunct to the practical work of conducting foreclosures. 
 
 Rochester, N. Y., 
 
 September Isty 1885.
 
 TABLE OF CONTENTS. 
 
 INTRODUCTION. 
 
 § 1. Generally. 
 
 2. Methods of foreclosure. 
 
 3. Parties generally in equitable foreclosures. 
 
 4. Application by American courts. 
 
 5. Result of foreclosure upon the parties. 
 
 PART I. 
 
 PARTIES PLAINTIFF. 
 
 § 6. Introductory. 
 
 7. Sole mortgagee, owning the mortgage, may foreclose. 
 
 8. Assignee, sole owner of mortgage, may foreclose. 
 
 9. Joint mortgagees ; any one or more may foreclose. 
 
 10. Partners ; any one or more may foreclose. 
 
 11. Joint mortgagees, one dying ; doctrine of survivorship. 
 
 12. Mortgagees, owners in severalty; any one or more may 
 
 foreclose. 
 
 13. Owner of one of several notes secured by a mortgage may 
 
 foreclose. 
 
 14. Owner of mortgage, having pledged the same as collateral 
 
 security, may foreclose. 
 
 15. Assignee of mortgage as collateral security may foreclose. 
 
 16. Owner of an equitable interest of any kind in the mort- 
 
 gage, a real party in interest, may generally foreclose. 
 
 17. A surety for the mortgage debt may sometimes foreclose. 
 
 18. Assignee of a mortgage without the bond cannot foreclose.
 
 VIU TABLE OF CONTENTS. 
 
 § 19. Assignee of the note, bond or debt, may foreclose, though 
 the mortgage is not assigned. 
 
 20. Mortgagees owning contemporaneous mortgages, being 
 
 equal liens, any one or more may foreclose. 
 
 21. Owner of two mortgages cannot foreclose both at the same 
 
 time in separate actions. 
 
 22. Assignee in bankruptcy or by general assignment, or re- 
 
 ceiver of a corporation, may foreclose. 
 
 23. Assignee pendente lite may continue the foreclosure. 
 
 24. Owner of mortgage dying, personal representatives may 
 
 foreclose. 
 
 25. Owner of mortgage dying, heirs, devisees and legatees 
 
 generally cannot foreclose. 
 
 26. Mortgage executed to an executor or administrator, the 
 
 executor or administrator or his successor in office may 
 foreclose. 
 
 27. Foreign executors and administrators, when they may 
 
 foreclose. 
 
 28. Trustees may foreclose. 
 
 29. Beneficiaries, cestuis que trust, may sometimes foreclose. 
 
 30. Mortgages to persons in official capacity, they or their suc- 
 
 cessors may foreclose. 
 
 31. A maiTied woman 6wning a mortgage may foreclose. 
 
 PART II. 
 
 PAETIES DEFENDANT NECESSARY TO PERFECT THE TITLE. 
 
 CHAPTER I. 
 
 OWNERS OF THE FEE TITLE. 
 
 § 32. Introductory. 
 83. General principles. 
 
 34. Mortgagor still owning the equity of redemption nec- 
 
 essary. 
 
 35. Mortgagor no longer owning the equity of redemption 
 
 not necessary.
 
 TABLE OF CONTENTS. IX 
 
 36. Mortgagor still holding only a divided or undivided part 
 
 of the premiHes, or V)oing a tenant in common by descent 
 or gi-ant, a necessary party. 
 
 37. Mortgagor still holding any kind of an equitable, con- 
 
 tingent or latent interest, generally necessary. 
 
 38. The purchaser and owner of the equity of redemption by 
 
 grant or otherwise from the mortgagor necessary. 
 
 39. Intermediate purchasers and owners of the equity of re- 
 
 demption, who are no longer owners, generally not 
 necessary. 
 
 40. Purchaser pendente Hie not necessary. 
 
 41. Common-law doctrine of lia pendens. 
 
 42. New York statutory provisions for Us pendens ; other states. 
 
 43. Mortgagor a married woman, having a separate estate, 
 
 necessary. 
 
 44. Wife of mortgagor or owner of the equity of redemption 
 
 necessary. 
 
 45. Wife of mortgagor ; service of summons or process. 
 
 46. Wife of mortgagor or owner of the equity of redemption 
 
 not necessary in those states where the common-law 
 doctrine of dower is changed. 
 
 47. The husband of a mortgagor who is a married woman, 
 
 having a separate estate, generally not necessary. 
 
 48. Heirs of mortgagor or owner of the equity of redemption 
 
 necessary. 
 
 49. Devisees of mortgaged premises necessary. 
 
 50. Legatees and annuitants necessary. 
 
 51. Executors and administrators generally not necessary. 
 
 52. Trustees holding any interest of whatever kind in mort- 
 
 gaged premises for beneficiaries necessary. 
 
 53. Cestuis que trust and beneficiaries necessary. 
 
 54. Remaindermen and reversioners necessary. 
 
 55. Assignee in bankruptcy or by voluntary general assign- 
 
 ment, and receiver of a corporation, necessary. 
 
 56. Infants, lunatics, idiots and habitual drunkards necessary 
 
 parties. 
 
 57. Mortgage executed by administrator or executor' to pay 
 
 decedent's debts, heirs and devisees of the decedent 
 necessary.
 
 TABLE OF CONTENTS. 
 
 58. Corporations necessary parties by corporate name. 
 
 59. Tenants and occupants necessary. 
 
 CHAPTER 11. 
 
 SUBSEQUENT MORTGAGEES AND LIENORS. 
 
 60. Introductory. 
 
 61. Subsequent mortgagees, still owning their mortgages, 
 
 necessary parties. 
 
 62. Subsequent judgment creditors, still owning judgments, 
 
 necessary. 
 
 63. Mechanic's lien, owner of, necessary. 
 
 64. Subsequent mortgagee, judgment creditor or other lienor, 
 
 an assignor no longer holding the incumbrance, and 
 intermediate assignors, not necessary. 
 
 65. Subsequent mortgagees or other lienors, still holding any 
 
 kind of an equitable or contingent interest in the lien, 
 or being part or joint owners, generally necessary. 
 
 66. Assignee of subsequent mortgage, judgment or other lien, 
 
 necessary. 
 
 67. Assignee of subsequent mortgage or lien pendente lite not 
 
 necessary. 
 
 68. Incumbrancer pendente lite not necessary. 
 
 69. Subsequent mortgagee or lienor a married woman, does 
 
 not alter the rule ; necessary. 
 
 70. Heirs, devisees, legatees and annuitants of deceased sub- 
 
 sequent mortgagee or lienor generally not necessary. 
 
 71. Executors and administrators of a deceased subsequent 
 
 mortgagee or lienor necessary. 
 
 72. Assignee in bankruptcy and voluntary general assignee 
 
 of subsequent mortgagee or lienor necessary. 
 
 73. General guardian of infant and committee of lunatic, idiot 
 
 or habitual drunkard, trustees and beneficiaries holding 
 subsequent mortgage or lien, necessary. 
 
 74. Purchasers at tax sales, boards of supervisors, state comp- 
 
 trollers and municipal corporations parties.
 
 TABLE OF CONTENTS. XI 
 
 CHAPTER III. 
 
 PARTIES HOLDING PART OR EQUITABLE INTERESTS IN THE MORTGAGE 
 UNDER FORECLOSURE, OR LIENS CONTEMPORARY THEREWITH, 
 NOT JOINING AS PLAINTIFFS, NECESSARY DEFENDANTS. 
 
 § 75. Introductory. 
 
 76. Assignor having made an absolute assignment of the 
 
 mortgage, or no longer holding an interest in it, not 
 necessary. 
 
 77. Assignee of a mortgage absolutely assigned, never a nec- 
 
 essary defendant. 
 
 78. Assignor of a mortgage assigned conditionally or as col- 
 
 lateral security, a necessary party. 
 
 79. Assignee of a mortgage assigned as collateral security, a 
 
 necessary defendant, when the foreclosure is commenced 
 by the assignor or mortgagee. 
 
 80. Joint or several mortgagees ; action commenced by one, 
 
 the others necessary defendants. 
 
 81. Contemporary and equal mortgagees ; foreclosure com- 
 
 menced by one, others necessary defendants. 
 
 82. Ownership of mortgage doubtful, or in dispute; action 
 
 commenced by one claimant, other claimants advisable 
 defendants. 
 
 83. Trustees and beneficiaries sometimes necessary defend- 
 
 ants. 
 
 PART III. 
 
 PARTIES PERSONALLY LIABLE FOR THE MORTGAGE DEBT. 
 GENERAL PRINCIPLES POINTS IN PRACTICE. 
 
 § 84. Introductory. 
 
 85. General principles — at common-law. 
 
 86. Theory of the English and common-law practice. 
 
 87. General principles — statutory provisions modifying com- 
 
 mon-law rule.
 
 Xii TABLE OF CONTENTS. 
 
 § 88. Points in practice — the complaint. 
 
 89. Points in practice — the decree of foreclosure. 
 
 90. Points in practice — the judgment for deficiency. 
 
 CHAPTER I. 
 
 PARTIES ORIGINALLY LIABLE. 
 
 j 91. Introductory. 
 
 92. Mortgagor signing the bond or note, or covenanting in 
 
 the mortgage payment of the debt, liable. 
 
 93. All persons signing the bond or note which the mortgage 
 
 accompanies, liable. 
 
 94. All persons guaranteeing the bond and mortgage at its 
 
 inception, liable. 
 
 95. A married woman signing the bond or other obligation, 
 
 liable — general principles. 
 
 96. A married woman signing the bond or other obligation, 
 
 liable — act of 1884 in New York. 
 
 97. A married woman signing the bond or other obligation, 
 
 liable — rule in New York prior to 1884, and jn most 
 states at present. 
 
 98. Persons originally liable, deceased, their estates liable ; 
 
 personal representatives proper parties. 
 
 99. Persons originally liable, deceased, their heirs and devisees 
 
 not proper parties. 
 100. A person originally liable making an assignment in bank- 
 ruptcy or voluntarily, assignee proper. 
 
 CHAPTER 11. 
 
 PARTIES SUBSEQUENTLY LIABLE. 
 
 5 101. Introductory. 
 
 102. Purchaser of a mortgagor, conveyance made subject to 
 
 the mortgage, not liable. 
 
 103. Purchaser of a mortgagor, assuming payment of the 
 
 mortgage, liable — general principles.
 
 TABLE OF CONTENTS. XIU 
 
 § 104. Theories of law upon which a mortgagee is allowed 
 the benefit of the contract of assumption. 
 
 105. Purchaser not personally liable when his grantor is 
 
 not personally liable, though he assumes payment 
 of the mortgage. 
 
 106. The assumption of a mortgage by a subsequent mort- 
 
 gagee does not make him personally liable to the 
 prior mortgagee. 
 
 107. Can a grantor release his purchaser, assuming a mort- 
 
 gage, from his liability to the mortgagee ? 
 
 108. Intermediate purchasers, having assumed payment of 
 
 the mortgage, liable. 
 
 109. Assignor of a mortgage, guaranteeing payment or col- 
 
 lection, liable. 
 
 110. Intermediate assignors of a mortgage, guaranteeing 
 
 payment, liable. 
 
 111. Assignor of a mortgage, covenanting as to title and 
 
 against defenses, liable. 
 
 112. All persons guaranteeing payment or collection of a 
 
 bond and mortgage by a separate instrument, liable. 
 
 113. Married women obligating themselves in any of the 
 
 preceding ways, generally liable. 
 
 114. Persons subsequently liable in any of the preceding 
 
 ways, deceased, their estates liable — personal rep- 
 resentatives proper parties ; heirs and devisees not 
 proper parties. 
 
 PART IV. 
 
 PRIOR MORTGAGEES AND ADVERSE CLAIMANTS AS PARTIES 
 
 DEFENDANT. 
 
 § 115. Introductory. 
 
 116. When prior mortgagees and lienors cannot be made 
 
 defendants. 
 
 117. When they can properly be made defendants.
 
 XIV TABLE OF CONTENTS. 
 
 § 118. Parties having a title paramoutit to the mortgage neither 
 proper nor necessary defendants. 
 
 119. Adverse claimants neither necessary nor proper parties. 
 
 120. Subsequent mortgagees or incumbrancers claiming priority 
 
 of lien, proper defendants for litigating that issue.
 
 TABLE OF CASES. 
 
 PAGE. 
 
 Abbott V. Godfrey's Heirs 1 Mich. 178 HO 
 
 Ackerson v. Lodi Branch R. R 28 N. J. Eq. 542 31, 176 
 
 Adams v. Bradley 12 Mich. 346 85, 86, 184 
 
 Adams V. Green 34 Barb. (N. Y.) 176 53 
 
 Adams v. McPartlin 11 Abb. N. C. (N. Y.) 369. . . 256, 258 
 
 Adams v. Parker 12 Gray (Mass.), 53 14 
 
 Adams v. Paynter 1 Coll. (Eng.) 530 61, 140 
 
 Addison v. Crow 5 Dana (Ky.), 279 93 
 
 iEtna Life Ins. Co. v. Finch 84 Ind. 301 22 
 
 Agricultural Ins. Co. v. Barnard 96 N. Y. 525 130 
 
 Ala. Life Ins. & Trust Co. v. Pettway, 24 Ala, 544 64 
 
 Albany City S. Inst. v. Burdick 87 N. Y. 40 234 
 
 Albany Fire Ins. Co. v. Bay 4 N. Y. 9 ; aflPg 4 Barb. 407. , . 99, 124 
 
 Albright v. Cobb 30 Mich. 355 51 
 
 Aldrich v. Lapham 6 How. (N. Y.) 129 131 
 
 Aldrich v. Stephens 49 Cal. 676 90, 97 
 
 Alexander V. Frary 9 Ind. 481 112, 219 
 
 Alexander v. Greenwood 24 Cal. 505 145 
 
 Allen V. Allen 34 N. J. Eq. 493. ..193, 204, 230, 238 
 
 Allen V. Brown 44 N. Y. 228 12 
 
 Allen V. Case 13 Wis. 621 147 
 
 Allen v..Knight 5 Hare (Eng.), 280 61 
 
 Am. But'nholeCo.v.Burl'gtonM.L.A. 61 Iowa, 464 142, 148 
 
 Ames V. Foster 3 Allen (Mass.), 541 214 
 
 Amphlett V. Hibbard 29 Mich. 298 104 
 
 Anderson v. Austin 84 Barb. (N. Y.) 319 118 
 
 Anderson v. Baumgartner 27 Mo. Rep. 80 15 
 
 Anderson V. Stather L.J. (Eq.) 16 vol. N. S. (Eng.) 152, 122 
 
 Andrews v. Fiske 101 Mass. 422 14 
 
 Andrews v. Gillespie 47 N. Y. 487 12, 15, 152, 155, 172 
 
 174, 175 
 
 Andrews v. McDaniel 68 N. C. 385 14, 37 
 
 Andrewsv. Stelle 22 N. J. Eq. 478 76 
 
 Andrews v. Swanton 81 Ind. 474 109 
 
 Andrews v. Wolcott 16 Barb. (N. Y.) 21 227 
 
 Anon V. Anon 10 Paige (N. Y.), 20 94 
 
 Anson v. Anson 20 Iowa, 55 140, 149 
 
 Anthony v. Peay 18 Ark. 24 54
 
 XVI ^ TABLE OF CASES. 
 
 PAGE. 
 
 Anthony V. Wood 19 Week. Dig. (N. Y.) 177 179 
 
 Archer v. Jones 4 Cush. (26 Miss.) 583 24, 181 
 
 Argald V. Pitts 78 N. Y. 239 201 
 
 Armory v. Fairbanks 3 Mass. 562 189 
 
 Amistrongv. Ross 20 N. J. Eq. 109 99 
 
 Arnaud V. Grigg 29 N. J. Eq. 482 238, 240 
 
 Arnot V. Post 6 Hill (N. Y.), 65.. .139, 145, 149, 151 
 
 Ashhurst v. Montour Iron Co 35 Penn. St. 30 64 
 
 Astor V. Turner 11 Paige (N. Y.), 436 135 
 
 Atchison v. Surguine 1 Yerg. (Tenn.) 400 52, 54 
 
 Atkinson V. Stewart 46 Mo. Rep. 510 101 
 
 Att'y-Gen'l v. Guardian M. L. I. C. . . 77 N. Y. 272 49 
 
 Atwaterv. UnderhiU 22 N. J. Eq. 599 17 
 
 Atwater V. West 28 N. J. Eq. 361 142 
 
 Augustine v. Doud 1 111. App. 588 156 
 
 Aurora Ag. & H. Society v. Paddock, 80 111. 263 133 
 
 Aiistin V. Burbank 2 Day (Conn.), 474 44 
 
 Averett v. Ward 1 Busbee's Eq. (N. C. ) 192. . , 111, 117 
 
 Averill v. Taylor 8 N. Y. 44 38, 40 
 
 Averill V. Taylor 5 How. (N. Y.) 476 61 
 
 Avery v. Ryerson 34 Mich. 362 141, 166 
 
 Avery V. Vansickle 35 Ohio St. 270 189 
 
 Ayers v. Adams 82 Ind. 109 36 
 
 Aylet V. Hill 2 Dick. (Eng.) 551 188 
 
 Ayres v. Adair County 61 Iowa, 728 168 
 
 Babbitt V. Bowen 32 Vt. 437 54 
 
 Babcock v. Jordan 24 Ind. 14 240 
 
 Bache v. Doscher 41 Supr. Ct. (N. Y.) 150 ; aflF'd 67 
 
 N. Y. 429 200, 228, 254, 257 
 
 Bache V. Pm-cell 6 Hun (N. Y.), 518 142 
 
 Bachelor V. Middleton 6 Hare (Eng.), 75 116 
 
 Bailey V. Gould Walker Ch. (Mich.) 478 43 
 
 Bailey v. Myrick 36 Me. 50 76, 86 
 
 Baird v. McConkey 20 Wis. 297 192 
 
 Baker V. Hawkins 29 Wis. 576 91 
 
 Baker v. Piei-son 6 Mich. 522 141 
 
 Baker v. Scott 62 111. 86 103 
 
 Baker v. Shejihard 30 Ga. 706 17, 19 
 
 Baker v. Terrell 8 Minn. 195 38 
 
 Baldwin v. Allison 4 Minn. 25 51 
 
 Baldwin v. Thompson 15 Iowa, 504 163 
 
 Ballard v. Anderson 18 Tex. 377 148 
 
 Ballin V. Dillaye 37 N. Y. 35 212,214, 253 
 
 Bank V. Campbell 2 Rich. Eq. (S. C.) 179 35
 
 TABLE OF CASES. XVU 
 
 PAGE. 
 
 Bank V. Connelly 8 Abb. (N. Y.) 128; 98 
 
 Bank of Commerce v. Lanahan 45 Md. 396 64 
 
 Bank of England v. Tai-leton 1 Cush. (Miss.) 173 27 
 
 Bank of Indiana v. Anderson 14 Iowa, 544 44 
 
 Bank of Mobile V. P. and M. Bank.. 9 Ala. 645 25 
 
 Bank of Orleans v. Flag-g 3 Barb. Ch. (N. Y.) 816 . . 256, 263, 265 
 
 Bank of Rochester v. Emerson 10 Paige (N. Y.), 359... 194, 200, 203 
 
 Bank of U. S. v. Carroll 4 B. Mon. (Ky.) 50 141, 159 
 
 Bank of U. S. v. Covert 13 Ohio Rep. 240; 25, 26 
 
 Bank of U. S. V. Huth 4 B. Mon. (Ky.) 450 44 
 
 Bank of Wis. v. Abbott 20 Wis. 570 34 
 
 Banning v. Bradford 21 Minn. 308 263 
 
 Banta V. Wood 32 Iowa, 469 195 
 
 Bard V. Poole 12 N. Y. 495 30, 91, 118, 127 
 
 176, 177, 178 
 
 Bardstown & L. R. R. Co. v. Metcalfe, 4 Mete. (Ky.) 199 63 
 
 Barkley v. Loi-d Reay 2 Hare (Eng.), 306 61, 183 
 
 Barraque v. Manuel 7 Ark. 516 11, 172 
 
 Barrett V. Blackmar 47 Iowa, 569 23, 89 
 
 Barrett V. Cochran 8 Rich. (S. C.) 48 Ill 
 
 Bartley V. Boyd 34 Vt. 256 67 
 
 Barton v. Hintrager 18 Iowa, 348 163 
 
 Barton v. Kingsburg 43 Vt. 640 92 
 
 Bates V. Ruddick 2 Clarke (Iowa), 423 86 
 
 Bathgate V. Haskins 59 N. Y. 533 205 
 
 Basford v. Pearson 7 Allen (Mass.), 505 214 
 
 Batre v. Auze's Heirs 5 Ala. 173 '. Ill 
 
 Bean V. Boothby 57 Me. 295 67 
 
 Becker v. Howard 4 Hun (N. Y.), 359 ; aflF'd 69 N. 
 
 Y.5 98, 1G7, 168 
 
 Beers V. Hawley 3 Conn. 110 30 
 
 Belden v. Meeker 2 Lans. 471 ; aff'd 47 N. Y. 307. . . 42 
 
 Belden V. Slade • 26 Hun (N. Y.), 635 142, 149 
 
 Belding V. Manley 21 Vt. .550 15, 27 
 
 Bell V. Mayor of New York 10 Paige (N. Y.), 49 100, 105 
 
 Bell V. Shrock 2 B. Mon. (Ky.) 29 23, 181 
 
 Bellamy v. Sabine 1 De Gex & Jones (Eng.), 566. . . 96 
 
 Belmont V. Coman 22 N. Y. 438 225, 226 
 
 Benedict V. Gilman 4 Paige (N. Y.), 58 139,142. 145 
 
 Benedict v. Hunt 32 Iowa, 27 235 
 
 Bennett V. Bates 94 N. Y. 354 227, 232 
 
 Bennett V. Calhoun Asso 9 Rich. Eq. (S. C.) 163 82 
 
 Bennett v. Solomon 6 Cal. 134, 44 
 
 Bennett V. Spillars 7 Tex. 600 215 
 
 Benton v.'Shreeve 4 Ind. 66 •• 40 
 
 ii
 
 Xviii TABLE OF CASES. 
 
 PAGE. 
 
 Berry V. Bacon 6 Cush. (Miss.) 318 64 
 
 Bei-tlesv. Nunan 92N. Y. 152 114 
 
 Besser v.' Hawthorne 3 Oregon 129 142 
 
 Bestv.Brown 25 Hun (N. Y.), 223 234 
 
 Bibb V. Hawley 59 Ala. 403 45, 174 
 
 Bicknell V. Byi-ne 23 How. (N. Y.) 486 200 
 
 Bigelowv. Booth 39 Mich. 622 .... 50 
 
 Bigelow V. Bush 6 Paige (N. Y.), 343 76,77, 110 
 
 Bigelowv. Cassedy 26 N. J. Eq. 557 261 
 
 Biggerstoff v. Loveland 8 Ohio Rep. 44 117 
 
 Binsse V. Paige 1 Keyes (N. Y.), 87 224 
 
 Bird V. Gardner 10 Mass. 364 102 
 
 Bishop V.Douglass 25 Wis. 696 193, 228 
 
 Bishop of Winchester v. Paine 11 Ves. (Eng.) 194 95 
 
 Bissel V. Marine Co. of Chicago 55 Ala. 165 116 
 
 Black V. Galway 24 Penn. St. 18 99, 109, 212 
 
 Blair & Co. v. Marsh 8 Iowa, 144 44, 84, 154 
 
 Blake v. Sanborn 8 Gray (Mass.), 154 20 
 
 Bloodgood V. McVay 9 Port. (Ala.) 547 25 
 
 Bloomer V. Sturges 58 N.Y. 168 30, 155, 176 
 
 Bludwoi-th V. Lake 33 Cal. 265 86 
 
 Blydenburgh V. Northrop 13 How. (N. Y.) 2si 101, 103 
 
 Board of S. v. Mineral Point R. R. . . . 24 Wis. 93 265 
 
 Body V. Jewsen 33 Wis. 402 44 
 
 Bogey V. Shute 4 Jones Eq. (N. C.) 174 263 
 
 Boggs V. Fowler & Hargrave 16 Cal. 559 76, 86, 88 
 
 Bolles v. Carli 12 Minn. 113 13 
 
 Bollesv. Duff 43 N. Y. 469 34, 35 
 
 Bolton V. Ballard 13 Mass. 227 102 
 
 Booth V. Conn. Mutual Life Lis. Co. . . 43 Mich. 299 228 
 
 Borden v. Gilbert 13 Wis. 670. 192 
 
 Boston Bank v. Chamberland 15 Mass. 220 130 
 
 Bourlandv. Kipp 55 111. 376. ..*. 16 
 
 Bowen v. Beck 94 N. Y. 86 233 
 
 Bowen v. Kurtz 37 Iowa, 239 233 
 
 Bowne V. Lynde 91 N. Y. 92 229 
 
 Bradley v. Parkhurst 20 Kan. 462 262, 264 
 
 Bradley V. Snyder 14 111. 263 89 
 
 Brainard v. Cooper 10 N. Y. 356. . . 139, 142, 143, 145, 149 
 
 150, 151 
 
 Braman v. Dowse 12 Cush. (Mass.) 227 230 
 
 BramhaU v. Flood 41 Conn. 68 148 
 
 Breckett v. Baum 50 N. Y. 8 103 
 
 Breit v. Yeaton 101 111. 242 125 
 
 Bremer Co. Bank v. Eastman 34 Iowa, 392 44
 
 TABLE OF CASES. XIX 
 
 PAGE. 
 
 Brennerv. Bigelow 8 Kan. 496 110, 117 
 
 Brewer v. Maurer 38 Ohio St. 543. . 228, 238, 244, 247, 253 
 
 Brewer v. Staples 3 Sandf. Ch. (N. Y.) 579 38 
 
 Brick V. Scott 47 Ind. 299 210, 211 
 
 Briggs V. Hannowald 35 Mich. 474 44 
 
 Brindenbecker V. Lowell 32 Barb. (N. Y.) 9 2(5 
 
 Bristol V. Morgan 3 Edw. Ch. (N. Y.) 142 207, 249 
 
 Britton v. Hunt 9 Kan. 228 110 
 
 Brooks V. Keister 45 Iowa, 303 89 
 
 Brooks V. Smyser 48 Penn. 86 57 
 
 Broome v. Beers 6 Conn. 207 140 
 
 Broward v. Hoeg 15 Fla. 370 120, 257 
 
 Brown v. Bates 55 Me. 520 17, 22 
 
 Brown v. Brown 1 Barb. Ch. (N. Y.) 353 58 
 
 Brown v. Cascaden 43 Iowa, 103 189, 195 
 
 Brown v. Cherry 38 How. (N. Y.) 352 121 
 
 Brown v. Delaney 22 Minn. 349 14 
 
 Brown v. Herman 14 Abb. (N. Y.) 394 212 
 
 Brown v. Johnson 53 Me. 246 176 
 
 Brown V. Nevitt 5 Cush. (Miss.) 801 140 
 
 Brown V. Orr 29 Cal. 120 110 
 
 Brown V. Snell 6 Fla. 741 12 
 
 Brown v. Stead 5 Sim. (Eng.)535 76, 86 
 
 Brown v. Stewart. . - 1 Md. Ch. Dec. 87 196 
 
 Brown v. Tyler 8 Gray (Mass.), 135 30 
 
 Brown v. Volkening 64 N. Y. 76 256,263, 265 
 
 Bi-owne v. Lockhart 10 Sim. (Eng.) 426 61 
 
 Brundage v. D. & F. Missionary Soc . . 60 Barb. (N. Y. ) 204 264 
 
 Brundred v. Walker 1 Beas. Ch. (N. J.) 140 86 
 
 Brunette v. Schettler 21 Wis. 188 28, 29 
 
 Bryce V. Bowers 11 Rich. Eq. (S. C.) 41 76, 117 
 
 Buchanan V. Monroe 22 Tex. 537 76, 86 
 
 Buck V. Fischer 2 Col. T. (Eng.) 182 51, 55 
 
 Buckv.Sanders 1 Dana (Ky.), 189 89 
 
 Bucknerv. Sessions 27 Ark. 219 74, 134 
 
 Buell V. Shuman 28 Ind. 464 210 
 
 Building, L. & S. Asso. v. Camman.. 11 N. J. Eq. (3 Stockt.) 382 110 
 
 Bulkley V. Chapman 9 Conn. 8 42 
 
 Bull V. Titsworth 29 N. J. Eq. 73 234 
 
 Buliard v. Hinckley 5 Me. 272 14 
 
 Bullard v. Leach 27 Vt. 491 148 
 
 Bunn V. Vaughan 1 Abb. App. Dec. (N. Y.) 253. . . 52 
 
 Burdett v. Clay 8 B. Mon. (Ky.) 295 44 
 
 Burdick V. Burdick 20 Wis. 348 192,207, 249 
 
 Burgess v. Sturgess 14 Beav. (Eng.) 440 140
 
 XX TABLE OF CASES. 
 
 PAGE. 
 
 Burke v. Gunney 49 Penn. 518 232 
 
 Bui-kham v. Beaver 17 Ind. 367 76 
 
 Burnett v. Pratt 22 Pick. (Mass.) 556 22 
 
 Burnham v. De Bevorse 8 How. (N. Y.) 159 86, 89 
 
 Bun- V. Beers 24 N. Y. 178 195, 228, 237 
 
 Burr V. Burr 10 Paige (N. Y.), 20 128 
 
 Burroughs V. Reiger 12 How. (N. Y.) 172 97 
 
 Buri-ows V. Stryker 47 Iowa, 477 183 
 
 Burton v. Baxter 7 Blackf. (Ind.) 297 11, 45, 176 
 
 Burton v. Hintrager 18 Iowa, 348 51 
 
 Burton V. Lies 21 Cal. 87 102, 110, 117 
 
 Bush V. Babbitt 25 Him (N. Y.), 214 253 
 
 Bush V. Lathrop 22 N. Y. 535 17, 30 
 
 Bushfield v. Meyer 10 Ohio St. 334 25 
 
 Butler V. TomLinson 38 Barb. (N. Y.) 641 ; 15 Abb. (N. 
 
 Y.) 88 97 
 
 Byington v. Walsh 11 Iowa, 27 82 
 
 Byles V. Tome 39 Md. 461 44 
 
 Cadwallader v. Cadwallader 26 Mo. 76 117 
 
 Cady V. Sheldon 38 Barb. (N. Y.) 103 249 
 
 Cage V. Her 5 S. & M. (Miss.) 410 27 
 
 Cain V. Hanna 63 Ind. 408 46, 182 
 
 Calhoun V. Tullass 35 Ga. 119 16, 45 
 
 CaU V. Leisner 23 Me. 25 11 
 
 Calmes V. McCrocker 8 Rich. (S. C.) 87 101 
 
 Calverly V. Phelps 6 Madd. (Eng.) 229 121 
 
 Calvov. Davies 73N.Y. 211 36,38,204,228, 231 
 
 Camden V. Vail 23 Cal. 633 109 
 
 Camfield V. Shearer 49 Mich. 313 224 
 
 Campv. Small 44 111. 37 16 
 
 Campbell v. Bemish 16 Gray (Mass.), 485 86 
 
 Campbell V. Campbell 30 N. J. Eq. 415 102 
 
 Campbell v. Harmon 43111. 18 130 
 
 Campbell V. Johnston 4 Dana (Ky.), 182 27 
 
 Campbell v. Knight 24 Me. 332 101 
 
 Campbell v. Savage 33 Ark. 678 134 
 
 Campbell v. Smith 71 N. Y. 26 : aff'g S Hun, 6. . 240, 241 
 
 Carbine v. Sebastian 6 Bradw. (111.) 564 263, 264 
 
 Carleton v. Byington 24 Iowa, 173 225 
 
 Carley V. Fox 38 Mich. 387 232 
 
 Carll V. Butman 7 Me. 102 14, 92, 105 
 
 Carpenter v. Black. Gold Mining Co . . 65 N. Y. 43 63 
 
 Cari)enter v Canal Co 35 Ohio St. 370 63 
 
 Carpenter V. Longan 16 Wall. (U. S.) 271 17, 44
 
 TABLE OF CASES. XXI 
 
 PAGE^ 
 
 Carpenter V. O'Dougherty 67 Barb. (N. Y.) 397; 2 T. & C. 
 
 " 427 ; aff'd 58 N. Y. 681 29, 3a 
 
 31, 179 
 
 Carpentier v. Brenham 40 Cal. 221 40, 139, 141 
 
 Cai-pentier v. Williamson 25 Cal. 154 86, 90' 
 
 Carradine v. O'Connor 21 Ala. 573 64 
 
 Carter V. Goodwin 3 Ohio St. 75 103 
 
 Carter V. Holahan 92 N. Y. 498 224 
 
 Cary V. Wheeler 14 Wis. 281 103 
 
 Case V. Bartholow 21 Kan. 300 157,257 
 
 Case V. Price 9 Abb. (N. Y.) Ill 118, 119 
 
 Cashell V. Kelly 2 Dru. & War. (Eng.) 181 128 
 
 Cashman v. Henry 75 N. Y. 103 238, 247, 253 
 
 Casper V. Hunger 62 Ind. 481 12 
 
 Cassidy v. Bigelow 25 N. J. Eq. 112 62 
 
 Cassily v. Rhodes 12 Ohio Rep. 88 134 
 
 Catterlin v. Armstrong 79 Ind. 514 140 
 
 Cave V. Cork 2 Y. & C. C. C. (Eng.) 130 51 
 
 Center V. P. & M. Bank 22 Ala. 743 44 
 
 Chamberlain v. Tyell 3 Mich. 448 263 
 
 Chambers v. Goodwin 9 Ves. (Eng. ) 269 173 
 
 Chambers v. Nicholson 30 Ind. 349 101 
 
 Champion V. Brown 6 Johns. Ch. (N. Y.) 398 53 
 
 Champion v. Kille 1 McCarter (14 N. J. Eq.), 229.. 148 
 
 Champlin v. Foster 7 B. Mon. (Ky.) 104 260 
 
 Champlin v. Williams 9 Penn. St. 341 41 
 
 Chandler v. Dyer 37 Vt. 345 148 
 
 Chapman v. Beardsley 31 Conn. 116 230 
 
 Chapman v. Draper 10 How. (N. Y.) 367 98 
 
 Chapman v. West 17 N. Y. 125 93, 98, 256 
 
 Chappell V. Allen 38 Mo. Rep. 213 15 
 
 Chappell V. Rees 1 De G., M. & G. (Eng.)393. .125, 126 
 
 Chase v. Hubbard 99 Penn. 226 214 
 
 Cherry V. Munro 2 Barb. Ch. (N. Y.) 627 38, 76 
 
 Chew V. Brumagim 21 N. J. Eq. 520 31, 176 
 
 Chicago Theological Sem. v. Gage ... 103 111. 175 263, 264 
 
 Chickering v. Fades 26 111. 507 87, 127 
 
 Chickering V. Fullerton 90 III. 520 93 
 
 Childs V. Childs 10 Ohio St. 339 35, 89 
 
 Chilver v. Weston 27 N. J. Eq. 435 142 
 
 Chiswell V. Morris 1 McCarter (14 N. J. Eq.), 101 . . 101 
 
 Cholmondeley v. Clinton 2 Jac. & W. (Eng.) 133 79, 125 
 
 Chrisman v. Chenoweth 81 Ind. 401 180 
 
 Christie v. Herrick 1 Barb. Ch. (N. Y.) 254. . .12, 15, 63 
 
 118, 122, 152, 155, 171, 172, 178
 
 XXll TABLE OF CASES. 
 
 PAGE. 
 
 Claffin V.Reese 54 Iowa, 544 249 
 
 Clapp V.Maxwell 13 Neb. 542 200 
 
 Clark V. Makin 95 N. Y. 346 172, 173 
 
 Clark V. Prentice 3 Dana (Ky.), 469 260 
 
 Clark V. Reyburn 8 Wall. (U. S.) 318 119, 120, 126 
 
 Clarke v. Wentworth 6 Me. 259 13 
 
 Clarkson v. Skidmore 46 N. Y. 297 133. 135, 238 
 
 Clary v. Marshall 5 B. Mon. (Ky.) 274 141 
 
 Clason V. Corley 5 Sandf. S. C. (N. Y.) 447.. . .134, 135 
 
 Clearwater V. Rose 1 Blackf. (Ind.) 137 14 
 
 Clerkson v. Bowj-er 2 Vern. (Eng.) 67 51, 54 
 
 Cleveland v. Boerum 24 N. Y. 617 93, 94, 95, 96, 127 
 
 Cleveland v. Cohrs 10 Rich. (S. C.) 224 43, 66 
 
 Cleveland v. Southard 25 Wis. 479 225 
 
 Cline V. Inlow 14 Ind. 419 86, 87 
 
 Clow V. Derby Coal Co 98 Penn. 432 16, 95 
 
 Cobb V. Dyer 69 Me. 494 36 
 
 Cobb V. Thornton 8 How. (N. Y.) 66 198, 200 
 
 Cochran v. Goodell 131 Mass. 464 23, 46, 182, 265 
 
 Coe v. N. J. Midland Ry 31 N. J. Eq. 105 263 
 
 Cokerv. Smith 63 Ga. 517 86 
 
 Cole v. Gourlay 9 Hun (N. Y.), 493 131 
 
 Cole V. Moffit.' 20 Barb. (N. Y.) 18 75, 118 
 
 Cole V. Robertson 6 Tex. 356 117 
 
 Colehour v. State Savings Institution, 90 111. 152 90 
 
 Coleman v. Van Rensselaer 44 How. (N. Y.) 368 204 
 
 Coleman v. Witherspoon 76 Ind. 285 142 
 
 Coles V. Forrest 10 Beav. (Eng.) 552. .50, 94, 115, 120 
 
 Collamer v. Langdon 29 Vt. 32 51 
 
 Collerd v. Huson 34 N. J. Eq. 38 26, 27 
 
 Collins V. Rowe 1 Abb. N. C. (N. Y.) 97 224, 232 
 
 Collins V. Shirley 1 R. & M. (Eng.) 638 76, 128 
 
 Colton V. Smith 11 Pick. (Mass.) 311 79 
 
 Comely V Hendricks 8 Blackf. (Ind.) 189 263 
 
 Commonwealth v. Watmough 12 Penn. St. 316 66 
 
 Compton V. Jones 65 Ind. 117 30, 178 
 
 Comstock V. Comstock 24 Mich. 39 261, 263 
 
 Conn V. Rhodes 26 Ohio St. 644 192 
 
 Conde v. Shepard 4 How. (N. Y.) 75 99, 206 
 
 Conn. Mut. Life Ins. Co. v. Tyler .... 8 Bi.ss. C. Ct. (U. S.) 369 201 
 
 Conover v. Porter 14 Ohio St. 450 KH 
 
 Conwell V. McCowan 53 111. 363 41 
 
 Cooley v. Hobart S Iowa, 358 192 
 
 Coolidge V. Smith 129 Mass. 554 253 
 
 Cooper V. Martin 1 Dana (Ky.), 25 86, 141
 
 TABLE OF CASES. Xxiii 
 
 PAGE. 
 
 Cooper V. Newland 17 Abb. (N. Y.) 342 42 
 
 Corbett v. Waterman 11 Iowa, 87 228, 232 
 
 Cord V. Hirsch 17 Wis. 403 86, 91 
 
 Cormerais v. Genella 22 Cal. 116 - 192, 200 
 
 Corn E. Ins. Co. v. Babcock 42 N. Y. 613 212 
 
 Cornell v. Prescott 2 Barb. (N. Y.) 16 38, 40, 79 
 
 Cornell v. Woodruff. 77 N. Y. 203 201 
 
 Corning- v. Smith 6 N. Y. 82 259, 263, 264 
 
 Cornwell v. McCowan 53 111. 363 41 
 
 Cory V. Wheeler 14 Wis. 281 102 
 
 Coster V. Clark 3 Edw. Ch. (N. Y.) 440 89 
 
 Cotton V. Blocker 6 Fla. 1 25 
 
 County of Dubuque v. Koch 17 Iowa, 229 ] 89 
 
 County of Floyd v. Cheney 57 Iowa, 160 141 
 
 Cox V. Wheeler 7 Paige (N. Y.), 248 38 
 
 Cox V. Vickers 35 Ind. 27 74, 134 
 
 Craig V. Parkis 40 N. Y. 181 249, 250 
 
 Crane v. Turner 67 N. Y. 437 17 
 
 Crawfoi-d v. Edwards 33 Mich. 354 231 
 
 Crawford v. Taylor 42 Iowa, 260 141 
 
 Crenshaw v. Thackston 14 S. C. 437 76, 79 
 
 Critcher v. Walker 1 Murphy (N. C), 488 204 
 
 Crogan v. Minor 53 Cal. 15 263 
 
 Crooke v. O'Higgins 14 How. (N. Y.) 154. . . 75, 76, 78, 84 
 
 Crooker v. Jewell 31 Me. 306 12 
 
 Cropper v. Mellersh 1 N. S. Jur. (Eng.) 299 120 
 
 Cross V. De Valle 1 Wall. (U. S.) 5 194 
 
 Crow & Co. V. Vance 4 Clarke (Iowa), 434 44, 252 
 
 Crowell V. Currier 27 N. J. Eq. 152 230, 238, 246 
 
 Crowell V. Hospital 27 N. J. Eq. 650. . . 230, 233, 237, 246 
 
 Crum V. Cotting 22 Iowa, 411 168 
 
 Crutchfield v. Coke 6 J. J. Mar. (Ky.) 90 192 
 
 Cryst V. Ci-yst Smith (Ind.), 370 51, 55 
 
 Culluni V. Batre 2 Ala. 415 140 
 
 Cullum V. Erwin 4 Ala. 452 25 
 
 Culver V. Badger 29 N. J. Eq. 74 234, 253 
 
 Culver V. Harper 27 Ohio St. 464 103 
 
 Calver v. Rogers 28 Cal. 520 200 
 
 Cundiff v. Brokaw 7 111. App. 147 219 
 
 Curtis V. Bush 39 Barb. (N. Y.) 661 235 
 
 Curtis V. Hitchcock 10 Paige (N. Y.), 399 93 
 
 Curtis V. Trip Clarke Ch. (N. Y.) 317 203 
 
 Curtis V. Tyler 9 Paige (N. Y.), 435 207,236, 248 
 
 250, 252 
 dishing v. Ayer 25 Me. 383 71
 
 XXIV TABLE OF CASES. 
 
 PAGE. 
 
 Cutterv. Jones 52111.84 88, 89 
 
 Cutis V. York Manuf. Co 14 Me. 326 30, 176 
 
 Dakin V. Insurance Co 77 N. Y. 601 98 
 
 Daltonv. Smith 86 N. Y. 176 30, 176 
 
 Dalyv. BurcheU 13 Abb. N. S. (N. Y.") 268. . ..76, 112 
 
 Danforth V. Coleman 23 Wis. 528 201 
 
 Daniels V. Henderson 49 Cal. 245 90, 97 
 
 Daniels v Henderson 5 Fla. 452 101 
 
 Daniels V. Moses 12 S. C. 130 218 
 
 Darlington v. Effey 13 Iowa, 177 117 
 
 Darrow v. Scullin 19 Kan. 57 201 
 
 Darstv. Bates 95111. 493 37 
 
 Davenport Plow Co. v. Mervis 10 Neb. 317 205 
 
 Davis V. Bechstein 69 N. Y. 440 17, 91 
 
 Davis V. Evans 5 IredeU (N. C), 525 89 
 
 Davis V. Hemingway 29 Vt. 438 62, 183 
 
 Day V. Patterson IS Ind. 114 87 
 
 Day V. Wetherby 29 Wis. 363 120 
 
 Dayton V. Dayton 7 Bradw. (111.) 136 51, 52 
 
 Dawson v. Danbury Bank 15 Mich. 489 257, 265 
 
 Deckerv. Boice 83 N. Y. 215 ...46, 182 
 
 Dedrick v. Barber.. , 44 Mich. 19 181 
 
 De Greifl" v. Wilson 30 N. J. Eq. 435. . 19 
 
 Delabere v. Norwood 3 Sw. (Eng.) 144 140, 261 
 
 Deland v. Mershon 7 Clarke (Iowa), 70 75, 206 
 
 Delaphine v. Lewis, Gov. etc 19 Wis. 476 66, 76, 141 
 
 Delaware Bank V. Jarv-is 20 N. Y. 226 174 
 
 De Leon v. Higuera 15 Cal. 483 86 
 
 Delespine v. CampbeU 45 Tex. 268 134 
 
 Demorest v. Berry ICE. Green (16 N. J. Eq.), 481 47 
 
 Demorest v. Wynkoop 3 Johns. Ch. (N. Y.) 129 61 
 
 Dempster V. West 69 111. 613 13 
 
 Denby V. Mellgrew 58 Ala. 147 14, 4.5, 174 
 
 Denison V. League 16 Tex. 399 Ill, 180 
 
 Denton V. Cole 30 N. J. Eq. 244 14 
 
 Denton V. Nanny 8 Barb. (N. Y.) 618 100, 101, 105 
 
 De Saussure v. BoUman 7 Rich. (S. C.) 329 147 
 
 Deuster v. McCamus 14 Wis. 307 140 
 
 Devlin v. Murphy 56 How. (N. Y.) 326 243, 244 
 
 Dewey v. Van Deusen 4 Pick. (Mass.) 19 51 
 
 Deyermand V. Chamberlain 88 N. Y. 658 234 
 
 Dial V. RejTiolds 96 U. S. 340 263 
 
 Diasv. Bouchard 10 Paige (N. Y.), 446 236 
 
 Dick V. Mawry 9 S. & M. (Miss.) 448 27
 
 TABLE OF CASES. XXV 
 
 PAGE. 
 
 Dingeldein v. Third Ave. R. R. Co.. 37 N. Y. 575 225, 232 
 
 Dings V. Pai-shall 7 Hun (N. Y.), 522 40 
 
 Dixtield V. Newton 41 Me. 221 14 
 
 Dixon V. Cuyler 27 Ga. 248 51,117 
 
 Doctor V. Smith ^ 16 Hun (N. Y.), 245 258 
 
 Dodd V. Neilson 90 N. Y. 243 112, 116, 120 
 
 Doe ex. Duval v. McLoskey 1 Ala. 708 44, 127 
 
 Dolman v. Cook 1 McCarter (N. J. Eq.), 56 12 
 
 Donnelly v. Husch 15 Iowa, 99 133, 139 
 
 Doody v. Hig^ins 9 Hare (Eng.), 32 123 
 
 Dooley V. Villalonga 61 Ala. 129 116 
 
 Dooliltle V. Lewis 7 Johns. Ch. (N. Y.) 45 58, 61 
 
 Dorkray v. Noble 8 Me. 278 14 
 
 Dorsey v. Thompson 37 Md. 25 64, 183 
 
 Doss V. Ditmars 70 Ind. 451 25 
 
 Douglass v. Bishop 27 Iowa, 214 79, 88 
 
 Douglass V. Cross 56 How. (N. Y.) 330 232 
 
 Douglass V. Durin 51 Me. 121 12, 54 
 
 Douglass V. Wells 18 Hun (N. Y), 88 243, 244, 245 
 
 Downer v. Fox 20 Vt. 388 148 
 
 Downward v. Groff..... 40 Iowa, 597 134 
 
 Drayton v. Marshall Rice's Eq. (S. C.) 373 214 
 
 Drinan V. Nichols 115 Mass. 353 86 
 
 Drury v. Clark 16 How. (N. Y.) 424. . . 76, 77, 228, 230 
 
 Drury v. Tremont Imp. Co 13 Allen (Mass.), 168 230 
 
 Duck V.Wilson 19 Ind. 190 192 
 
 Ducker v. Belt 3 Md. Ch. 13 145, 260 
 
 Dudley v. Cadwell 19 Conn. 228 43 
 
 Dungan v. Amer. Life Ins. Co 52 Penn. 253 46 
 
 Dunkley v. Van Buren 3 Johns. Ch. (N. Y.) 330 187, 188 
 
 189, 191 
 
 Dunlap V. Wilson 32 111. 517 91 
 
 Dunn V. Raley.. 58 Mo. Rep. 134 260 
 
 Dunning V. Leavitt 85 N. Y. 301.. .235, 237, 238, 239, 248 
 
 Durand v. Isaacks 4 McCord Law (S. C), 54 86 
 
 Duval & Doe v. McCloskey 1 Ala. 708 110 
 
 Dwyer v. Garlough 31 Ohio St. 158 44, 127 
 
 Eades V. Harris 1 Y. & C. (Eng.) 234 , 128 
 
 Eagle Fire Ins. Co. v. Cammet 2 Edw. Ch. (N. Y.) 127 124, 126 
 
 Eagle Fire Ins. Co. v. Lent 6 Paige (N. Y.), 635 ... . 256, 263, 264 
 
 Earl v. David 20 Hun (N. Y.), 527 ; aff'd 86 N. 
 
 Y. 634 190 
 
 ■SEarle V. Barnard 22 How. (N. Y.) 437 97, 101 
 
 Eaton V. Nason 47 Me. 132 99, 212
 
 XXvi TABLE OF CASES. 
 
 PAGE. 
 
 Eaton V. Simonds 14 Pick. (Mass.) 98 102 
 
 Eckerson V. Vollmer 11 How. (N. Y.) 42 106 
 
 Edwards v. Sanders 6 Rich. (S. C.) 316 215 
 
 Eldrid^e v. Eldridge 14 N. J. Eq. 195 101 
 
 Eleventh Ward Savings Bank v. Hay, 55 How. (N. Y.) 444 182 
 
 Ellis V. Guaras 2 Ch. Ca. (Eng.) 50 52 
 
 Ellis V. Kenyon 25 Ind. 134 99 
 
 Ellis V. Sisson 96 111. 105 50 
 
 Ellsworth V. Lockwood 42 N. Y. 89 40 
 
 Elmendorf v. Lockwood 4 Lans. (N. Y.) 393 104 
 
 Ely v. Ely 6 Gray (Mass.), 439 1 96 
 
 Ely V. McKnight 30 How. (N. Y.) 97 233 
 
 Emigt. Indust. Sav. Bk. v. Goldman, 75 N. Y. 127 2.56, 2.58, 259 
 
 Emory V. Keighan 94 111.543 43 
 
 English V. Register 7 Ga. 387 45 
 
 Englund V. Lewis 25 Cal. 337 195, 200 
 
 Equitable Life Ins. Co. v. Stevens. . . 63 N. Y. 341 189. 190, 194 
 
 Erickson V. Rafferty 79 111. 210 91 
 
 Erwin v. Ferguson 5 Ala. 158 20, 110, 116 
 
 Eslava V. Le Pretre 21 Ala. .504 130 
 
 Etheridge v. Vernoy 71 N. C. 184 52, 101, 108, 172 
 
 Evansville, Peo. S. Bk. of, v. Finney, 63 Ind. 460 25 
 
 Evans v. McLucas 12 S. C. 56 : . 260 
 
 Ewing v. Ainsworth 53 111. 464 141, 149 
 
 Eyster v.. Gaff. 91 U. S. 521 95, 12^ 128 
 
 Faesiv. Goetz 15 Wis. 231 192 
 
 Fairchilds v. Lynch 42 Supr. Ct. (N. Y.) 26".... 232, 243 
 
 Fairman v. Farmer 4 Port. (Ind.) 436 196 
 
 Fallon v. Butler 21 Cal. 24 117, 215 
 
 Farmers' L. & T. Co. v. Walworth. . . 1 N. Y. 433 36 
 
 Farrar v. Kloke 10 Neb. 373 257 
 
 Farwellv. Murphy 2 Wis. .533 140 
 
 Faulks V. Dimock 27 N. J. Eq. 65 13 
 
 Fay V. Cheney 14 Pick. (Mass.) 399 51 
 
 Feiden v. Murphy 2 Rich. Eq. (S. C.) 58 87, 145 
 
 Fell V.Brown 2 Bro. C. C. (Eng.) 276 74 
 
 Fenton v. Hughes 7 Ves. (Eng. ) 287 173 
 
 Fenton v. Lord 128 Mass. 466 228, 230 
 
 Fei-guson v. Ferguson 2 N. Y. 360 33 
 
 Ferguson v. Smith 2 John. Ch. (N. Y.) 139 106 
 
 Ferris v. Crawford 2'Denio (N. Y.), .595 38 
 
 Field V. Maghee 5 Paige (N. Y.). 539 49 
 
 Figart v. Halderman 75 Ind. 564 238 
 
 Finley V. Bank of U. S 11 Wheat. (U. S.) 304 260
 
 TABLE OF CASES. XXVll 
 
 PAGE. 
 
 F'st Nat. Bk. of Dubuque v. Carpenter, 41 Iowa, 518 251 
 
 Fisher v. Meister 24 Mich. 447 12 
 
 Fishwick v. Lowe 1 Cox Cas. in Eq. (Eng.) 411 125 
 
 Fiske v.Tolman 124 Mass. 254 225 
 
 Fithian v. Corwin 17 Ohio St. 119 176 
 
 Fithian v. Monks 43 Mo. Rep. 502 191, 192, 228 
 
 Fitzgerakl v. Barker 70 Mo. Rep. 685 238 
 
 FitzgeraUi V. Quann 1 Civ. Pro. Rep. (N. Y.) 278.. . . 108 
 
 Fitzhugh V. McPherson 3 Gill (Md.), 408 47 
 
 Fitzsimons V. Harrington 1 Civ. Pro. Rep. (N. Y.) 360.. . . 108 
 
 F. & M. Bk. of Milwaukee v. Luther. . 14 Wis. 96 159 
 
 Flagg V. Geltmacher 98 111. 293 247 
 
 Flagg V. Johnston 39 Ga. 26 55, 56 
 
 Flagg V. Munger 9 N. Y. 483 66, 234 
 
 Flagg V. Thurber 14 Barb. (N. Y.) 196 231 
 
 Fleischauer V. Doellner ,58 How. (N. Y.) 190 243, 244 
 
 Fleishhauer v. Doellner 60 How. (N. Y.) 438 201 
 
 Fleming v. Holt 12 W. Va. 143 62 
 
 Fleming v. Kerkendall 31 Ohio St. 568 192 
 
 Fleming v. Sitton 1 Dev. & B. Eq. (N. C.) 623 188 
 
 Fletcher v. Cary 103 Mass. 475 134 
 
 Fletcher V. Holmer 32 Ind. 497 103,111, 204 
 
 Fhess Y. Buckley 90 N. Y. 286 143, 214, 220, 221 
 
 Flinn v. Powers 36 N. Y. 289 214 
 
 Flower v. Elwood 66 111. 438 25 
 
 Fluck v. Hager 51 Penn. 459 249, 251 
 
 Flynn v. Powers 35 How. (N. Y.) 279 ; aff'd 36 id. 
 
 289 253 
 
 Fogal v. Pirro 10 Bosw. (N. Y.) 100 91, 110 
 
 Follansbee v. Johnson 28 Minn. 311 228 
 
 Fond du Lac Harrow Co. v. Haskins, 51 Wis. 135 181, 205 
 
 Foote v. Lathrop. .; 53 Barb. (N. Y.) 183 106 
 
 Foote V. Sprague 13 Kan. 1.'5 194 
 
 Foster v. Deacon 6 Madd. (Eng.) 59 50, 94 
 
 Foster V. Hickox 38 Wis. 408 103, 110 
 
 Fox V. Pratt 27 Ohio St. 512 103 
 
 Franklyn v. Fern Barn. Ch. (Eng.) folio 30, 32 ... . 128 
 
 Franklyn v. Hayward 61 How. (N. Y.) 43.. 12, 34, 139, 143 
 
 Freak v. Hearsey 1 Ch. Ca. (Eng.) 51 52 
 
 Freedinan S. & T. Co. v. Dodge 3 McArthur (D. C), 529 192 
 
 Freeland v. Freeland. 102 Mass. 475 127 
 
 Freeman v. Auld 44 N. Y. 50 235, 236 
 
 Freeman v. Scotield 16 N. J. E(i. 28 21, 62 
 
 Frost v. Frost 3 Sandf. Ch. (N. Y.) 188 80 
 
 Fro.st V. Koon 30 N. Y. 428 256, 258, 263
 
 XXVIU TABLE OF CASES. 
 
 PAGE. 
 
 Frost V. Yonkers Savings Bank 70 N. Y. 553 259 
 
 Fuller V. Lamar 53 Iowa, 477 234 
 
 Fuller V. Scribner 16 Hun (N. Y.), 130 ; aftM 76 N. 
 
 Y. 190 93, 97, 159, 160 
 
 Fuller V. Van Geesen 4 Hill (N. Y.). 171 134 
 
 Funk V. McReynolds 33 111. 481 25 
 
 Furbushv. Goodwin 5 Fost. (26 N. H.) 425 15 
 
 Furnas v. Drugin 119 Mass. 500 230 
 
 Gable v. Scarlett 56 Md. 169 16 
 
 Gage V. Board of Directors 8 Bradw. (111.) 410 263 
 
 Gagev. Brewster 31 N. Y. 218... 139, 141, 142, 143, 149 
 
 Gage V. Perry 93 111. 176 261, 263 
 
 Gagev. Ward 25 Me. 101 101 
 
 Gaines v. Walker 16 Ind. 361 145 
 
 Gale V. Battin 12 Minn. 287 13 
 
 Galway v. Fullerton 17 N. J. Eq. 389 14, 99 
 
 Gardner V. Brown 21 Wall. (U. S.) 36 119, 127 
 
 Gardner V. Lansing 28 Hun (N. Y.), 413 147 
 
 Gargon v. Grimes 47 Iowa, 180 260 
 
 Garnsey V. Rogers 47 N. Y. 233... 234, 235, 236, 240, 243 
 
 Garrard v. Lord Louderdale 3 Sim. (Eng.) 1 ] 23 
 
 Garrett v. Puckett 15 Ind. 485 44, 172 
 
 Gaylord v. Knapp 15 Hun (N. Y.), 87 204 
 
 Gebhart v. Hadley 19 Ind. 270 211 
 
 George v. Cooper 15 W. Va. 666 Ill 
 
 George v. Woodwar.l 40 Vt. 672 28 
 
 Gerber v. Sharp 72 Ind. 554 25, 37 
 
 Ger. Savings Bank v. Muller 10 Wk. Dig. (N. Y.) 67 163 
 
 Gibbes V. Holmes 10 Rich. Eq. (S. C.) 484 55, 117 
 
 Gibbs v. Queen Ins. Co 63 N. Y. 131 199 
 
 Gibson V. Bailey 9 N. H. 168 51 
 
 Gibson V. Crehore 5 Pick. (Mass.) 157 105 
 
 Giddings v. Barney 31 Ohio St. 80 194, 195 
 
 Gies V. Green 42 Mich. 107 200 
 
 Giftbrd V. Hort 1 Sch. & Lef. (Eng.) 386 125 
 
 Gifford V. Workman 15 Iowa, 34 77 
 
 Gihon V. Belleville Co 7 N. J. Eq. (3 Halst.) 531 261 
 
 Gilbert v. Gilbert 39 Iowa, 657 35 
 
 Gilbert v. Maggard 1 Scam. (111.) 471 102 
 
 Gilbert v. Sanderson 56 Iowa, 349 244 
 
 Girard Trust Co. v. Stewart 86 Penn. 89 225 
 
 Givens' Adm'rs v. Davenpoi-t 8 Tex. 451 112 
 
 Glacius V. Fogel 88 N. Y. 439 214, 217, 218 
 
 Glass V. Warnick ;40jPenn. 140 99
 
 TABLE OF CASES. XXIX 
 
 PAGE. 
 
 Gleises V. Maignan 3 La. 530 17, 19 
 
 Globe Ins. Co. V. Lansing 5 Cow. (N. Y.) 380 187,188, 189 
 
 Globe Marble Mills Co. v. Quinn 76 N. Y. 23 133, 135 
 
 Gobe V. Carlisle 2 Vern. (Eng.)67 51, 54 
 
 Goldsmid V. Stonehewer 9 Hare Append. (Eng.) 39; 17 
 
 Jur. (Eng.) 199 62, 120 
 
 Goodall V. Mopley 45 Ind. 355 23 
 
 Goodenow v. Ewer 16 Cal. 461 34, 86 
 
 Goodman v. White 26 Conn. 320 140 
 
 Gortside V. Outlay 58 111. 210 134 
 
 Gould V. Newman 6 Mass. 239 12 
 
 Gould V. Wheeler 28 N. J. Eq. 541 141 
 
 Gore V. Harris 15 Jur. (Eng.) 761 123 
 
 Gove V. Stackpole 1 Dow. (Eng.) 18 125, 126 
 
 Gowen v. Winchester 33 Iowa, 303 141 
 
 Gower V. Howe 20 Ind. 396 14, 44, 172 
 
 Grable v. McCulluch 27 Ind. 472 105 
 
 Grace V.Hunt 1 Cooke '(Tenn.), 344.. . - 50 
 
 Graham v. Long 65 Penn. 383 99 
 
 Graham v. Newman 21 Ala. 497 16, 45 
 
 Graham's Ex'rs v. Carter 2 Hen. & M. (Va.) 6 115 
 
 Graham v. Vinning 1 Tex. 639 117 
 
 Grandin V. Hernandez 29 Hun (N. Y.), 399 92 
 
 Granger v. Crouch 86 N. Y. 494 26, 27, 46 
 
 Grant v. Duane 9 Johns. Rep. (N. Y.) 591.. ..118, 123 
 
 Grant V. Griswold 82 N. Y. 569 207, 252 
 
 Grant V. Ludlow 8 Ohio St. 2 173 
 
 Grape Sugar Co. v. Whitin 69 N. Y. 328 133 
 
 Gratton v. Wiggins 23 Cal. 16 14, 26, 181 
 
 Gray V. Toomer 5 Rich. Law (S. C), 261 194, 214 
 
 Graydon v. Church 4 Mich. 646 30, 177 
 
 Green V. Dixon 9 Wis. 530 86, 92 
 
 Gj-een v. Marble 37 Iowa, 95 14, 37 
 
 Greene V. Warnick 64 N. Y. 220 16, 45, 182 
 
 Gregg V. Jones 5 Heisk. (Tenn.) 443 101 
 
 Greither v. Alexander 15 Iowa, 470 84 
 
 Griffin v. Lovell 42 Miss. 402 51 
 
 Grimmel v. Warner 21 Iowa, 11 51, 54, 192 
 
 Griswold V. Fowler 6 Abb. (N. Y.) 113 ... . 73, 76, 78, 84 
 
 Groff V. Morehouse 51*N. Y. 503 146 
 
 Guion V. Knapp 6 Paige (N. Y.), 43 207 
 
 Hackensack Water Co. v. De Kay. .. 36 N. J. Eq. 548 62, 64, 183 
 
 Hagan V. Walker 14 How. (U. S.) 29 257, 260 
 
 Haines V. Beach 3 Johns. Ch. (N. Y.) 466.... 145, 150
 
 XXX TABLE OF CASES. 
 
 PAGE 
 
 Haley v. Bennett 5 Port. (Ala.) 452 92 
 
 Hall V. Hig-gins 19 Ala. 200 86, 89 
 
 Hall V. Musler 1 Disney (Ohio), 36 117 
 
 Hall V.Nelson 14 How. (N. Y.) 32 ; 23 Barb. 
 
 (N. Y.) 88. . . .74, 75, 86, 90, 91, 97 
 
 Hallock V. Smith 4 Johns. Ch. (N. Y.) 649 82, 89 
 
 Halsey V. Reed 9 Paige (N. Y.), 446 38 
 
 Hamilton v. Dobbs 19 N. J. Eq. 227 41 
 
 Hamilton v. Lubukee 51 111. 415 42, 44 
 
 Hamlin v. McCahill Clarke Ch. (N. Y. ) 249 . . 256, 259, 261 
 
 Hammond v. Peiry 38 Iowa, 217 79 
 
 Hancock v. Hancock 22 N. Y. 568 33, 182, 256, 258 
 
 Hand v. Kennedy 45 Siipr. Ct. (N. Y.) 385 ; 83 N. Y. 
 
 149 .195, 197, 228, .237 
 
 Handcock V. Shaen Coll. P. C. (Eng.) 22 126 
 
 Hanman v. Riley 9 Hare App. (Eng.) 39 ; 17 Jur. 
 
 (Eng.)99 120 
 
 Hansen v. Gregg 7 Tex. 225 20 
 
 Harlem Sav. B'k v. Mickelsburgh. . . 57 How. (N. Y.) 106 229, 249 
 
 Hari-ington v. Slade 22 Barb. (N. Y.) 161 97 
 
 Harris V. Cornell, 80 III. 54 127 
 
 Harris v. Harlan 14 Intl. 439 25, 181 
 
 Harris v. Hooper 50 Md. 537 145 
 
 Hari-ison v. Brown 16 Cal. 287 109 
 
 Hartley v. Harrison 24 N. Y. 170 236, 243 
 
 Hartley v. Tatham 1 Robt. (N. Y.) 246 236 
 
 Hartshorne v. Hartshorne 1 Greene Ch. (N. J. ) 349 102 
 
 Hartwell v. Blocker 6 Ala. 581 23 
 
 Harvey V.Pius 14 111.217 110 
 
 Harvey's Adm's v. Thornton 14 111. 217 74 
 
 Harwood v. M^ary's 8 Cal. 580 -113 
 
 Haskell v. Bailey 22 Conn. 573 10 
 
 Haskins v. Hawkes 108 Mass. 379 54 
 
 Hasselman v. McKernan 50 Ind. 441 - . 140 
 
 Hatch V. Kimball 14 Me. 91 79 
 
 Hawkins v. Hill 15 Cal. 499 47 
 
 Hayden v. Snow 9 Biss. C. Ct. (U. S.) 511 234 
 
 Hayes v. Doi-sey 5 Md. Rep. 99 62, 183 
 
 Hayes v. Fray 54 "Wis. 503 61 
 
 Hayes V. Ward '.. 4 Johns. Ch. (N. Y.) 123 40 
 
 Haynes v. Wellington 25 Me. 458 23 
 
 Hays V. G. G. L. & C. Co 29 Ohio St. 330 62 
 
 Hays V. Lewis 21 Wis. 663 65, 183 
 
 Hay ward v. Stearns 39 Cal. 58 140 
 
 Heath v. Hall 60 111. 344 13
 
 TABLE OF CASES. XXXI 
 
 PAGE . 
 
 Hebron Society v. Schoen 60 How. (N. Y.) 185 116 
 
 Held V. Vreeland 30 N. J. Eq. 591 225 
 
 Heig-hway v. Pendleton 15 Ohio Rep. 735 117 
 
 Heim v. Vogel 69 Mo. Rep. 529 228 
 
 Hekla Fire Ins. Co. V. Morrison 56 Wis. 133 261 
 
 Hemphill v. Ross 66 N. C. 477 89, 134 
 
 Henderson v. Herrod 10 S. & M. (Miss.) 631 27 
 
 Henslay v. Whiffin 54 Iowa, 555 181 
 
 Herrick V. Saffery 7 Sim. (Eng-.) 317 125, 128 
 
 HeH-ing- v. Woodhull 29 111. 92 44 
 
 Herrington v. McCollum 73 111. 476 25 
 
 Hess V. Feldkamp 2 Disney (Ohio), 332 ... 140 
 
 Heuisler v. Nickum 38 Md. 270 145 
 
 Heyman v. Lowell 23 Cal. 106 86 
 
 Haywood v. Hartshorn 55 N. H. 476 58 
 
 Hibernian Savings Society v. Herbert, 53 Cal. 375 112 
 
 Hichens V. Kelly 2 Sm. & G. (Eng.) 264 54, 64 
 
 Higgs V. Hanson 13 Nev. 356 23 
 
 Hildreth v. Jones 13 Mass. 525 102 
 
 Hile V. Davidson 20 N. J. Eq. 228 235 
 
 Hill V. Boyland 40 Miss. 618 , 54 
 
 Hill V. Edmonds 5 De G. & S. (Eng.) 603 99 
 
 Hill V. Meeker 23 Conn. 594 32 
 
 Hills V. Eliot 12 Mass. 26 12 
 
 Hilton V. Lathrop 46 Me. 297 54, 109 
 
 Himestreet v. Winnie 10 Iowa, 430 139 
 
 Hinchman v. Stiles 1 Stockt. Ch. (N. J.) 361 102 
 
 Hinson v. Adrian 86 N. C. 61 140, 145 
 
 Hirsch v. Livingston 3 Hun (N. Y.), 9 133, 134, 135 
 
 Hitchcock's Heirs v. U. S. Bk. of Penn. 7 Ala. 386 62 
 
 Ho'oartv. Abbott 2 P. Wms. (Eng.) 642.. .51, 171, 177 
 
 Hodgen v. Guttery 58 111. 421 140, 141 
 
 Hodgson v. Treat 7 Wis. 263 86 
 
 Hoffman v. Risk 58 Ind. 113 38 
 
 Holcomb V. Holconib 2 Barb. (N. Y.) 20 256, 258, 259 
 
 Holdridge v. Sweet 23 Ind. 118 44,45, 174 
 
 Holland V. Baker 3 Hare (Eng. ), 68 123 
 
 Hollis V. Francois 5 Tex. 195 159 
 
 Holmes v. Bybee 34 Ind. 262 140 
 
 Holmes V. French 70' Me. 341 16 
 
 Holmes v. McGin'y 44 Miss. 94 44 
 
 Horn. Med. Life Ins. Co. v. Sixbury . . 17 Hun (N. Y.), 428 144 
 
 Hom. M. Life Lis. Co. v. Marshall... 32 N. J. Eq. 103 36 
 
 Honslow v. Stringham 21 Iowa, 36 77 
 
 Hopkins v. Hopkins 1 Atk. (Eng.) .581 125
 
 XXXll TABLE OF CASES. 
 
 PAGE. 
 
 Hopkins v. Ward 12 B. Mon. (Ky.) 185 17, 18 
 
 Hoppock V. Ramsey 28 N. J. Eq. 414 265 
 
 Horn V. Jones 28 Cal. 194 76, 86, 93 
 
 Hornby V. Cramer 12 How. (N. Y.)490 75, 118 
 
 Horstman v. Gerker 49 Penn. 282 12 
 
 Horton V. Ingersoll 13 Mich. 409 261, 264 
 
 Hosford V. Johnson 74 Ind. 479 140 
 
 Hoskins v. Hutchings 37 Ind. 324 103 
 
 Hotchkiss V. Clifton Air Cure 4 Keyes (N. Y.), 120 257 
 
 Hough V. Osborn 7 Ind. 140 14, 25 
 
 Houghton V. Kneeland 7 Wis. 244 90 
 
 Houghton V. Mariner 7 Wis. 244 Ill, 116 
 
 Houston V. Stringham 21 Iowa, 36 77 
 
 Hovey V. Hill 3 Lan.s. (N. Y.) 167 159 
 
 How V. Vigures 1 Rep. in Ch. (Eng.) 32 55 
 
 Howe V. Dibble 45 Ind. 120 22, 180 
 
 Hoy V. Bramhall 19 N. J. Eq. 74,563 232 
 
 Hoysradt v. Holland . 50 N. H. 433 38 
 
 Hoyt V. Martense 16 N. Y. 231 28, 30, 212 
 
 Hubbard v. Harrison 38 Ind. 323 42 
 
 Hubbell V. Sibley 5 Lans. (N. Y.) 51 . . . 10, 101, 107, 145 
 
 Hudnit V. Nash 16 N. J. Eq. 550 257, 260 
 
 Huebsch v. Scheel 81 111. 281 241 
 
 Huggins V. Hall 10 Ala. 283 52 
 
 Hughes V. Johnson , 38 Ark. 285 176 
 
 Hughes V. Pattei-son 23 La. Ann. 679 74 
 
 Hulfish V. O'Brien 20 N. J. Eq.'230 235 
 
 Hull V. Alexander 26 Iowa Rep. 569 225 
 
 Hull V. Lyon 27 Mo. Rep. 570 79, 96 
 
 Humphreys v. Morton 100 111. 592 25, 26 
 
 Hunsecker v. Thomas 89 Penn. 154 117 
 
 Hunsucker v. Smith 49 Ind. 1 14 11, 51 
 
 Himtv. Acre 28 Ala. 580 110, 113, 115 
 
 Hunt V. Chapman , 51 N. Y. 555 203 
 
 Hunt V. Dohrs 39 Cal. 304 192, 200 
 
 Hunt V. Hunt 17 Pick. (Mass.) 118 96 
 
 Hunt V. Lewin 4 Stew. & P. (Ala.) 138.. 189, 192, 204 
 
 Huntv. Purdy 82 N. Y. 486 207, 249, 252 
 
 Hunt V. Stiles 10 N. H. 466 24, 25 
 
 Hunter V. Levan 11 Cal. 11 30 
 
 Hunter v. Macklew 5 Hare (Eng.), 238 74 
 
 Huntington v. Smith 4 Conn. 237 43. 44 
 
 Hurck V. Erskine 45 Mo. Rep. 484 24.25, 26 
 
 Hurd V. Case 32 111. 45 89 
 
 Hurd V. Coleman 42 Me. 182 ' 16
 
 TABLE OF CASES. XXXlll 
 
 PAGE, 
 
 Hiirtt V. Crane 36 Md. 29 107 
 
 Huston V. Neil 41 Ind. 504 101 
 
 Hutchinson v. Crane 100 HI. 269 13 
 
 Huyler v. Atwood 26 N. J. Eq. 504 231, 253 
 
 Hyman v. Devereux 63 N. C. 624 44 
 
 Iglehart v. Bierce 36 HI. 133 49, 65 
 
 Ingersoll v. Mangam 84 N. Y. 622 131 
 
 Ingraham v. Disborough 47 N. Y. 421 16 
 
 Insurance Co. v. Addicks . 12 Phila. (Pa.) 490 .. - 225 
 
 Insurance Co. v. Bailey 3 Edw. Ch. (N. Y.) 417 83 
 
 Iowa Co. V. Beeson 55 Iowa, 262 149 
 
 Iowa County v. Mineral Point R. R.. 24 "Wis. 93 166 
 
 Iowa Loan and Trust Co. v. King 58 Iowa, 598 125 
 
 Ireson v. Denn 2 Cox (Eng.), 425 81 
 
 Irish V. Sharp 89 III. 261 16, 32 
 
 Jackson v. Blodget . . 5 Cow. (N. Y.) 206 42 
 
 Jackson v. Losee 4 Sandf. Ch. (N. Y.) 381 93 
 
 James V. Fields 5<Heisk (Tenn.), 394 101 
 
 Janinski v. Heidelberg 21 Hun (N. Y.), 439 107 
 
 Jarman V. "Wi-swall 24 N. J. Eq. 267 193,247, 249 
 
 Jeneson v. Jeneson 66 Ind. 260 86, 163 
 
 Jenkins v. Smith 4 Mete. (Ky.) 380 23 
 
 Jerome v. McCarter 94 U. S. 734 257, 260, 261 
 
 Jesterv. Sterling 25 Hun (N. Y.), 344 231 
 
 Jewell V. West Orange 36 N. J. Eq. 403 19 
 
 John V. Hixnt 1 Blackf. (Ind.) 324 Ill 
 
 Johnson v. Brown 31 N. H. 405 23, 25 
 
 Jolmson V. Camp 51 111. 219 134 
 
 Johnson v. Candage 31 Me. 28 14, 23 
 
 Johnson v. Cornett 29 Ind. 59 43 
 
 Johnson v. Fitzhugh 3 Barb. Ch. (N. Y.) 360 128 
 
 Johnson v. Hart 3 Johns. Cas. (N.Y.) 322.171, 176, 177 
 
 Johnson v. Harmon 19 Iowa, 56 140, 142 
 
 Johnson V. Hoklsworth 1 Sim. N. S. (Eng.) 106 140 
 
 Johnson v. Leonards 68 Me. 237 14 
 
 Johnson V. Monell 13 Iowa, 300 76 
 
 Johnson v. Robertson 34 Md. 165 34, 120 
 
 Johnson v. Shepard 35 Mich. 115 192, 249 
 
 Johnson v. Walter 60 Iowa, 315 43 
 
 Johnson v. Ziiik 51 N. Y. 333 38, 39 
 
 Jones V. Harstock 42 Iowa, 147 149, 151 
 
 Jones V. Lapham 15 Kan. 540 76 
 
 Jones V. Mack 53 Mo. Rep. 147 34 
 
 iii
 
 XXXIV TABLE OF CASES. 
 
 PAGE. 
 
 Jones V. Merritt . , 23 Hun (N. Y.), 184 213 
 
 Jones V. Steinberg 1 Barb. Ch. (N. Y.) 252 198, 207 
 
 249, 250 
 
 Jones V. Winans 20 N. J. Eq. 96 147 
 
 Jordon v. Cheney 74 Me. 359 23 
 
 Josselyn v. Edwards 57 Ind. 212 38 
 
 Judge V. Boardman 2 Ala. 331 116 
 
 Judson V. Dada 79 N. Y. 379 243 
 
 Judson V. Emanuel 1 Ala. 598 140 
 
 Kamena v. Huelbig 23 N. J. Eq. 78 17, 31, 67 
 
 Kay V. Whittaker 44 N. Y. 565 73, 100, 161 
 
 Kelgour v. Wood 64 111. 345 88, 91, 145 
 
 Kelloggv. Smith 26 N. Y. 18 182 
 
 Kemerer v. Bournes 53 Iowa, 172 181 
 
 Kenshaw v. Taylor 7 Oregon, 315 Ill 
 
 Kenyon V. Shreck 52 111. 382 140 
 
 Kerchner v. Fairley 80 N. C. 25 172 
 
 Kerrick V. Saffery 7 Sim. (Eng.) 317 76,125, 128 
 
 Ketchell v. Burns 24 Wend. (N. Y.) 456 251 
 
 Ketcham V. Brooks 27 N. J. Eq. 347 233 
 
 Ketchum v. Shaw 28 Ohio, 503 101 
 
 Keyes V. Wood 21 Vt. 331 15, 27. 44 
 
 Kiddv. Conway 65 Barb. (N. Y.) 158 212 
 
 Kiernan v. Blackwell 27 Ark. 235 110 
 
 Kilmer v. Smith 77 N. Y. 226 227, 234 
 
 King V. Bowman 24 La. Ann. 506 127 
 
 King V. Duntz 11 Barb. (N. Y.) 191 108 
 
 King V.Martin 2 Ves. Jun. (Eng.) 641 78 
 
 Kingv. McVickers 3 Sandf. Ch. (N. Y.) 193 118, 120 
 
 King V. Merchants' Exchange Co ... . 5 N. Y. 547 24. 63, 184 
 
 Kingv. Safford 19 Ohio St. 587 192 
 
 King V. Whitely 10 Paige (N. Y.), 465. . ..237, 238, 242 
 
 Kinlock v. Mordecai 1 Speer's Eq. (S. C.) 464 204 
 
 Kinna V.Smith 2 Green (N. J. Eq.), 14.... 12, 50, 54 
 
 Kinsley V. Abbott 19 Me. 430 21 
 
 Kipp V. Brandt 49 How. (N.Y.) 358..75, 85, 90, 97, 161 
 
 Kissel V. Eaton 64 Ind. 248 101 
 
 Kittle V. Van Dyck 1 Sandf. Ch. (N. Y.) 76. . .29, 91, 100 
 
 155, 176, 178 
 
 Klapworth v. Dressier 2 Beas. Ch. (N. J.) 62 230 
 
 Kline v. McGuckin 24 N. J. Eq. 411 79 
 
 Knickerbocker Ice Co. v. Nelson .... 8 Hun (N. Y.), 21 251 
 
 Knowles v. Layton 18 Ga. 476 88 
 
 Knowles v. Rablin 20 Iowa, 103 140
 
 TABLE OF CASES. XXXV 
 
 PAGE. 
 
 Knox V. Galligan 21 Wis. 470 12 
 
 Koch V. Purcell 45 Snpr. Ct. (N. Y.) 162 ....158. 256 
 
 Koester V. Burke 81 111. 436 25 
 
 Krutsinger v. Brown 72 Ind. 166 265 
 
 Kurtz V. Sponable 6 Kan. 395 44 
 
 Kygerv. Ryley 2 Neb. 28 44 
 
 Laberge v. Chauvin 2 Mo. Rep. 145 44 
 
 Laingv. Byrne 34 N. J. Eq. 52 244, 246 
 
 Lamb V.Tucker 42 Iowa, 118 233 
 
 Lament v. Cheshire 65 N. Y. 30 93, 96, 159 
 
 Landon v. Burke 36 Wis. 378 109 
 
 Lane v. Erskine 13 111. 501 73, 77, 110 
 
 Lane V. Sleeper 18 N. H. 209 44 
 
 Lang V.Jones 5 Leigh (Va.), 192 263 
 
 Langdon v. Buell 9 Wend. (N. Y.) 80 42 
 
 Langdon v. Keith 9 Vt. 299 15 
 
 Langdon v. Langdon 7 De G., M. & G. (Eng.) 30 261 
 
 Lannay v. Wilson 30 Md. 536 20, 21, 181 
 
 Lappen v. Gill 129 Mass. 349 230 
 
 Large v. Van Doren 14 N. J. Eq. 208 62, 183 
 
 Larimer V. Clemmer 31 Ohio St. 499 172, 192 
 
 Lasere v. Rochereau 21 La. Ann. 205 74 
 
 Lathrop v. Heacock 4 Lans. (N. Y.) 1 106 
 
 Law V. Bagwell 4 Dm. & W. (Eng.) 406 123 
 
 Lawrence v. Elmendorf 5 Barb. (N. Y.) 73 58 
 
 Lawrence v. Fox 20 N. Y. 268 237 
 
 Lawrence V. Lawrence 3 Barb. Ch. (N. Y.) 71 18, 118 
 
 Layman v. Shultz 60 Ind. 541 211 
 
 Leaper v. Lyon 68 Mo. Rep. 216 53 
 
 Learned v. Foster 117 Mass. 365 86 
 
 Leary V. Shaffer 79 Ind. 567 104 
 
 Leavitt v. Cruger 1 Paige (N. Y.), 421 106 
 
 Leavitt V. Pell 27 Barb. (N. Y.)322; aff'd 25 N. 
 
 Y. 474 65 
 
 Lee V. Kirkpatrick 1 McCarter (14 N. J. Eq.), 264. . 17 
 
 Lee V.Parker 43 Barb. (N. Y.) 611 261 
 
 Leggett V. McClelland 39 Ohio, 624 .^ 110 
 
 Leggett V. Mut. Life Ins. Co 64 Barb. (N. Y.) 36; 53 N. Y. 
 
 400 114, lis, 120, 124 
 
 Lehman v. McQueen 65 Ala. 570 30 
 
 Leitze v. Claybaugh 59 111. 136 181 
 
 Lenihan v. Hamann 55 N. Y. 652 93, 94, 127, 129 
 
 Lening's Estate 52 Penn. 135 225 
 
 Lennon v. Porter 2 Gray (Mass.), 473 176
 
 XXXVl TABLE OF CASES. 
 
 PAGE. 
 
 Lenox V. Reed 12 Kan. 223 74, 86 
 
 Leonard V. Adm'r of Villai-s 23 111.377 102 
 
 Leonard v. Groome 47 Md. 499 145 
 
 Leonard V. Morris 9 Paige (N. Y.), 90 110, 113, 194 
 
 203, 215, 218, 248, 250, 254 
 
 Leveridgev. Marsh 30 N. J. Eq. 59 148 
 
 Levnston v. Swan 33 Cal. 480 200 
 
 Lewis V. Day 53 Iowa, 575 224 
 
 Lewis V. Elrod 38 Ala. 17 92 
 
 Lewis V. Nangle 2 Ves. Sen. (Eng.) 431 115 
 
 Lewis V. Smith 9 N. Y. 502.. ..53, 104, 105, 256, 261 
 
 262, 263 
 
 Lewis V. Starke 10 S. & M. (MLss.) 120 11 
 
 Linn V. Patton 10 W. Va. 187 159 
 
 Lipperd v. Edwards 39 Ind. 165 200 
 
 Littauerv. Goldman 72 N. Y. 506 174 
 
 Lloyd V. Johnson 9 Ves. (Eng.) 37 125 
 
 Lloyd V. Lander 5 Madd. (Eng.) 282 76,78, 128 
 
 Locke V. Homer 131 Mass. 93 230 
 
 Locke V. Lomas 5 De G. & S. (Eng.) 326; 16 Jur. 
 
 (Eng.) 814 55, 62 
 
 Lockman V. Reilley 10 Abb. N. C. (N. Y.) 351... 120, 124 
 
 Lockwood V. Benedict 3 Edw. Ch. (N. Y. ) 472 , . . 92, 93, 247 
 
 Lockwoodv. Fawcett 17 Hun (N. Y.), 147 214, 218 
 
 Lockwood V. Reilly 95 N. Y. 64 163 
 
 Logan V. Smith 70 Ind. 598 87 
 
 Logan V. Smith 62 Mo. Rep. 455 229, 232 
 
 Longv. Storie 23 L. J. (Ch.) N. S. (Eng.) 200.. 165 
 
 Loomis V. Riley 24 111. 307 '. 79, 93 
 
 Lounsbury v. Catron' 8 Neb. 469 262 
 
 Lovejoy v. Vose 73 Me. 46 36 
 
 Lovell V. Farrington 50 Me. 239 180 
 
 Lowv. Purdy 2 Lans. (N. Y.) 424 Ill, 118 
 
 Lowrey v. Byers 80 Ind. 443 40 
 
 Luce V. Hinds Clarke Ch. (N. Y.) 453 ; 194, 198, 207 
 
 247, 248, 250 
 
 Ludington v. Harris 21 Wis. 239 225 
 
 Lund V. Woods 11 Mete. (Mass.) 566 101 
 
 Luningv. Brady 10 Cal. 265 86 
 
 Lunt V. Lunt 71 Me. 377 42 
 
 Lyman V. Little 15 Vt. 576 263 
 
 Lyonv. Lyon 67 N. Y. 250 66, 130, 146 
 
 Lyon V. Sanford 5 Conn. 547 148, 159 
 
 Lyster v. Brewer 13 Iowa, 461 23
 
 TABLE OF CASES. XXXVll 
 
 » 
 
 PAGE. 
 
 Mabury v. Ruiz 58Cal. 11.... 101 
 
 Macclesfield v. Fitton 1 Vern. (Eng-.) 168 115- 
 
 Macey v. Fenwick 4 B. Mon. (Ky.) 309 140 
 
 Mack V. Austin 29 Hun (N. Y.), 534 211 
 
 Mack V. Graver 12 Ind. 254 140 
 
 Mackenzie v. Alster 64 How. (N. Y.) 388 Ill, 118 
 
 Maloney V. Horan 12 Abb. N. S. (N. Y.) 289 105 
 
 Manhattan B. M. Co. v. Thompson.. 58 N. Y. 84 209, 210, 212 
 
 Manhattan Life Ins. Co. v. Crawford, 9 Abb. N. C. (N. Y.) 365 233 
 
 Manhattan Life Ins. Co. v. Glover... 14 Hun (N. Y.), 133.. .. ]94, 212, 213 
 
 Manly v. Beaufort 1 Russ. (Eng.) 349 86 
 
 Manning- v. Markel 19 Iowa, 103 154 
 
 Manufacturing- Co. v. Price 4 Rich. N. S. (N. C.) 338 86 
 
 Marine Bank v. International Bank . . 9 Wis. 57 25 
 
 Mark v. Murphy 76 Ind. 534 8& 
 
 Markel v. Evans 47 Ind. 326 , 172 
 
 Markle v. Rapp 2 Blackf. (Ind.) 268 191 
 
 Marks v. Sewall 120 Mass. 174 79 
 
 Marlow v. Barlew 53 Cal. 456 263 
 
 Marriot v. Givens 8 Ala. 694 64 
 
 Marsh v. Austin 1 Allen (Mass.), 235 51 
 
 Marsh v. Green 79 111. 385 78 
 
 Marsh v. Pike 10 Paige (N. Y.), 595; aff'g- 1 
 
 Sandf. Ch. (N.Y.)210..38, 40, 203, 236 
 
 Marshall v. Davies 78 N. Y. 415 36, 38, 201, 229, 231 
 
 Martin v. Cauble 72 Ind. 67 210 
 
 Martin v. Fi-idley 23 Minn. 13 149 
 
 Mai-tin v. Harrison 2 Te'x. 456 116 
 
 Martin v. McReynolds 6 Mich. 70 20, 22, 44, 64 
 
 Martineau v, McCollum 3 Pinney (Wis.), 455 44 
 
 Marvin v. Taylor 27 Ind. 73 86 
 
 Mason v. Ainsworth 58 111. 163 13 
 
 Mason v. Barnard 36 Mo. Rep. 384 24, 25, 2& 
 
 Massie's Heirs v. Donaldson 8 Ohio Rep. 377 117 
 
 Masters v. Templeton 92 Ind. 447 261, 264 
 
 Mathews v. Aiken. 1 N. Y. 595 207 
 
 Matter of Collins 17 Hun (N. Y.), 289 189 
 
 Matteson v. Thomas 41 111. 110 38 
 
 Maure v. Harrison 1 Eq. Ca. Abr. (Eng.) 93 24, 207 
 
 Mavrich v. Grier 3 Nev. 32 , 109 
 
 Mayer v. Farmers' Bk 44 Iowa, 212 196 
 
 Mayo V. Tomkies 6 Munf. (Va.) 520 115 
 
 May V. Fletcher 40 Ind. 575 103 
 
 May V. Rayson 21 Ga. 461 88 
 
 McAllister V. Plant 54 Miss. 106 20
 
 XXXVUl TABLE OF CASES. 
 
 f 
 
 PAGE. 
 
 McArthui- V. Franklin 15 Ohio, 485; 16 Ohio, 193... 101, 106 
 
 McBi-ide v. Farmers' B'k of Salem ... 26 N. Y. 457 61 
 
 McCall V. Yard 1 Slockt. Ch. (9 N. J. Eq.) 358... 141 
 
 McCarthy v. Graham 8 Paige (N. Y.), 480 194, 200 
 
 McCarthy v. Tarr 83 Ind. 444 210 
 
 McClure v. Holbrook 39 Mich. 42 261 
 
 McCricket v. Wilson -50 Mich. 513 200 
 
 McCrum v. Corby 11 Kan. 464 31 
 
 McCurdy v. Clark 27 Mich. 445 27 
 
 McDermott v. Burke 16 Cal. 580 134 
 
 McDill V. Gunn 43 Ind. 315 233 
 
 McDowell V. Jacobs 10 Cal. 387 18 
 
 McElrath v. Pittsburgh & S. R. Co. . . 68 Penn. 37 141 
 
 McFerrin v. Menifee 6 Coldwell (Tenn.), 499 99 
 
 McGlaug-hlin V. O'Rourke 12 Iowa, 459 195, 211 
 
 McGowen v. Branch B'k at Mobile. . . 7 Ala. 823 47, 64 
 
 McGown V. Yerks 6 Johns. Ch. (N. Y.) 450 116 
 
 McGregor V. McGregor 35 N. Y. 218 18T 52 
 
 McGuffey v. Finley 20 Ohio Rep. 474 12, 77, 173 
 
 McHenry v. Cooper 27 Iowa, 137 142, 153, 160 
 
 Mclver v. Cherry S Humph. (Tenn.) 713.. .. 52, 54, 102 
 
 McKay v. Wakefield 63 Ind. 27 110 
 
 McKee v. Murphy 34 Supr. Ct. (N. Y.) 261 153 
 
 McKeon v. Hagan 18 Hun (N. Y.), 65 213 
 
 McKernan v. Robinson 84 N. Y. 105 190, 195 
 
 McKernan V. Weff. 43 Ind. 503 140, 142 
 
 McKinney v. Hamilton •„•••• 51 Penn. 63 67 
 
 McKinney v. Miller .".... 19 Mich. 142 28 
 
 McLain v. Badgett & Smith 4 Ark. 244 134 
 
 McLallen v. Jones 20 N. Y. 162 17 
 
 McLean v. Lafayette Bank 3 McLean (U. S.), 587 40 
 
 McLean v. Ragsdale 31 Miss. 701 11 
 
 McLean v. Towle 3 Sandf. Ch. (N. Y.) 117 38 
 
 McLenahan V. McLenahan 3 C. E. Green (18 N. J. Eip), 101. 225 
 
 McMannis v. Rice 48 Iowa, 361 130, 132 
 
 McMillan v. Gordon 4 Ala. 716 179 
 
 McMillan v. Mason 5 Coldwell (Tenn.), 263 21 
 
 McMurray V. McMurray 66 N. Y. 175 131 
 
 McPherson v. Housel 2 Beas. (N. J. Eq.) 299 96 
 
 McSorley v. Larissa 100 Mass. 270 35 
 
 Mebanev. Mebane 80 N. C. Rep. 38 117 
 
 Mechanic's Savings Bank v. Goff. .... 13 R. I. 516 238 
 
 Medley V. Elliott 62 111. 532 43, 112 
 
 Meech v. Ensign 49 Conn. 191 238 
 
 Meeker v. Clayhorn 44 N. Y. 349 12
 
 TABLE OF CASES. XXXIX 
 
 PAGE. 
 
 Meeker v. Tanton 2 Ch. Ca. (Eng.) 29 51 
 
 Meeker v. Wright 76 N. Y, 262 81 
 
 Meigs V. Tliomson 66 How. (N. Y.) 466 263, 264 
 
 Melver V. Cherry 8 Humph. (Tenn.) 713 102 
 
 Mengv. Houser 13 Rich. Eq. (S. C.) 210 86 
 
 Merchant v. Thomson 34 N. J. Eq. 73 99 
 
 Merchants' Bank v. Thomson 55 N. Y. 7 100, 104, 261, 262 
 
 Merchants' Ins. Co. v. Hinman 15 How. (N. Y. ) 182 219 
 
 Merchants' Nat'l B'k v. Raymond.. . . 27 Wis. 567 211 
 
 Meredith v. Lackay 14 111. 529 140 
 
 Merriman v. Moore 90 Penn. 78 225, 232, 233, 240 
 
 Merritt v. Phenix 48^Ala. 87 86, 92 
 
 Merritt v. Simpson 41 111. 391 130 
 
 Merritt v. Wells 18 Ind. 171 23, 261 
 
 Marvin v. Lewis 90 111. 505 51 
 
 Micklesv. Dillaye 15 Hun (N. Y.), 296 86, 88, 90 
 
 Miles V. Smith 22 Mo. Rep. 502 108, 117 
 
 Miller v. Bear 3 Paige (N. Y.), 466 ... , 12 
 
 Miller v. Donaldson 17 Ohio Rep. 264 , 52 
 
 Miller V. Finn 1 Neb. 254 149, 260 
 
 Miller V. Henderson 10N.J.Eq.(2Stockt.) 320. 29, 172, 176 
 
 Miller v. Thompson 34 Mich. 10 78, 228, 233 
 
 Miller v. Winchell 70 N. Y. 437 35 
 
 Mills V. Hoag 7 Paige (N. Y.), 18 49 
 
 Mills V. Traylor 30 Tex. 7 140 
 
 Mills V. Van Voorhies 20 N. Y. 412: 10 Abb. (N. Y.) 
 
 152 100, 103, 105, 106 
 
 Mills V. Watson 1 Sweeney (N. Y.), 374. .228, 229, 230 
 
 Milroy v. Stockwell 1 Carter (Ind.), 35 20, 206 
 
 Mims V. McDowell 4 Ga. 182 37 
 
 Mims V. Mims 1 Humph. (Tenn.) 425 102 
 
 Mims V. Mims 35. Ala. 23 77, 79 
 
 Miner v. Beekman 50 N. Y. 337 86, 88, 91 
 
 Miner v. Smith .53 Vt. 551 76 
 
 Minn v. Staut 12 Beav. (Eng.) 190 62 
 
 Mitchell V. Ladew 36 Mo. Rep. 526 24, 25 
 
 Mitchell V. McKinney 6 Heisk. (Tenn.) 83 64 
 
 Mix V. Andes Ins. Co 9 Hun (N. Y.), 397 67 
 
 Moffitt V. Roche 76 Ind. 75 22, 210 
 
 Montgomery v. Birge 31 Ark. 491 159 
 
 Montgomery v. Tutt 11 Cal. 307 139 
 
 Mooney v. Maas 22 Iowa, 380 103 
 
 Moore v. Burrows 34 Barb. (N. Y.) 173 53 
 
 Moore v. Cord 14 Wis. 213 34, 88, 140 
 
 Mooi-e V. Cornell .... 68 Penn. 320 44
 
 Xl TABLE OF CASES. 
 
 PAGE. 
 
 Moove V. Metropolitan Nat. Bank 55 N. Y. 41 17 
 
 Moore v. Shaw 15 Hun (N. Y.), 428 200 
 
 Moore V. Starks 1 Ohio St. 369 112 
 
 Moore v. Ware 38 Me. 496 23, 45 
 
 Moors V. Albro 129 Mass. 9 127 
 
 Morgan v. Magoffin 2 Bihl) (Ky.), 395 81 
 
 Morgan v. Wilkins 6 J. J. Mar. (Ky.) 28 192 
 
 Morrell v. Dickey 1 Johns. Ch. (N. Y.) 153 58 
 
 Morris V. Wheeler 45 N. Y. 708 145 
 
 Morrison v. Morrison 4 Hun (N. Y.), 410 11 
 
 Morrow V. Morgan 48 Tex. 304 86 
 
 Mor.se V. Larkin 46 Vt. 371 40 
 
 Morton v. Noble 22 Ind. 160 104, 105 
 
 Moses V. The Clerk 12 Iowa, 140 228 
 
 Mott V. Clark 9 Penn. St. 399 17 
 
 Mowry v. Sanborn 65 N. Y. 581 75 
 
 Moyer V. Hinman 13 N. Y. 180 ^ 53 
 
 Muir V. Berkshire 52 Ind. 149 T 34 
 
 Mimson v. Dygett 56 How. (N. Y.) 333. . . .234, 238, 253 
 
 Murdock V. Ford 17 Ind. 52 25,140, 181 
 
 Murphy v. Farwell 9 Wis. 102 140, 142 
 
 Murray v. Catlett 4 Greene (Iowa), 108 77 
 
 Murray v. Marshall 94 N. Y. 611 231 
 
 Muscott V. Woolworth 14 How. (N. Y.) 477 97 
 
 Muser v. Miller 3 Civ. Pro. Rep. (N. Y.) 394 ; 65 
 
 How. (N. Y.) 286 107 
 
 Mutual Life Ins. Co. v. Dake 1 Abb. N. C. (N. Y.) 380 ; adM 
 
 STN.'Y. 257 161 
 
 Mutual Life Ins. Co. v. Davies 44 Supr. Ct. (N. Y.) 172 228 
 
 Mutual Life Ins. Co. v. Howell 32 N. J. Eq. 146 254 
 
 Mutual Life Ins. Co. v. Sturges 32 N. J. Eq. 678 21 
 
 Mutual Life Ins. Co. v. Southard .... 25 N. J. Eq. 337 199 
 
 Myer V. Lathrop 10 Hun (N. Y.), 66 231 
 
 Myers v. Wright 33 111. 284 23, 24, 181 
 
 Naar v. Union & Essex Land Co 34 N. J. Eq. 111.. . . 193, 204, 230, 238 
 
 Nagle V. Macy 9 Cal. 426 42 
 
 Nat. Fire Ins. Co. v. McKay 1 Sheldon (N. Y.), 138 88, 203 
 
 N. & C. Bridge Co. V. Douglass 12 Bush (Ky.), 719 119 
 
 NewaU V. Wright 3 Mass. 138 10 
 
 Newark Sav. Inst. v. Forman 33 N. J. Eq. 436 193, 230 
 
 Newcomb v. Dewey 27 Iowa, 381 140, 141, 149 
 
 Newhallv. Lynn Bank 101 Mass. 428 101 
 
 Newhartv. Peters 80 N. C. Rep. 166 99 
 
 Newkirk V. Burson 21 Ind. 129 110, 215 
 
 Ne%vman v. Chapman 2 Rand Rep. (Va.) 93 173
 
 TABLE OF CASES. xli 
 
 PAGE. 
 
 Newman v. Home Ins. Co 20 Minn. 422 263 
 
 Newton v. Earl of Egmont .'4 Sim. (Eng.) 574 123 
 
 Newton v. Stanley 28 N. Y. (51 51, 55 
 
 Niagara Bank v. Roosevelt 9 Cow. (N. Y.) 409 145, 149 
 
 Nichols V. Holg-ate 2 Aik. ( Vt.) 138 148 
 
 Nichols V. Randall 5 Minn. 304 86 
 
 Nimrock v. Scanlin 87 N. C. Rep. 119 102 
 
 Nodine v. Greenfield 7 Paige (N. Y.), 547 ... . 114, 118, 119 
 
 120, 124, 126 
 
 Nolle V. Libbert 34 Ind. 163 51 
 
 Norrish v. Mai-shall 5 Madd. (Eng.) 475 177 
 
 N. Amer. Fire Ins. Co. v. Handy.. . 2 Sandf. Ch. (N. Y.) 492 249 
 
 Northrup v. Wheeler 43 How. (N. Y.) 122 102, 107 
 
 Norton v. Joy 6 Bradw. (111.) 406 260 
 
 Norton V. Lewis 3 Rich. N. S. (S. C.) 25 86 
 
 Noi-ton V. Soule 2 Greenleaf (Me.), 341 37 
 
 Norton v. Warner 3 Edw. Ch. (N. Y.) 106. . . 29, 40, 179 
 
 Nottingham v. Calvert 1 Carter (Ind.), 527 103 
 
 Noyes v. Barnet 57 N. H. 605 24, 25 
 
 Noyes v. Sawyer 3 Vt. 160 19 
 
 Ober V. Gallagher 93 U. S. (3 Otto.) 199 195 
 
 O'Dougherty v. Remington Paper Co., 81 N. Y. 496 29 
 
 Officer V. Burchell 44 N. Y. Supr. Ct. 575 249 
 
 Ohio Life Ins. & Trust Co. v. Winn . . 4 Md. Ch. Dec. 253 44 
 
 Ohling v. Luitjens 32 111. 23 86, 89 
 
 Olds V. Cuinmings 31 111. 188 16, 44 
 
 Olmstead v. Elder 5 N. Y. 144 35, 66 
 
 Olson v. Paul 56 Wis. 30 98 
 
 Omohundro v. Henson 26 Gratt. (Va.) 511 172 
 
 O'Neill V. Clarke 33 N. J. Eq. 444 245 
 
 Opdyke v. Bartles 3 Stockt. Ch. (N. J.) 133 105 
 
 Ord V. McKee 5 Cal. 515 44 
 
 Osbourn v. Fallows 1 Russ. & M. (Eng.) 741 61, 166 
 
 Osgood v. Stevens 25 111. 89 189 
 
 Ostrom v. McCann 21 How. (N. Y.) 431 75, 85, 90 
 
 93, 9J, 134 
 
 Ottawa N. Plank. Co. v. Murray 15 111. 386 133 
 
 OveraJl v. Ellis 32 Mo. Rep. 322 29 
 
 Owen v. Cawley 36 N. Y. 600 212 
 
 Packer v. Rochester & Syra. R. R. Co. 17 N. Y. 283 90 
 
 Page V. Pierce 26 N. H. 317 15 
 
 Paige V. Chapman 58 N. H. 333 30 
 
 Paine v. Jones 76 N. Y. 274 231, 244
 
 Xlii TABLE OF CASES. 
 
 PAGE. 
 
 Palk V. Clinton 12 Ves. (Eng.) 48 80, 81 
 
 Palmer v. Yager 120 Wis. 91 261 
 
 Papkin v. Bumstead 8 Mass. 491 'l05 
 
 Pardee v. Treat 82 N. Y. 385 237, 240, 241 
 
 Parker v. Fullej- 1 Russ. & M. (Eng.) 656 261 
 
 Parker v. Jenks 36 N. J. Eq. -398 234 
 
 Parker v. Lincoln 12 Mass. 16 130 
 
 Parker v. Mercer 6 H. (Miss.) 320 27 
 
 Parkinson v. Sherman 74 N. Y. 88 235 
 
 Parmenter v. Binkley 28 Ohio St. 32 103 
 
 Parrot v. Hughes 10 Iowa, 459 139 
 
 Parsons v. Lyman 20 N. Y. 103 58 
 
 Partridge v. Partridge 38 Penn. St. 78 12, 16 
 
 Paton V. Mun-ay 6 Paige (N. Y. ), 474 17, 118, 122 
 
 Patterson v. Birdsall 64 N. Y. 294 35 
 
 Pattison v. Shaw 6 Ind. 377 140,^257, 263 
 
 Payne v. Burnham 62 N. Y. 74 212 
 
 Payne v. Compton 2 Y. & C. (Eng.) 457 140 
 
 Payne v. Grant 23 Hun (N. Y.), 134 ... . 104, 256, 262 
 
 263, 265 
 
 Payne v. Wilson 74 N. Y. 348 151 
 
 Peabody v. Peabody 59 Ind. 556 66 
 
 Peabody v. Roberts 47 Barb. (N. Y.) 91 . . 139, 141 , 142, 143 
 
 Pease v. Warren 29 Mich. 9 14 
 
 Pechard v. Rinquet 21 Cal. 76 215 
 
 Peck V. Knickerbocker Ice Co 18 Hun (N. Y.), 183 133, 135 
 
 Peck V. Mallams 10 N. Y. 509 51, 182 
 
 Pell V. Ulmar 18 N. Y. 139 66 
 
 Pelton V. Farmin 18 Wis. 222 261 
 
 Pemberton v. Johnson 64 Mo. Rep. 342 214 
 
 Penfield v. Goodrich 10 Hun (N. Y.), 41 231 
 
 Penn. v. Butler 4 Dallas (U. S.), 3,54 21 
 
 Penn. Coal Co. v. Blake 85 N. Y. 226 211, 254 
 
 People V. Erie Railway Co 56 How. (N. Y.) 122 147 
 
 People V. Keyser 28 N. Y. 226 51, 56 
 
 People's Bank v. Hamilton Co 10 Paige (N. Y.), 481 . . 93, 94, 95, 133 
 
 14.% 148, 159 
 
 Perdicaris V. Wheeler 4 Halst. (N. J. Eq.) 68 261 
 
 Perkins v. Sterne 23 Tex. 561 44 
 
 Perkins v. Wood 27 Mo. Rep. 547 111. 117 
 
 Person v. Merrick 5 Wis. 231 ] 45. 261 
 
 Persons v. Alsip 27 Ii id. 6 260 
 
 Peters v. Bowman 98 U. S. 56 263 
 
 Peters v. Jamestown Bridge Co 5 Cal. 334 42 
 
 Petei-son v. Chemical Bank 32 N. Y. 21 .58, 59
 
 TABLE OF CASES. xliii 
 
 PAGE. 
 
 Peterson v. Oleson 47 Wis. 122 11 
 
 Peto V. Hammond 29 Beav. (Eng-.) 91 81, 86 
 
 Pettibone v. Edwards 15 Wis. 95 23, 181 
 
 Phelan v. Olney 6 Cal. 478 26 
 
 Phelps V. Ellsworth 3 Day (Conn.), 397 47 
 
 Philips V. Bank of Lewistown ■ 18 Penn. St. 394 17 
 
 Pierce v. Brown 24 Vt. 165 51 
 
 Pierce v. Shaw 51 Wis. 316 25, 26 
 
 Pikev. Collins 33 Me. 38 51 
 
 Pike V. Seitler 15 Hun (N. Y.), 402 233 
 
 Pillow V. Sentelle 39 Ark. 61 HO 
 
 Pine V. Shannon 30 N. J. Eq. 404 179 
 
 Pitts V. Aldrich 11 Allen (Mass.), 39 102 
 
 Planters' Bank v. Douglass 2 Head (Tenn.), 699 11 
 
 Piatt V. Sprig-g.... 2 Vern. (Eng.) 804 125 
 
 Piatt V. Squire 12 Mete. (Mass. ) 494 18 
 
 Plowman v. Riddle 14 Ala. 169 28 
 
 Pogue V. Clark 25 111. 351 23 
 
 Pope V. Jacobus 10 Iowa, 262 43 
 
 Pope V. North 33 111. 440 107 
 
 Porter v. Clements 3 Ark. 364 22, 180 
 
 Porter v. Kilgore 32 Iowa, 380 88, 92 
 
 Porter v. Trail 30 N. J. Eq. 106 58 
 
 Porter v. Parmley 52 N. Y. 185 225 
 
 Post V. Tradesmen's Bank 28 Conn. 430 224 
 
 Potter V. Crandall Clarke Ch. (N. Y.) 119 45, 46 
 
 Potts V. N. J. Arms Co 17 N. J. Eq. 518 261 
 
 Powell V. Ross 4 Cal. 197 102, 108 
 
 Powell V. Tattle 3 N. Y. 396 66 
 
 Powell V. Wright 7 Beav. (Eng.)444 123 
 
 Powery. Lester 23 N. Y. 527 67 
 
 Pratt V. Bank of Bennington 10 Vt. 293 ; 21 Vt. 338 ; 22 Vt. 139, 44 
 
 Pratt V. Frear 13 Wis. 462 149 
 
 Prentiss V. Cornell 31 Hun (N. Y.), 167 130 
 
 Pi-escott V. EUingwood 23 Me. 345 14 
 
 Preston v. Hodgen 50 111. 56 25, 181 
 
 Pi-eston V. Morris 42 Iowa, 549 44 
 
 Price's Ex'rs v. Lawton 27 N. J. Eq. 325 261, 264 
 
 Price V. Cole 35 Tex. 461 225 
 
 Price V. Pollock 47 Ind. 362 228 
 
 Prichard v. Elton 38 Conn. 434 110 
 
 Prieto V. Duncan 22 111. 26 215 
 
 Proctor V. Baker 15 Ind. 178- 140 
 
 Prout V. Hoge 57 Ala. 28 45, 172 
 
 Prud.'ii V. Williams 26 N. J. Eq. 210 247
 
 Xliv TABLE OF CASES. 
 
 PAGE. 
 
 Pryor v. Wood 31 Penn. St. 142 12, 16 
 
 Pugh V.Holt 27 Miss. (5 Cush.) 461 24, 181 
 
 PuUen V. Heron Mining Co 71 N. C. 567 172 
 
 Putnam v. Bicknell 18 Wis. 333 67 
 
 Putnam v. Putnam 4 Pick. (Mass. ) 139 86 
 
 Quinebaug "Bank v. French 17 Conn. 134 44 
 
 Racouillat v. San Sevain 32 Cal. 376 240 
 
 Rafterty v. King 1 Keen (Eng.), 619 128 
 
 Railroad Co. V. Orr 18 Wall (U. S.), 471 22, 180 
 
 Randolph v. Widow 21 La. Ann. 486 117 
 
 Rands V. Kendall 15 Ohio Rep. 671 101 
 
 Rankin V. Major 9 Iowa, 297 23, 181 
 
 Ranney v. McMuUen 5 Abb. N. C. (N. Y.) 246. , 243 
 
 Rapp V. Stoner 104 III. 618 224, 228 
 
 Rardin v. Walpf)le 38 Ind. 146 40 
 
 Rath1)one v. Hooney 58 N. Y. 463 119, 124, 261, 262 
 
 Rawson v. Lampman 5 N. Y. 456 123 
 
 Raymond v. Holbron 23 Wis. 57 260 
 
 Raynor v. Selnies 52 N. Y. 579 73, 86, 128 
 
 Ream v. Jack 44 Iowa, 325 233 
 
 Reedv. Bradley 17 111. 321 133 
 
 Reed v. Marble 10 Paige (N. Y.), 4U9 . . 73, 86, 88, 90 
 
 Reedv. Paul 131 Mass. 129 230 
 
 Reid V. Gardner 65 N. Y. 578 79 
 
 Remington Papei- Co. v. O'Dougbei-ty, 81 N. Y. 474 29 
 
 Renaud v. Brown 7 Neb. 449 141 
 
 Renaud v. Conselyea 7 Abb. (N. Y.) 105 ; 4 id. 280 ; 5 
 
 id. 346 51, 56 
 
 Reynoldson v. Perkins Ambl. (Eng.) 564 126, 127 
 
 Rhodes V. Evans Clarke Ch. (N. Y.) 168 76 
 
 Ricard V. Sanderson 41 N. Y. 179 233, 241 
 
 Rice V. Dillingham 73 Me. 59 30 
 
 Rice V. Kelso ..... 57 Iowa, llo 149 
 
 Rich V. Lord 18 Pick. (Mass.) 322 79 
 
 Richards v. Kountze 4 Neb. 208. . . . , 44 
 
 Richardson v. Hadsall 106 111. 476 134 
 
 Richardson v. McKim 20 Kan. 346 25 
 
 Richardson v. Skoltield 45 Me. 386 101 
 
 Riddick v. Walsh 15 Mo. Rep. 519 110 
 
 Rigney v. Lovejoy 13 N. H. 253 44 
 
 Riley's Adm'rs v. McCord's Adm'rs.. 21 Mo. Rep. 285; 24 id. 265.. 51, 117 
 
 Risk V. Hoffman 69 Ind. 137 38 
 
 Ritch V. Eichelberger 13 Fla. 169 145
 
 TABLE OF CASES. xlv 
 
 PAGE. 
 
 Ritter v. Phillips 53 N. Y. 586 235 
 
 Robbins v. Wells 26 How. (N. Y.) 15 61 
 
 Roberts v. Stigleman 78 111. 120 19 
 
 Roberts V. Wood 38 Wis. 60 264 
 
 Robertson v. Caiible 57 Ind. 420 249 
 
 Robinson v. Robinson 1 Laos. (N. Y.) 117 115 
 
 Robinson v. Ryan 25 N. Y. 320 34, 75, 86 
 
 Robinson v. Williams 22 N. Y. 380 49 
 
 Roath V. Smith 5 Conn. 133 51, 54 
 
 Roche V. Farnsworth 106 Mass. 509 86 
 
 Roche V. Knight 21 Wis. 324 262 
 
 Rochester Savings B'k v. Averell .... 96 N. Y. 467 133 
 
 Rochfort V. Battersby 14 Jur. (Eng.) 229 76, 128 
 
 Rockwell V. Jones 21 111.279 Ill, 116 
 
 Roddy V. Elam 12&13 Rich. L. & E. (S. C.)343.. 84 
 
 Rodger V. Jones 1 McCord Ch. (S. C.) 221 86 
 
 Rodman v. Rodman 64 Ind. 65 215 
 
 Roger V. Weakly 2 Port. (Ala.) 516 '. 165 
 
 Rogers v. Bonner 45 N. Y. 379 160 
 
 Rogers V. Herron 92 111. 583 228 
 
 Rogers v. Holyoke 14 Minn. 220 34 93, 96, 140 
 
 Rogers v. Ward 8 Allen (Mass.), 387 214 
 
 Rogers v. Weil 12 Wis. 664 210 
 
 Roll V. Smalley 2 Halst. (N. J. Ch.) 464 260 
 
 Rollins V. Forbes 10 Cal. 299 192 
 
 Rolls V. Yate Yelv. (Eng.) 177 20 
 
 Rooney V. Bell 9 Dana (Ky.), 4 86, 88, 141 
 
 Roosevelt v. Carpenter 28 Barb. (N. Y.) 426 195 
 
 Roosevelt v. ElUthorp 10 Paige (N. Y.), 415 47, 144 
 
 Roosevelt Hospital V. Dowley 57 How. (N. Y.) 489 167 
 
 Root v. Wheeler 12 Abb. (N. Y.) 294 145 
 
 Root V. Wright 84 N. Y. 72 76, 78, 240 
 
 Roscarrick v. Barton 1 Ch. Ca. (Eng.) 218 125 
 
 Rose V. Kimball ICE. Green (16 N. J. Eq. ), 185, 17 
 
 Rose V. Swan 56 111. 37 88 
 
 Ross V. Boardman 22 Hun (N. Y.), 527 105 
 
 Ross V. Kennison 38 Iowa, 396 228, 236, 237 
 
 Rossv Terry 63 N. Y. 613 174 
 
 Ross V. Utter 15 111. 402 23 
 
 Rourke v. Murphy 12 Abb. N. C. (N. Y.) 402 213 
 
 Rowan v. Mercer 10 Humph. (Tenn.) 359 140 
 
 Rowland V. Leiby 14 Cal. 156 192, 200 
 
 Rowley v. Williams 5 Wis. 151 260 
 
 Rucks V. Taylor 49 Miss. 552 260 
 
 Russell V. Mullanphy 4 Mo. Rep. 319 140
 
 xlvi TABLE OF CASES. 
 
 PAGE. 
 
 Russell V. Pistor 7 N. Y. 171 228 
 
 Ryan V. Dunlap 17 111.40 44 
 
 Sale V. Kitson 17 Jur. (Eng.) 171 120 
 
 Salmon V. Allen 11 Hun (N. Y.), 29 31, 177 
 
 Sample v. Rowe 24 Ind. 208 25 
 
 Samuel v. Peyton 88 Penn. 465 225, 232, 240 
 
 Sanderson v. ^Edwards Ill Mass. 335^ 115 
 
 Sands V. Wood 1 Iowa, 263 192 
 
 Saufoi-d V. Bulkley 30 Conn. 344 17 
 
 San Francisco v. Lawton 18 Cal. 465 259, 263 
 
 Sangster v. Love 11 Iowa, 580 23, 44 
 
 Sargent V. Howe 21 111. 148. , 25 
 
 Savings Bank v. Freese 26 N. J. Eq. 453. . .». 21, 182 
 
 Sa\angs & Loan Society v. Gibbs. ... 21 Cal. 595 115, 117 
 
 Saylors v. Saylors 3 HeiskeU (Tenn.), 525 37 
 
 Scarry V. Ekfridge 63 Ind. 44 92,93,228, 247 
 
 Schafer v. Reilly 50 N. Y. 61 16 
 
 Schroeppel v. Hopper 40 Barb. (N. Y. ) 425 53 
 
 Schwnger v. Hickok 53 N. Y. 283 194, 199, 203 
 
 Scofield V. Doscher 72 N. Y. 491 . . 190, 195, 205, 206, 214 
 
 218, 254 
 
 Scott V. Liidington 14 W. Va. 387 172 
 
 Scott V. McFarland 13 Mass. 309 51 
 
 Scott V. NicoU 3 Russ. (Eng.) 476 52 
 
 Scott V. Otis 25 Hun (N. Y.), 35 253 
 
 Searle v. Whijiperman 79 Ind. 424 86 
 
 Sedgwick v. Cleveland 7 Paige (N. Y.), 290 94, 128 
 
 Selectmen of Natchez v. Minor 9 S. & M. (Miss.) 544 31 
 
 Semour v. Freeman Smith (Ind. ), 25 13 
 
 Semple v. Lee 13 Iowa, 304 86, 87 
 
 Severence v. Griffith 2 Lans. (N. Y.)-38 43 
 
 Seward v. Huntington 94 N. Y. 114 95 
 
 Shadbolt V. Bassett 1 Lans. (N. Y.) 121 235 
 
 Shaw V. Heisey 48 Iowa, 468 34 
 
 Shaw V. Hoadley 8 Blackf. (Ind.) 165 76, 77, 110 
 
 Shaw V. McNish 1 Barb. Ch. (N. Y.) 328. . 145, 161, 163 
 
 Sheldon v. Bennett 44 Mich. 634 19 
 
 Sheldon v. Patterson 55 111. 507 104, 105 
 
 Shellenbarger v. Riser 5 Neb. 195 262, 263 
 
 Shelton v. Atkins 22 Pick. (Mass.) 71 Ill 
 
 Shields v. Keys 24 Iowa, 298 163 
 
 Shinier v. Hammond 51 Iowa, 401 34 
 
 Shinn V. Shinn 91 111. 477 41, 140, 166 
 
 Shirkey v. Hanna 3 Blackf. (Ind.) 403 18, 22
 
 TABLE OF CASES. xlvii 
 
 PAGE. 
 
 Shiveley's Adm'rs v. Jones . " 6 B. Mon. (Ky.) 274 Ill 
 
 Shockley v. Shockley 20 Ind. 108 67 
 
 Shores v. Scott River Co 21 Cal. 135 139 
 
 Short V. Raub 81 111. 509 103 
 
 Shumaker v. Sibert 18 Kan. 104 228 
 
 Sickman V. Wood 69 111.329 78 
 
 Simons V. Bryce 10 Rich. (S. C.) 354 115 
 
 Simonson V. Blake 20 How. (N. Y.) 484 194 
 
 Simsonv. Satterlee 64 N. Y. 657 28, 29. 179 
 
 Singleton v. Cox 4 Hare (Eng.), 326 128 
 
 Sinking Fund Com'rs v. North'n Bank. 1 Mete. (Ky.) 174 28 
 
 Skelton v. Ward 51 Ind. 46 201 
 
 Skinner V. Back 29 Cal. 253 86, 88 
 
 Skipp V. Wyatt 1 Cox (Eng.), 353 55 
 
 Slater v. Breese 36 Mich. 77 224 
 
 Slaughter v. Foust 4 Blackf. (Ind.) 379 14, 110 
 
 Slauson v. Watkins 44 Supr. Ct. (N. Y.) 73 233 
 
 Slee V. Manhattan Co 1 Paige (N. Y.), 48 155, 176, 183 
 
 Smart v. Bradstock 7 Beav. (Eng.) 500 123 
 
 Smith V. Bartholomew 42 Vt. 356 49 
 
 Smith V. Chapman 4 Conn. 346 139 
 
 Smith V. Chichester 2 Dru. & War. (Eng. ) 404 61 
 
 Smith V. Day 23 Vt. 662 15 
 
 Smith V. Dyer 16 Mass. 18 51 
 
 Smith V. Eustis 7 Me. 41 101 
 
 Smith V. Gardner 42 Barb. (N. Y. ) 356 102, 105 
 
 Smith V. Kelley 27 Me. 237 14 
 
 Smith V. Lawi-ence 11 Paige (N. Y.), 206 52 
 
 Smith V. Manning 9 Mass. 422 Ill 
 
 Smith V.Monroe 1 Ired. (N. C.) 345 66 
 
 Smith V. Ostermeyer 68 Ind. 432 247 
 
 Smith V. Roberts 62 How. (N. Y.) 196 256, 257, 259 
 
 Smith V. Sanger 3 Barb. Ch. (N. Y.) 360 94 
 
 Smith V. Schaflfer 46 Md. 573 258 
 
 Smith V. Stevens 49 Conn. 181 25 
 
 Smith V. Tiffany 16 Hun (N. Y.), 552 59 
 
 Smith V. Trenton Delaware Falls Co.. 3 Green (N. J. Eq.), 505 21 
 
 Smith V. Truslow 84 N. Y. 660 227 
 
 Smith V. Webb 1 Barb. (N. Y.) 232 58, 59 
 
 Smyth V. Lombardo 15 Hun (N. Y.), 415 66 
 
 Snellv. Stanley 58 111. 31 204 
 
 Snyder v. Blair 33 N. J. Eq. 208 201 
 
 Snyder v. Noble 94 Penn. 286 214 
 
 Snyder v. Robinson 35 Ind. 311 , . 229 
 
 Snyder v. Snyder 6 Mich. 470 101
 
 Xlviii TABLE OF CASES. 
 
 PAGE 
 
 Somes V. Skinner 16 Mass. 348 64 
 
 Soule V. Albee 31 Vt. 142 92 
 
 Sontherin v. Mendum 5 N. H. 420 44 
 
 Southwoi-th V. Scofield 51 N. Y. 513 188 
 
 Sparkman V. Gove 44 N. J. L. 252 238 
 
 Speai- V. Ward 20 Cal. 660 212 
 
 Spencer V. Spencer 95 N. Y. 353 231 
 
 Sperry v. Dickinson 82 Ind. 132 210 
 
 Spiller V. Spiller 1 Hay ward (N. C), 482 78, 87 
 
 Sprague v. Jones , 9 Paig-e (N. Y.), 395 206 
 
 Spring- V. Short 90 N. Y. 538 127, 147 
 
 Spnngsteen v. Gillett 30 Hun (N. Y.), 260 200 
 
 Sproule V. Samuel 4 Scam. (111.) 135 134 
 
 Standish v. Dow 21 Iowa, 363 262 
 
 Stanley V. Beatty 4 Ind. 134 14,23, 25 
 
 Stansfield v. Hobson 16 Bear. (Eng.) 189 .• 62 
 
 Stanton v. Kline 11 N. Y. 199 75. 90 
 
 Stark V. Brown 12 Wis. 572 34. Ill, 116 
 
 Stark V. Fuller 42 Penn. 320 249 
 
 State Bank of Ohio v. Hinton 21 Ohio, 509 101 
 
 State Bank v. Tweedy 8 Blackf. (Ind.) 447 25 
 
 Stebbinsv. Hall ' 29 Barb. (N. Y.) 524 38, 224 
 
 Stephen v. Beal 22 Wal. (U. S.) 328 80 
 
 Stephens v. Bichnell 27 111. 444 103 
 
 Stephens v. Greene County Iron Co. . 11 Heiskell (Tenn.), 71 195 
 
 Stern v. O'Connell 35 N. Y. 104 97 
 
 Stevens v. Campbell 21 Ind. 471 76, 78, 108, 192, 204 
 
 Stevens V. Casbacher 8 Hun (N. Y.), 116 243, 244 
 
 Stevens V. Dufour 1 Blackf. (Ind.) 387 191 
 
 Stevens V. Reeves 33 N. J, Eq 427 176 
 
 Stevenson v. Mathers 67 111. 123 22 
 
 Stewart v. Allegheny Nat. Bank 101 Penn. 342 79 
 
 Stewart v. Hutchinson 29 How. (N. Y.) 181 34 
 
 Stewart v. Jenkins 6 Allen (Mass.), 300 214 
 
 Stewart v. Johnson 30 Ohio St. 24 142 
 
 Stewart v. Thompson 3 Vt. 255 14 
 
 Stiger v. Mahone 24 N. J. Eq. 426 230 
 
 Stillwell v. McNeely 1 Green Ch. (N. J.) 305 62 
 
 Stimson v. Pease 53 Iowa, 572 127 
 
 St. John v. Bumpstead 17 Barb. (N. Y. ) 100 86, 90 
 
 St. John v. Freeman 1 Carter (Ind.), 84 30. 176 
 
 Stobe v. Downer 13 Wis. 10 2.57 
 
 Stone V. Locke 46 Me. 445 45 
 
 Stone v. Scripture 4 Lans. (N. Y.) 186 58, 60 
 
 Stoops V. Blackford 27 Penn. St. 213 13
 
 TABLE OF CASES. xlix 
 
 PAGE. 
 
 Stow V. Tifft 15 Johns. Rep. (N. Y.) 458 103 
 
 Straight V. Harris 14 Abb. N. C. (N. Y.) 509 258 
 
 Strang V. Allen 44 111. 428 140, 145 
 
 Strause v. Josephthal 77 N. Y. 622 37 
 
 Sti-eet V. Beal 16 Iowa, 68 89, 139 
 
 Strohaner v. Voltz 42 Mich. 444 224 
 
 Strong V. Downing 34 Ind. 300 172, 174 
 
 Strother v. Law 54 111. 413 12 
 
 Stuart V. Scott 22 Kan. 585 149 
 
 Stucker v. Stucker 3 J. J. Mar. (Ky.) 301 74 
 
 Stuyvesant V. Hall 2 Barb. Ch. (N. Y.) 151 98 
 
 Stuyvesant v. Hone 1 Sandf. Ch. (N. Y.) 419 98 
 
 Suiter v. Turner 10 Iowa, 517 134 
 
 Summers v. Bromley 28 Mich. 125 263 
 
 Sumner v. Coleman 20 Ind. 486 86, 87 
 
 Sup.'s of Iowa Co. V. Mineral P. R. R. 24 Wis. 93 66, 141 
 
 Sutherland v. Rose 47 Barb. (N. Y.) 144 219 
 
 Sutton V. Jervis 31 Ind. 265 103 
 
 Sutton V. Stone 2 Atk. (Eng.) 101 10, 125 
 
 Suydam v. Bartle 9 Paige (N. Y. ), 294 195, 205 
 
 Swan V. Wiswall 15 Pick. (Mass.) 126 101 
 
 Swartz V. Leist 13 Ohio St. 419 14, 44 
 
 Swenson v. Molina Plow Co 14 Kan. 387 23 
 
 Swift V. Edson 5 Conn. 534 76, 77, 140 
 
 Swift V. Stebbins 4 Stew. & Port. (Ala.) 447 63 
 
 Tabor V. Tabor 3 Swan. (Eng.) 636 50 
 
 Taggert v. San Antonio, etc 18 Cal. 460 201 
 
 Taintor v. Hemingway 18 Hun (N. Y.), 458 233 
 
 Talbot V. Dennis Smith (Ind.), 357 51 
 
 Talburt v. Bei-kshire 80 Ind. 434 243 
 
 Tanguay v. Felthousen 45 Wis. 30 225 
 
 Tate V. Jordan 3 Barb. (N. Y.) 392 97 
 
 Taylor v. Agricultural & M. Asso 68 Ala. 229 34 
 
 Taylor V. Collins 51 Wis. 123 91 
 
 Taylor V. Fowler 18 Ohio, 567 101 
 
 Taylor v. Mayer 93 Penn. 42 225 
 
 Taylor v. Porter 7 Mass. 355 78 
 
 Taylor v. Towi.send 6 Mass. 264 189 
 
 Ten Eyck v. Casad 15 Iowa, 524 141 
 
 Terrett v. Crombie 6 Lans (N. Y.) 82 ; 55 N. Y. 683. . 120 
 
 Terry v. Wilson 63 Mo. Rep. 493 67 
 
 Terry v. Woods 6 S. & M. (Miss.) 139 27 
 
 Thayer v. Campbell 9 Mo. Rep. 277 15, 24, 181 
 
 Thayer V. Smith 17 Mass. 429 86 
 
 Thomas V. Dunning 5 De G. & S. (Eng.) 618 123 
 
 iv
 
 1 TABLE OF GASES. 
 
 PAGE. 
 
 Thompson v. Bertram 14 Iowa, 476 228 
 
 Thompson v. Commissioners 79 N. Y. 54 66 
 
 Thompson v. Field 38 Mo. Rep. 320 24, 25 
 
 Thompson v. Lyman 28 Wis. 266 103 
 
 Thomson V. Smith 63 N. Y. 301 53 
 
 Thornborough v. Baker '. 3 Swan. (Eng. ) 628 50 
 
 Thornev. Newby 59 How. (N. Y.) 120 205, 206 
 
 Thornton v. Pigg 24 Mo. Rep. 249 101, 108, 110 
 
 Thorp V. Keokuk Coal Co 48 N. Y. 253 235, 237, 238, 239 
 
 Thorpe V. Ricks 1 Uev. & B. Eq. (N. C.) 619. .89, 127 
 
 Tice V. Annin 2 Johns. Ch. (N. Y.) 125 38 
 
 Tichenorv. Dodd 3 Green Ch. (N. J.) 454 225 
 
 Tilford V. James 7 B. Mon. (Ky.) 337 11 
 
 Tome V. Mer. Mec. B. L. Co 34 Md. 12 145, 2.57 
 
 Toole V. McKiernan 48 Supr. Ct. (N. Y.) 163 .... 119, 120 
 
 Tootle V. White 4 Neb. 401 260 
 
 Tormey v. Gerhart 41 Wis. 54 200 
 
 Torrey v. Cook 116 Mass. 163 79 
 
 Tower v. White 10 Paige (N. Y.), 395 144 
 
 Towle V. Rowe 58 N. H. 394 49 
 
 Towusend v. Smith 1 Beas. (N. J. Eq.) 350 66 
 
 Trapier v. Waldo 16 S. C. 276 116, 117 
 
 Trecothick V. Austin 4 Mason (U. S.), 633 58, 60 
 
 Trenton Banking Co. v. WoodruflF. ... 1 Green Ch. (N. J. Eq.) 117. . . 54, 67 
 
 Trimmer v. Thomson 10 Rich. (S. C.) 164 51, 218 
 
 Troth V. Hunt 8 Blackf. (Lid.) 580 260 
 
 Trotter V. Hughes 12 N. Y. 74 226, 228, 236, 238 
 
 Troughton v. Binkes 6 Ves. (Eng.) 573 123 
 
 True V. Haley 24 Me. 297 76 
 
 Trustees Dis. of N. Y. v. Merriman . . _ 59 How. (N. Y.) 226 234 
 
 Trustees for Pub. Schools v. Anderson, ' 30 N. J. Eq. 366 246 
 
 Trustees Jefferson College v. Prentiss, 7 Cush. (Miss.) 46 27 
 
 Trustees of Jones Fund v. Roth 18 Wk. Dig. (N. Y.) 459 109 
 
 Trustees of Union College v. Wheeler, 61 N. Y. 88 16 
 
 Trustees V. Yates 1 Hoff. Ch. (N. Y.) 142 76 
 
 Tucker v. Leland 75 N. Y. 186 90, 194 
 
 Tuderv. Morris 1 Sm. & Gif. (Eng.) 503 120 
 
 Tuttle V. Lane 17 Me. 437 134 
 
 Twichell V. Mears 8 Bliss C. Ct. (U. S.) 214 225 
 
 Tylee v. Webb 6 Beav. (Eng.) 552 140 
 
 Tyler v. Yreka Water Co 14 Cal. 212 , 22, 180 
 
 Tyi-rell v. Ward 102 111. 29 40 
 
 Underhill v. Atwater 22 N. J. Eq. 16 31 
 
 Unger V. Leiter 32 Ohio St. 210 105
 
 TABLE OF CASES. li 
 
 PAGE. 
 
 Unger v. Smith 44 Mich. 22 228 
 
 Union Bank v. Bell 14 Ohio St. 200 123 
 
 Union College v. Wheeler 61 N. Y. 88 176 
 
 Upton V. National Bank of Reading. . 120 Mass. 153 48 
 
 Urquhart v. Brayton 12 R. I. 169 230 
 
 Valentine v. Haff. 72 N. Y. 184 131 
 
 Valentine v. Havener 20 Mo. Rep. 133 140 
 
 Van Brunt v. Mismer 8 Minn. 232 204 
 
 Vanderbilt v. Schreyer 91 N. Y. 392 249 
 
 Vanderkerap v. Shelton 11 Paige (N. Y. ), 28 . . . . 139, 142, 256 
 
 258, 259, 260 
 
 Van Deventer V. Stiger 25 N. J. Eq. 224 31 
 
 Van Horn v. Powers 26 N. J. Eq. 257 234 
 
 Van Nest V. Latson 19 Barb. (N. Y.) 604 76, 77 
 
 Vansant v. Allmon 23 111. 30, 34 26 
 
 Van Schaack v. Sanders 32 Hnn (N. Y.), 515 118 
 
 Van Slyke V. Sheldon 9 Barb. (N. Y.) 278.. .75, 86, 90, 91 
 
 Van Vechter v. Terry 2 Johns. Ch. (N. Y.) 197 ... . 122, 123 
 
 Van Vranker v. Eastman 7 Mete. (Mass.) 157 105 
 
 Veach v. Schaup 3 Clarke (Iowa), 194 89, 92 
 
 Verdin v. Slocum 71 N. Y. 345 146 
 
 Veree V. Veree 2 Brev. (S. C.) 211 101 
 
 Vermilya v. Beatty 6 Barb. (N. Y.) 429 58 
 
 Verry v. Robinson 25 Ind. 14 101 
 
 Vei-y V. Watkins 18 Ark. 546 196 
 
 Vickers v. Cowell 1 Beav. (Eng.) 529 20, 22, 180 
 
 Vimont v. Stitt 6 B. Mon. (Ky.) 478 44 
 
 Virdin V. Slocum 71 N. Y. 345 145 
 
 Voorhies v. Granberry ~ 5 Baxter (Tenn. ), 704 212 
 
 Vreeland v. Blarcom 35 N. J. Eq. 530 228 
 
 Vreeland v. Loubat 1 Green (N. J. Eq.), 104, 405. ... 77 
 
 Vroom V. Ditmas 4 Paige (N. Y.), 526 ... . 139, 142, 145 
 
 Vroom V. Van Home 10 Paige (N. Y.), 549 58, 60 
 
 Vrooman v. Turner 69 N. Y. 280 92, 93, 212, 214, 238 
 
 239, 248, 253 
 
 Wadsworthv. Lyon 93 N. Y. 201 36, 204, 224, 231 
 
 Wagner v. Chew 15 Penn. St. 323 225 
 
 Waldo V. Williams 2 Scam. (111.) 471 146 
 
 Wales V. Sherwood 52 How. (N. Y.) 413 228, 233 
 
 Walker V. Bank of Mobile 6 Ala. 4.52 172 
 
 Walker v. King 44 Vt. 601 37 
 
 Walker V. Schreiber 47 Iowa, 529 25, 44, 140 
 
 Wallace v. Dunning Walker Ch. (Mich.) 416 49 
 
 Wallace v. Holmes 40 Penn. 427 117
 
 lii TABLE OF CASES. 
 
 PAGE. 
 
 Waller V. Harris 7 Paige (N. Y.), 167 139 
 
 Wallwyn v. Coutts 3 Mer. (Eng-.) 707 123 
 
 Walsh V. Rutgers Fire Ins. Co 13 Abb. (N. Y.) 33 142, 144, 261 
 
 Walsh V. Truesdale 1 Bradw. (111.) 12H 119 
 
 Walsh V. Wilson 130 Mass. 124 104 
 
 Walter V. Wala 10 Neb. 123 66 
 
 Walters V. Walters 73 Ind. 425 103 
 
 Walton V. Goodnow 13 Wis. 661 192 
 
 Walton V. Jones 2 Y. & C. C. C. (Eng.) 244 119 
 
 Wanzer v. Cary 76 N. Y. 526 , 43 
 
 Ward V.Price 12 N. J. Eq. 543 48 
 
 Ward V.Sharp 15 Vt. 115 174 
 
 Ward V. Van Bokkelen 2 Paige (N. Y.), 295.. 152, 156, 172, 173 
 
 Waring v. Turton 44 Md. 535 183 
 
 Warner v. Beardsley 8 Wend. (N. Y.) 194 40 
 
 Warner v. Dewitt Co. Bank 4 Bradw. (111. ) 305 - 260 
 
 Warren V. Burton 9 S. C. 197 257 
 
 Warren v. Homestead 33 Me. 256 44 
 
 Waters v. Bossel 58 Miss. 602 260 
 
 Watson v. Church _... 3 Hun (N. Y.), 80 106 
 
 Watson v. Spence * 20 Wend. (N. Y.) 260. . 74, 86, 88, 91 
 
 Watt V. Alvord 25 Ind. 533 101 
 
 Wattv. Watt 2 Barb. Ch. (N. Y.) 371 93 
 
 Wayman v. Cochrane 35 111. 152 44 
 
 Webb v. Flanders 32 Me. 175 42 
 
 Webb v. Maxan 11 Tex. 678 90 
 
 Weber v. Zeiment 30 Wis. 283 225 
 
 Webster V. Calden 56 Me. 204 43, 51 
 
 Weed V. Beebe 21 Vt. 495 140, 257 
 
 Weed Sewing M. Co. v. Emerson 115 Mass. 554 99, 109 
 
 Weeks v. Tomes 16 Hun (N. Y.), 349; affd 76 N. 
 
 * Y. 601 93, 98, 160 
 
 Wehy v. Boylan 62 How. (N. Y.) 397; aff'd 63 
 
 How. (N. Y.) 72 97 
 
 Weil V. Martin 24 Hun (N. Y.), 645 107 
 
 Weir V. Mosher 19 Wis 311 51 
 
 Welch V. Buckins 9 Ohio St. 331 103 
 
 Welp V. Gunther 48 Wis. 543 198 
 
 Wendell v. New Hampshire 9 N. H. 404 10 
 
 Westerfield v. S[)encer 61 Ind. 339 173 
 
 Western Ins. Co. V. Eagle Fire Ins. Co. 1 Paige (N. Y.), 284 256, 259 
 
 Western Reserve Bank v. Potter.... Clarke Ch. (N. Y.) 437 157, 172 
 
 176, 259 
 
 Westfall V. Lee 7 Clarke (Iowa), 12 104 
 
 Wetherell v. Collins 3 Madd. (Eng. ) 255 54, 166
 
 TABLE OF CASES. liii 
 
 PAGE. 
 
 Wetmore V. Roberts 10 How. (N. Y.) 51 153, 156 
 
 Whalen v. White 25 N. Y. 462 133, 134 
 
 Wheeler v. Emerson 45 N. H. 527 44 
 
 Wheeler v. Morris 2 Bosw. (N. Y.) 524 100, 103 
 
 Wheeler V. Van Kuran 1 Barb. Ch. (N. Y.) 490 144 
 
 White V. Bartlett 14 Neb. 320 156 
 
 White V. Coulter 1 Hun (N. Y.), 357; 3 T. & C. 
 
 (N. Y.) 608; 59 N. Y. 629. .98, 105 
 106, 107 
 
 White V. Fisher 62 HI. 258 41 
 
 White V. Holman 32 Ark. 753 257, 260 
 
 White V. Rittemyer 30 Iowa, 268 51, 110, 163 
 
 WTiite V. Secor 58 Iowa, 533 54 
 
 White V. Williams*. 2 Green Ch. (N. J.) 376 189 
 
 Whitev.Zust 28 N. J. Eq. 107 200 
 
 Whiting- V. Geary 14 Hun (N. Y.), 498 244 
 
 Whitney v. Hig-g-ins 10 Cal. 547 139 
 
 Whitney v. McKinney 7 Johns. Ch. (N. Y.) 144 . . 30, 72, 76 
 
 152, 153, 172, 173, 176 
 
 Whittemore v. Gibbs 24 N. H. 484 44 
 
 Whittla V. Halliday 4 Dru. & War. (Eng.) 267 164 
 
 Wicke V. Fake 21 Wis. 410 262 
 
 Wickeuden v. Rayson 6 De G. & M. (Eng.) 210 261 
 
 Wightman V. Gray 10 Rich. Eq. (S. C.) 518 191 
 
 Wilcox V. Allen 36 Mich. 160 27 
 
 Wilcoxon V. Osborn 77 Mo. Rep. 621 34 
 
 Wiley V. Ewing.... 47 Ala. 418 141 
 
 Wiley V. Pinson 23 Tex. 486 23, 79, 116 
 
 Wilhelm V. Lee 2 Md. Ch. Dec. 322 196 
 
 Wilkerson v. Daniels 1 Greene (Iowa), 179 192, 259 
 
 Wilkins V. Wilkins 4 Port. (Ala.) 245 112, 116 
 
 Wilkinson v. Green 34 Mich. 221 261, 263 
 
 Willai-d v. Nason 5 Mass. 240 117 
 
 Williams v. Beard 1 Rich. (S. C.) 309 87, 111 
 
 Williams V. Fowler 132 Mass. 385 230 
 
 Williams v. Gillier 28 Hun (N. Y.), 175 228 
 
 Williams V. Hilton 35 Me. 547 21 
 
 Williams v. Meeker 29 Iowa, 292 77, 91 
 
 Williams v. Perry 20 Ind. 437 79 
 
 Williams V. Smith 49 Me. 564 172 
 
 Williams v. .Storrs 6 Johns. Ch. (N. Y.) 353 58 
 
 Williams v. Terrell 54 Ga. 462 88 
 
 Williamson v. Dufty 19 Hun (N. Y.), 312 213 
 
 Williamson v. Field 2 Sandf. Ch. (N. Y.) r)33. . 86, 110, 118 
 
 120, 121, 123, 124
 
 liv TABLE OF CASES. 
 
 PAGE. 
 
 Williamson v. Probasco 4 Halst. (N. J. Eq.) 571 257 
 
 WiUinkv. Morris Canal Banking Co.. 3 Green Ch. (N. J.) 377.. 63, 141, 166 
 
 Willis V. Farley 24 Cal. 490 44 
 
 Willis V. Henderson 4 Scam. (111.) 13 123 
 
 WilHs V. Vallette 4 Mete. (Ky.) 195 42 
 
 Wilson V. Eigenbrodt 30 Minn. 4 26 
 
 Wilson V. Fatout 42 Ind. 52 30 
 
 Wilson V. Giddings 28 Ohio St. 554 31 
 
 Wilson V. Hayward 2 Fla. 27 23 
 
 Wilson V.King 27 N. J. Eq. 374 233 
 
 Wilson V. Scott 29 Ohio St. 636 102 
 
 Wilson V. Spring 64 111. 14 13, 172 
 
 Wilton V. Jones 2 Y. & C. C. C. (Eng.) 244...51, 61 
 
 Winchester v. Paine 11 Ves. (Eng.) 194 95 
 
 Winebrenner v. Johnson 7 Abb. N. S. (N. Y.) 202.... 145, 147 
 
 149, 150, 151 
 
 Winkleman v. Kiser 27 111. 21 11, 16 
 
 Winnev. Littleton 2 Ch. Ca. (Eng.) 51 52 
 
 Winslow V. Clark 47 N. Y. 261 86, 88, 89, 127 
 
 Winslow V. McCall 32 Barb. (N. Y.) 241.. . . 141, 153, 156 
 
 Winters V. Bank 33 Ohio St. 250 25, 26 
 
 Wise V. Fuller 29 N. J. Eq. 257 238 
 
 Wochoska v. Wochoska .45 Wis. 423 67 
 
 Wolf V. Banning 3 Minn. 202 86, 109 
 
 Wood V. Chew 13 How. (N. Y.) 86 101 
 
 Wood V. Harman 5 Madd. (Eng.) 368 55, 62 
 
 Wood V.Love 27 Mich. 308 83, 148 
 
 Wood V. Morehouse 1 Lans. (N. Y.) 405 110 
 
 Wood V. Nisbit 20 Ga. 72 ^ 120 
 
 Wood V.Smith 51 Iowa, 156 ..*. 36, 38 
 
 Wood V. Stanberry 21 Ohio St. 142 199 
 
 Wood V. Terry 4 Lans. (N. Y.) 80 ... 66 
 
 Wood V. Trask 7 Wis. 566 25 
 
 Wood V. Williams 4 Madd. (Eng.) 186 12, 54, 64 
 
 Woodbury v. Swan. 58 N. H. 380 224 
 
 Wooden v. Haviland 18 Conn. 107 32 
 
 Woodruff V. Depue 1 McCarter (14 N. J. Eq.), 168. . 17 
 
 29, 62, 176 
 
 Woodi-uff V. Mutschler 34 N. J. Eq. 33 58 
 
 Woodruff V. Stickle 28 N. J. Eq. 549 231 
 
 Woodward v. Wood 19 Ala. 213 18 
 
 Woolner v. Wilson 5 111. App. 439 120 
 
 Wright V. Bundy 11 Ind. 398 62 
 
 Wright V. Eaves.- 10 Rich. Eq. (S. C.) 582 76, 117 
 
 Wrightv. Howell 35 Iowa, 288 149
 
 TABLE OF CASES. Iv 
 
 "PAGE. 
 
 Wright V. Langley 36 HI. 381 102 
 
 "Wright V. Parker 2 Aik. (Vt.) 212 15, 27 
 
 Wright V. Sperry 21 Wis. 331 16, 172, 176 
 
 Wright V. Troutman 81 111. 374 13 
 
 Wurcherer v. Hewitt 10 Mich. 453 261, 263 
 
 Wylie V. McMackin 2 Md. Ch. Dec. 413 145 
 
 Yager v. Merkle 26 Minn. 429 109 
 
 Yale V. Dederer 68 N. Y. 334 210, 212 
 
 Yates V. Hambly 2 Atk. {Eng.)237 125 
 
 Yorkv. Allen 30 N. Y. 104 66 
 
 Young V. Tarbell 37 Me. 509 103 
 
 Youngman V. Elmira & W. R. R 65 Penn. 278 36, 96 
 
 Youngs V. Trustees of Pub, Schools. . 31 N. J. Eq. 290 197, 246, 247 
 
 Youse V. M'Creary . 2 Blackf. (Ind.) 243 191 
 
 Zabriskie V. Smith 13 N. Y. 322 61 
 
 Zaegel v. Kuster 51 Wis. 31 105, 111 
 
 Zeiter v. Bowman 6 Barb. (N. Y.) 133 93, 134
 
 INTRODUCTION. 
 
 § 1. Generally. 
 
 2. Methods of foreclosure. 
 
 3. Parties generally in equitable foreclosures. 
 
 4. Application by American courts. 
 
 5. Result of foreclosure upon the parties. 
 
 § 1. Generally. 
 
 In the conduct of an action in a court, or of a pro- 
 ceeding under a statute, it has always been of the first 
 importance that the persons to be bound by the result 
 should be brought within the jurisdiction of the author- 
 ity pretended to be exercised. With some classes of 
 actions the practitioner has no difficulty in determin- 
 ing who should be brought into court ; but in the 
 enforcement of the rights which attach to a mortgage 
 and the debt it secures, difficult and complicated ques- 
 tions are often presented as to who should be brought 
 within the cognizance of the court, that a complete 
 remedy may be obtained by the prosecutor, and that 
 the rights of no claimant of an interest in the subject- 
 matter or in the object of the proceeding, may be made 
 to suffer an injury, or allowed to pass unprotected — 
 and this is necessarily so from the peculiar character 
 and history of mortgage securities, and from the large
 
 2 PARTIES TO MORTGAGE FORECLOSURES. 
 
 place that the law of mortgages fills in the general 
 jurisprudence and practice of our states. Attention 
 will be given in the following pages to a consideration 
 of the questions, who may be and who should be brought 
 into an action or a proceeding to enforce a mortgage, 
 and what are the rights of parties with reference to 
 such enforcement. 
 
 § 2. Methods of foreclosure. 
 
 There are four principal methods by which mort- 
 gages may be foreclosed in the United States, and as 
 all depend upon equitable principles in their origin and 
 application, they cause but little variation in the treat- 
 ment of parties. 1. Foreclosure by entry and possession 
 originally required the actual entry upon, and posses- 
 sion of, the mortgaged premises ; this procedure has 
 been greatly assisted by the writ of entry, which is 
 much in the nature of an equitable action, though nom- 
 inally an action at law. Foreclosure by entry, how- 
 ever, is mainly confined to Massachusetts, Maine, New 
 Hampshire and Rhode Island. 2. Strict foreclosure, or 
 foreclosure without a sale, was a procedure greatly 
 used in England at one time, and its purpose was to 
 perfect in the mortgagee an absolute title, instead of to 
 obtain a decree of sale ; the courts in most states recog- 
 nize this method, but allow its use only in exceptional 
 cases, owing to its severity upon the rights of the 
 owner of the equity of redemption. 3. Statutory fore- 
 closure, or foreclosure by advertisement, is a procedure 
 provided by the legislatures of nearly all our states, 
 every step in which is specifically prescribed by stat- 
 ute. Owing to its extreme technicality and insuffi-
 
 PARTIES GENERALLY IN EQUITABLE FORECLOSURES. 3 
 
 ciency of remedy, it is seldom practiced where equitable 
 actions are allowed. 4. A?i equitable action is now the 
 almost universal procedure, among the English-speaking 
 races, for the foreclosure of a mortgage. So broad and 
 comprehensive is the process of foreclosure by an equit- 
 able action, that a consideration of parties, with refer- 
 ence to that procedure, will also cover the subject 
 where the procedure is by entry and possession, or by 
 strict foreclosure, so that attention need not be given 
 separately to those two methods ; while in statutory 
 foreclosures, special provisions are made as to parties. 
 Where no provisions are made, equitable rules control. 
 The subject of this work is thus reduced to parties to 
 mortgage foreclosures by equitable actions. Such vari- 
 ations as may exist in the other methods will be noticed 
 in their proper connection. 
 
 § 3. Parties generally in equitable foreclosures. 
 
 There are two leading principles which control courts 
 of equity the world over in determining the proper par- 
 ties to a suit : first, that the rights of no man shall be 
 decided in a court of justice unless he himself be pres- 
 ent ; second, that the decree rendered shall provide for 
 the rights of all persons whose interests are in any way 
 connected with the subject-matter of the action. The 
 combination of these two principles has given rise to 
 the general rule that all persons having an interest in 
 the object of the suit ought to be made parties. As 
 expressed by an eminent English jurist, " all persons 
 materially interested in the subject ought generally to 
 be parties to the suit — plaintiffs or defendants, however 
 numerous they may be, so that the court may be en-
 
 4 PARTIES TO MORTGAGE FORECLOSURES. 
 
 abled to do complete justice by deciding upon and 
 settling the rights of all persons interested, and that 
 the orders of the court may be safely executed by those 
 who are compelled to obey them, and future litigation 
 may be prevented."^ It is only by the application of 
 such broad principles that that complete justice which 
 equity courts "delight to render,"^ can be administered 
 to the numerous persons who, in nearly every case, 
 have some interest in the mortgage debt or in the mort- 
 gaged premises under foreclosure. In their practical 
 application, however, these principles are subject to 
 many limitations and modifications, due mainly to local 
 interpretation and statutory enactments. 
 
 § 4. Application by American courts. 
 
 These general principles, established by such eminent 
 English judges as Lords Talbot,'' Redesdale,^ Hard- 
 wicke,' Thurlow,*^ Eldon,' Langsdale^ and Sir William 
 Grant,^ have been adopted by all our equity courts, 
 state and federal ; and in many states the general prin- 
 ciples of equity respecting parties to suits have been 
 incorporated into their codes. ^" In New York it is 
 provided that " all persons having an interest in the 
 
 1 Lord Redesdale in Red. PI. 164. 
 - Knight V. K., 3 P. W. 833 (1734). 
 3 Knight V. K., 3 P. W. 333 (1734). 
 ^ Red. PI. 164. 
 
 5 Poore V. Clarke, 2 Atk. (Eng.) 515 (1742). 
 
 6 Anon., 1 V. 325 (1809). 
 
 •^ Cockburn v. Thompson, 16 V. 385 (1809). 
 
 8 Richardson v. Hastings, 7 Beav. (Eng.) 323, 326 (1844). 
 
 9 Palk V. Clinton, 12 V. 58 (1806). 
 
 1*^ See Jones, § 1367, for citations to the codes of the different 
 states.
 
 RESULT OF FORECLOSURE UPON THE PARTIES. 5 
 
 subject of the action and in obtaining the judgment 
 demanded, may be joined as plaintiffs." ^ "Any person 
 may be made a defendant who has or claims an interest 
 in the controversy adverse to the plaintiff, or who is a 
 necessary party defendant, for a complete determination 
 or settlement of a question involved therein."'^ But 
 in the details of practice, various and often antagonistic 
 rules have grown up in the different states respecting 
 the proper and necessary parties to foreclosures, as will 
 be seen from an examination of the cases cited under 
 almost any of the following sections. It is only in rare 
 or complica'ted cases, however, that the rules differ 
 materially, especially where questions of trust, assign- 
 ment, representation and personal liability are con- 
 cerned ; in simple cases the rules are substantially 
 alike. When a mortgage and the parties to it remain 
 the same at the time of foreclosure as at the time of 
 delivery, it is a universal rule that the mortgagee and 
 the mortgagor are the only parties to be brought before 
 the court. 
 
 § 5. Result of foreclosure upon the parties. 
 
 Two purposes are now generally sought to be accom- 
 plished in foreclosures : first, the extinguishment of the 
 title in the mortgagee and the mortgagor, and those 
 claiming under them, so as to offer a perfect title at the 
 sale, or such a title as a court will compel a bidder to 
 accept; this purpose aims at exhausting every remedy 
 against the land for collecting the mortgage debt, and 
 when foreclosures were merely actions in rem, as origin- 
 
 1 New York Code of 1880, § 446. 
 
 2 New York Code, § 447.
 
 6 PARTIES TO MORTGAGE FORECLOSURES. 
 
 ally, they had no other purpose or result ; second, the 
 recovery of a personal judgment, for any deficiency that 
 may remain after the proceeds of a sale are applied to the 
 payment of the mortgage debt, against all who have in 
 any way become liable for the money secured by the 
 mortgage, — a purpose accomplished originally only in 
 actions in personam. The union of these two results in 
 one judgment is quite recent, and is allowed only by 
 special statute. The effect of the first purpose is 
 declared in most states by statute. In New York it is 
 .provided that '* a conveyance upon a sale, made pursu- 
 ant to a final judgment, in an action to foreclose a mort- 
 gage upon real property, vests in the purchaser the 
 same estate only, that would have vested in the mort- 
 gagee, if the equity of redemption had been foreclosed. 
 Such a conveyance is as valid, as if it was executed by 
 the mortgagor and mortgagee, and is an entire bar 
 against each of them, and against each party to the 
 action who was duly summoned, and every person claim- 
 ing from, through or under a party, by title accruing 
 after the filing of the notice of the pendency of the 
 action, as prescribed in the last section."^ The impor- 
 tance of bringing the proper and necessary parties to a 
 foreclosure suit within the jurisdiction of the court, is 
 thus apparent ; for omitted parties are never bound by 
 the decree, and their omission renders the title imper- 
 fect, and the results sought incomplete. 
 
 1 New York Code, § 1632.
 
 PART I. 
 
 PARTIES PLAINTIFF. 
 
 5 6. Introductory. 
 
 7. Sole mortgagee, owning the mortgage, may foreclose. 
 
 8. Assignee, sole owner of mortgage, may foreclose. 
 
 9. Joint mortgagees : any one or more may foreclose. 
 
 10. Partners ; any one or more may foreclose. 
 
 11. Joint mortgagees, one dying ; doctrine of survivorship. 
 
 12. Mortgagees, owners in severalty; any one or more 
 
 may foreclose. 
 
 13. Owner of one of several notes secured by a mortgage 
 
 may foreclose. 
 
 14. Owner of mortgage, having pledged the same as col- 
 
 lateral security, may foreclose. 
 
 15. Assignee of mortgage as collateral security may fore- 
 
 close. 
 
 16. Owner of an equitable interest of any kind in the 
 
 mortgage, a real party in interest, may generally 
 foreclose. 
 
 17. A surety for the mortgage debt may sometimes fore- 
 
 close. 
 
 18. Assignee of a mortgage without the bond cannot fore- 
 
 close. 
 
 19. Assignee of the note, bond or debt, may foreclose, 
 
 though the mortgage is not assigned. 
 
 20. Mortgagees owning contemporaneous mortgages, being 
 
 equal liens, any one or more may foreclose.
 
 8 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 21. Owner of two mortgages cannot foreclose both at the 
 
 same time in separate actions. 
 22. Assignee in bankruptcy or by general assignment, 
 
 or receiver of a corporation, may foreclose. 
 28. Assignee pendente lite may continue the foreclosure. 
 
 24. Owner of mortgage dying, personal representatives 
 
 may foreclose. 
 
 25. Owner of mortgage dying, heirs, devisees and lega- 
 
 tees generally cannot foreclose. 
 
 26. Mortgage executed to an executor or administrator^ 
 
 the executor or administrator or his successor in 
 office may foreclose. 
 
 27. Foreign executors and administrators, when they may 
 
 foreclose. 
 
 28. Trustees may foreclose. 
 
 29. Beneficiaries, cestuis que trust, may sometimes fore- 
 
 close. 
 
 30. Mortgages to persons in official capacity, they or 
 
 their successors may foreclose. 
 
 31. A married woman owning a mortgage may foreclose. 
 
 § 6. Introductory. 
 
 Mortgages are now universally recognized as securi- 
 ties upon, and not titles in, real estate. The party 
 holding the security has such an interest in the title, 
 however, that so long as his debt exists the security 
 binds the title to its ultimate payment. That the title 
 may be cleared of this lien by the process of foreclosure, 
 the equitable rule has been established that every party 
 who has any interest in the mortgage debt must be 
 brought before the court, that the rights and interests 
 of all in the security may be adjudged in relation to 
 the mortgaged premises. All parties interested in the 
 mortgage debt may come before the court together; and 
 in some states it is provided by statute that " all per-
 
 INTRODUCTORY. 9 
 
 sons having an interest in the subject of the action and 
 in obtaining the judgment demanded may be joined as 
 plaintiffs."^ It is indispensable that the plaintiff have 
 a real interest in the action ; the New York Code has 
 provided that every action must be prosecuted in the 
 name of the real party in interest, except that since the 
 abolition of uses and trusts a personal representative 
 and a trustee of an express trust may sue without join- 
 ing with him the person for whose benefit the action is 
 prosecuted.'-^ 
 
 There are many cases in which more than one per- 
 son has an interest in the mortgage, and in which all 
 interested may join as plaintiffs. Some, however, may 
 refuse to join as co-plaintiffs, and such parties may, as 
 a general rule, be made defendants to the action. It is 
 not material who begins the action, for it is sufficient 
 in equity that all parties interested in the subject 
 of the suit be before the court, in the form of plaintiffs 
 or of defendants ; but no person can be a plaintiff unless 
 he has a real interest in the mortgage or in the debt 
 thereby secured. It is generally true that any person 
 who is so interested, even in a remote or conditional 
 way, may, as plaintiff, commence an action to foreclose, 
 making defendants all other parties interested in any 
 way in the bond and mortgage, upon their refusal to join 
 as co-plaintiffs.^ 
 
 1 New York Code of 1880, § 446. 
 
 2 Id., § 449. 
 
 ^ This general equitable rule has been embodied in the codes 
 of some states. Hee the New York Code, § 448 : " Of the parties to 
 the action, those who are united in interest must be joined as 
 plaintiffs or defendants, except as otherwise expressly prescribed 
 in this act. But if the consent of any one, who ought to be 
 joined as a plaintiff, cannot be obtained, he may be made a
 
 10 PARTIES TO MORTGAGE FORECLOSURES. 
 
 As no one but the mortgagee, or those claiming under 
 him, can have any cause for commencing a foreclosure, 
 he or his successor in interest generally becomes a party 
 to the action by voluntarily instituting it as plaintiff. 
 Bonds and mortgages have become such favorite secur- 
 ities and investments with capitalists and others that 
 the law determining the rights of parties holding them 
 has grown into unusual importance in many states, so 
 that complicated questions have arisen in the courts as 
 to who can maintain an action for foreclosure ; and the 
 first part of this work will be devoted to the considera- 
 tion of parties plaintiff, or those who may commence 
 the foreclosure of a mortgage. 
 
 § 7. Sole mortgagee, owning the mortgage, may foreclose. 
 
 It is almost axiomatic that a sole mortgagee, who 
 continues to own his mortgage, may be plaintiff in an 
 action to foreclose the same. He is a party to the con- 
 tract, and the only person who can be aggrieved by a 
 breach of it on the part of the mortgagor, or those who 
 succeed to the mortgagor's interest ; he is the only per- 
 son who can be plaintiff, as no one else has any interest 
 in the mortgage or the indebtedness thereby secured.^ 
 The same rule is true in statutory foreclosures.'- 
 
 defendant, the reason therefor being stated in the complaint. 
 And where the question is one of a common or general interest 
 of many persons; or ^Yhere the persons, who might be made par- 
 ties, are very numerous, and it may be impracticable to bring 
 them all before the court, one or more may sue or defend for the 
 benefit of all." 
 
 1 Newall V. Wright, .3 Mass. 138 (1807) ; Haskell v. Bailey. 22 
 Conn. 573 (1853) ; Wendell v. New Hampshire Bank, 9 N. H. 404, 
 417 (1838); Sutton v. Stone, 2 Atk. (En^.) 101 (1740); Jones, 
 §§ 1371, 1373 ; Pow. 967, 968. 
 
 2 Hubbell V. Sibley, 5 Lans. (N. Y.) 51 (1871).
 
 SOLE MORTGAGEE MAY FORECLOSE. 11 
 
 The fact that a mortgagee was appointed administra- 
 tor of his mortgagor's estate does not prevent him from 
 foreclosing against the heirs of the mortgagor.^ And 
 where a decree of foreclosure has been vacated for 
 irregularity, the mortgage is not cancelled, but restored, 
 and the mortagee may foreclose again. A surety may 
 foreclose an indemnifying mortgage, which he holds in 
 his own name, without joining his principal in the 
 action.^ And a person holding a mortgage conditioned 
 to pay an annuity in certain quantities of produce, may 
 foreclose upon a breach of the condition, and have the 
 premises sold for the amount of damages that he may 
 be able to prove.^ 
 
 If the mortgagee has assigned the bond and mort- 
 gage absolutely and unconditionally, he has, of course, 
 no further interest in it, and cannot, even nominally, 
 be plaintiff in an action to foreclose.* A foreclosure by 
 a mortgagee, who had parted with all his interest in 
 the bond and mortgage, has been held nugatorj^'^ And 
 in an action brought by a mortgagee " for the use of his 
 assignee," the complaint was dismissed for the reason 
 that the assignee was not made a party and that the 
 plaintiff did not have a real interest in the action f but 
 
 1 Hunsucker v. Smith, 49 Ind. 114 (1874). 
 
 - An acceptor of a bill can foreclose after payment, Planters' 
 Bank v. Douglass, 2 Head. (Tenn.) 699 (1859) ; so can a surety of 
 a note after payment, Tilford v. James, 7 B. Mon. (Ky.) 337 (1847); 
 McLean v. Ragsdale, 31 Miss. 701 (1856) ; and an indorser, Lewis 
 V. Starke, 10 S. & M. (Miss.) 120 (1848). 
 
 ■^ Peterson v. Oleson, 47 Wis. 122 (1879), citing similar cases. 
 See Morrison v. Morrison, 4 Hun (N. Y.), 410 ^875). 
 
 * Barraque v. Manuel, 7 Ark. (2 Eng.) 516 (1847). 
 
 ■' Call V. Leisner, 23 Me. 25 (1843); Cushing v. Ayer, 25 id. 
 383 (1845). 
 
 6 Burton v. Baxter, 7 Blackf. (Ind.) 297 (1844). See Winkel-
 
 12 PARTIES TO MORTGAGE FORECLOSURES. 
 
 where an assignment was defective, the action was 
 allowed to be maintained in the name of the mortgagee.^ 
 After assignment, the mortgagee is neither a proper 
 nor a necessary defendant to the action.- 
 
 § 8. Assignee, sole owner of mortgage, may foreclose. 
 
 A person who acquires the absolute and unconditional 
 ownership of a bond and mortgage by assignment from 
 the mortgagee, or from a mesne assignee, may maintain 
 an action for the foreclosure of the mortgage f he is, in- 
 deed, the only possible plaintiff, as he has "contracted to 
 
 man v. Riser, 27 111. 21 (1861); Pryor v. Wood, 31 Penu. St. 142 
 (1858). 
 
 1 Partridge v. Partridge, 38 Penu. St. 78(1860), distinguishing 
 Pryor v. Wood, supra. 
 
 2 Whitney v. M'Kinney, 7 Johns. Ch. (N. Y.) 144 (1823) ; An- 
 drews V. Gillespie, 47 N. Y. 487 (1872). See §§ 8 and 76, post, 
 and cases cited. 
 
 '^ Whitney v. M'Kinney, 7 Johns. Ch. (N. Y.) 144 (1823) ; 
 Christie v. Herrick, 1 Barb. Ch. (N. Y.) 254 (1845); Andrews v. 
 Gillespie, 47 N. Y. 487 (1872); Franklyn v. Hay ward, i^l How. 
 (N. Y.) 43 (1881). See Allen v. Brown, 44 N. Y. 228 (1870), and 
 Meeker v. Claghorn, 44 id. 349 (1871), for a general discussion 
 of the rights of an assignee of a chose in action to maintain a 
 suit in "his own name. BrowMi v. Suell, 6 Fla. 741 (1856); Stro- 
 ther V. Law, 54 111. 413 (1870); Gould v. Newman, 6 Mass. 239 
 (1810); Hills V. Eliot, 12 Mass. 26 (1815); Fisher v. Meister, 24 
 Mich. 447 (1872); McGuffey v. Finley, 20 Ohio Rep. 474 (1851), 
 relying upon Miller v. Bear, 3 Paige (N. Y.), 466 (1832), ancl 
 collating authorities. Horstman v. Gerker, 49 Penn. 282 (1865) ; 
 Kinna v. Smith, 2 Green (N. J. Eq.), 14 (1834), where the 
 assignor was an executor ; Dolman v. Cook, 1 M'Carter (N. J. 
 Eq.); 56 (1861); Crooker v. Jewell, 31 Me. 306 (1850), where the 
 assignor was an administrator; Knox v. Galligan, 21 Wis. 470 
 (1867). In Douglass V. Durin, 51 Me. 121(1863), the assignor 
 was an heir, and as the assignment passed no title to the as- 
 signee, the foreclosure was void. In Casper v. Munger, 62 Ind. 
 481 (lb78), the assignee of a mortgage, given to indemnify the 
 mortgagee against certain contingencies, was allowed to foreclose 
 on the accruing of the liability. Wood v. Williams, 4 Madd. 
 (Eng.) 186 (1819); Jones, §§ 1373, 1377; Fisher, § 355.
 
 ASSIGNEE OF MORTGAGE MAY FORECLOSE. 13 
 
 stand in the place of the original mortgagee and of all 
 assignors." No other person can be interested in the 
 mortgage debt. But if the pretended assignee have no 
 title whatever to the mortgage, a foreclosure conducted 
 by him, is absolutely void and passes no title to the 
 purchaser.^ It has been held that if the husband of a 
 married woman fails to unite with her in executing an 
 assignment of her separate bond and mortgage, the 
 assignee will not obtain a title upon which he can main- 
 tain a foreclosure.' And the assignment to a wife of a 
 mortgage executed by her husband upon lands which 
 he still owned at the time of the assignment has been 
 held to extinguish the debt, so that no action would lie f 
 but in New York and most states such an assignment 
 would not now impair the security. So where a hus- 
 band became the assignee of a mortgage executed by 
 himself and wife upon her separate real estate, he was 
 allowed to foreclose it as a valid and subsisting lien.* 
 The assignee of a land contract may also foreclose by an 
 equitable action ;'' so may the assignee of a " title bond," 
 which is much in the nature of an ordinary land contract.*' 
 Mortgages containing a power of sale may be enforced 
 * by an assignee, the same as by the original mortgagee." 
 The form of the assignment should be in writing, 
 
 1 Bolles V. Carli, 12 Minn. 113 (1866); Gale v. Battin, lb. 287 
 (1867). 
 
 2 Stoops V. Blackford, 27 Penn. St. 213 (1856). 
 
 3 Clarke v. Weutworth, 6 Me. 259 (1830). 
 
 4 Faulks V. Dimock, 27 N. J. Eq. 65 (1876). 
 
 5 Wright V. Troutman, 81 111. 374 (1876). See also Hutchin- 
 son V. Crane, 100 id. 269 (1881). 
 
 " Semour v. Freeman, Smith (Ind.), 25 (1848-49). 
 
 ' Mason v. Ainsworth, 58 111. 163 (1871) ; Heath v. Hall, 60 
 id. 344 (1871); seemingly cow/Ira, Wilson v. Spring, 64 id. 14 
 (1872); Dempster v. West, 69 id. 613 (1873).
 
 14 PARTIES TO MORTGAGE FORECLOSURES. 
 
 but that is not indispensable. A parol assignment 
 will give the assignee such an equitable interest in 
 the mortgage that he can maintain a foreclosure in his 
 own name ;^ and mere delivery has been held suffi- 
 cient.- But in such cases the assignor has been held 
 a necessary party ,^ and it would certainly be unsafe to 
 omit him. In Massachusetts and Maine a parol assignee 
 cannot foreclose in his own name.^ A quit-claim deed 
 from the mortgagee has been held to work an equitable 
 assignment of the mortgage to the grantee,^ and in 
 Maine it seems to be a common form of assignment.^ 
 
 The assignee of one of several notes or bonds se- 
 cured by a mortgage, may foreclose the mortgage in 
 his own name,' for the reason that by the assign- 
 ment of the note he acquires an equitable interest in 
 the mortgage, and pro tanto becomes an assignee of the 
 mortgage.'^ In many states the courts hold that the 
 
 1 Clearwater v. Rose, 1 Blackf. (Ind.) 137 (1821) ; Slauarhter v. 
 Foust, 4 id. 379 (1837); Green v. Marble, 37 Iowa, 95^(1873); 
 Andrews v. McDaniel, 68 N. C. 385 (1873) ; Pease v. Warren, 
 29 Mich. 9 (1874) ; Denton v. Cole, 30 N. J. Eq. 244 (1878). 
 
 2 Galway v. Fullerton, 2 C. E. Green (17 N. J. Eq.), 390 
 (1866). See § 16, post, last paragraph. 
 
 3 Denby v. Mellgrew, 58 Ala. 147 (1877). 
 
 ^ Adams v. Parker, 12 Gray (Mass.), 53 (1858) ; Prescott v. 
 Ellingwood, 23 Me. 345 (1843) ; Smith v. Kelley, 27 id. 237 (1847). 
 
 5 Billiard v. Hinckley, 5 Me. 272 (1828); Carll v. Biitman, 
 7 id. 102 (18.80) ; Dorkray v. Noble, 8 id. 278 (1832) ; Dixfield v. 
 Newton, 41 id. 221 (1856); Johnson v. Leonards, 68 id. 237 
 (1878) ; Stewart v. Thompson, 3 Vt. 255 (1831). 
 
 ^ For the general law aflfectiiig the assignment of mortgages 
 see Thomas, p. 101 ; Jones, § 786 ; 1 Hilliard, 530. 
 
 ■^ Stanley v. Beatty, 4 Ind. 134 (1853); Hough v. Osborne, 7 
 id. 140 (1855) ; Gower v. Howe, 20 id. 396 (1863) ; Swartz v. 
 Leist, 13 Ohio St. 419 (1862) ; Johnson v. Candage, 31 Me. 28 
 (1849). See § 13, j^o^i, and notes. 
 
 8 Grattan v. Wiggins. 23 Cal. 16 (1863) ; Brown v. Delaney, 
 22 Minn. 349 (1876); Andrews v. Fiske, 101 Mass. 422 (1869);
 
 WHEN ASSIGNOR A NECESSARY PARTY. 15 
 
 assignee of a note acquires only a pro rata} interest in 
 the mortgage security, unless the contract of assign- 
 ment otherwise provides.^ But all courts are agreed 
 that the assignee obtains such an interest in the mort- 
 gage that he can maintain a foreclosure and sale for the 
 recovery of his part of the debt. 
 
 It is not necessary for the assignee to join his assignor 
 with him as a co-plaintiff, as the assignor no longer has 
 any interest in the bond and mortgage. This is also 
 true where it is the assignor's intention simply to 
 authorize the assignee to collect for his benefit the 
 moneys secured by the mortgage.' Neither is it neces- 
 sary to make the assignor, under either of such circum- 
 stances, a party defendant to the action ;* but if an 
 answer is pleaded, setting up a defense growing out of 
 the bond and mortgage while in the hands of the 
 assignor, the assignee as plaintiff may give notice to 
 his assignor of the action, and offer to him the conduct 
 of the defense ; upon his giving such notice the assignor 
 is bound by the judgment in the action, whether he 
 undertakes the defense or not.^ 
 
 After an absolute assignment, the suit cannot ordi- 
 narily be prosecuted by the assignee in the name of the 
 mortgagee, for, as has been stated, it is a cardinal prin- 
 
 Anderson v. Baumgartner, 27 Mo. Rep. 80 (1858) ; Chappell v. 
 Allen, 38 id. 213 (1866) ; Page v. Pierce, 6 Fost. (26 N. H.) 317 
 (1853) ; Furbush v. Goodwin, 5 id. 425 (1852). Hee § 13, post. 
 
 1 Keyes v. Wood, 21 Vt. 331 (1849); Smith v. Day, 23 
 id. 662 (1850) ; Belding v. Manley, 21 id. 550 (1849) ; Wright v. 
 Parker, 2 Aik. (Vt.) 212 (1827). 
 
 - Langdon v. Keith, 9 Vt. 299 (1837) ; Wright v. Parker, 
 supra. See § 13, post. 
 
 3 Christie v. Herrick, 1 Barb. Ch. (N. Y.) 254 (1845). 
 
 •* Thayer v. Campbell, 9 Mo. Rep. 277 (1845). See § 76, post. 
 
 •> Andrews v. Gillespie, 47 N. Y. 487 (1872).
 
 16 PARTIES TO MORTGAGE FORECLOSURES. 
 
 ciple of foreclosures that they must be brought in the 
 name of the real party in interest.^ An allegation, in 
 the pleading that the suit is for the benefit of the 
 assignee will not vary the rule ;- and where an assign- 
 ment authorized the assignee " to foreclose or release 
 the mortgage at pleasure," the mortgagee was con- 
 sidered such a necessary party to a foreclosure that the 
 title offered at the sale would be defective without him.^ 
 Where foreclosure is conducted by the process of scire 
 facias, it cannot be in the name of the assignee, but 
 must always be in the name of the original mortgagee.* 
 It may be remarked here that the assignee of a bond 
 and mortgage takes it subject to the equities between 
 the original parties, and to the equities which third per- 
 sons could enforce against the assignor."^ The assignee 
 
 1 Winkelmau v. Kiser, 27 111. 21 (1861) ; Irish v. Sharp, 89 id. 
 261 (1878) ; Pryor v. Wood, 31 Peiiu. St. 142 (1858) ; Graham v. 
 Newman, 21 Ala. 497 (1852). For cases holding that the suit 
 may be maintained in the name of the mortgagee, see Hurd v. 
 Coleman, 42 Me. 182 (1856); Holmes v. French, 70 id. 341 
 (1879); also Gable v. Scarlett, 56 Md. 169 (1882), indicating 
 that the rule is fixed by statute. In Calhoun v. Tullass, 35 Ga. 
 119 (1866), an assignee was allowed to foreclose in the name of 
 the mortgagee, and against his will, on giving him an indemnify- 
 ing undertaking against costs and damages. See § 7, ante, and 
 notes. 
 
 2 Prior V. Wood, 31 Penn. St. 142 (1858), distinguished in 
 Partridge v. Partridge, 38 id. 78 (1860), where the assignment 
 was defective and the assignor foreclosed for the benefit of 
 the assignee. See Clow v. Derby Coal Co., 98 Penn. 432 (1881), 
 which seems contrary iu practice to the other Pennsylvania cases 
 cited. See § 7, ante. 
 
 3 Wright V. Sperry, 21 Wis. 331 (1867). 
 
 ^ Olds V. Cummings, 31 111. 188 (1863) : Camp v. Small, 44 id. 
 37 (1867) ; Bourland v. Kipp, 55 id. 376 (1870). 
 
 ■' Ingraham v. Disborough, 47 N. Y. 421 (1872); Schafer v. 
 Reilly, 50 id. 61 (1872); Greene v. Warnick, 64 id. 220 (1876), 
 reversing 4 Hun, 703 ; Trustees of Union College v. Wheeler, 
 61 N. Y. 88, 99, 104 (1874), affirming 5 Lans. 160 ; S. C, 59 Barb.
 
 FORECLOSURE BY JOINT MORTGAGEES. 17 
 
 can generally receive no better title than his assignor 
 possessed ;^ but the rule is limited where the mortgage 
 is given to secure a negotiable note.'- For these rea- 
 sons it is often prudent to make the assignor a party 
 defendant." The assignee also takes and may enforce 
 all the collateral securities which his assignor holds.* 
 
 § 9. Joint mortgagees ; any one or more may foreclose. 
 
 Where a bond and mortgage have been executed, or 
 assigned, to two or more persons jointly, or are held by 
 them in any way jointly, they may unite as co-plaintiffs 
 in a foreclosure ; or any one or more of them may main- 
 tain the action without joining the others as co-plaintiffs.^ 
 
 (N. Y.) 385, opinion per Theodore W, Dwight, C, collating and 
 reviewing the authorities at length. See Crane v. Turner, 67 
 N. Y. 437 (1876), and Davis v. Bechstein, 69 id. 440, 442 (1877), 
 p&n' Church, Ch. J. 
 
 1 This proposition was questioned as to a bona fide purchaser 
 for a valuable consideration by Comstock, J., in McLallen v. 
 Jones, 20 N. Y. 162 (1859). See Bush v. Lathrop, 22 id. 535, 
 537, 550 (1860), per Denio, J., who examined and repudiated the 
 supposed distinction between "latent" equities, so called, and 
 those existing between the original parties to the instrument ; 
 but this case was overruled in Moore v. Metropolitan Nat. Bank, 
 55 id. 41, 49 (1873), opinion per Grover, J. ; Allen, J., dis- 
 sented. See also the later cases cited above. Woodruff v. 
 Depue, 1 McCarter (14 N. J. Eq.), 168 (1861) ; Lee v. Kirkpat- 
 rick, lb. 264 ; Rose v. Kimball, 1 C. E. Green (16 N. J. Eq.), 185 
 (1863) ; Kamena v. Huelbig, 23 N. J. Eq. 78 (1872). In Mott 
 V. Clark, 9 Penn. St. 399 (1848), it was held that the assignee 
 did not take subject to the latent equities of third persons. See 
 Atwater v. Underbill, 22 N. J. Eq. 599 (1872).) 
 
 2 Carpenter v. Longan,16 Wall. (U. S.) 271 (1872). 
 •"^ See § 76, post. 
 
 * Philips V. Bank of Lewistown, 18 Penn. St. 394 (1852). 
 
 ^ Sanford v. Bulkley, 30 Conn. 344 (1862) ; Baker v. Shephard, 
 30 Ga. 706 (1860) ; Gleises v. Maignan, 3 La. 530 (1832) ; Patou 
 v. Murray, 6 Paige (N. Y.), 474 (1837) ; Hopkins v. Ward, 12 
 B. Mon. (Ky.) 185 (1851); Brown v. Bates, 55 Me. 520 (1868); 
 Jones, § 1381. 
 
 2
 
 18 PARTIES TO MORTGAGE FORECLOSURES. 
 
 A joint foreclosure has been allowed where the mort- 
 gage was joint in form, but given to secure certain debts 
 in severalty.^ It is quite well settled that in such cases 
 all the parties interested in the mortgage must be 
 brought before the court as plaintiffs or defendants f so, 
 in an action to redeem, all the mortgagees are necessary 
 parties.'" Where a note and mortgage had been exe- 
 cuted by thirteen persons to three of their number, the 
 three were allowed to foreclose against the other ten 
 for ten-thirteenths of the debt.^ But before any person 
 who is jointly interested with others in a mortgage debt 
 can be made a defendant, he must be requested to unite 
 as a co-plaintiff.^ 
 
 The same rules hold true when the joint mortgagees 
 hold the mortgage in a representative or official capacity. 
 A mortgagee, by his will, appointed his mortgagor and 
 another person his executors ; the second executor was 
 entitled to foreclose against his co-executor, the mort- 
 gagor, making him a defendant individually and as 
 executor, upon the principle that one co-executor may 
 maintain an action in equity against another co-executor 
 to compel the payment of a debt owing by him to the 
 estate.*' A mortgagee may also foreclose, though he 
 has with others been made an assignee of the mortgagor 
 
 ' 1 Shirkey v. Hanna, 3 Blackf. (hid.) 403 (1834). 
 ^2 Hopkins V. Ward, 12 B. Mon. (Ky.) 185 (1851); seemingly 
 contra, Piatt v. »quire, 12 Mete. (Mass.) 494, 501 (1847), holding 
 that where one joint mortgagee begins a foreclosure, it is not 
 necessary to bring the others into the action. See § 3, ante. 
 
 ^ Woodward v. Wood, 19 Ala. 213 (1851). 
 
 ^ McDowell V. Jacobs, 10 Cal. 387 (1858). 
 
 •'■ See § 6, ante; NeAv York Code, § 448. 
 
 ^ McGregor v.McGresror, 35 N. Y. 218 (1866); Lawrence v. 
 Lawrence, 3 Barb. Ch. (N. Y.) 71 (1848).
 
 FORECLOSURE OF MORTGAGE TO PARTNERS. 19 
 
 for the benefit of creditors.^ And the fact that a per- 
 son owns an undivided part of certain premises, and 
 at the same time holds a mortgage on another undivided 
 part, will not prevent his foreclosing.'- 
 
 § 10. Partners ; any one or more may foreclose. 
 
 Partners may unite in the foreclosure of a mortgage 
 held by them as a part of their joint capital, or any one 
 of them may bring the action as sole plaintiff. If any 
 of the partners refuse to join as co-plaintiffs, the courts 
 generally require them to be brought in as defendants ; 
 but it must appear in the pleadings, and be a fact, that 
 the co-partners have refused to become co-plaintiffs, be- 
 fore they can be made defendants to the action.^ Even 
 where a mortgage was executed to one member of a 
 co-partnership to secure a partnership debt, all the part- 
 ners were deemed necessary parties to an action for 
 foreclosure/ It would seem, however, that if a mort- 
 gage is held by one of the partners as a trustee for the 
 partnership, he can foreclose without in any way bring- 
 ing the other partners into the action.'^ In case of the 
 death of a partner pending foreclosure, a bill of revivor 
 against his personal representatives is unnecessary, the 
 survivors taking the entire legal title to the bond and 
 mortgage under the doctrine of survivorship in joint 
 tenancy.^ 
 
 1 Patou V. Murray, 6 Paige (N. Y.), 474 (1837). 
 
 - Baker v. 8hephard, 30 Ga. 706 (1860) ; Gleises v. Maignari, 
 3 La. 530 (1832). 
 
 •' Jewell V. West Orange, 36 N. J. Eq. 403 (1883) ; New York 
 Code, § 448. 
 
 4 De Greiff" v. Wilson, 30 N. J. Eq. 435 (1879) ; Noyes v. Saw- 
 yer, 3 Vt. 160 (1831). 
 
 •' Hhelden v. Bennett, 44 Mich. 634 (1880). 
 
 " Roberts v. .Stigleman, 78 111. 120 (1875). See § 11, post.
 
 20 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 11. Joint mortgagees, one dying ; doctrine of surviv- 
 orship. 
 
 It seems quite well established that the doctrine of 
 joint tenancy and survivorship, as applied to the tenure 
 of lands, is also applicable to the joint ownership of 
 choses in action, including mortgages. In People v. 
 Keyser} Selden, J., says : " There was never any doubt 
 that the entire legal interest remained in the survivor. 
 The only doubt was, whether the survivor did not take 
 the whole interest, legal and equitable, according to the 
 rule of survivorship applied to a joint tenancy in lands ; 
 but it was finally held, the case of Peiiy v. Styward (1 
 Eq. Cas. Abr. 290) being the leading case, that although 
 the entire legal interest vested in the survivor, he was 
 to be regarded in equity as a trustee for the personal 
 representatives of deceased parties for their equal 
 shares." It is also well settled that upon the death of 
 a partner the surviving partners take the legal title to 
 the property of the partnership for the purpose of set- 
 tling its affairs. 
 
 The courts have accordingly deduced the rule that 
 upon the death of one of a number of joint owners of 
 a mortgage, the surviving owners can foreclose it with- 
 out bringing the personal representatives or heirs of the 
 deceased joint mortgagee into the action.- It has been 
 
 1 28 N. Y. 226, 236 (1863), citing 1 Chitty on Pleading, 19, 20 ; 
 Rolls V. Yate, Yelv. (Eng.) 177, note 1 ; 2 Fonbl. Eq. 103, and 
 notes. 
 
 - Erwin v. Ferguson, 5 Ala. 158 (1843) ; Milroy v. Stockwell, 
 1 Ind. 35 (1848); McAllister v. Plant, 54 Miss. 106 (1876); 
 Lannay v. Wilson, 30 :\Id. 536 (1869) ; Martin v. McReynolds, 6 
 Mich. 70 (1858) ; Blake v. Sanborn, 8 Gray (Mass.), 154 (1857); 
 Hansen v. Gregg, 7 Tex. 225 (1851). See §§ 24 and 25, post. 
 Contra, Fisher, § 361 ; Vickers v. Cowell, 1 Beav. (Eng.) 529 
 (1839).
 
 JOINT MORTGAGEES, SURVIVORSHIP. 21 
 
 explicitly held, that " a suit upon a mortgage to obtain 
 a foreclosure, may be brought and maintained by the 
 surviving mortgagee."^ Where a mortgage had been exe- 
 cuted to a husband and wife, she was allowed to foreclose 
 upon his death, without bringing his personal representa- 
 tives into the action.'^ There can be no harm, however, in 
 making the personal representatives of a deceased joint 
 mortgagee parties defendant to the action, for if a con- 
 test as to the ownership of the mortgage should arise, 
 they would then be concluded by the decree of fore- 
 closure;'^ furthermore, they have an equitable interest 
 in the proceeds of the foreclosure, a portion of which 
 must ultimately come into their hands for distribution. 
 In New Jersey the personal representatives of a deceased 
 joint mortgagee are considered indispensable parties to 
 a foreclosure by the survivors ;* they may be united as 
 co-plaintiffs or made defendants.^ And where a per- 
 sonal representative commences the action, the joint 
 survivors are necessary parties. Thus, where a mort- 
 gage had been executed to a husband and wife, and 
 after the husband's death foreclosure was brought 
 by the assignee of his administrator, the widow was 
 held erroneously omitted.'' The rules of this section 
 
 1 Williams v. Hilton, 35 Me. 547 (1853). See also Kinsley v. 
 Abbott, 19 id. 430, 433, opinion per Shipley, J. In Penn v. But- 
 ler, 4 Dallas (U. S.), 354 (1801), the court say that the surviving 
 obligee and mortgagee "was entitled to the possession of the joint 
 securities, and that he might recover their amount." 
 
 - McMillan v. Mason, 5 Coldwell (Tenn.), 263 (1868) ; Lannay 
 v. Wilson, 30 Md. 536 (1869). 
 
 ''"• Freeman v. Scofield, 16 N. J. Eq. 28 (1868). 
 
 * Smith V. Trenton Delaware Falls Co., 3 Green (N. J. Eq.), 
 505 (1845), followed in Mutual Life Ins. Co. v. Sturges, 32 N. J. 
 Eq. 678, 683 (1880), explaining the reason for the rule. 
 
 ^ Freeman v. Scofield, 16 N. J. Eq. 28 (1863). 
 
 6 Savings Bank v. Freese, 26 N. J. Eq. 453 (1875).
 
 22 PARTIES TO MORTGAGE FORECLOSURES. 
 
 apply also to the joint assignees of a mortgage ; and 
 indeed to joint owners generally, whatever may have 
 been the source of their title to the mortgage.^ 
 
 § 12. Mortgagees, owners in severalty ; any one or more 
 may foreclose. 
 
 Any one or more of a number of owners of a mortgage, 
 each of whom holds a specific interest therein in severalty, 
 may bring an action to foreclose the mortgage, making 
 defendants such other owners as do not consent to become 
 co-plaintiffs ;- likewise all the owners may unite as co- 
 plaintiffs.^ Where a mortgage is owned in severalty, it 
 is indispensable that all the interests be represented in 
 the action to foreclose.* And even though debts in 
 severalty be secured by a joint mortgage, any creditor 
 may maintain a foreclosure, as in the case of a several 
 mortgage, but the other creditors are absolutely neces- 
 sary parties as co-plaintiffs or defendants f a joint bill 
 for foreclosure is also allowable.*' Upon the death of 
 any of the owners in severalty, his personal represen- 
 tatives must be brought before the court." The decree 
 for foreclosure should be for the payment to the several 
 
 1 Martin v. McReynolds, 6 Mich. 70 (1858). 
 
 2 Porter V. Clements, 3 Ark. 364, 380 (1839), where the question 
 of parity of interest in the action is considered at length ; Brown 
 V. Bates, 55 Me. 520 (1868). 
 
 3 Stevenson v. Mathers, 67 111. 123 (1873), where the action 
 was to foreclose a land contract. 
 
 4 Railroad Co. v. Orr, 18 Wall. (U. S.) 471 (1873). 
 
 5 Tyler v. Yreka Water Co., 14 Cal. 212 (1859). See Howe 
 V. Dibble, 45 Ind. 120 (1873) ; Moffitt v. Roche, 76 id. 75 (1881) ; 
 ^tna Life Ins. Co. v. Finch, 84 id. 301 (1882). See § 9, ante. 
 
 6 Shirkey v. Hanna, 3 Blackf. (Ind.) 403 (1834). 
 
 7 Burnett v. Pratt, 22 Pick. (Mass.) 556 (1839); Vickers v. 
 Cowell, 1 Beav. (Eng.) 529 (1839): Fisher, §§ 349, 361.
 
 FORECLOSURE OF ONE OF SEVERAL NOTES. 23 
 
 owners of the sums respectively due to each.^ Where 
 mortgagees hold separate, but simultaneous and equal 
 mortgages, they may unite as co-plaintifFs, or any one 
 may foreclose, making the others defendants, as though 
 there were but one mortgage in which they held several 
 interests.'^ 
 
 § 13. OTvner of one of several notes secured by a mort- 
 gage may foreclose. 
 
 In most of the Western and in some of the Eastern 
 states, notes with interest coupons, instead of a bond, 
 are given as the instrument of indebtedness. In order 
 to facilitate their negotiability as investments a number 
 of notes are often given instead of one. In these states 
 numerous decisions^ have been rendered, fixing the 
 legal status of such notes, and the remedies and pro- 
 cedure of owners for their collection. As the general 
 result it may be stated that an action at law may be 
 maintained by the holder of any note as upon an ordi- 
 
 1 Higgs V. Hanson, 13 Nev. 356 (1878). 
 
 2 Cochran v. Goodell, 131 Mass. 464 (1881). See §§ 20 and 81, 
 post. 
 
 3 Rankin v. Major, 9 Iowa. 297 (1859); Lyster v. Brewer, 13 
 id. 461 (1862); Sangster v. Love, 11 id. 580 (1861); Barrett v. 
 Blackmar, 47 id. 569 (1877); Goodall v. Mopley, 45 Ind. 355 
 (1873) ; Stanley v. Beatty, 4 id. 134 (1853) ; Merritt v. Wells, 18 
 id. 171 (1862) ; Ross v. Utter, 15 111. 402 (1854) ; Myers v. Wright, 
 33 id. 284 (1864) ; Pogue v. Clark, 25 id. 351 (1861) ; Wilson v. 
 Hay ward, 2 Fla. 27 (1848) ; Wiley v. Pinson, 23 Tex. 486 (1859) ; 
 Hartwell v. Blocker, 6 Ala. 581 (1844) ; Johnson v. Brown, 31 
 N. H. 405 (1855) ; Pettibone v. Edwards, 15 Wis. 95 (1862) ; 
 Jenkins v. Smith, 4 Mete. (Ky.) 380 (1863) ; Bell v. Shrock, 2 B. 
 Mon. (Ky.) 29 (1841) ; Swenson v. Moline Plow Co., 14 Kan. 387 
 (1875) ; Haynes v. Wellington, 25 Me. 458 (1845) ; Johnson v. 
 Candage, 31 id. 28 (1849) ; Moore v. Ware, 38 id. 496 (1854) ; 
 Jordon v. Cheney, 74 id. 359 (1883).
 
 24 PARTIES TO MORTGAGE FORECLOSURES. 
 
 nary promissory note. Or the holder of any one of 
 a number of the notes may proceed in the first instance 
 by a suit in equity, as in an ordinary foreclosure ; but 
 he must bring all the other mortgagees and holders of 
 notes secured by the mortgage into court, before a 
 decree can be made.^ It is peculiar that two holders of 
 notes cannot join as plaintiffs ; each one holds an inter- 
 est in the mortgage pro tanto for his own note. But 
 where one person holds two or more notes, he may fore- 
 close them in the same action;- in New Hampshire, 
 on the other hand, foreclosure by a writ of entry cannot 
 be maintained unless all the holders of notes unite as 
 plaintiifs,'' and then, it would seem, only after all the 
 notes have become due/ 
 
 All holders of notes must be brought into the action,^ 
 so that the amounts and priorities of their several 
 claims may be determined, for it is another peculiarity 
 of these notes in some states that they are entitled to 
 payment in the order in which they fall due, and their 
 respective priorities as liens on the mortgaged premises 
 
 1 King V. Merchants' Exchange Co., 5 N. Y. 547, 556 (1851); 
 Pugh V. Holt, 27 Miss. (5 Cush.) 461 (1854) ; Archer v. Jones, 26 
 id. 583 (1853). See also the cases cited in the first note to the 
 section. 
 
 2 Myers v. Wright, 33 111. 284 (1864). See § 12, ante. 
 ■^ Noyes v. Barnet, 57 N. H. 605 (1876). 
 
 4 Hunt V. Stiles, 10 N. H. 466 (1839). 
 
 5 Myers v. Wright, 33 111. 284 (1864). See notes 1 and 8, et 
 seg. But in Thayer v. Campbell, 9 Mo. Rep. 277 (1845), it was 
 held that the holders of other notes were not necessary parties to 
 the action, but that they might come in on their own motion. But 
 see the later cases of Mitchell v. Ladew, 36 Mo. Rep. 526 (1865), 
 approved and followed in Thompson v. Field, 38 id. 320 (1866) ; 
 Mason v. Barnard, 36 id. 384 (1865) ; Hurck v. Erskine, 45 id. 
 484 (1870).
 
 RIGHTS OF OWNERS OF NOTES. 25 
 
 follow the same order. This rule obtains in Alabama/ 
 Florida,'- Illinois,^ Indiana,^ lowa,'^ Kansas,'' Missouri,'^ 
 New Hampshire,'- Ohio,-' Virginia, West Virginia and 
 Wisconsin.^*^ The principle upon which it proceeds is 
 potior in tefnpore, potior in jure. Justice Walker, in Preston 
 V. Hogden,^'" concisely stated the rule adopted in these 
 
 1 Cullum V. Erwin, 4 Ala. 4.52 (1842), explaining Bloodgood v. 
 McVay, 9 Port. (Ala.) 547 (1839) ; Bank of Mobile v. P. and M. 
 Bank, 9 Ala. 645 (1846). 
 
 2 Cotton V. Blocker, 6 Fla. 1 (1855). 
 
 3 Funk V. McReynolds, 33 111. 481 (1864) ; Flower v. Elwood, 
 66 id. 438 (1872) ; Herrington v. McColIum, 73 id. 476 (1874) ; 
 Koester v. Burke, 81 id. 436 (1876); Preston v. Hodgen, 50 id. 
 m (1869) ; Humphreys v. Morton, 100 id. 592 (1881). 
 
 * Stanley v. Beatty, 4 Ind. 134 (1853) ; State Bank v. Tweedy, 
 8 Blackf. (Ind.) 447 (1847) ; Hough v. Osborne, 7 Ind. 140 (1855), 
 followed in Harris v. Harlan, 14 id. 439 (1860) ; Evansville, 
 People's S. Bank of, v. Finney, 63 id. 460 (1878) ; Murdock v. 
 Ford, 17 id. 52 (1861) ; Sample v. Rowe, 24 id. 208 (1865) ; Doss 
 V. Ditmars, 70 id. 451 (1880) ; Gerber v. Sharp, 72 id. 554 (1880), 
 
 ■' Walker v. Schreiber, 47 Iowa, 529 (1877), and the cases cited 
 in the first note to the section. 
 
 « Richardson v. McKim, 20 Kan. 346 (1878). 
 
 ' Mitchell V. Ladew, 36 Mo. Rep. 526 (1865); Mason v. Bar- 
 nard, 36 id. 384 (1865) ; Thompson v. Field, 38 id. 320 (1866) ; 
 Hurck V. Erskine, 45 id. 484 (1870). 
 
 8 Johnson v. Brown, 31 N. H. 405 (1855); Noyes v. Barnet, 
 57 id. 605 (1876) ; Hunt v. Stiles, 10 id. 466 (1839). 
 
 9 Bank, U. S. v. Covert, 13 Ohio Rep. 240 (1844) ; Winters v. 
 Bank, 33 Ohio St. 250 (1 877) ; Bushfield v. Meyer, 10 id. 334 (1859). 
 
 30 Wood V. Trask, 7 Wis. 566 (1859) ; Marine Bank v. Inter- 
 national Bank, 9 id. 57 (1859); Pierce v. Shaw, 51 id. 316 (1881). 
 
 11 50 111. 56, 59 (1869) ; the same in Murdock v. Ford, 17 Ind. 
 52 (1861) ; Gerber v. Sharp, 72 id. 554 (1880), and cases cited. 
 See also Smith v. Stevens, 49 Conn. 181 (1881). In Sargent v. 
 Howe, 21 111. 148 (1859), A. executed three notes to B. and con- 
 veyed property in trust to C. to secure their payment; B. 
 assigned two of the notes to D. It was held that the assignment 
 carried the security with it as an incident to the debt, and that 
 D., by an equity action, could compel the trustee to sell enough 
 of the property to pay his notes. The assignment in such cases
 
 26 PARTIES TO MORTGAGE FORECLOSURES. 
 
 states : " The assignment of each note operates as an 
 assignment pro tanto of the mortgage, and by each 
 assignment it, in effect, becomes ^o many separate 
 mortgages to secure the several notes in the order of 
 their maturity." But where all the notes mature at 
 the same time, they are equal liens;' and if, by the 
 terms of the notes and mortgage, defliult in the pay- 
 ment of the first note or of the interest, when due, 
 renders all the notes due and payable, they become 
 equal liens upon defjiult, and are payable pro rata 
 instead of pro tanto from the proceeds of a sale."- 
 
 NeiD York and other states — rule pro rata. — But in 
 New York,' New Jersey,^ Pennsylvania,'^ Minnesota,'^ 
 
 is pro tanto, not pro rata ; the notes must be paid in the order in 
 which they mature, as they have priority as liens in that order. 
 See Vansant v. Allmon, 23 111. 30, 34 (1859). 
 
 1 Humphreys v. Martin, 100 111. 592 (1881). 
 
 - Bank, U. S., v. Covert, 13 Ohio Rep. 240 tl844); Winters v. 
 Bank, 33 Ohio iSt. 250 (1877); Bushfield v. Mayer, 10 id. 
 3.!4 (1859), supported in point by Pierce v. Shaw, 51 Wis. 316 
 (1881); Phelan v. Olney, 6 Gal. 478 (1856) ; Grattan v. Wiggins, 
 23 id. 16 (1&63). Contra, holding that the notes must be paid in 
 the order of their maturity. Mason v. Barnard, 36 Mo. Rep. 384 
 (1865) ; Hurck v. Erskine, 45 id. 484 (1870). 
 
 '■^ Granger v. Crouch, 86 N. Y. 494, 499 (1881) ; Bridenbecker 
 V. Lowelir32 Barb. (N. Y.) 9 (1860). 
 
 ■i Collerd v. Huson, 34 N. J. Eq. 38 (1881). See the note to 
 the case, giving a full collation of authorities. 
 
 •^ Perry's Appeal, 22 Penn. St. 43 (1853), where four bonds 
 and mortgages, simultaneous in execution and record, but due 
 in successive years, were held to be equal liens and to share pro 
 rata; cases collated. The rule was also applied where all the 
 bonds matured at the same time. Hodge's Appeal, 84 Penn. 
 359 (1877). 
 
 6 Wilson v. Eigenbrodt, 30 Minn. 4 (1882). See the able and 
 ingenious opinion of Mitchell, J., holding this to be the rule for 
 Minnesota unless a contract to a different effect is expressed in 
 the mortgage.
 
 OWNERS OF NOTES, NECESSARY PARTIES. 27 
 
 Michigan/ Mississippi,- Kentucky,^ and Vermont^ the 
 the rule has been adopted that bonds and notes, matur- 
 ing at different times and secured by a single mortgage, 
 are equal and concurrent liens and entitled to the security 
 pro rata. In a recent case in New York,^ where mort- 
 gages were simultaneously executed and recorded, but 
 matured at diiferent times. Judge Finch, of the Court 
 of Appeals, decided that the one falling due first had no 
 priority of lien ; and, after collating and reviewing the 
 cases in the Western states, disapproved the proposition 
 established in so many of them, that different obliga- 
 tions maturing at different times have priority of security 
 according to the order of their maturity. Whichever 
 rule is adopted, all holders of notes and bonds are indis- 
 pensable parties to a foreclosure of the mortgage, in 
 01 ier to produce a perfect title at the sale. It may 
 be observed here that questions affecting the rights of 
 holders of bonds given with railroad mortgages are not 
 within the scope of this work, and the reader is referred 
 to text-books treating specially of railway securities 
 and kindred subjects.** 
 
 1 McCurdy V. Clark, 27 Mich. 445 (1873); Wilcox v. Allen, 
 36 Mich. 160 (1877). 
 
 - Trustees Jefferson Colle2;-e v. Prentiss, 7 C. (Miss.) 46 (1855); 
 Terry v. Woods, 6 8. & M. fMiss.) 139 (1846); Cage v. Her, 5 id. 
 410 (1845); Henderson v. Herrod, 10 id. 631 (1846); Dick v. 
 Mawry, 9 id. 448 (1848) ; Bank of England v. Tarleton, 1 C. 
 (Miss.) 173 (1851) ; Parker v. Mercer, 6 H. (Miss.) 320 (1842). 
 
 3 Campbell v. Johnston, 4 Dana (Ky.), 182 (1836). 
 
 4 Keyes v. Wood, 21 Vt. 331 (1849); Belding v. Manly, 21 id. 
 550 (1849) ; Wright v. Parker, 2 Aik. (Vt.) 212 (1827). 
 
 •^ Granger v. Crouch, 86 N. Y. 494, 499 (1881); in point and 
 similar, Collerd v. Huson, 34 N. J. Eq. 38 (1881). See § 20, post. 
 ^ Jones on Railway Securities.
 
 28 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 14. Owner of mortgage, having pledged the same as 
 collateral secmity, may foreclose. 
 
 Where the owner of a mortgage has pledged it as 
 collateral security for a debt of less amount than the 
 mortgage, he still has such an interest in it as entitles 
 him to bring an action for the foreclosure of the mort- 
 gao-e. Vice-Chancellor McCoun held, in Norton v. 
 Warner,^ that " the complainant had not divested him- 
 self of all interest in or control over the mortgage. The 
 assignment is but a partial one, made to secure to the 
 pledgee the payment of a loan, being less than the 
 amount due on the mortgage. In equity, he is still the 
 owner, subject only to the lien or pledge for the loan. 
 The pledgee might have filed a bill of foreclosure against 
 the original mortgagor and all parties in interest, and 
 in that case the pledgee would have been deemed a 
 trustee for the mortgagee, for all of the mortgage debt 
 after satisfying his claim; and upon the pledgee's refusal 
 to proceed — and which the bill alleges — I see no good 
 reason why the camplainant might not proceed, as he 
 has done, to foreclose." 
 
 But in such an action the pledgee is a necessary 
 party,'- and may be made a co-plaintiff,'^ or a defendant ; 
 neither the mortgagor, nor any person other than the 
 
 1 3 Edw. Ch. (N. Y.) 106 (1837); Siinson v. Satterlee, 64 N. 
 Y. 657 (1876), affirming 6 Hun, 305. In point, Brnnette v. 
 Schettler, 21 Wis. 188 (1866); George v. Woodward, 40 Vt. 672 
 (1868) ; McKinney v. Miller, 19 Mich. 142 (1869) ; Sinking Fund 
 Com'rs V. Northern Bank, 1 Mete. (Ky.) 174 (1858). See §§ 15, 
 78, 79, post. 
 
 - Plowman v. Riddle, 14 Ala. 169 (1848). See g§ 78 and 79, 
 post. 
 
 3 Hoyt V. Martense, 16 N. Y. 231 (1857).
 
 FORECLOSURE BY COLLATERAL ASSIGNOR. 29 
 
 assignee himself, can object that he is made a defendant.^ 
 And if the assignee, or pledgee, refuses to become a co- 
 plaintiff, upon the request of the mortgagee, he cannot 
 himself object that he is made a defendant to the 
 action ;- it should be alleged in the complaint, however, 
 that he has refused to join as a co-plaintiff. If an objec- 
 tion is made at all, it must be by demurrer or answer, 
 or the alleged defect will be considered waived at the 
 trial.^ The rule of this section is in accordance with 
 the general principle that all parties interested in the 
 mortgage debt must be before the court, or the decree of 
 foreclosure will not extinguish their interests. Equity 
 courts are not particular as to how parties come before 
 them, so long as all persons interested in the subject- 
 matter of the action are brought within their jurisdic- 
 tion, so that a complete determination can be made 
 of the rights of all the parties interested. It is 
 indispensable that the pledgee, and all others interested 
 in the mortgage as a collateral security, be made parties 
 to the action.^ The decree should provide first for the 
 payment to the pledgee of the amount due him, and 
 then for the payment to the mortgagee of the balance.'' 
 It is also proper for the mortgagee and the pledgee to 
 
 1 kSimson v. Satterlee, 64 N. Y. 657 (1876), affirming 6 Hun, 
 30.5 (1875). 
 
 - Norton v. Warner, 3 Edw. Ch. (N. Y.) 106 (1887) ; New York 
 Code, § 448. See § 6, ante. 
 
 3 Carpenter v. O'Dougherty, 67 Barb. (N. Y.) 397 ; 2 T. & C. 
 427, aff' d 58 N. Y. 681 (1874). See O'Douirherty v. Remington 
 Paper Co., 81 N. Y. 496 (1880); Remington Paper Company v. 
 O'DoLi^^herty, 81 id. 474 (1880). 
 
 4 See §§ 78 and 79, post; Woodruff v. Depue, 14 N. J. Eq. 
 168, 176 (1861) ; Miller v. Henderson, 10 N. J. Eq. (2 Stockt.) 
 320 (1861) ; Kittle v. Van Dyck, 1 Sandf. Ch. (N. Y.) 76 (1843). 
 
 5 Brunette v. Schettler, 21 Wis. 188 (1866) ; Overall v. Ellis, 
 32 Mo. Rep. 322 (1862).
 
 30 PARTIES TO MORTGAGE FORECLOSURES. 
 
 join as co-plaintiffs in the action to foreclose, as they 
 are together the owners of the entire bond and mort- 
 gage. Neither the mortgagor nor other parties to the 
 action can object to such joinder of plaintiffs, as all 
 parties interested in the mortgage debt are thereby 
 brought before the court, so that its decree will be- 
 come binding and conclusive upon them.^ 
 
 § 15. Assignee of mortgage as collateral security may- 
 foreclose. 
 
 In the foregoing section it has been seen that though 
 a mortgagee has pledged his mortgage as a collateral 
 security, he may nevertheless maintain an action to 
 foreclose it ; also, that the mortgagee and the pledgee 
 may unite as co-plaintiffs in foreclosing. It has now 
 become well settled, as a further principle, that the 
 pledgee, who liolds the mortgage as a collateral security, 
 may also maintain an action for its foreclosure."- The 
 
 1 Hoyt V. Martense, 16 N. Y. 231 (1857). 
 
 - Whitney v. M'Kinney, 7 Johns. Ch. (N. Y.) 144 (1823) ; Bard 
 V. Poole, 12 N. Y. 495, 507 (1855), per Denio, J., stating the rea- 
 sons for the rule. Bloomer v. Stiirges, 58 N. Y. 168 (1874) ; Car- 
 penter V. O'Dongherty, 67 Barb. (N. Y.) 397 (1873) ; S. C, 2 T. & 
 C. 427, affirmed in 58 N. Y. 681 (1874) ; Bush v. Lathrop, 22 N. 
 Y. 535 (1860); Dalton v. Smith, 86 id. 176 (1881): Lehman 
 V. McQueen, 65 Ala. 570 (1882) ; Hunter v. Levan, il Cal. 11 
 (1858) ; Beers v. Hawlev, 3 Conn. 110 (1819) ; St. John v. Free- 
 man, 1 Carter (Ind.), 84 (1848) ; Wilson v. Fatout, 42 Ind. 52 
 (1873). See Compton v. Jones, 65 id. 117 (1878), where the debt, 
 for which the bond and mortgage had been assigned as collateral 
 security, had been paid by the assignor, entitling him to a re- 
 assignment of the securities, and the assignee unsuccessfully at- 
 tempted a foreclosure ; Brown v. Tyler, 8G-ray (Mass.), 135(1857) ; 
 Cutts V. York Manuf. Co., 14 Me. 326 (1837) ; 18 id. 190 (1841), per 
 Weston, Ch. J., where the assignor was made a defendant ; Rice 
 V. Dillingham, 73 id. 59(1881) ; Graydon v. Church, 7 Mich. 36, 
 50, 68 (1859), per Christiancy, J., collating and reviewing the 
 authorities, especially in New York ; Paige v. Chapman, 58 N.
 
 FORECLOSURE BY COLLATERAL ASSIGNEE. 31 
 
 pledgee, however, can recover judgment only for the 
 amount of his claim, the payment of which the decree 
 should direct.^ The amount secured and the interests 
 of all the parties in the mortgage, together with the fact 
 that the assignment is only collateral or conditional, 
 must be specifically stated in the complaint ; and it is in- 
 dispensable that the mortgagee, or owner of the equity 
 of redemption in the mortgage, be made a party to the 
 action in order that his interests also may be foreclosed. - 
 It should also appear in the complaint that the mort- 
 gagee has refused to become a co-plaintiff with the 
 pledgee; otherwise the complaint will be demurrable. 
 It is believed that a person who holds an assignment of 
 a mortgage to indemnify and protect him against liabil- 
 ities or obligations of any kind may foreclose as soon 
 as he is damnified. 
 
 H. 333 (1878) : Selectmen of Natchez v. Minor, 9 Sm. & M. (Miss.) 
 544 (1848) ; Wilson v. Giddings, 28 Ohio St. 554 (1876) ; Chew v. 
 Brumagim, 21 N. J. Eq. 520, 529 (1870), per Van Syckel, J., a 
 leading case, collating and reviewing the New York cases, 
 reported below in 19 id. 130 (1868), and affirmed in 13 Wall. (U. 
 S.) 497 (1871), Avhere the proposition of this section was con- 
 sidered at length. 
 
 1 Carpenter v. O'Donghertv, 67 Barb. (N. Y.) 397 (1873). See 
 the preceding note. Salmon v. Allen, 11 Hun (N. Y.), 29 (1877), 
 a complicated case; McCrum v. Corby, 11 Kan. 464 (1873). 
 In Underhill v. Atwater, 22 N. J. Eq. 16 (1871), the assignee 
 became the owner of the entire mortgage pending the fore- 
 closure of his original claim, and a supplemental bill was 
 held necessary to cover his new interest in the mortgage. See 
 Kamena v. Huelbig, 23 N. J. Eq. 78 (1878); Van Deventer v. 
 Stiger, 25 id. 224 (1874), holding that the decree must be for the 
 amount of the debt and interest only ; Ackerson v. Lodi Branch 
 R. R., 28 id. 542 (1877). 
 
 '^ See §§ 78 and 79, ?jo.s^, and cases cited ; also § 14, ante ; 
 Fisher, § 348, and the English cases cited.
 
 32 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 16. Owner of an equitable interest of any kind in the 
 mortgage, a real party in interest, may generally 
 foreclose. 
 
 According to Mr. Pomeroy, it is a general principle 
 of practice in most of our states that every action 
 must be prosecuted in the name of the real party 
 in interest.^ Following this universal and equitable 
 principle, the courts have established a rule that who- 
 ever holds an equitable or real interest of any kind in a 
 mortgage, may bring an action for its foreclosure;"-^ 
 indeed, the rule in such actions is as elastic and liberal as 
 equity jurisprudence could possibly make it. It has be- 
 come almost axiomatic that an equity court cares little 
 who brings an action, so that he be a real party in interest, 
 nor how it is brought, so long as it acquires complete 
 jurisdiction of all the parties interested, and of the en- 
 tire subject-matter in issue, so that a complete adjudi- 
 cation can be made upon the whole case. It has been 
 shown that the person who holds the largest interest in 
 the mortgage should commence the action ; and it is un- 
 doubtedly the best practice to have all parties interested 
 in the mortgage united as plaintiffs, as opposed to all par- 
 ties interested in the equity of redemption, who are best 
 made defendants.^ But where this is impossible, or 
 parties refuse to join as co-plaintiffs, they can equally 
 well be made defendants, and the decree of the court 
 
 ^ Pomeroy's Remedies, § 99. See § 6, ante. 
 
 - Hill V. Meeker, 23 Conn. 594 (1855) ; Wooden v. Haviland, 
 18 id. 107 (1846). See Irish v. Sharp, 89 111. 261 (1878), holding 
 that the action should be brought in the name of the equitable 
 owner of the mortgage, and not in the name of the mortgagee for 
 his use. 
 
 3 Jones, §§ 1369, 1370. See §§ 14 and 15, ante, and notes.
 
 OWNER OF AN EQUITABLE INTEREST. 33 
 
 will be conclusive upon them. It often becomes neces- 
 sary to make persons who are interested in the 
 mortgage, defendants, as their interests may be an- 
 tagonistic to the interests of others who also own a part 
 of the mortgage. Furthermore, no one can be made a 
 plaintiif against his will, and a person once refusing to 
 become a plaintiif, can be brought into an action in no 
 other way than as a defendant.^ 
 
 The cases, in which questions have arisen affecting 
 equitable assignments and the conditional and contingent 
 rights of parties in mortgages, are so varied in 
 character that it is almost impossible to induce from 
 them any general rules or principles applicable to the 
 subject of this section. A legatee may foreclose a mort- 
 gage upon default where it was bequeathed, — the inter- 
 est to him and the principal to another, — and the mort- 
 gage was to be kept on foot by the terms of the will as 
 a living security for those purposes.^ So a mortgagee 
 may foreclose a mortgage conditioned for his support 
 and maintenance during life.^ In Lawrence v. Lawrence^ 
 a mortgage had been given by a husband and wife as 
 executor and executrix to their co-executrix to secure 
 the payment of moneys of the estate received by the 
 husband as executor ; the wife, after her husband's 
 death, was not allowed to file a bill in her character as 
 executrix against his personal representatives and heirs- 
 at-law, to foreclose such mortgage, where it did not 
 
 1 New York Code, § 448. 
 
 - Hancock v. Hancock, 22 N. Y. 568 (1860), Tper Comstock, 
 Ch. J. 
 
 3 Ferguson v. Ferguson, 2 N. Y. 360 (1849). 
 
 4 3 Barb. Ch. (N. Y.) 71, 75 (1848). The above quotation is 
 abridged from the chancellor's opinion. 
 
 3
 
 34 PARTIES TO MORTGAGE FORECLOSURES. 
 
 appear from the bill that she was entitled, in her sole 
 and separate right as a legatee, to a portion of the fund 
 secured by the mortgage. " If in such a case the wife 
 had an interest in the fund, and the co-executrix to whom 
 the mortgage was given, upon a proper application to her 
 for that purpose, refuses to proceed to foreclose the 
 mortgage, the widow of the mortgagee and the other 
 legatees for whose benefit the mortgage was given, may 
 file a bill showing their respective rights in the fund, 
 and claiming to have the benefit of such mortgage 
 and of a foreclosure thereof. But in that case the mort- 
 gagee and all the legatees who are interested in the fund, 
 must be made parties to the suit; or the bill must be 
 filed by some of the legatees in behalf of themselves and 
 of all others having an interest in the fund," 
 
 It may be stated generally that a purchaser at a fore- 
 closure sale becomes an equitable assignee of the mort- 
 gage foreclosed, for the purpose of maintaining a second 
 or strict foreclosure to extinguish the liens of junior 
 incumbrancers who were not made parties to the original 
 action, or of perfecting a foreclosure in any way defect- 
 ive ;^ he is entitled to an action de novo on the mort- 
 gage.- But a deed executed by both United States loan 
 
 1 Robinson v. Ryan, 25 N. Y. 320 (1862) ; Bolles v. Duff, 43 
 id. 469 (1871); Stewart v. Hutchinson, 29 How. (N. Y.) 181 
 (1864); Franklyn v. Hayward, 61 id. 43 (1881); Taylor v. 
 Asrricultural & M. Ass., 68 Ala. 229 (1883); Goodenow v. Ewer, 
 16"Cal. 461 (1860) ; Muir v. Berkshire, 52 Ind. 149 (1875) ; Shaw 
 V. Heisey, 48 Iowa, 468 (1878) ; Shinier v. Hammond, 51 id. 401 
 (1879); Jones v. Mack, 53 Mo. Rep. 147 (1873); Wilcoxon v. 
 Osborn, 77id. 621(1883); Johnson v. Robertson, 34 Md. 165 
 (1870) ; Stark v. Brown, 12 Wis. 572 (1860) ; Moore v. Cord, 14 
 id. 213 (1861) ; Bank of Wis. v. Abbott, 20 id. 570 (1866). 
 
 2 Rogers v. Holyoke, 14 Minn. 220 (1869). In Robinson v. 
 Ryan, 25 N. Y. 320 (1862), the purchaser at a statutory fore-
 
 OWNER OF AN EQUITABLE INTEREST. 35 
 
 commissioners, in pursuance of a sale held by one only, 
 has been held void and not operative as an equitable 
 assignment of the mortgage to the purchaser, so as to 
 give him any rights under it.^ Where omitted parties 
 or others bring an action to redeem from a foreclosure 
 sale, the purchaser is likewise regarded as an equitable 
 assignee of the mortgage," and a necessary defendant. 
 
 A person who advances money for the payment of a 
 mortgage, with the expectation of having another mort- 
 gage executed to himself as security, becomes an equi- 
 table assignee of the existing mortgage, and upon refusal 
 of the mortgagor to execute a new mortgage, he may 
 maintain an action for the foreclosure of the first one.^ 
 So also a person who loans money on a mortgage, to be 
 used in part for the payment of a prior mortgage, is 
 equitably subrogated as assignee of the mortgage so 
 paid, and may foreclose it, in case the mortgage exe- 
 cuted to him for the loan is declared usurious or void 
 for other reasons.^ A valid and subsisting obligation 
 is not destroyed because included in a security, or made 
 the subject of a contract, void for usury ; although for- 
 mally satisfied and discharged, it may be revived and 
 enforced in case the new security or contract is invali- 
 dated. And where a mortgage, executed to a clerk in 
 
 closure sale, defective for want of service of a notice upon the 
 mortgagor, was held to stand as an assignee of the mortgage, 
 and was allowed in this action to foreclose. 
 
 1 Olmsted v. Elder, 5 N. Y. 144 (1851). 
 
 2 McSorley v. Larissa, 100 Mass. 270 (1868) ; Bolles v. Duff, 
 43 N. Y. 469 (1871); Childs v. Childs, 10 Ohio St. 339 (1859). 
 
 ■' Gilbert v. Gilbert, 39 Iowa, 657 (1874) ; Bank v. Campbell, 
 2 Rich. Eq. (S. C.) 179 (1846). 
 
 * Patterson v. Birdsall, 64 N. Y. 294, 298 (1876), affirming 6 
 Hun, 632 (1876). See Miller v. Winchell, 70 N. Y. 437 (1877).
 
 36 PARTIES TO MORTGAGE FORECLOSURES. 
 
 chancery, to secure a widow's dower, was subsequently 
 discharged by the clerk without authority of the court, 
 upon the execution to him of a second mortgage for a 
 larger sum, the court decided that if the owners of the 
 fund had not elected to foreclose the second mortgage 
 they might have foreclosed the first one, on the ground 
 that its discharge by the clerk, without authority, was 
 null and void.^^ 
 
 It often occurs that a purchaser of an equity of re- 
 demption in mortgaged premises, pays and procures 
 an existing mortgage to be discharged, believing it to be 
 the only incumbrance on the premises. Upon his dis- 
 covery of liens subsequent to the mortgage discharged, 
 the mortgage may be revived, and he will be held 
 equitably subrogated to all the rights of the mortgagee.^ 
 A grantor who pays a mortgage which his grantee has 
 assumed, is held subrogated to all the rights of the 
 mortgagee, and in an action to foreclose, may recover a 
 judgment for deficiency against the grantee; and it is 
 questionable whether, where the security is being im- 
 paired, he has any remedy to protect himself, except to 
 pay his bond and mortgage and become subrogated to 
 the rights of the mortgagee.'^ 
 
 The form in which an assignee acquires his owner- 
 
 1 Farmers' Loan & Trust Co. v. Walworth, 1 N. Y. 433 (1848). 
 See Homoeopathic Mut. Life Ins. Co. v. Marshall, 32 N. J. Eq. 
 103 (1880). 
 
 2 Ayers v. Adams, 82 Iiid. 109 (1882); Youngman v. Elmira 
 & W. R. R., 65 Penn. 278 (1870); Cobb v. Dyer, 69 Me. 494 
 (1879) ; Lovejoy v. Vose, 73 id. 46 (1881). 
 
 3 Marshall v. Davies, 78 N. Y. 415, 421 (1879), reversing 16 
 Hun, 606. See Calvo v. Davies, 73 N. Y. 211, 215 (1878). In 
 point, Wadsworth v. Lyon, 93 id. 201 (1883) ; Wood v. Smith, 51 
 Iowa, 156 (1879).
 
 FORECLOSURE BY SURETY FOR MORTGAGE DEBT. 37 
 
 ship or interest in the mortgage is quite immaterial ; it 
 may be by mere delivery or by parol, but to enable the 
 assignee to maintain a foreclosure there must be a dis- 
 tinct intention to give him an interest in the bond and 
 mortgage. Where the intention is to have a written as- 
 signment, a mere manual delivery will not pass the title.^ 
 
 § 17. A surety for the mortgage debt may sometimes 
 
 foreclose. 
 
 If a person who stands in the relation of surety to a 
 mortgage debt is compelled to pay it, he is entitled to 
 be subrogated to the rights of the mortgagee, and may 
 foreclose the mortgage in his own name, without a 
 formal assignment either in writing or by parol.'^ There 
 are three principal ways in which this relation and its 
 attending rights may arise : First, where the surety 
 has guaranteed the payment of the mortgage debt, in 
 an assignment or a separate instrument, he may take 
 up the bond and mortgage and enforce their jDayment 
 in his own name f it has been held that not even an 
 assignment is necessary.* 
 
 Second, where a grantor is obligated to pay a mort- 
 gage debt and conveys the land to a grantee, who assumes 
 the payment thereof, he is entitled, on paying the 
 
 ^ So held by Folger, J., in Strause v. Josephthal, 77 N. Y. 
 622 (1879). See Green v. Marble, 37 Iowa, 95 (1873) ; Andrews 
 V. McDaniel, 68 N. C. 385 (1873). 
 
 2 Norton v. Soule, 2 Greenl. (Me.) 341 (1823) ; Minis v. Mc- 
 Dowell, 4 Ga. 182 (1848) ; Saylors v. Saylors, 3 Heiskell (Tenn.), 
 525 (1871). See also the cases cited below, and §§ 15 and 16, 
 ante, and notes ; Jones, § 1380 ; Thomas, p. 240. 
 
 •^ Darst V. Bates, 95 111. 493 (1880) ; Gerber v. Sharp, 72 Ind. 
 554 (1880). 
 
 4 Walker v. King, 44 Vt. 601 (1872).
 
 38 PARTIES TO MORTGAGE FORECLOSURES. 
 
 debt, voluntarily or otherwise, to be subrogated to the 
 rights of the mortgagee, and to enforce the mortgage 
 against the land as the primary fund for payment, and 
 thereafter against all persons liable for a deficiency. The 
 right to foreclose is perfect without an assignment of the 
 bond and mortgage;^ even in a case where the grantee 
 had not assumed payment of the mortgage, the grantor, 
 on paying the mortgage, was deemed equitably subro- 
 gated to the extent that he could maintain a foreclosure.-^ 
 But an assignment can be compelled upon tender of the 
 amount unpaid, and if the mortgagee refuses to assign, 
 an action can be maintained against him for a formal 
 assignment of the bond and mortgage. The theory 
 upon which an assignment will be decreed has been 
 stated as that of equitable subrogation.^ Upon the 
 rights of a surety in this connection, Judge Morse,* of 
 the New York Court of Appeals, has said : " I 
 understand the law to be as well settled, as the reason 
 and justice of the rule is clear, that any one who holds 
 the actual relation of surety for the mortgage debt, 
 
 1 McLean v. Towle, 3 Sandf. Ch. (N. Y.) 117 (1845) ; Josselyn 
 V. Edwards, 57 Ind. 212 (1877) ; Hoffman v. Risk, 58 id. 113 
 (1877) ; Risk v. Hoffman, 69 id. 137 (1879) ; Wood v. Smith, 51 
 Iowa, 156 (1879) ; Hoysradt v. Holland, 50 N. H. 433 (1870). 
 
 2 Baker v. Terrell, 8 Minn. 195 (1863). 
 
 ■^ Matteson v. Thomas, 41 111. 110 (1866): Johnson v. Zink, 51 
 N. Y. 333 (1873), affirming 52 Barb. 396 (1868). 
 
 4 Averill v. Taylor, 8 N. Y. 44, 51 (1853). See also Marsh v. 
 Pike, 10 Paige (N. Y.), 595 (1844), cited and reviewed in Calvo 
 V. Davies, 73 N. Y. 211, 215 (1878) ; Marshall v. Davies, 78 id. 414, 
 421 (1879) ; S. C, 58 How. (N. Y.) 231 ; Cox v. Wheeler, 7 Paige 
 (N. Y.), 248, 258 (1838) ; Halsey v. Reed, 9 id. 446 (1842) ; Tice 
 V. Annin, 2 Johns. Ch. (N. Y.) 125 (1816) ; Cherry v. Monro, 2 
 Barb. Ch. (N. Y.) 618 (1848) ; Ferris v. Crawford, 2 Denio (N. 
 Y.) 595 (1845); Cornell v. Prescott, 2 Barb. (N. Y.) 16 (1847); 
 Stebbins v. Hall, 29 id. 525 (1859) ; Brewer v. Staples, 3 Sandf. 
 Ch. (N. Y.) 579 (1846).
 
 RIGHT OF SURETY TO FORECLOSE. 39 
 
 charged upon land in which he has an interest, although 
 his liability as such surety extends no farther than to 
 lose his interest in the land, has a right to redeem, for 
 the protection of such interest. And I suppose it to be 
 equally well settled, that his right as surety in such 
 a case, and upon his redeeming, is, to be subrogated to 
 the rights and to occupy the position of the creditor 
 from whom he redeems." And Chief Commissioner 
 Lott, in a later case,^ in the same court, determined 
 that the " relation of surety between the mortgagor and 
 his grantee does not deprive the obligee of the right of 
 enforcing the bond against the obligor. He is entitled 
 to his debt, and has a right to avail himself of all his 
 securities. Equity, however, requires that the obligor, 
 on the payment of the debt out of his own funds, should 
 be subrogated to the rights of the obligee, so that he 
 can reimburse himself by a recourse to the mortgaged 
 premises for that purpose. This cannot prejudice the 
 creditor, and it is clearly equitable as between the 
 debtor and the owner of the land. He clearly has no 
 right or color of right, justice or equity to claim that 
 he, notwithstanding the conveyance of the property 
 subject to the mortgage, and thus entitling him only to 
 its value over and above it, should in fact enjoy and 
 hold it discharged of the incumbrance, without any con- 
 tribution toward its discharge and satisfaction, from the 
 land. This equitable principle is fully recognized in 
 most of the cases. Indeed, it is so consistent with 
 right and justice as to require no authorities to sustain 
 it." It is to be observed of all cases mentioned in this 
 
 1 Johnson v. Zink, 51 N. Y. 383 (1873).
 
 40 PARTIES TO MORTGAGE FORECLOSURES. 
 
 section, that the land is the primary fund for the payment 
 of the mortgage debt.^ The surety cannot compel the 
 mortgagee to file a bill to foreclose the mortgage and to 
 exhaust his remedy against the principal debtor by a 
 judgment for deficiency ; but he may file a bill against 
 the mortgagee'- and the subsequent grantee, who has 
 assumed the payment of the debt and thereby become 
 the principal debtor, to have the debt paid to the mort- 
 gagee by such grantee, or from the proceeds of a sale 
 of the mortgaged premises. " It is well settled that a 
 surety after the debt has become due may come into 
 court and compel the principal to pay the debt."^ 
 
 Third, where a subsequent incumbrancer, though not 
 holding the actual relation of surety for the mortgage 
 debt, still has such an interest in the land that he may 
 redeem from the mortgage debt by paying the same, 
 and thereby become subrogated to the rights and the 
 position of the mortgagee.* Cases under this head are 
 
 1 Marsh v. Pike, 10 Paige (N. Y.). .595 (1844), affirming 1 
 Saiidf. Ch. 210 (1843). 
 
 - Morse v. Larkiii, 46 Vt. 371 (1874). 
 
 3 Marsh v. Pike, 1 8andf. Ch. (N. Y.) 212 (1843), supra, pe9' 
 Vice-Chancellor 8andford, citing Warner v. Beardsley, 8 
 Wend. (N. Y.) 194 (1831); 1 Story's Eq. 327; 2 id. 35, § 730; 
 144, § 849. See Hayes v. Ward, 4 Johns. Ch. (N. Y.) 123, 132 
 (1819) ; Cornell v. Prescott, 2 Barb. (N. Y.) 16 (1847) ; Norton v. 
 Warner, 3 Edw. Ch. (N. Y.) 108 (1837), and note; McLean v. 
 Lafayette Bank, 3 McLean (U. S.), 587 (1846). 
 
 4 Ellsworth V. Lockwood, 42 N. Y. 89, 99 (1870), is the leading 
 case ; relied upon in Dings v. Parshall, 7 Hun (N.Y.), 522 (1876). 
 See Averill v. Taylor, 8 N. Y. 44 (1853) ; Cornell v. Prescott, 2 
 Barb. (N. Y.) 20 (1847) : Carpentier v. Brenham, 40 Cal. 221 
 (1870); Tyrrell v. Ward, 102 111. 29 (1882); Benton v. Shreeve, 
 4 Ind. 6Q (1853) ; Lowrey v. Byers, 80 id. 443 (1881). For an 
 exhaustive discussion of the doctrine of subrogation and substi- 
 tution, as applied to parties to a mortgage, see Rardin v. Walpole, 
 38 Ind. 146 (1871), collating the authorities.
 
 ASSIGNEE OF MORTGAGE, WITHOUT BOND. 41 
 
 numerous in those states where foreclosure may be made 
 by entry and possession, and the mortgagor and those 
 claiming under him are obliged to assert their rights by 
 redemption, especially in Massachusetts, Maine and 
 Vermont. One of two joint mortgagors, who has been 
 obliged to pay the whole debt, has been held subrogated 
 to the rights of the mortgagee as against the other 
 mortgagor;^ and if a purchaser of a divided or an 
 undivided part of mortgaged premises pays the entire 
 mortgage to protect his own interest, he will become 
 the equitable assignee of a proportional part of the 
 mortgage, and will be allowed to enforce it against the 
 remaining part of the premises.- So a tenant for life, 
 upon paying a prior existing mortgage, in order to pro- 
 tect his own estate, is deemed an equitable assignee of 
 the mortgage.^ But a surety is never entitled to 
 subrogation and foreclosure until he has paid the debt.'^ 
 The propositions stated in this section are dependent 
 upon the general principles of law which govern the 
 relation of principal and surety, and more especially upon 
 those principles which entitle a surety to be subrogated 
 to the securities of a creditor upon the default of the 
 principal debtor in payment.'' 
 
 § 18. Assignee of a mortgage without the bond cannot 
 
 foreclose. 
 
 It is now a well estabUshed principle in the law of 
 mortgages that the assignee of a mortgage without the 
 
 1 White V. Fisher, 62 111. 258 (1871) ; Shinn v. Shimi, 91 111. 
 477 (1879). 
 
 2 Champlin v. Williams, 9 Penn. St. 341 (1848). 
 ^ Hamilton v. Dobbs, 19 N. J. Eq. 227 (1868). 
 
 4 Coiiwell V. McCowau, 53 111. 363 (1870). 
 ^ Brandt on Suretyship and Guaranty.
 
 42 PARTIES TO MORTGAGE FORECLOSURES. 
 
 bond, note or indebtedness which the mortgage was given 
 to secure, acquires no title whatever to the mortgage 
 debt, and cannot maintain a foreclosure; the mortgage in 
 his hands is a mere nullity. The assignment of the mort- 
 gage alone is scarcely presumptive evidence of an inten- 
 tion to assign the indebtedness which it was given to 
 secure ;^ but an assignment of a bond and mortgage, and 
 the mone^^'s due and to grow due thereon, carries, by its 
 terms, a note for which they are held as collateral security.^ 
 In Merritt v. Bartholick, a leading case in New York, Judge 
 Parker^ says : " As a mortgage is but an incident to 
 the debt which it is intended to secure, the logical con- 
 clusion is, that a transfer of the mortgage without the 
 debt is a nullity, and no interest is acquired by it. The 
 security cannot be separated from the debt and exist 
 independently of it. This is the necessary legal con- 
 clusion, and recognized as the rule by a long course of 
 judicial decisions. =^ ^ ^ for the legal maxim is, 
 the incident shall pass by the grant of the principal, 
 and not the principal by the grant of the incident." 
 Accessorium non duett, sed sequitur principale. In a later 
 
 1 Peters v. Jamestown Bridge Co., 5 Cal. 334 (1855) ; Nagle 
 V. Macy, 9 id. 426 (1858) ; Webb v. Flanders, 32 Me. 175 (1850) ; 
 Lunt V. Lunt, 71 id. 377 (1880) ; Willis v. Vallette, 4 Mete. 
 (Ky.) 195 (1862); Hubbard v. Harrison, 38 Ind. 323 (1871); 
 Hamilton v. Lubukee, 51 111. 415 (1869) ; Jackson v. Blodget, 5 
 Cow. (N. Y.) 206 (1825). See Bulkley v. Chapman, 9 Conn. ^ 
 (1831), on the question of intent ; Powell, 1115, 1116. See § 19, 
 post. 
 
 2 Belden v. Meeker, 2 Lans. 471 (1869), affirmed 47 N. Y. 307 
 (1872). 
 
 3 36 N. Y. 44, 45 (1867), affirming 47 Barb. 253 (1866), and 34 
 How. 129. See the cases cited, also Cooper v. Newland, 17 Abb. 
 (N. Y.) 342, 344 (1863) ; Langdon v. Buell, 9 Wend. (N. Y.) 80 
 (1832).
 
 ASSIGNEE OF BOND, WITHOUT MORTGAGE. 43 
 
 case/ a bond and mortgage had been given to secure the 
 performance of a contract ; after the contract had been 
 rescinded, the assignee of the bond and mortgage 
 brought an action for foreclosure, but it was dismissed 
 on the ground that the rescission of the contract ex- 
 tinguished the indebtedness and the liabihty thereunder 
 and destroyed the validity of the bond and mortgage. 
 Some courts have held that an assignment of the 
 mortgage without the note or bond transfers a naked 
 trust,^ and that the assignee must hold the mortgage at 
 the will and disposal of the creditor who owns the 
 bond.'^ Where a mortgage is executed without a bond 
 or other written evidence of the debt secured, and it 
 contains no covenant for the payment of the debt, the 
 assignee acquires a valid claim and lien upon the land, 
 but nothing more.* 
 
 § 19. Assignee of the note, bond or debt may foreclose, 
 though the mortgage is not assigned. 
 
 As has been seen in the preceding section, the mort- 
 gage debt is the essential fact, while the mortgage is 
 merely an incident. Consequently the assignee of the 
 debt may foreclose, as he is the equitable assignee of 
 the mortgage, though he holds neither a written 
 
 1 Wanzer v. Caiy, 76 N. Y. 526 (1879). In point, Emory v. 
 Keighan, 94 111. 543 (1880). 
 
 2 Pope t. Jacobus, 10 Iowa, 262 (1859) ; Johnson v. Walter, 60 
 id. 315 (1882); Johnson v. Cornett, 29 Ind. 59 (1867); Cleveland 
 V. Cohrs, 10 Rich. (S. C.) 224 (1878). 
 
 3 Medley v. Elliot, 62 111. 532 (1872) ; Bailev v. Gould, Walker, 
 Ch. (Mich.) 478 (1844) ; Webster v. Calden, 56 Me. 204 (1868) ; 
 Huntington v. Smith, 4 Conn. 237 (1822) ; Dudley v. Cadwell, 
 19 id. 228 (1848). 
 
 ^ Severence v. Griffith, 2 Laus. (N. Y.) 38 (1870).
 
 44 PARTIES TO MORTGAGE FORECLOSURES. 
 
 nor parol assignment of it.' He is the real party in 
 interest and can give a full quittance of the debt, though 
 he is not in a position to execute a legal discharge of 
 the mortgage.' The rule of this section holds good 
 even after the debt has been put into a judgment." 
 While in a foreclosure it may not be indispensable to 
 
 1 For the New York cases see the preceding section. Doe v. 
 McLoskey, 1 Ala. 708 (1840) ; Center v. P. & M. Bank, 22 id. 
 743 (1853); Austin v. Burbank, 2 Day (Conn.), 474 (1807); 
 Huntington v. Smith, 4 Conn. 237 (1822); Quinebaug Bank 
 V. French, 17 id. 134 (1845) ; Ord v. McKee, 5 Cal. 515 (1855) ; 
 Bennett v. Solomon, 6 id. 134 (1856); Willis v. Farley, 24 
 id. 490 (1864) ; Kurtz v. Sponable. 6 Kan. 395 (1870) ; Bank, U. 
 S., V. Huth, 4 B. Mon. (Ky.) 450 (1844); Vimont v. Stitt, 6 id. 
 478 (1846); Burdett v. Clay, 8 id. 295 (1847-8); Garrett v. 
 Puckett, 15 lud. 485 (1860) ; Gower v. Howe, 20 id. 396 (1863) ; 
 Holdrige v. Sweet, 23 id. 118 (1864); Ryan v. Dmilap, 17 111. 40 
 (1815); Olds V. Cummings, 31 id. 188 (1863); Herring v. Woodh nil, 
 29 id. 92 (1862) ; Hamilton v. Lubukee, 51 id. 415 (1869) ; Crow & 
 Co. V. Vance, 4 Clarke (Iowa), 434 (1857), and the cases cited at 
 pages 440, 441 ; Blair & Co. v. Marsh, 8 Iowa, 144 (1859) ; 
 Sangster v. Love, 11 id. 580 (1861) ; Bank of Indiana v. Ander- 
 son, 14 id. 544 (1863) ; Bremer Co. B'k v. Eastman, 34 id. 392, 
 394 (1872) ; Preston v. Morris, 42 id. 549 (1876) ; Walker v. 
 Schreiber, 47 id. 529 (1877); Warren v. Homestead, 33 Me. 256 
 (1851); Holmes v. McGinty, 44 Miss. 94 (1870); Martin v. Mc- 
 Reynolds, 6 Mich. 70 (1858) ; Briggs v. Hannowald, 35 id. 474 
 (1877); Laber£,re V. Chauvin, 2 Mo. Rep. 145 (1829) ; Ohio Life 
 Ins. & Trust Co. v. Winn, 4 Md. Ch. Dec. 253 ; Byles v. Tome, 
 39 Md. 461 (1873) ; Richards v. Kountze, 4 Neb. 208 (1876) ; Kyger 
 V. Rvlev, 2 id. 28 (1865) ; Whittemore v. Gibbs, 24 N. H. 484 
 (1852) ;'Lane v. Sleeper, 18 id. 209 (1846) ; Southerin v. Mendum, 
 5 id. 420, 432 (1831); Rigney v. Lovejoy, 13 id. 253 (1842); 
 Wheeler v. Emerson, 45 id. 527 (1864) ; Hvman v. Devereux, 
 63 N. C. 624 (1869) ; Pratt v. Bank of Bennington, 10 Vt. 293 
 (1838); 21 id. 338; 22 id. 139; Keyes v. Wood, 21 id. 331 
 (1849) ; Martineau v. McCollum, 3 Pinney (Wis.), 455 (1852) ; 
 Body V. Jewsen, 33 Wis. 402 (1873) ; Perkins v. Sterne, 23 Tex. 
 561 (1859); Carpenter v. Longan, 16 Wall. (U. S.) 271 (1872) ; 
 Jones, § 1377. 
 
 2 Wayman v. Cochrane, 35 111. 152 (1864). 
 
 ^ Wayman v. Cochrane, supra; Swartz v. Leist, 13 Ohio St. 
 419 (1862) ; Moore v. Cornell, 68 Penn. 320 (1871).
 
 CONTEMPORANEOUS MORTGAGES. 45 
 
 join the assignor as a party plaintiff or defendant, it 
 would certainly be advisable to do so, in order to ex- 
 tinguish any possible interest which he might continue 
 to have or claim. The assignor has sometimes been held 
 a necessary party, on the ground that an assignment of 
 the note alone carries only the equitable, and not the 
 legal title to the security.^ Vice versa, if the assignor 
 should commence a foreclosure of his mortgage after 
 having assigned the bond or debt, his assignee would 
 certainly be a necessary party. According to the cases, 
 however, the assignor could hardly maintain an action 
 to foreclose. The assignee and the assignor may unite as 
 co-plaintiffs ;- and it has been held that the assignee can 
 prosecute the action in the name of the assignor.^ 
 
 § 20. Mortgagees ovrning contemporaneous mortgages, 
 being equal liens, any one or more may foreclose. 
 
 Where two or more bonds and mortgages have been 
 simultaneously executed and recorded to secure inde- 
 pendent debts, or parts of the same debt, and are 
 equal liens upon the premises, the mortgagees may 
 unite as co-plaintiffs to foreclose their mortgages, or 
 any one or more may foreclose upon refusal of the others 
 to unite as co-plaintiffs.^ One of the mortgagees can- 
 
 1 Stone V. Locke, 46 Me. 445 (1859) ; Moore v. Ware, 38 id. 
 496 (1854) ; Graham v. Newman, 21 Ala. 497 (1852) ; Prout v. 
 Hoge, 57 id. 28 (1876) ; Bibb v. Hawley, 59 id. 403 (1877) ; 
 Denby v. Mellgrew, 58 id. 147 (1877) ; Burton v. Baxter, 7 
 Blackf. (Ind.) 297 (1844). See § 18, ante. 
 
 2 Holdridge v. Sweet, 23 Ind. 118 (1864). 
 
 •' Calhoim v. Tullass, 35 Ga. 119 (1866) ; English v. Register, 
 7 id. 387 (1849). 
 
 * Potter V. Crandall, Clarke Ch. (N. Y.) 119, 123 (1839). See 
 Green v. Warnick, 64 N. Y. 220 (1876), reversing 4 Hun, 703, 
 where the respective rights of simultaneous mortgagees came
 
 46 PARTIES TO MORTGAGE FORECLOSURES. 
 
 not ignore the rights of the others, and foreclose with- 
 out making them parties ; if they are omitted, the 
 decree and sale will be defective,^ and they can redeem, 
 or maintain a separate foreclosure.' The courts seem 
 to regard such mortgages the same as though they 
 constituted a single mortgage given to secure to the 
 mortgagees in severalty the amounts of their respective 
 claims.^ In a New York case,^ it appeared that a part 
 of the purchase-money of a farm was secured to a widow 
 and several heirs by separate mortgages given to the widow 
 and each of the heirs for their proportionate shares of the 
 purchase-money ; all the mortgages covered the same 
 property, and were executed and recorded simultane- 
 ously. On default, one of the heirs filed a bill of fore- 
 closure against the mortgagor, the widow and the other 
 heirs. The court determined that a decree could not 
 be granted unless the widow and co-heirs had refused to 
 unite with him as parties plaintiff, and unless all the 
 rights of all the parties were set forth in the plaintiff's 
 bill, Vice-Chancellor Whittlesey, writing the opinion, 
 said : " The proper course for the complainant to pur- 
 sue is to ask his mother and co-heirs to join with him in 
 foreclosing all the mortgages in one bill ; if any refuse, 
 
 before the court in a contest for surplus moneys ; Decker v. Boice, 
 83 N. Y. 21.5 (1880); Chochran v. Goodell, 131 Mass. 464 (1881). 
 See Perry's Appeal, 22 Penn. 8t. 43 (1853), collating and reviewing 
 the Pennsylvania cases, per Woodward, J. See § 81, post. 
 
 ^ But in Dungan v. Anier. Life Ins. Co., 52 Penn. 253 (1866), 
 one mortgagee foreclosed, ignoring the other, and the decree 
 was held to divest both. 
 
 - Cain v. Hanna, 63 Ind. 408 (1878). 
 
 '■' See §§ 12 and 13, ayite ; see Grans^er v. Crouch, 86 N. Y. 494, 
 499 (1881). 
 
 * Potter V. Crandall, Clarke (N. Y.), 119, 123 (1839), pei^ Vice- 
 Chancellor Whittlesey.
 
 SEPARATE ACTIONS ON DIFFERENT MORTGAGES. 47 
 
 he can then make such as refuse, defendants. He should 
 set forth in his bill all the circumstances of the simul- 
 taneous execution of the mortgages ; and then the court 
 can make a decree which will satisfactorily dispose of 
 all the rights of all the parties, whether some of them are 
 reluctant to proceed or not." 
 
 § 21. 0"wner of t^vo mortgages cannot foreclose both at 
 same time in separate actions. 
 
 A person who owns two or more mortgages upon the 
 same premises, cannot maintain separate actions at the 
 same time for their foreclosure.^ In a case"^ where this 
 proposition was squarely before the court, Chancellor 
 Walworth held that " the complainant not only unnec- 
 essarily, but contrary to the settled practice of the 
 court, which is for the complainant to state all of his 
 junior incumbrances upon the mortgaged premises in 
 his bill to foreclose his prior mortgage, commenced two 
 separate and distinct foreclosure suits, upon these two 
 mortgages, on one piece of land, given by the same mort- 
 gagors to the same mortgagee, and which mortgages, at 
 the time of filing these bills, belonged to the same per- 
 son." The best practice is to foreclose all the mort- 
 gages in one action,^ or to foreclose the senior mortgage, 
 
 1 Fitzhugh V. McPherson, 3 Gill (Md.), 408 (1845). In Demo- 
 rest V. Berry, 1 C. E. Green (16 N. J. Eq.), 481 (1864), after an 
 action had been commenced on a first mortgage, it was dis- 
 covered that a second mortgage covered the same premises 
 described in the first mortgage and other lands also, and an 
 action was then commenced on the second mortgage ; but the 
 second foreclosure was allowed to continue only on the discon- 
 tinuance of the first one. 8ee § 20, ante. 
 
 2 Roosevelt v. Ellithorp, 10 Paige (N. Y.), 415, 419 (1843). 
 
 •^ McGowen v. Branch Bank at Mobile, 7 Ala. 823 ; Phelps v. 
 Ellsworth, 3 Day (Conn.), 397 (1809) ; Hawkins v. Hill, 15 Cal. 
 499 (1860).
 
 48 PARTIES TO MORTGAGE FORECLOSURES. 
 
 setting forth in the complaint the claims upon the junior 
 incumbrances. It matters not that the mortgages are of 
 different dates, and given to different persons to secure 
 different debts ; it is essential only that they be owned 
 by the same person at the time of foreclosure, and that 
 they cover the same premises. If the junior mortgage 
 covers other premises also, the fact should be set forth 
 in the complaint. 
 
 § 22. Assignee in bankruptcy or by general assignment, 
 or receiver of a corporation, may foreclose. 
 
 An assignee in bankruptcy or by general assignment 
 can foreclose .a bond and mortgage which belonged to 
 the estate of the assignor, as he succeeds to the entire 
 legal title of the assets; he acquires no better title, 
 however, than the assignor possessed.^ Likewise he may 
 assign the mortgage, and the assignee can maintain 
 a foreclosure.^ The assignor is not a necessary 
 party plaintiff" or defendant; if deemed best, however, he 
 may very properly be made a defendant, so as to extin- 
 guish any possible equities that he may claim. The 
 assignee may decline to collect the mortgage or to pros- 
 ecute a foreclosure if he believes that nothing can be 
 realized. In such a case the bankrupt or assignor is at 
 liberty to commence the suit in his own name, but the 
 assignee should be l^rought into the action, or at least 
 be notified of its pendency, and requested to prosecute 
 it. The general rule is that, if an assignee abandons 
 any property or choses in action belonging to the 
 bankrupt's estate, or if he declines to appear as prose- 
 
 ^ Upton V. National Bank of Reading. 120 Mass. 153 (1876). 
 - Ward V. Price, 12 N. J. Eq. (1 Beas.) 543 (1859).
 
 ASSIGNEE IN BANKRUPTCY FORECLOSING. 49 
 
 cuter when summoned in a suit pending in favor of the 
 bankrupt, the right remains in or reverts to the 
 bankrupt ; he is still the legal and equitable owner of 
 his estate as against every one but his assignee.^ 
 
 The receiver of an insolvent corporation may also 
 foreclose a mortgage," and his successor in office likewise 
 succeeds to the same right.^ " It is the settled doctrine 
 that the receiver of an insolvent corporation represents 
 not only the corporation, but also creditors and stock- 
 holders, and that, in his character as trustee for the 
 latter, he may disaffirm and maintain an action as receiver 
 * * * to recover its funds or securities invested or 
 misapplied."* 
 
 § 23. Assignee pendente lite may continue the fore- 
 closure. 
 
 A person who purchases a bond and mortgage pend- 
 ing its foreclosure may be substituted as plaintiff and 
 continue the action in his own name, or the action may 
 be continued in the name of the assignor, if no one 
 objects and the matter is not brought to the attention 
 of the court. But objection can be made by answer if 
 the assignment is executed before the answer is pleaded.^ 
 If the assignment is recorded or the fact of the transfer 
 is brought to the knowledge of the court, it would seem 
 
 i Towle V. Rowe, 58"n. H. 394 (1878). 
 
 - Iglehart v. Bierce, 36 111. 1;.3 (1864). Robinson v. Williams, 
 22 N. Y. 380 (1860), was an action by a receiver against a 
 receiver. 
 
 •^ Iglehart v. Bierce, supra. 
 
 ■* See Attorney-General v. Guardian Mat. Life Ins. Co., 77 N. 
 Y. 272, 275 (1879), per Andrews, J. 
 
 •' Wallace v. Dunning, Walk. Ch. (Mich.) 416 (1844); Mills v. 
 Hoag, 7 Paige (N. Y), 18 (1837); Field v. Maghee, 5 id. 539 
 (1836). See Smith v. Bartholomew, 42 Vt. 356 (1869). 
 4
 
 50 PARTIES TO MORTGAGE FORECLOSURES. 
 
 that the action can be continued only in the name of 
 the true owner and real party in interest/ who should 
 bring himself forward in the suit by petition or a sup- 
 plemental bill.- 
 
 § 24. 0"wner of mortgage dying, personal representatives 
 may foreclose. 
 
 The legal title to a bond and mortgage passes, upon 
 the death of its owner, to his personal representatives, 
 who are in equity trustees for the benefit of the dece- 
 dent's heirs or legatees. When, at an earlier day, it 
 was held that the mortgagee had a vested interest in 
 the title to the lands under his mortgage, his heirs, 
 instead of his personal representatives, were held to 
 succeed to that interest upon his death. But at present 
 it is the uniform law of America that a bond and mort- 
 gage are only securities, and pass as personal property 
 to the control and disposition of a decedent's personal 
 representatives f and the absence of a personal obliga- 
 tion by bond, note or covenant for the debt, does not 
 affect the right of the personal representatives to the 
 possession of the mortgage. 
 
 A personal representative upon coming into due pos- 
 session and control of a bond and mortgage may main- 
 tain an action for its foreclosure ; indeed, he is the only 
 person who can foreclose the mortgage, as he holds 
 
 1 Bigelow V. Booth, 39 Mich. 622 (1878). See Ellis v. Sisson, 
 96 111. 105 (1880). See §§ 40-42, post. 
 
 2 Fisher, §§ 385-388; Foster v. Deacon, 6 Madd. (Eng. Ch.) 
 59 (1821); Coles v. Forrest, 10 Beav. (Eng. Ch.) 552 (1847). 
 
 ^ Kinna v. Smith, 2 Green Ch. (N. J.) 14 (1834) ; Grace v. 
 Hunt, 1 Cooke (Tenn.), 344 (1813) ; Thornborough v. Baker, 3 
 Swan. (Eng.) 628 (1675) ; Tabor v. Tabor, 3 id. 636 (1679). See 
 the cases cited below.
 
 FORECLOSURE BY ADMINISTRATOR. 51 
 
 the entire legal title to it.' The administrator of a 
 mortgagee, to whom the mortgage was given to secure 
 an annuity, may foreclose, if the condition was broken 
 during the decedent's life-time, and recover the unpaid 
 annuity.' If two or more executors or administrators 
 have qualified, all should unite as plaintiffs ; but if any 
 who have qualified refuse to join as co-plaintiffs, they 
 may be made defendants to the action ; they must be 
 brought before the court in some capacity. In most 
 states it is not necessary to bring the heirs of the 
 mortgagee into the action in any way,^ while in others 
 
 1 Peck V. Mallams, 10 N. Y. 509 (1853) ; People v. Keyser, 28 
 id. 226 (1863); Newton v. Stanley, 28 id. 61 (1863); Renaud 
 V. Conselyea, 7 Abb. (N. Y.) 105 (1858), reversing 4 id. 
 280 and 5 id. 346 ; Routh v. Smith, 5 Conn. 135, 139 (1823) ; 
 Buck V. Fischer, 2 Col. T. 182 (1873) ; Dixon v. Cuyler, 27 Ga. 
 248 (1859) ; Cryst v. Cryst, Smith (Ind.), 370 (1848) ; Talbot v. 
 Dennis, ib. 357 (1849) ; Nolte v. Libbert, 34 Ind. 163 (1870). In 
 Hunsucker v. Smith, 49 id. 114 (1874), an administrator held 
 personally a mortaj^age on the lands of the decedent ; Mervin v. 
 Lewis, 90 111. 505^(1878) ; Burton v. Hintrager, 18 Iowa, 348, 351 
 (1865) ; Grimmell v. Warner, 21 id. 13 (1866) ; White v. Ritte- 
 myer, 30 id. 272 (1870), citing many cases. So by statute in 
 Missouri, Riley's Adm'r v. McCord's Adm'r, 24 Mo. Rep. 265 
 (1857) (R. C. 1845, p. 749) ; also in Michigan, Albright v. Cobb, 
 30 Mich. 355 (1874). See Jones, §§ 1387, 1388, for the statutes in 
 some other states ; Baldwin v. Allison, 4 Minn. 25 (1860) ; G-riffin 
 V. Lovell, 42 Miss. 402 (1869) ; Webster v. Calden, 56 Me. 204, 211 
 (1868) ; Dewey v. Van Deusen, 4 Pick. (Mass.) 19 (1826) ; Fay 
 V. Cheney, 14 id. 399 (1833) ; Scott v. McFarland, 13 Mass. 309 
 (1816) ; Smith v. Dyer, 16 id. 18 (1819) ; Trimmier v. Thomson, 
 10 Rich. (S. C.) 164 (1877) ; Gibson v. Bailey, 9 N. H. 168 (1838); 
 Pierce v. Brown, 24 Vt. 165 (1852) ; Collamer v. Langdon, 29 Vt. 
 
 32 (1856) ; Weir v. Mosher, 19 Wis. 311 (1865). For the English 
 cases, see Fisher, §§ 359, 360 ; Hobart v. Abbot, 2 P. Wms. 642 
 (1731) ; Cave v. Cork, 2 Y. & C. C. C. 130 (1843) ; Wilton v. Jones, 
 2 id. 244 ; Meeker v. Tanton, 2 Ch. Ca. 29 (1680) ; Gobe v. Carlisle, 
 2 Vern. 67 (1688), cited in Clerkson v. Bowyer, 2 id. 67 (1688). 
 
 2 Marsh v. Austin, 1 Allen (Mass.), 235 (1861) ; Pike v. Collins, 
 
 33 Me. 38 (1851). 
 
 ^ Griffin v. Lovell, 42 Miss. 402 (1869) ; Dayton v. Dayton, 7 
 Bradw. (111.) 136 (1879). This is the rule in New York.
 
 52 PARTIES TO MORTGAGE FORECLOSURES. 
 
 they are held indispensable parties/ Where a testator 
 dies pending his foreclosure, his executor after qualifying 
 may revive the action ; and he may do this, though his 
 co-executor be the owner of the equity of redemption. 
 In such a case it was held advisable in reviving the 
 action to make the co-executor a defendant personally, 
 as he was the owner of the equity of redemption, and 
 a defendant also in his representative capacity ; and 
 the action was sustained upon the principle that one 
 co-executor may maintain an action in equity against 
 another co-executor to compel the payment of a debt 
 owing by him to the estate.'- The executor of a trustee 
 has been allowed to foreclose a mortgage held in trust 
 by the decedent, where the trust was well defined and 
 did not rest in the discretion of the trustee f but the 
 general rule is for the successor of the trustee to 
 foreclose.^ 
 
 1 Huggins V. Hall, 10 Ala. 283 (1846) ; Mclver v. Cherry, 8 
 Hnmph. (Tenii.) 713 (1848) ; Atchison v. 8iirguine, 1 Yerg. 
 (Tenii.) 400 (1830). They were necessary parties in Illinois until 
 the statute of 1874, ch. 95, § 9, dispensed with the old rule. 
 Dayton v. Dayton, 7 (Bradw.) 111. App. 136 (1879). In Etheridge 
 V. Vernoy, 71 N. C. 184 (1874), the heirs were held not necessary 
 where the mortgagee had assigned the bond and mortgage abso- 
 lutely and died insolvent without the state, but ordinarily the 
 heirs of the mortgagee are held necessary parties. For the 
 English cases, see Fisher, 5:5 3.59 ; Scott v. Nicoll, 3 Russ. (Eng.) 
 476 (1827) ; Freak v. Hearsey, 1 Ch. Ca. (Eng.) 51 (1664) ; Ellis 
 V. Guavas, 2 id. 50 (1680) ; Winne v. Littleton, 2 id. 51 (1681). 
 
 - McGregor v. McGregor, 35 N. Y. 218, 222 (1866), Wright 
 and kSjViiTH, J J., writing the opinions, and relying largely upon 
 Smith V. Lawrence, 11 Paige (N.Y.), 206 (1844). In Miller v. Don- 
 aldson, 17 Ohio Rep. 264 (1867), an administrator cle bonU non 
 foreclosed a mortgage belonging to the estate of a testator whose 
 executor was his mortgage debtor ; the fact that he was made 
 executor was held not to extinguish the debt. 
 
 =* Bunn V. Vaughan, 1 Abb. App. Dec. (N. Y.) 253 (1867). 
 
 ^ See §§ 28 and 30, post.
 
 HEIRS, ETC., CANNOT FORECLOSE. 53 
 
 In the foreclosure of a land contract, the rule as 
 stated above is somewhat limited. The personal repre- 
 sentatives of a deceased vendor may foreclose aland con- 
 tract, but they must either show that they have ten- 
 dered, and are able and ready to give a deed with a good 
 title, or else they must make the heirs or devisees of 
 the deceased vendor, inheriting his legal title, parties to 
 the action, so that they may be bound by the decree. 
 Upon this subject Judge Earl has said that " by the 
 contract of sale, the land conveyed became real estate 
 in the purchasers, and would descend as such to their 
 heirs or devisees. The vendor held the legal title as 
 trustee for the purchasers. The purchase-money due 
 upon the contract was, as to him, personal estate, and 
 upon his death passed to his personal representatives, as 
 part of his personal estate ; and the legal title to the 
 real estate passed to his heirs or devisees in trust for the 
 purchasers."^ 
 
 § 25. Ov^ner of mortgage dying, heirs, devisees and 
 legatees generally cannot foreclose. 
 
 As has been shown in the preceding section, the 
 heirs of a deceased mortgagee take no title whatever to 
 
 1 Thomson v. Smith, 63 N. Y. 301, 303 (1875), citing Dart on 
 Purchasers and Vendors, 121 ; Lewis v. Smith, 9 id. 502, 510 
 <1854) ; Moyer v. Hinman, 13 id. 180 (1855) ; Moore v. Burrows, 
 34 Barb. (N. Y.) 173 (1861) ; Adams v. Green, ib. 176 ; Champion v. 
 Brown, 6 Johns. Ch. (N. Y.) 398 (1822). In Schroeppel v. Hopper, 40 
 Barb. (N. Y.) 425 (1863), the heirs at law of a decedent executed 
 to his administrator a deed of their title to the premises to enable 
 her to transfer it to the purchaser in fulfillment of a land contract, 
 and the court held, in an action to foreclose the land contract, 
 that the heirs were not necessary parties. In Leaper v. Lyon, 
 68 Mo. Rep. 216 (1878), on the other hand, the heirs were held 
 necessary parties, even though a deed executed by them had been 
 tendered to the vendee by the personal representatives. See 
 Anshutz' Appeal, 34 Penn. 375 (1859). ^
 
 54 PARTIES TO MORTGAGE FORECLOSURES. 
 
 the bond and mortgage ; consequently, having no in- 
 terest in the security, they cannot maintain an action 
 for its foreclosure.^ In a case where no personal repre- 
 sentative had been appointed, an heir was allowed to 
 foreclose on filing an indemnifying security to protect 
 the mortgagor from being subsequently called upon for 
 payment." Neither can an heir make such an assignment 
 of a mortgage as will entitle the assignee to maintain a 
 foreclosure.'^ Where a mortgagee died pending a fore- 
 closure, his heirs were allowed to revive the action; * 
 and after administration had been closed upon the affairs 
 of a decedent, his distributees were allowed to fore- 
 close a mortgage belonging to his estate.^ In an action 
 to redeem from a mortgage, the heirs and personal 
 representatives of the mortgagee have both been held 
 necessary parties.^ 
 
 Where, however, a mortgage is specifically bequeathed 
 to a legatee, the entire title passes to him, and he may 
 foreclose the mortgage.^ But even in such a case it has 
 
 1 Anthony v. Peay, 18 Ark. 24 (1856) ; Roath v. Smith, 5 
 Conn. 135, 139 (1823); Kinna v. Smith, 2 Green Ch. (N. J.) 14 
 (1834). Contra, English authorities : Fisher, § 364 ; Gobe v. 
 Carlisle, 2 Vern. 67 (1688) ; Clerkson v. Bowyer, 2 id. 67 (1688). 
 See § 24, arite, and the cases cited. 
 
 2 Babbitt v. Bowen, 32 Vt. 437 (1859). 
 
 3 Douglass V. Durin, 51 Me. 121 (1863). 
 
 4 Atchison v. Surguine, 1 Yerg. (Tenn.) 400 (1830) ; Mclver v. 
 Cherry, 8 Humph. (Tenn.) 713 (1848). 
 
 5 Hill V. Boyland, 40 Miss. 618 (1866). 
 
 6 Hilton V. Lothrop, 46 Me. 297 (1858) ; Haskins v. Hawkes, 
 108 Mass. 379 (1871). 
 
 7 Trenton Banking Co. v. Woodruff, 1 Green Ch. (N. J.) 117 
 (1838) ; White v. Secor, 58 Iowa, 533, 536 (1822) ; Grimmell v. 
 Warner, 21 id. 13 (1866). For the English authorities, see Fisher, 
 § 355 ; Wethrell v. Collins, 3 Madd. (Eng.) 255 (1818) ; Wood v. 
 Williams, 4 id. 186 (1819) ; Hichens v. Kelly, 2 Sm. & G. (Eng.) 
 264 (1854). The heir is not a necessary party. Fisher, § 359 ;
 
 MORTGAGE MADE TO AN EXECUTOR. 55 
 
 been held that the personal representatives should be 
 made defendants.^ Where the legacy is made a general 
 bequest to be paid out of the mortgage, the action may 
 properly be brought by the executor, making the legatee 
 a defendant f and an executor has been allowed to 
 foreclose, even where the mortgage has been specifically 
 bequeathed.' It is believed that such a foreclosure will 
 always be allowed, if there should be a deficiency of 
 assets to pay the decedent's debts. 
 
 § 26. Mortgage executed to an executor or administrator, 
 the executor or administrator or his successor 
 in office may foreclose. 
 
 Whenever a bond and mortgage are executed or 
 assigned^ to the personal representative of a decedent, 
 to secure assets belonging to his estate, the personal 
 representative may bring an action in his official 
 capacity for foreclosure. The same principle is true 
 where a personal representative holds funds in the 
 capacity of a trustee ; and the fact that the invest- 
 ment of trust funds in bonds and mortgages is so 
 highly favored by courts, renders this principle very 
 important in the administration of estates. The 
 persons beneficially interested need not be brought 
 into the action.^ The character of the personal 
 
 How V. Vigures, 1 Rep. in Ch. (Eng.) 32 (1629) ; Skipp v.Wyatt, 
 
 1 Cox (Eng.), 353 (1787). 
 
 ^ Gibbe.s v. Holmes, 10 Rich. Eq. (S. C.) 484, 493 (1859). 
 
 2 Newton v. Stanley, 28 N. Y. 61 (1863). See Buck v. Fischer, 
 
 2 Col. T. 182 (1873). 
 
 =' Cryst V. Cryst, Smith (Ind.), 370 (1848-49). 
 
 * Flagg V. Johnston, 39 Ga. 26 (1869). 
 
 •' For the English cases see Wood v. Harman, 5 Madd. 368 
 (1820) ; Locke v. Lomas, 5 De G. & S. 326 (1852) : 16 Jur. 814 
 (1852-3).
 
 56 PARTIES TO MORTGAGE FORECLOSURES. 
 
 representative should clearly appear in the bond 
 and mortgage, and must be specifically alleged in the 
 pleadings to foreclose.^ In the leading case of Peck v. 
 Mallams^- the mortgagee was described as "T. B., exec- 
 utor of the estate of T. T., deceased ;" prima facie, the 
 mortgage was held to be the private property of T. B. 
 After the death of T. B., an administrator of T. T., with 
 the will annexed, filed a bill for the foreclosure of the 
 mortgage. The court held that the personal representa- 
 tives of T. B. were necessary parties, and that the 
 plaintiff should show by proper allegations that the 
 mortgage was a part of the assets of the estate of T. T. 
 In a similar case,' a mortgage was executed to "P., acting 
 executor of the estate of D." Upon the death of P. it was 
 held that the mortgage belonged j9rma/«cze to his estate, 
 and could be foreclosed by his personal representatives, 
 but later the court decided that evidence was admissible 
 showing the real ownership of the mortgage, and it then 
 appearing that it actually belonged to D., the personal 
 representatives of P. were not allowed to maintain the 
 action. 
 
 1 Flagg V. Johnston, 39 Ga. 26 (1869). 
 
 2 10 N. Y. 509, 587, 546 (1853), opinions by Willard, Johnson 
 and Mason, JJ. In People v. Keyser, 28 N. Y. 226 (1863), 
 (reported below in 39 Bavb. 587 ; 17 Abb. 215), a mortgage was 
 made to " M. &, W., executors of E. ;" after the death of M., the 
 question arose as to whether W., the surviving executor, could 
 execute a sufficient discharge of the mortgage, and whether the 
 executors of M. ought not to unite with him in executing the dis- 
 charge. It was held that the discharge by W. was sufficient. 
 Quaere, as to whether the surviving mortgagee could not have 
 maintained an action for the foreclosure of the mortgage, if he 
 had sufficient authority to execute a discharge of the debt. See 
 § 11, ante., on the doctrine of survivorship among joint mortgagees. 
 
 •^ Renaud v. Conselyea, 4 Abb. (N. Y.) 280 (1856) ; 5 id. 346 
 (1857). On re-arguraent. Strong, J., revised his opinion, writing 
 the decision in 7 id. 105 (1858).
 
 FORECLOSURE BY FOREIGN EXECUTORS, ETC. 57 
 
 When a mortgage is made to A., as executor or ad- 
 ministrator, his successor in office receives the legal title 
 to the mortgage, and may foreclose it. The personal 
 representatives of A. have nothing whatever to do with 
 the bond and mortgage, which legally and equitably 
 belong to the assets of the deceased person whom he 
 represented,^ Thus a mortgage had been executed to 
 an administrator to secure a widow's dower ; upon his 
 death his successor and not his personal representative 
 was allowed to foreclose,^ 
 
 § 27. Foreign executors and administrators, when they 
 may foreclose. 
 
 For more than a half century it has been well 
 established as a principle of inter-state law, that an 
 executor or administrator, appointed in a foreign 
 political jurisdiction, cannot maintain a suit in the 
 courts of other states ; and the word " foreign " is used 
 in each state to designate all jurisdictions and laws 
 without itself. While foreign laws are recognized in 
 all courts under the principle of lex loci contractus, the 
 machinery used for the enforcement of such laws in 
 their native jurisdictions is never recognized or allowed 
 in any other jurisdiction. " The right which an in- 
 dividual may claim to personal property in one country, 
 under title from a person domiciled in another, can only 
 be asserted by the legal instrumentalities which the 
 institutions of the country where the claim is made- 
 have provided. The foreign law furnishes the rule of 
 decision as to the validity of the title to the thing 
 
 1 Renaud v. Conselyea, supra. Hee i? 80, post. 
 
 2 Brooks V. ymyser, 48 Perm. 86 (1864).
 
 58 PARTIES TO MORTGAGE FORECLOSURES. 
 
 claimed ; but in respect to the legal assertion of that title 
 it has no extra-territorial force. As a result of this 
 doctrine it is now generally held everywhere, and it is 
 well settled in this state, that an executor or adminis- 
 trator appointed in another state has not, as such, any 
 authority beyond the sovereignty by virtue of whose 
 laws he was appointed."^ Accordingly a foreign executor 
 or administrator cannot foreclose a mortgage by an 
 equitable action in New York.-' 
 
 If a foreign personal representative desires to fore- 
 close a mortgage in New York, or in any state outside 
 of the political jurisdiction in which he was appointed, 
 it is necessary for him to take out letters testamentary 
 or of administration in some probate court within the 
 state where the mortgaged premises are situated ; 
 otherwise he cannot obtain such a standing in a 
 court of equity as will enable him to maintain an 
 action for foreclosure.'^ " It is not because the ex- 
 ecutor or administrator has no right to the assets of the 
 deceased, existing in another country, that he is refused 
 
 ^ Parsons v. Lyman, 20 N. Y. 10;> (1859), per Denio, J., citing 
 Morrell v. Dickey, 1 Johns. Ch. (N. Y.) 153 (1814); Doolittle v. 
 Lewis, 7 id. 45 (1823) ; Vroom v. Van Home, 10 Paia^e (N. Y.), 
 549 (1844). 
 
 - Petersen v. Chemical Bank, 32 N. Y. 21, 40 (1865), affirming 
 29 How. 240; Parsons v. Lyman, swpra, p. 112; Stone v. Scrip- 
 ture, 4 Lans. (N. Y.) 186 (1870) ; Smith v. Webb, 1 Barb. (N. Y.) 
 232 (1847); Vermilya v. Beattv, 6 id. 429 (1848); Lawrence v. 
 Ehnendorf, 5 id. 73 (1848) ; Brown v. Brown, 1 Barb. Ch. (N. Y.) 
 189 (1845) ; Williams v. Storrs, 6 Johns. Ch. (N. Y.) 353 (1822). 
 See the cases cited above. 
 
 •* See the cases cited in the preceding notes to this sectiou. 
 Porter v. Trail, 30 N. J. Eq. 106 (1878); Woodruff v. Mutschler, 
 34 id. 33 (1881), and note ; Trecothick v. Austin, 4 Mason 
 (U. S.), 633 (1825); contra, Heywood v. Hartshorn, 55 N. H. 476 
 (1875).
 
 FORECLOSURE BY FOREIGN EXECUTORS, ETC. 59 
 
 a standing in the courts of such country, for his title to 
 such assets, though conferred by the law of the domi- 
 cile of the deceased, is recognized everywhere. Reasons 
 of form, and a solicitude to protect the rights of 
 creditors and others, resident in the jurisdiction in 
 which the assets are found, have led to the disability 
 of foreign executors and administrators, which disa- 
 bility, however inconsistent with principle, is very 
 firmly established."^ 
 
 This rule, requiring a foreign personal representative 
 to take out letters testamentary or of administration, 
 may, however, be avoided by his making an assignment 
 of the bond and mortgage to some person residing in 
 the state where the premises are situated ; and the 
 assignee may maintain an action for their foreclosure. 
 It seems that the disability of a foreign executor or 
 administrator to sue in other states does not attach to 
 the subject-matter of the action, but to the person of the 
 plaintiff 1^ So a foreign specific legatee of a bond and 
 mortgage may foreclose, on the ground that he is legally 
 and equitably the absolute owner of them." But such 
 a foreclosure by a specific legatee or an assignee does 
 
 1 Peterson v. Chemical Bank, 32 N. Y. 43. Hiram Denio, Ch. 
 J., has written the opinions in the leading cases of Parsons v. 
 Lyman (1859), and Peterson v. Chemical Bank (1865), with so 
 much learning and with such clearness, after an exhaustive 
 review of all the cases which in any way affect the principles stated 
 in this section, that they are worthy of the careful study of any 
 one who has occasion to examine the law alBFecting the extra-ter- 
 ritorial rights of foreign executors and administrators. Attention 
 is also called to the elaborate briefs printed with the opinion in 
 Peterson v. Chemical Bank. 
 
 2 Peterson v. Chemical Bank, supra ; Smith v. Webb, 1 Barb. 
 (N. Y.) 232 (1847) ; Smith v. Tiffany, 16 Hun (N. Y.), 552 (1879), 
 per Hardin, J., collating and reviewing the cases upon this point. 
 
 ^ Smith V. Webb, supra.
 
 60 PARTIES TO MORTGAGE FORECLOSURES. 
 
 not produce a perfect record-title, inasmuch as no 
 evidence of the authority of the personal representative 
 to act in the place of the deceased mortgagee, and to 
 execute a proper assignment of the mortgage, is to be 
 found in the state. ^ Where a voluntary payment of the 
 mortgage debt is made by the mortgagor to a foreign 
 executor or administrator of the mortgagee, such pay- 
 ment will discharge the debt and cancel the lien. " The 
 result of the cases seems to be that a foreign executor 
 or administrator appointed by the proper tribunal of 
 the decedent's domicile, is authorized to take charge 
 of the property here and to receive debts due to the 
 decedent in this state, where there was no conflicting 
 grant of letters here, and where it could be done without 
 suit."'^ But in a recent case in New York, where an 
 administrator had been appointed upon the estate of a 
 deceased non-resident, and the mortgagor nevertheless 
 paid his mortgage debt to a foreign administrator who 
 was subsequently appointed at the intestate's place of 
 residence, the domestic administrator in New York was 
 allowed to foreclose the bond and mortgage, and the 
 court determined that under the circumstances pay- 
 ment to the foreign administrator was no defense to the 
 action.'' In foreclosures, as in other actions, an objec- 
 tion that the plaintiff is a foreign executor or adminis- 
 trator, and therefore legally disqualified from suing, 
 
 1 Smith V. Tiffany, supra. 
 
 2 Vroom V. Van Home, 10 Paiii^e (N. Y.), 549 (1844), per 
 Chancellor Walworth, cited with approval and quoted by 
 Denio, J., in Parsons v. Lyman, supra, p. 115. The same prin- 
 ciple is stated as fi^ood law by Judge Story, in Trecothick v. 
 Austin, 4 Mason (tJ. S.), 33 (1825). 
 
 3 Stone V. Scripture, 4 Lans. (N. Y.) 186 (1870).
 
 TRUSTEES MAY FORECLOSE. 61 
 
 must be taken by demurrer or answer, or it will be con- 
 sidered waived.^ 
 
 It is stated by Mr. Thomas" that the foreclosure of 
 a mortgage by advertisement under a power of sale, and 
 pursuant to statute, is a matter of contract and not 
 of jurisdiction, and that a foreign executor or admin- 
 istrator may therefore adopt that method of foreclosure 
 without seeking the authority of our courts of probate. 
 
 § 28. Trustees may foreclose. 
 
 It may be stated as a general rule that a person who 
 is in any manner appointed the trustee of a person 
 owning a mortgage or an interest therein, may maintain 
 an action in his own name, as trustee, for its fore- 
 closure.'' So, also, a trustee, like a personal repre- 
 
 1 McBride v. Farmers' Bank of Salem, 26 N. Y. 457 (186S) ; 
 Zabriskie v. Smith, 13 id. 322, 326 (1855) ; Robbins v. Wells, 
 26 How. (N. Y.) 15 (1863). 
 
 - Thomas on Mortgages, p. 243, citing as authority, Averill v. 
 Taylor, 5 How. (N. Y.) 476 (1850), Doolittle v. Lewis, 7 Johns. 
 Ch. (N. Y.) 45 (1823) ; but it is very doubtful whether this propo- 
 sition would be approved at the present day. The latter case 
 was decided by Chancellok Kent in 1823, under a statute 
 "which made provision for the foreclosure of mortgages containing 
 a power, and the mortgage in that case contained a special 
 power which led the chancellor to say that the foreclosure was a 
 matter of private contract and not of court jurisdiction. He 
 cited a colony statute as old as 1774. The court, in Averill v. 
 Taylor, seemed to be in much doubt as to whether this proposi- 
 tion was good law, and with some hesitation relied upon 
 Chancellor Kent's opinion. See Demorest v. Wynkoop, 3 
 Johns. Ch. (N. Y.) 129 (1817). The proposition, however, is sup- 
 ported by the late case of Hayes v. Fray, 54 Wis. 503, 518 (1882), 
 which relies upon Doolittle v. Lewis. 
 
 ^ Fisher, §§ 355, 358, 365. For the English cases, see Osbourn v. 
 Fallows, Russ. & M. 741 (1830) ; Adams v. Paynter, 1 Coll. 530 ; 
 Smith V. Chichester, 2 Dru. & War. 404 (1839) ; Browne v. 
 Lockhart, 10 Sim. 426 (1840); Wilton v. Jones, 2 Y. & C. C. 
 C. 244 (1843) ; Allen v. Knight, 5 Hare, 280 (1846) ; Barkley v. 
 Lord Reay, 2 id. 306 (1843).
 
 62 PARTIES TO MORTGAGE FORECLOSURES. 
 
 sentative, to whom a mortgage is executed to secure 
 funds of the trust estate, may foreclose in his own 
 name as such trustee/ When the trust is merely 
 nominal, it is usual for the trustee to join the cestuis 
 que trust with him as co-plaintiffs ; indeed, some courts 
 have held that the beneficiaries are necessary parties 
 plaintiff.^ It is believed, however, that if a beneficiary 
 refuses to become a co-plaintiff, he can be made a defend- 
 ant f at least it is best, when possible, to bring all parties 
 interested in the trust within the jurisdiction of the 
 court. 
 
 Where the number of beneficiaries is so large that 
 great inconvenience and expense would be incurred by 
 
 1 Hackensack Water Co. v. De Kav, 36 N. J. Eq. 548 (1883) ; 
 Hayes v. Dorsev, 5 Md. Rep. 99 (1853), act of 1833, chap. 181. 
 In Hays v. G. G. L. & C. Co., 29 Ohio Ht. 330 (1876), the trustee 
 owned in his own rig^ht no part of the mortgage debt, ajid the 
 relation of trustee did not appear on the face of the notes or 
 mortgage. See § 26 ante ; New York Code, § 449. 
 
 2 Stillwell V. McNeely, 1 Green Ch. (N. J.) 305 (1840) ; Free- 
 man V. Scofield, 16 N. J. Eq. 28 (1863) ; Woodruff v. Depue, 14 id. 
 168, 176 (1861) ; Large v. Van Doren, 14 id. 208 (1861) ; Hitchcock's 
 Heirs v. U. S. Bank of Penn., 7 Ala. 386 (1862); Davis v. Hem- 
 ingway, 29 Vt. 438 (1857) ; Fleming v. Holt, 12 W. Va. 143 
 (1877). In Cassidy v. Bigelow, 25 N. J. Eq. 112 (1874), the 
 trustee and cestui que trust united as plaintiffs. In Wright v. 
 Bundy, 11 Ind. 398 (1858), it was held that the beneficiaries were 
 not necessary parties, but that they might properly be united 
 as co-plaintiffs, contra to the text. This case was twice argued 
 very thoroughly by able counsel. For the English authorities, 
 see Fisher, § 367 ; Groldsmid v. Htonehewer, 9 Hare Append. 39 ; 
 17 Jur. 199 (1852), holding that the beneficiaries are unnecessary 
 parties; see Wood v. Harman, 5 Madd. 368(1820); Locke v, 
 Lomas, 5 De G. & S. 326 ; 16 Jur. 814 (1852) ; but where the 
 trustee had died, it was deemed best to make the cestuis que 
 trust parties. Stanslield v. Hobson, 16 Beav. 189 (1852). 
 
 3 Large v. Van Doren, 1 McCarter (14 N. J. Eq.), 208 (1862); 
 Davis v. Hemingway, 29 Vt. 438 (1857). See Fisher, § 373 ; for 
 English cases, see Minn v. Staiit, 12 Beav. 190 (1849) ; 15 id. 49; 
 Browne v. Lockhart, 10 Sim. 426 (1840).
 
 TRUSTEES MAY FORECLOSE. 63 
 
 making them parties to the bill of foreclosure, the courts 
 may, in their discretion, dispense with a strict 
 adherence to this rule.^ Thus, in one case a mortgage 
 was executed to a person as " the agent and trustee of 
 the several subscribers to the loan," which was of 
 large amount ; the mortgagee was allowed to file a bill 
 for foreclosure in his own name, without bringing the 
 beneficiaries into the action.^ The complaint in such a 
 case should state that the foreclosure is for the benefit 
 of the bondholders, and that they are too numerous to 
 be made parties/^ 
 
 In the foreclosure of railroad mortgages this limita- 
 tion has become so well established as to be a separate 
 rule; the bondholders are never necessary nor proper 
 parties plaintiff or defendant, but there may be circum- 
 stances which would authorize the court to admit any 
 of them as defendants on their own application.'^ An- 
 other limitation to the general rule is made in cases where 
 a trustee is appointed to receive and administer a fund 
 for the benefit of creditors ; he may foreclose without 
 bringing the creditors before the court.^ In some cases 
 the creditors are so numerous that it would be simply 
 
 1 See §§ 29 and 83, post, for English and other authorities ; 
 Fisher, § 374. In point, Swift v. Stebbins, 4 Stew. & Port. (Ala.) 
 447 (1833). In Carpenter v. Canal Co., 35 Ohio St. 307 (1880), 
 the lienholders were so numerous that it was impracticable to 
 bring them all before the court, and one, as trustee, prosecuted 
 for all. Bardstown & Louisville R. R. Co. v. Metcalfe, 4 Mete. 
 <Kv.) 199 (1862). Jones, § 1383. 
 
 2 Willink V. Morris Canal Banking Co., 3 Green (N. J.), 377 
 (1843). 
 
 3 King V. The Merchants' Exchange Co., 5 N. Y. 547 (1851 ) ; 
 Carpenter v. Blackhawk Gold Mining Co., 65 id. 43 (1875). 
 
 * See Jones on Railroad Securities, §§ 431-437. 
 
 5 Christie v. Herrick, 1 Barb. Ch. (N. Y.) 254 (1845).
 
 64 PARTIES TO MORTGAGE FORECLOSURES. 
 
 impossible to make all of them parties to the action; 
 furthermore, creditors are often described as a class, and 
 not by their individual names. 
 
 § 29. Beneficiaries, cestuis que trust, may sometimes 
 
 foreclose. 
 
 It is stated by Justice Story, on the authority of 
 English cases, that a beneficiary, or cestui que trust, may 
 maintain an action for the foreclosure of a mortgage be- 
 longing to his trust estate, or in which he has an in- 
 terest.^ So one or two beneficiaries may bring a fore- 
 closure for themselves and other beneficiaries,"- especially 
 if the trustee is, for any reason, disqualified from acting.^ 
 But in such cases it is also necessary to make the trustee 
 a party plaintiff or defendant to the action, as the legal 
 title to the mortgage, if not the equitable title, is vested 
 
 1 Story Eq. PL, §g 201, 209 ; Wood v. Williams, 4 Madd. (Eng.) 
 186 (1819) ; Hickeiis v. Kelly, 2 Sm. & G. (Eng.) 264 (1854) ; 
 Martin v. McReynolds, 6 Mich. 70 (1858) ; Somes v. Skinner, 16 
 Mass. 348 (1820) ; Hackensack Water Co. v. De Kay, 36 N. J. 
 Eq. 548 (1883) ; McGowan v. Branch Bank Mobile, 7 Ala. 823 
 (1845) ; Marriott v. Givens, 8 id. 694 (1846) ; Carradine v. O'Con- 
 nor, 21 id. 573 (1852) ; Ala. Life Ins. & Trust Co. v Pettway, 24 
 id. 544 (1854) ; Mitchell v. McKinney, 6 Heisk. (Tenn.) 83 (1871). 
 See New York Code, § 449. 
 
 2 Berry v. Bacon, 6 Ciish. (Miss.) 318 (1854). 
 
 3 See Ashhiirstv. Montour Iron Co., 35 Penn. St. 30(1860), where 
 the cestuis que trust were numerous bondholders, and the trustee 
 was for some reason disqualified from actinsc. Wintou's Appeal, 87 
 Penn. 77(1878). In Bank of Commerce v.Lanahan,4.oMd. 396(1876), 
 a deed, intended as a mortgage, was executed to oije of a number 
 of creditors to secure his own claim and the claims of others ; it 
 was held that the cestuis que trust could not maintain an action for 
 foreclosure, although the grantee in the deed was a trustee, and 
 the other creditors were beneficiaries. But in Dorsey v. Thomp- 
 son, 37 Md. 25 (1872), the cestuis que trust foreclosed a mortgage, 
 making the trustee a defendant.
 
 PERSONS IN OFFICIAL CAPACITY MAY FORECLOSE. 65 
 
 in him.' The best practice is for the trustee and the 
 beneficiary to unite as co-plaintiffs.' 
 
 § 30. Mortgages to persons in official capacity ; they or 
 their successors may foreclose. 
 
 A person to whom a bond and mortgage are executed 
 in an official capacity may foreclose the same in his own 
 name as such officer, as he holds the entire legal title ; 
 the real party, who equitably ow^ns the fund, is not held 
 a necessary party to the action. So also a successor in 
 office may foreclose in his own name as such officer, as 
 the courts hold him to be the equitable assignee of the 
 security.'^ His predecessor, in whose name the mort- 
 gage was taken, need not be jjrought into the action, 
 and upon his death his personal representatives are not 
 necessary parties. The rule of this section is in har- 
 mony with the principles stated in §§ 26 and 28, as to 
 executors, administrators and trustees. Thus the suc- 
 cessor of a receiver of an insolvent corporation is 
 allowed to sue in his own name as such receiver.* 
 Illustrations may be taken from the reported cases, 
 where mortgages have been given to guardians of 
 
 1 111 Hays V. Lewis, 21 Wis. 668 (1867), the trustee was held 
 an indispensable party, and it was questioned whether the cestui 
 que trust could niaintaiti an action for foreclosnre. 
 
 ^ See § 28, ante, and notes. 
 
 3 Iglehart v. Bierce, 86 111. 133 (1864). 
 
 ^ Iglehart v. Bierce, .s?/pra ; Leavitt v. Pell, 27 Barb. 322; 
 affirmed 25 N. Y. 474 (1862). 
 
 5
 
 66 PARTIES TO MORTGAGE FORECLOSURES. 
 
 infants ' and lunatics,"- to the comptroller of a state,^ to 
 the state superintendent of insurance,^ to United States 
 loan commissioners."' and to personal representatives" 
 and trustees.^ 
 
 § 31. A nianled -woman o-wning a inortgage may foreclose. 
 
 It is now a universal principle of law in England and 
 America that a married woman can own and control a 
 separate estate in real and in personal property, and 
 that she is entitled to all the rights and remedies pertain- 
 ing to property which a feme sole possesses, and may 
 enforce them as fully in the courts. She can own 
 
 1 Lyoi) V. Lvoii, 67 N. Y. 250 (1876); Cleveland v. Cohrs. 10 
 Rich. (8. C.) 224 (1878). In Walter v. Wala, 10 Neb. 128 (1880), 
 a note and mortgage were turned over by an admiTiistrator to a 
 guardian as a part of Lis ward's distributive share. In Com- 
 monwealth V. Watmough, 12 Penn. 8r. 316(1849), a mortgage 
 was executed to a guardian; the wards, on becoming of age, 
 assigned their interests, and the assignee was held to have the 
 full legal title and allowed to foreclose. 
 
 - See Peabody v. Peabody, 59 Ind. 556 (1877), for an action 
 brought by a guardian or committee of a lunatic to foreclose a 
 mortgage executed to the lunatic while sane. 
 
 ^ Flagg V. Munger, 9 N. Y. 483 (1854), holding that the comp- 
 troller of New York had power to foreclose a mortgage assigned 
 to him by a bank to secure the redemption of its notes ; so to the 
 treasurer of the state of New Jersey, Townsend v. Smith, 1 
 Beas. (N. J. Eq.) 350 (1858). See Delaplaine v, Lewis, Governor, 
 etc., 19 Wis. 476(1865) ; Supervisors of Iowa Co. v. Mineral Point 
 R. R., 24 id. 93 (1869). 
 
 ^ Smith v. Munroe, 1 Ired. (N. C.) 345 (1840); Smyth v. Lom- 
 bardo, 15 Hun (N. Y.), 415 (1878), wliere the action was in the 
 name of the de})utv. 
 
 5 Powell .V. Tuttle, 3 N. Y. 396 (1850) ; Olmstead v. Elder, 5 
 id. 144; Pell v. Ulmar, 18 id. 139 (1858) : York v. Allen, 30 id. 
 104 (1864): Thompson v. Comnfrs, 79 id. 54 (1879); Wood v. 
 Terry, 4 Lans. (N. Y.) 80 (1871). The foreclosure of United 
 States loan mortgages is strictly statutory, and is governed by 
 the laws of the United States, Laws of 1837, ch. 150. 
 
 •^ See § 26, ante. 
 
 " See i; 28, ante.
 
 A MARRIED WOMAN MAY FORECLOSE 67 
 
 and foreclose a bond and mortgage in her own name, 
 and it is not necessary for her to make her husband 
 a party to the action, as he can have no interest 
 in it.^ Where a bond and mortgaire were made 
 to a husband and wife, the wife was held entitled to 
 foreclose in her own name on the death of the husband, 
 uj)on the ground of survivorship in joint ownership ;' 
 and the fact appearing that the money was actually loaned 
 by the wife, that was held as another circumstance which 
 entitled her to foreclose in her own name. And so a 
 discharge hy a husband of a mortgage executed to him and 
 his wife, but really belonging to her, will not prevent her 
 foreclosing.'^ The marriage of the mortgagee, a fe?ne 
 sole, to the mortgagor does not extinguish the mortgage ; 
 the mortgage remains unaffected and may be foreclosed.^ 
 A husband can execute a valid mortgage on his lands 
 to his wife, who can foreclose against him.'' She can 
 also foreclose a mortgage assigned to her on her hus- 
 band's lands. The assignment does not operate as a dis- 
 charge of the mortgage.'' 
 
 1 Bartlett v. Boyd, 34 Vt. 25f3 (1861). So she can assign her 
 mortgage. Kaniena v. Hnelbio-, 23 N. J. Eq. 78 (1872). 
 
 2 Shockley v. Shockley, 20 Ind. 108 (1863). 
 
 ^ McKinney v. Hamilton, 51 Penn. 63 (1865). 
 
 * This has bei^n the law in New York since the act of 1848. 
 Power V. Lestei, 17 How. 413, afl["d 23 N. Y. 527 (1861), a lead- 
 ing case. 
 
 5 Wochoska v. Wochoska, 45 Wis. 423 (1878); Putnam v. 
 Bicknell, 18 Wis. 333 (1864) ; Mix v. Andes Ins. Co., 9 Hun 
 (N. Y.), 397 (1876). vSuch a mortgao^e was held void in Terry v. 
 Wilson, 63 Mo. Rep. 493 (1876). 
 
 e Bean v. Boothby, 57 Me. 295 (1869) ; Trenton Banking Co. v. 
 Woodruff, 1 Green Ch. (N. J.) 117 (1838).
 
 PART II. 
 
 PARTIES DEFENDANT— NECESSARY TO PER- 
 FECT THE TITLE. 
 
 CHAPTER I. 
 
 OWNERS OF THE FEE TITLE. 
 
 32. Introductory. 
 
 33. General principles. 
 
 34. Mortgagor still owning the equity of redemption nec- 
 
 essary. 
 
 35. Mortgagor no longer owning the equity of redemp- 
 
 tion not necessary. 
 
 36. Mortgagor still holding only a divided or undivided 
 
 part of the premises, or being a tenant in common 
 by descent or grant, a necessary party. 
 
 37. Mortgagor still holding any kind of an equitable, con- 
 
 tingent or latent interest, generally necessary. 
 
 38. The purchaser and owner of the equity of redemption 
 
 by grant or otherwise from the mortgagor necessary. 
 
 39. Intermediate purchasers and owners of the equity of 
 
 redemption, who are no longer owners, generally not 
 necessary. 
 
 40. Purchaser pendente lite not necessary. 
 
 41. Common-law doctrine of lis pendens. 
 
 42. New York statutory provisions for lis pendens; other 
 
 states.
 
 70 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 43. Mortgagor a married woman, having a separate estate, 
 necessary. 
 
 44. Wife of mortgagor or owner of the equity of redemp- 
 
 tion i;ecessary. 
 
 45. Wife of mortgagor ; service of summons or process. 
 
 46. Wife of mortgagor or owner of the equity of redemp- 
 
 tion not necessary in those states where the common- 
 law doctrine of dower is changed. 
 
 47. The husband of a mortgagor who is a married woman, 
 
 having a separate estate, generally not necessary. 
 
 48. Heirs of mortgagor or owner of the equity of redemp- 
 
 tion necessary. 
 
 49. Devisees of mortgaged premises necessary. 
 .50. Legatees and annuitants necessary. 
 
 51. Execufors and administrators generally not necessary. 
 
 52. Trustees holding any interest of whatever kind in 
 
 mortgaged premises for benej&ciaries necessary. 
 
 53. Cestuis que Irnst and beneficiaries necessary. 
 
 54. Remaindermen and reversioners necessary. 
 
 55. Assignee in bankruptcy or by voluntary general 
 
 assignment, and receiver of a corporation, necessary. 
 
 56. Infants, lunatics, idiots and habitual drunkards nec- 
 
 essary parties. 
 
 57. Mortgage executed by administrator or executor to 
 
 pay decedent's debts, heirs and devisees of the 
 decedent necessary. 
 
 58. Corporations necessary parties by corporate name. 
 
 59. Tenants and occupants necessary. 
 
 § 32. Introductory. 
 
 Most text-writers have considered the subject of 
 parties defendant to mortgage foreclosures under the 
 subdivisions of necessary parties and proper parties. 
 Mr. Jones ^ has defined a necessary party as " one whose 
 presence before the court is indispensable to the render- 
 
 1 Jones, § 1394.
 
 DEFINITION OF NECESSARY AND PROPER PARTIES. 71 
 
 ing of a judgment which shall have any effect on the 
 property ; without whom the court might properly 
 refuse to proceed, because its decree would be practi- 
 cally nugatory." This definition, however, cannot be 
 considered logical, nor in accordance with the decisions 
 of the courts ; for at present no one can be said to be a 
 necessary party in order to maintain the action, nor nec- 
 essary in the sense that his omission would defeat the 
 action or render the decree absolutely void. The 
 words " necessary " and " proper " are used with much 
 looseness, inaccuracy and uncertainty of definition in 
 the courts of our various states, — apparently in dis- 
 regard of the fact that the words are relative -in signifi- 
 cation, and that they should be used as descriptive of 
 parties, only with reference to the purposes for which 
 the parties ^are made defendants to the foreclosure. 
 Under the above definition neither an owner of a part 
 or of the whole of an equity of redemption, nor a 
 subsequent lienor, nor any other person interested in 
 the subject-matter of the action, can be called a neces- 
 sary party. 
 
 To make a logical analysis of the subject of parties 
 defendant to foreclosures, it will be necessary to divide 
 the subject according to the purposes for which the 
 parties are brought into the action. This part of the 
 work will be given to the consideration of parties who 
 are necessary defendants for the purpose of extinguish- 
 ing or of cutting off the entire equity of redemption, 
 and the interests of all persons who claim under the 
 owner of the equity by subsequent mortgages, judg- 
 ments or otherwise, — that is, of parties who are neces- 
 sary in order to exhaust every remedy against the land
 
 72 PARTIES TO MORTGAGE FORECLOSURES. 
 
 for the collection of the mortgage debt, and in order to 
 produce a perfect title at the sale, or such a title as the 
 courts "will compel a bidder to accept. The word 
 " necessary " will be used throughout the work in this 
 sense alone; the word "proper" cannot enter into the 
 analysis, for it is too uncertain in meaning, and conveys the 
 idea that there may be an option on the part of the plaintiff 
 as to whether he will bring a party into the action or not. 
 For convenience of treatment and to make a logical 
 division of this part of the work, parties defendant will be 
 considered under the heads of Owners of the Fee Title, and 
 Subsequent Mortgagees and Lienors. In this chapter 
 exclusive , attention will be given to parties who own 
 the equity of redemption in the mortgaged premises, or 
 who have any interest in the quality or the quantity of 
 the title. In the second chapter, attention will be given 
 to parties holding liens and incumbrances upon the 
 mortgaged premises which accrued subsequent to the exe- 
 cution and delivery of the mortgage under foreclosure. 
 
 § 33. General principles. 
 
 Many states have now codified the general equitable 
 principle, that any person iway be made a defendant to 
 an action who has or claims to have an interest in the 
 controversy adverse to the plaintiff, or avIio is a neces- 
 sary party to a complete determination or settle- 
 ment of the questions involved therein.^ Applying 
 this principle to foreclosures, it ma}^ be said that any 
 person who is interested in any Avay in the mort- 
 gaged premises, or who has an interest in the mortgage 
 
 1 New York Code, g 447 ; Pomeroy's Remedies, § 271. See 
 §§ 3 and 4, cmte.
 
 GENERAL PRINCIPLES ; MORTGAGaR NECESSARY. 73 
 
 debt adverse to that of the plaintiff, may be made 
 a defendant to the action. Thus thet^owner of any 
 quantity or quality of estate in the premises, even in 
 the remotest degree or of the most trifling value, be- 
 comes as necessary a partj' defendant to perfect the 
 title as the sole owner of the entire equity of redemp- 
 tion. The holder of a lien by mortgage, judgment or 
 any co^^itingent equity is also generally a necessary 
 party. The primarj^ object of the suit is to divest the 
 title, which existed in the mortgagor at the instant of 
 the delivery of the mortgage, of every interest which 
 he or those claiming under him might possibly have in 
 it. If any such party is omitted, he stands, of course, 
 unaffected by the action, and the decree produced will 
 be defective. It matters not how valueless or remote 
 any interest may be ; it is of the utmost importance 
 that it be brought within the jurisdiction of the court, 
 so that it may be extinguished. The omitted party has 
 moreover a right to redeem, and may thus put a pur- 
 chaser of a defective title to endless trouble and expense 
 in defending an estate which should have been perfected 
 in the original action. 
 
 § 34. Mortgagor still owning the equity of redemption 
 
 necessary. 
 
 If the mortgagor continues to own the equity of 
 redemption, he is for all purposes a necessary party to 
 an action to foreclose a mortgage ;^ if he has not in- 
 
 1 Kay V. Whittaker, 44 N. Y. 565, 572 (1871); Raynor v. 
 Selmes, 52 id. 579 (1873), reversitig 7 Laii •. 440 ; Grriswold v. Fow- 
 ler, 6 AV)b. (N. Y.) 113 (1857) ; Reed v. Marble, 10 Paige (N. Y.), 
 409 (1843); Lane v. Er.skiiie, 13 111. 501, 503 (1851), authorities 
 collated by Treat, Cir. J.; tblhnved in Harvey's Adm's v. Thorn-
 
 74 PARTIES TO MORTGAGE FORECLOSURES. 
 
 cumbered the property, lie is the sole necessary defendant, 
 and the simplest possible case of foreclosure exists. " There 
 is no doubt that the owner of the equity of redemption is 
 a necessary party to a suit for the foreclosure of a mort- 
 gage. The mere statement of this proposition is suf- 
 ficient, to show its correctness, without the citation of 
 any authorities in its support. The action is brought 
 for the express purpose of foreclosing the equitable 
 estate and right to redeem remaining against the 
 mortgage, and of transferring to the purchaser at a sale 
 by virtue of the decree, a complete legal title to the 
 mortgaged premises. The very object of the proceed- 
 ing would, therefore, be completely defeated if the owner 
 of the equity of redemption were not a party. No title 
 could be made that would not be defeasible by the per- 
 son in whom this equity of redeeming the mortgage 
 remained, not barred or destroyed."^ If there are 
 two or more mortgagors, all are necessary defendants ; 
 one cannot represent the others."- A person who has 
 signed a note, to which another person executes a 
 
 ton, 14 id. 217 (1852); Hughes v. Pattejsou, 23 La. Ann. 679 
 (1871). For the English authorities, see Fisher, § 298; Fell v. 
 Brown. 2 Bro. C. C. 276(1787); Palk v. Clinton, 12 Ves. 48 
 (1806) ; Thomson and Baskeiville Case, 3 Rep. in Ch. 215 (1688). 
 For a mortgage of a life estate, see Hunter v. Macklew, 5 Hare, 
 238 (1846) ; Coote App. 576. See § 38, post, and notes. 
 
 1 Hall V. Nelson, 23 Barb. (N. Y.) 90 (1856): S. C, 14 How. 
 (N. Y.) 32, per Emott, J. : Watson v. Spence, 20 Wend. (N. Y.) 260 
 (1838), per Cowan, J. Buckner v. Sessions, 27 Ark. 219 (1871) ; 
 Cox V. Vickeis, 35 Ind. 27 (1870) ; Lenox v. Reed, 12 Kan. 223, 
 228 (1873); Champlin v. Foster, 7 B. Mon. (Kj.) 105 (lb46). In 
 Louisiana a curator is a})pointed by the court to represent the 
 mortgagor, if he is a non-resident or hides himself. Lasere v. 
 Roch'ereau, 21 La. Ann. 205 (1869). 
 
 - Stucker v. Stucker, 3 J. J. Mar. (Ky.) 301 (1830), per Robert- 
 son, C. J. See § 36, post, on joint mortgagors.
 
 MORTGAGOR A NECESSARY DEFENDANT. 75 
 
 mortgage as collateral security, is not a necessary party 
 to a foreclosure, as he has no interest in the land ;' he 
 can be made a defeudant, however, if a judgment for 
 deficiency is sought against him. 
 
 If the mortgagor has conveyed the premises by an 
 instrument which remains unrecorded, he is still a 
 necessary part}', as the record continues to show the 
 title in him ;- it would be unsafe at least to omit such 
 a morto-agor. It is believed that the safest and se- 
 curest practice is, always to make the mortgagor a 
 party, if he can be easily served with the summons;^ 
 If the mortgagor has contracted to sell and convey the 
 premises, he remains a necessary party in order to cut 
 off the entire equity of redemption, even though the 
 contract be under seal and recorded."^ 
 
 In strict'' foreclosures, and in foreclosures by adver- 
 tisement under statute also, the mortgagor, or those 
 succeeding to his interests, are necessary parties defend- 
 ant f the statute must be strictly followed in the service 
 of the required notice upon the necessary parties/ 
 
 1 Delarid v, Meislion, 7 Clarke (Iowa), 70 (1858). 
 
 - Kipp V. Brandt, 49 How. (N. Y.) 358 (1875) ; Hall v. Nelson, 
 23 Barb. (N. Y.) 88 (1856) ; Ostrom v. McCann, 21 How. (N. Y.) 
 431 (1860). See the New York Code, §§ 1670, 1671, and § 42, post. 
 
 ■^ See § 39, post, on intermediate purchasers, and § 92, post, on 
 the liability of a mortgagor for a judgment of deficiency. 
 
 4 Cruoke v. O'Higgins, 14 How". (N. Y.) 154 (1857). See § 36, 
 post. 
 
 •> Hornby v. Cramer, 12 How. (N. Y.) 490 (1855). 
 
 « Robinson v. Ryan, 25 N. Y. 320 (1862); Van Slvke v. 
 Shelden, 9 Barb. (N. Y.) 278 (1850) ; Stanton v. Kline, 16 id. 9 
 (1852) ; Cole v. Mollitt, 20 id. 18 (1854). 
 
 7 Mowry v. Sanborn, 65 N. Y. 581 (1875).
 
 76 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 35. Mortgagor no longer owning the equity of redemp- 
 tion not necessary. 
 
 A mortgagor who has made an absokite conveyance of 
 all his interest in mortgaged premises is not a necessary 
 porty to a foreclosure for the purposes of perfecting the 
 title and of exhausting all remedies against the land for 
 the collection of the debt;' neither are the assignees in 
 bankruptcy, nor the heirs, nor the personal representatives 
 of such a mortgagor necessary parties.- But a mortgagor 
 who has sold his equity of redemption by a warranty 
 deed may be made a party defendant on his own appli- 
 cation ; so also if he has any other interest in the fore- 
 closure, but if he fails to show a real interest in the 
 
 1 Drury v. Clark, 16 How. (N. Y.) 428 (1857) ; Crooke v. O'Hig- 
 gins, 14 id. 154 (1857) ; Van Nest v. Latson, 19 Barb. (N. Y.) 604, 
 608 (1855) ; Daly v. Burchell, 13 Abb. N. W. (N. Y.) 268 (1872) ; 
 Griswold v. Fowler, 6 Abb. (N. Y.) 118 (1857); Trustees v. 
 Yates, 1 Hoff. Ch. (N. Y.) 142 (1839) ; Whitnev v. M'Kinney, 
 7 Johns. Ch. (N. Y.) 144 (1823) ; Cherry v. Monro, 2 Barb. 
 Ch. (N. Y.) 627 (1848); Bi^elow v. Bush. 6 Paige (N. Y.), 343 
 (1837); Rhodes v. Evans, Clarke Ch. (N. Y.) 168 (1840); Root v. 
 Wright, 21 Hun (N. Y.), 344, 348 (1880), reversed in part, but 
 not as to this point, in 84 N. Y. 72 (1881); Boggs v. Fowler, 16 
 Cal. 559 (1860) ; Horn v. Jones, 28 id. 194 (1865) ; Swift v. Edson 
 5 Conn. 534 (1825) ; Johnson v. Monell, 13 Iowa, 300, 303 (1862) 
 Shaw V. Hoadley, 8 Blackf. (Ind.) 165 (1846) ; Burkham v. Beaver 
 17 Ind. 367 (1861) ; Stevens v. Campbell, 21 id. 471 (1863) ; Jones 
 v. Lapham, 15 Kan. 540 (1875) ; True v. Haley, 24 Me. 297 (1844) 
 Bailey v. Myrick, 36 id. 50 (1853); Buchanan v. Monroe, 22 
 Tex. 537 (1858); Miner v. Smith, 53 Vt. 551 (1881): Dela- 
 plaine v. Lewis. 19 Wis. 476 (1865) ; Andrews v. Stelle, 22 N. J. 
 Eq. 478 (1871) ; Wright v. Eaves, 10 Rich. Eq. (S. C.) 582 (1858). 
 In Crenshaw v. Thackston, 14 S. C. 437 (1881), such a mortgagor 
 was held a necessary party. Fisher, § 305 ; Brown v. Stead, 5 
 Sim. (Eng.) 535 (1832). 
 
 -^ Bryce v. Bowers, 11 Rich. Eq. (S. C.) 41 (1859) ; Fisher, § 306. 
 For the English cases see Kerrick v. Saffery, 7 Sim. 317 (1835) ; 
 Lloyd V. Lander, 5 Madd. 282 (1821) ; Collins v. Shirley, 1 R. & 
 M. 638 (1830) ; Rochfort v. Battersby, 14 Jur. 229 (1849).
 
 WHEN MORTGAGOR IS NOT A NECESSARY PARTY. 77 
 
 action when admitted, the court will subsequently 
 dismiss him from it.^ The decisions are clear and 
 uniform in sustaining these propositions, and it is only 
 in exceptional cases and for special reasons that a 
 court will require a mortgagor, who has parted with 
 his entire interest in the property, to be brought in 
 if the plaintiff has omitted him."' The mortgaged prem- 
 ises are always the primary fund for the payment of the 
 debt, and a grantee has no right to object if the 
 mortgagor is not made a party to the bill of foreclosure.^ 
 Neither will the objection of any other defendant be 
 considered, unless he shows that his interests will be 
 prejudiced by the omission of the mortgagor.^ It is 
 only when the party against whom the mortgagee asks 
 a personal judgment for deficiency is a mere surety of 
 the mortgagor, that he can insist that the latter be 
 made a defendant and that the plaintiff's remedy against 
 him for the deficiency in the property be exhausted before 
 resorting to the surety,'^ If there are equities or dis- 
 putes between the grantee and the mortgagor, they must 
 be settled in another suit.*^ 
 
 It is nearly always desirable, however, to make the 
 
 1 Gifford V. Workman, 15 Iowa, o4 (I860); Houston v. String- 
 ham, 21 id. lifj (186(3). 
 
 ^ Minis V. Minis, 85 Ala. 28 (1850); Murray v. Catlett, 4 
 Green (Iowa). 108 (1858); Swift v. Edsou, 5 Conn. 584(1825); 
 Shaw V. Hoadley, 8 Blackf. (hid.) 165 (18-46) ; McGuttev v. Fin- 
 ley, 20 Ohio, 474 (1851); Lane v. Erskine, 18 111. 501 (1851); 
 Vreeland v. Loubat, 1 Green (N. J. Eq.), 104, 405 (1858) ; 1 Powell 
 on Mortgages, 405, and note 2. 
 
 '■' Bii^elow V. Bush, 6 Paige (N. Y.), 848, 846 (1887). 
 
 4 Williams V. Meeker, 29 Iowa, 292, 294 (187U). 
 
 ■' Drury v. Clark. 16 How. (K. Y) 424, 481 (1857); Bigelow v. 
 Bush, 6 Paige (N. Y.), 843 (1887). 
 
 « Van Nest v. Latson, 19 Barb. (N. Y.) 604 (1855).
 
 78 PARTIES TO MORTGAGE FORECLOSURES. 
 
 mortgagor a part}' clelenclant, even if he does not continue 
 to hold the equity of redemption ; it is against him espe- 
 cially that a judgment for deficiency is sought on his 
 hond or note accompanying the mortgage.^ There may 
 be, moreover, latent or secret interests to be cut off, which 
 he continues to hold in the property : creditors may 
 attaci^ his conveyance as fraudulent ; or his conveyance, 
 absolute on its face, may be intended only as a collateral 
 security.- Thus, in an action to foreclose a mortgage 
 and to correct the description of the premises, both the 
 mortgagor and his grantee have been deemed necessary 
 defendants ;'' and the grantor of a trust deed has been 
 held a necessary defendant for similar reasons.* When 
 the plaintiff has no knowledge or suspicion of such 
 equities, or fraudulent conveyance or collateral security 
 deeds, he will generally be bound only by what appears 
 on record. 
 
 § 36. Mortgagor still holding only a divided or undivided 
 part of the premises, or being a tenant in coninion 
 by descent or grant, a necessary party. 
 
 As long as a mortgagor continues to own any part of 
 the title which he njortgages, he is just as necessary a 
 party to a foreclosure as he would be if he continued to 
 own the whole title."' A mortgagee's joining Avith his 
 
 1 Root, V. Wiiiiht. 21 IIiiu (N. y.), 344, 848; aff"d 84 N. Y. 
 72 (1881); Stevens v. Campbell, 21 lud. 471 (1863); Miller v. 
 Thompson, 34 Mich. 10 (187(3). See g 92, post. 
 
 - Lloyd V. Lander, 5 Madd. (Euo-.) 282 (1821) ; Kina' v. Mar- 
 tin, 2 Ves. Jnn. (Eng.) 641 (1795). "This point is well illustrated 
 by the litigation in Griswold v. Fowler, 6 Abb. (N. Y.) 113 
 (1857); Crooke v. O'Hijs^-ins, 14 How. (X. Y.) 154 (1857). 
 
 3 Sickman v. Wood, 69 III. 329 (1873). 
 
 ^ Marsh v. Green, 79 111. 385 (1875). 
 
 5 See t^ 34, ante. Spiller v. Spiller, 1 Havward (X. .C). 482 
 (1797); Taylor v. Porter, 7 Mass. 355 (1811);" Jones, § 1409.
 
 MORTGAGOR OWNING ONLY PART OF PREMISES. 79 
 
 mortgagor in a deed of an undivided part of the mort- 
 gaged jDremises, for the purpose of releasing his mort- 
 gage debt on tliat part, has been held inoperative as a 
 release. The mortgage lien still continued on the entire 
 premises/ A mortgage executed by a tenant in com- 
 mon upon his undivided interest in real property does 
 not affect the rights of his co-tenants.- Such a mortgage 
 cannot be enforced against the mortgagor's divided part 
 of the premises until commissioners in partition have 
 made an actual division of the lands and a decree has 
 been entered adjudging the mortgage a lien upon his part 
 alone.^ After a mortgage has Ijeen adjudged by a decree 
 in partition to be a lien upon a divided instead of an undi- 
 vided part of the premises, the mortgagee will be con- 
 fined for his remedy exclusivel}^ to the share set off to 
 his mortgagor.'^ Thus, in an action to foreclo.se a land 
 contract or " title bond " of an undivided half of certain 
 premises, the vendee of the remaining undivided half 
 was allowed to file a cross bill for partition, and to have 
 s, decree entered that the divided half set apart to him 
 be held free and clear of the lien of the title bond.'' 
 It has been intimated in some cases" that a purchaser 
 
 1 Toirev v. Cook, 116 Mass. W.l (1874). per Gray, Ch. J. 
 
 2 Marks v. Sewall, 120 Mass. 174 (187(3). 
 
 ■' Keid V. Gardner, 6.5 N. Y. 578 (1875): Coltou v. 8;mitli, 11 
 Pick. (Mass.) 311 (1831) ; Ricli v. Lord, 18 id. 322 (1836) ; Stewart 
 V. Allegheiiv National Bank, 101 Peun. 342 (1882) : Hatch v. 
 Kimball, 14 Me. 91 (1836). 
 
 * Kline V. McGuckin, 24 N. J. Eq. 411 (1874). 
 
 ■' Hammond v. Perrv, 38 Iowa, 217 (1874). 8)ee also Looniis v. 
 Riley, 24 111. 307 (1860) ; Williams v. Perry, 20 Ind. 437 (1863); 
 Cornell v. Prescott, 2 Barb. (N. Y.) 16 (1847). 
 
 *• Donsi-lass v. Bishop, 27 Iowa, 214, 216 (1869); Mims v. Mims, 
 35 Ala. 23 (1859); Hull v. Ly<m, 27 Mo. 570 (1858); Crenshaw 
 V. Thackston, 14 8. C. 437 (1881); Frost v. Frost, 3 Saudf. Ch. 
 (N. Y.) 188 (1846) ; Cholmondelev v. Lord Clinton. 2 Jac. & W.
 
 80 PARTIES TO MORTGAGE FORECLOSURES. 
 
 of an undivided interest in mortgaged premises 
 would not be an absolutely necessary party ; but it is 
 nowhere questioned that a mortgagor still owning the 
 remaining undivided interest is always a necessary 
 defendant. The above intimation is not to be relied 
 upon in New York and in those states where foreclosure 
 is generally accomplished by an equitable action. An 
 owner of an undivided interest in lands, prior to the exe- 
 cution of a mortgage by his co-tenant, is not a necessary 
 party to a foreclosure. If he is made a defendant, he can 
 have the bill dismissed as to himself; even if the action 
 proceeds to a decree and sale, the judgment will not be 
 binding upon him. One of four joint tenants executed 
 a mortgage purporting to convey the whole estate ; on 
 foreclosure the remaining three were held not necessary 
 parties, and even if they had been made parties, their 
 rights would not have been concluded by the decree.^ 
 Where tenants in common jointly, or jointly and 
 severally, mortgage property, a foreclosure cannot be 
 maintained against either of them separately to collect 
 a moiety of the debt ; the action must be against both 
 and those claiming under them. Neither can either of 
 them compel the mortgagee to receive half of the debt,- 
 and thereby relieve him, and to proceed against his co- 
 tenant for the collection of the other half The in- 
 terests of tenants in common in such cases must always 
 be sold toiiether, no matter how numerous the owners 
 may be.- If the mortgaged premises have been divided 
 and conveyed in separate parcels, as frequently happens, 
 
 (Eng.) 134 (1820) ; Palk v. Clinton, 12 Ves. (Eng.) 48, 59 (1806) ; 
 Jones, g 1405. 
 
 1 Stephen v. Beall, 22 Wall. (U. S.) 328 (1874). 
 
 2 Frost V. Frost, 3 Saiidf. Ch. (N. Y.) 188 (1846).
 
 JOINT MORTGAGORS. 81 
 
 all the owners of the several parcels must be made de- 
 fendants to the foreclosure in order to render a perfect 
 title.^ 
 
 It has been held that neither the heirs nor the per- 
 sonal representatives of a deceased joint mortgngor, or 
 owner of the equity of redemption, are necessary parties 
 to a foreclosure. This rule is undoubtedly based upon 
 the common-law doctrine of survivorship in cases of 
 joint tenancy. But as it is frequently an open question 
 whether a title is held by persons as joint tenants or 
 tenants in common, it is the safest practice to make the 
 heirs of the deceased owner parties to the foreclosure. 
 In New York the law was settled in Berths v, Nunan^ 
 that under a conveyance to a husband and wife jointly, 
 they take as tenants by the entirety, and upon the death 
 of either, the survivor takes the whole estate ; in such 
 a case it would not be necessary to bring the heirs 
 of the deceased joint owner into the action. 
 
 § 37. Mortgagor still holding any kind of an equitable, 
 contingent or latent interest generally necessary. 
 
 It may be generally stated that, as long as the mort- 
 *gagor continues to own or hold any interest of an equi- 
 table nature in the mortgaged premises, he is a necessary 
 defendant to a foreclosure ; for the entire equity of re 
 demption cannot be cut off or foreclosed as long as such 
 interest is outstanding and unaffected by the action.^ 
 
 1 Palk V. Clinton, 12 Ves. (Eiicr.)58, 59 (1806); Peto v. Ham- 
 moii:|, 29 Beav. (Eng.) 91 (1860) ;"lreson v. Demi, 2 Cox (Eng.), 
 425 (1796) ; Wiley v. Pirison, 28 Tex. 486 (1859). 
 
 - 92 N.Y. 152 (1883), j!;ier Earl, J., reviewing Meeker v. Wright, 
 76 id. 262 (1879), and in substance overriilini^ it. 
 
 3 Morgan v. Magoffin, 2 Bibb (Ky.), 895 (1811); Jones, § 1403. 
 
 6
 
 82 PARTIES TO MORTGAGE FORECLOSURES. 
 
 Such interests may be as various and different as the 
 cases in which questions affecting them arise. It is only 
 from an examination of numerous special cases that the 
 proposition of this section is advanced as a general rule. 
 
 The sale of a mortgagor's interest under an execution 
 may do away with the necessity of making the mort- 
 gagor a party to a foreclosure after the deliver}^ of the 
 sheriff's deed and the expiration of the time limited 
 for redemption, as such a sheriff's sale passes the entire 
 equity of redemption remaining in the mortgagor to 
 the purchaser as effectually as a deed would. But dur- 
 ing the period of redemption the mortgagor is an 
 indispensable party for the purposes stated in this 
 chapter.^ It has been said by Chancellor Kent - that 
 " he has an existing ri^ht of which he could not be 
 divested within the year by the sheriff" 's sale, and could 
 only be in the foreclosure action by making him a 
 party." 
 
 It seems that a purchaser at a sheriff's sale under an 
 execution is also a necessary party from the time of his 
 purchase.' But where the execution sale is held pending 
 a foreclosure, the plaintiff is not bound to bring the pur- 
 chaser into the action bv a supplemental bill ; the pur- 
 chaser must intervene on his own application to the 
 court if he wishes to be heard.^ It has been held that 
 *' a sale by a sheriff" gives the purchaser, under the cer- 
 
 1 New York Code, § 1440 : Minis v. Minis, 85 Ala. 28 (1859). 
 
 - Hal lock V. Hniith, 4 Johns. Cli. (N. Y.) 649 (LS-2()). The 
 quotation is modified from the orificinal to read with tlie text. 
 
 ^ New York Code, §§ 1440, 144f, 1448 ; Bviiii^^ton v. Walsh, 11 
 Iowa, 27 (1860). 
 
 ■^ Bennett v. Calhoun Association, 9 Rich. Eq. (H. C.) 163 (1857). 
 See § 40, posi, on purchasers pendente lite.
 
 PURCHASER AT SHERIFF'S EXECUTION SALE. 83 
 
 tificate, an inchoate right to the land, if not an interest 
 in the land itself; and it is such a right as will ripen 
 into a title, unless the property be redeemed from him. 
 In this case the sale and purchase was anterior to the 
 filing of the bill of foreclosure, and though tlie pur- 
 chaser did not obtain a deed from the sheriff until after 
 the bill in this case and a notice of Us pendens were filed, 
 yet he is considered something more than a purchaser 
 pendente lite. He was a purchaser before, though his 
 title did not become consummated until afterward ; and 
 by his purchase he acquired such a right and interest 
 in the land as entitled him to be made a party to the 
 foreclosure suit, — and not having been made a party, he 
 is not foreclosed of his equity of redemption. The pur- 
 chaser at the foreclosure sale does not get an absolute 
 title as against the purchaser at the execution sale."^ 
 At the time of this decision, too, there was no law requiring 
 a sheriff's certificate to be recorded in the county clerk's 
 office, and the plaintiff could have no notice of such 
 certificate, as he now can, without examining the books 
 in the sheriff's office. From these two cases, which are 
 unquestioned as good law, it appears that both the 
 owner of the equity of redemption and the pur- 
 chaser- at an execution sale are absolutely necessary 
 parties during the period of redemption following the 
 execution sale, and one or the other of them will con- 
 
 1 Insurance Co. v. Bailev, 3 Edw. Ch. (N. Y.) 417 (1840); 
 strongly in point to the contrary, Woods v. Love, "27 Mich. 308 
 (1873). 
 
 - Seemingly contra, Woods v. Love, f<ii/'ra, liolding that the 
 purchaser at an execution sale is not a iiucessary defendant, even 
 though he may have filed his sheriff's certificate in the register's 
 office.
 
 84 PARTIES TO MORTGAGE FORECLOSURES. 
 
 tinue necessary, according as the property is redeemed 
 or not.^ 
 
 The mortgagor or owner of the equity of redemption 
 also continues a necessary party, even though he may 
 have entered into a land contract or a bindins; acrree- 
 ment to convey the property. In such a case a mort- 
 gagor holds the equit;ible relation of mortgagee to the 
 party agreeing to purchase, and can foreclose his 
 land contract. He certainly has such an equitable in- 
 terest in the property, that the title produced by fore- 
 closure would not be perfect if he were omitted as a 
 party defendant in the action - It is believed that the 
 person agreeing to purchase under a land contract is 
 also a necessary defendant, for the reasons stated by the 
 vice-chancellor in the above opinion, although Crooke 
 V. 0''H^o•Q•ins^'' would seem to indicate that the omission 
 to make him a party would not prevent the rendition 
 of a valid judgment of foreclosure. 
 
 A curious case is reported in Weed v. Stevenson,^ 
 ^vhere it appeared that an absolute deed was executed 
 to a grantee wdio executed a defeasance to a person other 
 than the grantor, and both were recorded as a mortgage ; 
 in an action to foreclose, the grantor was omitted as a 
 
 1 For redeeniiuii" creditors, see the New York Code, §§ 1447, 
 1449, 1451, 1452. 1458 et seq. 
 
 2 Crooke v. O'Hicrii-ins, 14 How. (N. Y.) 154 (1857). In Roddy 
 V. Elam, 12 and Ib^liich. L. & Eq. (S. C.) 343 (1866), the phiiii- 
 tift" was allowed to amend his bill so as to bring in the original 
 vendor. 
 
 ^ /Supra ; Greither v. Alexander, 15 Iowa, 470 (1863). In Blair & 
 Co. V. Marsh, Sid. 144 (1859), the owner of a land contract, holding 
 it as a "title bond," assigned it as a collateral security ; on fore- 
 closure, both the assignor and the assignee were made parties. 
 
 ^ Clarke Ch. (N. Y.) 166 (1840); Griswold v. Fowler, 6 Abb. 
 (N. Y.) 113 (1857).
 
 MORTGAGOR STILL OWNING EQUITABLE INTERESTS. 85 
 
 party. Objection was raised by demurrer that he was 
 a necessary defendant. The court ruled that the grantor 
 was a proper, though not a necessary, -party ; that he 
 might safely have been omitted, but that if the plaintiff 
 had any doubt about the validity of his conveyance, 
 he had a perfect right to make the grantor a defendant 
 to set such doubt at rest. 
 
 The mortgagor may also retain an equitable interest 
 in the jDremises, and thereby remain a necessary party, 
 where he has made a conveyance, absolute on its face, 
 but intended only as a collateral security ; or where he 
 has delivered a deed in escrow ; or where the deed has 
 been executed, but remains unrecorded for secret pur- 
 poses, and the plaintiff has no knowledge or suspicion of 
 the same ;^ or where the mortgagor conveys his equity 
 of redemption in fraud of creditors, and his conveyance 
 is attacked or threatened. It is thus seen that the in- 
 stances in which the mortgagor may still hold an equi- 
 table interest in the title after he has apparently parted 
 with his entire ownership, are innumerable and ex- 
 tremely various in character. 
 
 § 38. The purchaser and owner of the equity of redemp- 
 tion by grant or otherwise from the mortgagor 
 necessary. 
 
 An owner or holder of the equity of redemption by 
 purchase from the mortgagor or a mesne purchaser is 
 as necessary a defendant to a foreclosure as a mortgagor 
 
 ^ Many of these difficulties may now be obviated by filing the 
 statutory Us pendens. New York Code, §§ 1670, 1671 ; Kipp v. 
 Brandt,"49 How. (N. Y.) 358 (1875); Ostrom v. McOann, 21 id. 
 481 (1800). See §§ 41 and 42, ^jos^, on Us penclerLs. On fraudulent 
 transfers, see Adams v. Bradley, 12 Mich. 846 (1864).
 
 86 PARTIES TO MORTGAGE FORECLOSURES. 
 
 still owning the mortgaged premises.^ So, also, is a 
 
 1 Reed v. Marble, 10 Paige* (N. Y.), 409 (1843); Williamson 
 V. Field, 2 «aiidf. Cli. (N. Y.) 5:53 (1845); Watson v. Upeuce, 20 
 Wend. (IS. Y.) 260 (1838); Hall v. Nelson, 14 How. (N. Y.) 32 
 (1856): 8. C, 23 Barb. 88; Bnrnhani v. De Bevorse. 8 How. (N. 
 Y^) 159 (1853) ; Van Slyke v. 8heldeu, 9 Barb. (N. Y.) 278 (1850) ; 
 8t. John V. Bumpstead* 17 id. 100 (1852); Kaynor v. Selnies, 52 
 N. Y\ 579 (1873); Miner v. Beekman, 50 id! 337, 344 (1872); 
 Robinson v. Rvan, 25 id. 320 (1862); Winslow v. Clark, 47 id. 
 261 (1872). In'Mickles v. Dillaye, 15 Hun (N. Y.), 296 (1878), the 
 foreclosure was bv advertisement. Merritt v. Phenix, 48 Ala. 87 
 (1872): Hall v.Hii,yyins, 19id.200(1851); Lnniiiirv.Bradv, lOCal. 
 265 (1858); De Leon v. Hi.i^niera, 15 id. 483^(1860); Boggs v. 
 Fowler & Hargrave, 16 id. 559 (1860); Goodenow v. Ewer, 16 id. 
 461 (1860); Hevman v. Lowell, 23 id. 106 (1863); Carpentier v. 
 Williamson, 25 "id. 154 (1864) ; Horn v. Jones, 28 id. 194 (1865) ; 
 Skinner v. Buck, 29 id. 253 (1865); Bludworth v Lake. 33 id. 
 265 (1867): Coker v. Smith, 63 Ga. 517 (1881); Ohling v. 
 Luitjens, 32 111. 23 (1863) ; Jeneson v. Jeneson, m id. 260 (1872) ; 
 Mark v. Murphy, 76 Ind. 534 (1881) ; Searle v. Whipperman, 79 
 id. 424 (1881) ; Lenox v. Reed, 12 Kan. 223, 228 (1873); Bailey 
 V. Mvrick, 36 Me. 50 (1853) ; Cooper v. Martin, 1 Dana (Kv.), 25 
 (1833) ; Roney v. Bell, 9 id. 4 (18.39) ; Nichols v. Randall, 5 Minn. 
 304, 308 (1861); Wolf v. Banning, 3 id. 202, 204 (1858); Camp- 
 bell V. Bemis, 16 Gray (Mass.), 485 (1860) ; Koche v. Farnsworth, 
 106 Mass. 509 (1871'); Learned v. Foster, 117 id. 365 (1875); 
 Thayer v. Smith, 17 id. 429 (1821) ; Putnam v. Putnam, 4 Pick. 
 (Mass.) 139 (1826); Brundred v. Walker, 1 Beas. Ch. (N. J.) 140 
 (1858); Rodg-ers v. Jones, 1 McCord Ch. (S. C.) 221 (1826) ; Du- 
 rand v. Isaacks, 4 McCord Law (S. C), 54 (1826); Norton v. 
 Lewis, 3 Rich. N. S. (S. C.) 25 (1871-72); Manufacturing Co. v. 
 Price, 4 id. 338, 345 (1872) ; Men^ v, Honser, 13 Rich. Eq. (S. C.) 
 210, 220 (1867) ; Buchanan v. Monroe, 22 Tex. 537 (1858) ; Mor- 
 row V. Morgan, 48 id. 304 (1878) ; Hodgson v. Treat, 7 Wis 263 
 (1858); Green v. Dixon, 9 id. 532 (1859); Cord v. Hirsch. 17 
 id. 403 (1863) ; Fisher, gi? 299, 305 ; Brown v. Stead, 5 Sim. (En^r.) 
 535 (1832) ; Peto v. Hammond, 29 Beav. (Eno-.) 91 (1860) ; Manly 
 V. Beaufort, 1 Russ. (Eng.) 349 (1826). Contrary to the above 
 authoi'ities, see Sumner v. Coleman, 20 Ind. 486 (1863): Cline v. 
 Inlow, 14 id. 419 (1860) ; andSemple v. Lee, 13 Iowa, 304 (1862), 
 holding that the owner of .the eqidty is not a necessary, 
 but only a proper, party ; but these cases have been overruled by 
 later decisions in the same courts. A fraudulent grantee was held a 
 necessary party in Adams v. Bradley, 12 Mich. 346 (1864). In 
 the -foreclosure of a mechanic's lien, the owner of the equity was 
 held a necessary defendant. Marvin v. Taylor, 27 Ind. 73 (1866).
 
 OWNER OF THE EQUITY BY PURCHASE OR OTHERAVISE. 87 
 
 purchaser of a divided^ or of an undivided"- part of the 
 mortgaged premises a necessary defendant, and if not 
 made a party, he will have the right to redeem his part 
 by paying a proportional part of the mortgage debt.^ 
 The purchaser of an equity of redemption from an assignee 
 in bankruptcy is a necessary defendant, instead of the 
 assignee or the bankrupt/ In the foreclosure of a mort- 
 gage containing a power of sale, the owner of the equity 
 is entitled to due service of a notice, and a bare com- 
 pliance with the terms of the power is not sufficient.^ 
 But where the foreclosure is conducted by scire facias, as 
 it may be in Illinois and in some other states, the mort- 
 gagor or his personal representatives are the only neces- 
 sary parties ; the purchaser is not even a proper party.*' In 
 some states the courts have held the owner of an equity 
 a proper, but not a necessary, party ; but these courts 
 evidently mean that the owner is not a necessary defend- 
 ant for the maintenance of the action, as they are agreed 
 that his rights will remain unaffected unless he is brought 
 into the action. Under the meaning given to the word 
 in this chapter, they are indispensable defendants, and 
 the decisions of these courts in fact support the proposi- 
 tion of this section.' 
 
 1 Spiller V. Spiller, 1 Haywood (N. C), 482 (1797). 
 
 ^ Hee Day v. Patterson, IS lud. 114 (1862), where there were a 
 number of purchasers and all were held necessary parties. See 
 Sumner V. Coleman, 20 id. 486 (1863) ; Bates v. Ruddick, 2 Clarke 
 (Iowa), 423 (1856). 
 
 ^ Bates V, Ruddick, supra; Williams v. Beard, 1 Rich. (S. C.) 
 309 (1870) ; Lo^an v. Smith, 70 Ind. 598 (1880). 
 
 ^ Felder v. Murphy, 2 Rich. Eq. (S. C.) 58 (1845). 
 
 5 Drinan v. Nichols, 115 Mass. 353 (1874). 
 
 c Chickering v. Failes, 26 111. 507 (1861). 
 
 ■^ See § 32, ante. Sumner v. Coleman, 20 ind. 486 (1863) ; Cliue v. 
 Inlow, 14 id. 419 (1860) ; Semple v. Lee, 13 Iowa, 304 (1862). In
 
 88 PARTIES TO MORTGAGE FORECLOSURES. 
 
 The cases are uniform in holding that a purchaser at a 
 foreclosure sale acquires no title whatever to the mort- 
 gaged jD remises, unless the owner of the equity of re- 
 demption is made a party, although the mortgagor and 
 the incumbrancers may have been made defendants. 
 Such a purchaser remains a stranger to the title 
 to the land, and the sale operates only as an equitable 
 assignment of the mortgage to hini,^ It has some- 
 times been intimated that such a sale is void,- but 
 the current of authorities agree that it is binding upon 
 the parties who have been brought into the action. 
 No suit can be instituted against the mortgagor for the 
 
 Rose V. Swann, 56 111. 37 (1870), the foreclosure of a laud coutract 
 was sought; subsequeut purchasers of the rights of the vendee were 
 held jyroper, but not neca^sary, parties. In Williams v. Terrell, 
 54 Gra. 462 (1875), an owner was held necessary to the extent 
 that he was unaffected by the decree if omitted, and mightredeem ; 
 Georgia cases collated and reviewed. iSee Knowles v. Lawtou, 18 
 Ga. 476 (1855), holding the purchaser unnecessary where the 
 mortgagor was made a party ; and May v. Rawson, 21 id. 461 
 (1857), holding that where the mortgagor has died, it is suf- 
 ficient to make the purchaser a party. See Mevey's Appeal, 4 
 Penn, St. 80 (1846), holding a purchaser not indispensable under 
 the acts of 1705 and 1822, but unaffected by the action if omitted ; 
 citing the earlier Pennsylvania cases. 
 
 1 Miner v. Beekman, 50 N. Y. 337, 344 (1872) ; Robinson v. 
 Ryan, 25 id. 320 (lb62) ; Winslow v. Clark, 47 id. 261 (1872); 
 Cutter V. Jones, 52 111. 84 (1869); Kelgour v. Wood, 64 id. 345 
 (1872) ; Douglass v. Bishop, 27 Iowa, 214, 216 (1869); Barrett v. 
 Blackmar, 47 id. 565, 571 (1877), ^^er Day, Ch. J. In point, 
 Moore v. Cord, 14 Wis. 213 (1861). 
 
 - In point, Skinner v. Buck, 29 Cal. 253 (1865). See Boggs v. 
 Fowler & Hargrave, 16 id. 559 (1860), holding tliat such a sale is 
 void, and that no title passes ; Nat. Fire Ins. Co. v. McKay, 1 
 Sheldon (N. Y.), 138 (1867) See Reed v. Marble, 10 Paige (N. Y.), 
 414 (1843) ; Watson v. Spence, 20 Wend. (N. Y.) 260 (1838). In 
 Mickles v. Dillaye, 15 Hun (X. Y.), 296 (1878), it is queried 
 whether a foreclosure by advertisement, in which no notice is 
 served on the owner of the equity of redemption, is not a mere 
 nullity as to all parties to the proceeding.
 
 RESULT OF OMITTING OWNER OF THE EQUITY. 89 
 
 payment of the mortgage debt without making the 
 grantee of the equity of redemption a party defendant,' 
 The owner of the equity of redemption is not affected 
 at all by a decree rendered in an action to which he 
 is not made a party, as the court acquires no juris- 
 diction of him f the decree is a nullity as to him, and 
 he has a right to redeem, or to enforce such other 
 remedies as the courts of the different states may 
 allow." 
 
 The principles stated above are equally true, 
 whether the owner acquires his title by grant, or 
 through a sherifl^'s sale under an execution, receiving 
 a deed in due time,^ or from an assignee in bankruptcy,"' 
 or by descent or devise," or otherwise.'' The pur- 
 
 1 Reed v. Marble, 10 Paige (N. Y.), 410, 414 (1848). 
 
 - Veach v. iSchaiip, o Clarke (Iowa), 194 (1856) ; Porter v. 
 Kilgore, 32 Iowa, 880 (1871); Street v. Beal, J 6 id. 68 (1864); 
 Bradley v. Snyder, 14 111. 263 (1853); Chickerino- v. Failes, 
 26 id. 517 (1861); Ohlin-- v. Luitjens, 32 id. 23 (r868) ; Hiird 
 V. Case, 32 id. 45 (1863) ; Daulap v. Wilson, 32 id. 517 (1863); 
 Cntter v. Jones, 52 id. 84 (1869); Kelgour v. Wood, 64 id. 345 
 (1872); Childs v. Childs, 10 Ohio St. 339 (1859). In point. 
 Miner v. Beekman, 50 N. Y. 3^7 (1872). For other New York 
 cases, see the first note to this section. 
 
 '•^ Douglass V. Bishop, 27 Iowa, 214_, 216 (1869) : Barrett v. 
 Blackmar, 47 id. 565, 571 (1877) ; opinion ?^er Day, Ch. J. See 
 the cases in the preceding note. 
 
 * Coster V. Clark, 3 Edw. Ch. (N. Y.) 440 (1840); Hallock v. 
 Smith, 4 Johns. Ch. (N. Y".) 649 (1820) ; Buck v. Sanders, 1 Dana 
 (Ky.), 189 (1833) ; Brooks v. Keister, 45 Iowa, 308 (1876) ; Davis 
 V. Evans, 5 Iredell (N. C), 525 (1845); Thorpe v. Ricks, 1 
 Devereux & B. Kq. (N. C.) 619 (1837) ; Hemphill v. Ross, m N. 
 C. 477 (1872). 
 
 5 Burnhara v. De Bevorse, 8 How. (N. Y.) 159 (1853); 
 Winslow V. Clark, 47 N. Y. 261 (1872). 
 
 ^ See i::5§ 48 and 49, post, on heirs and devisees. The pur- 
 chaser of a devisee is a necessary defendant. Ohling v. Luitjens, 
 32 111. 23 (1863). 
 
 ^ In Hall V. Huggins, 19 Ala. 200 (1851), the owner purchased
 
 90 PARTIES TO MORTGAGE FORECLOSURES. 
 
 chaser of an e.isement from the owner of an equity of 
 redemption is also a necessary defendant ; and if he is 
 omitted, he may continue to use and enjoy his easement 
 without interruption, as the action does not extinguish 
 nor affect his rights,^ The rule of this section remains 
 the same, whether the foreclosure be conducted as an 
 action or by advertisement; the notice required in 
 foreclosures by advertisement must be served on the 
 owner of the equity of redemption.- If the owner has 
 notrecorded his deed, and the mortgagee receives no notice 
 of his ownership, the foreclosure may safely proceed 
 without making the owner a party, providing a Us 
 pendens is properly filed.' It will be readily seen that 
 
 the equity at a sale held pursuant to an order of the Orphans' Coin^t. 
 Where a mortgage is foreclosed pending proceedings to condemn 
 lands for public uses, the parties prosecuting the proceeding 
 should be made defendants. Colehour v. State Savins^s Institu- 
 tion, 90 111. 152 (1878). 
 
 i In Packer v. Rochester & Syracuse R. R. Co., 17 N. Y. 283, 
 297 (1858), the easement granted was to certain mill-owners to 
 construct and maintain a race ; the mortgagee foreclosing, 
 omitted them as defendants. Pratt, J., said: "The mortgage, 
 therefore, stands unforeclosed as to the rights of the mill-owners." 
 See also the opinion per Denio, J., p. 287. 
 
 - Van Slyke v. Shelden, 9 Barb. (N. Y.) 278 (1850) ; Stanton 
 V. Kline, 11 N. Y\ 199 (1854), reversinar 16 Barb. 9 ; St. John v. 
 Bumpstead, 17 Barb. (N. Y'.) 100 (1852). See, especially, Mickles 
 V. Dillaye. 15 Hun (N. Y.), 296 (1878); New York Code, § 2389. 
 
 •^ Ostrom V. McCann, 'zi How. (N. Y.) 431 (1860); Kipp v. 
 Brandt, 49 id. 358 (1875) ; New York Code, § 1670. See § 42, 
 post; Daniels v. Henderson, 49 Cal. 245 (1874); Aldrich v. 
 Stephens, 49 id. 676 (1875). See Tucker v. Leland, 75 N. Y'. 186 
 (1878) ; Houirhton v. Kneeland, 7 Wis. 244 (1858) ; contra, Hall 
 V. Nelson, U^How. (N. Y ) S2 (1856) ; S. C, 23 Barb. (N. Y^) 88. 
 See Carpentier v. Williamson, 25 Cal. 154 (1864). In Webb v. 
 Maxan, 11 Tex. 678, 684 (1854), the court held that, if the 
 mortgagee foreclosing received no notice of the subsequent pur- 
 chaser's deed, the decree would be conclusive against the pur- 
 chaser; aliter, if he had notice.
 
 WHO MAY OBJECT TO OMISSION OF OWNER. 91 
 
 the principles of law stated in this section are based 
 upon the broader and more general principle already 
 noticed, — that no person having an interest in the 
 mortgaged premises will be affected by the decree of lore- 
 closure, unless he is made a party to the action and 
 brought within tlie jurisdiction of the court. ^ 
 
 If the owner of the equity of redemption is omitted as 
 a defendant, the mortgagor or any other party interested 
 in the action may object to it by demurrer, if the defect 
 appears upon the face of the complaint, or by answer if 
 the defect does not so appear ;'- if objection is not taken, 
 the defect will be deemed waived.'^ If the owner is 
 omitted, it is not necessary for him to maintain an 
 action to redeem in order to assert his rights, for he 
 is already the owner of the title, never having been 
 divested of it ; and the purchaser at the sale, having 
 acquired no title, is a stranger to the premises, and can be 
 ejected or proceeded against for trespass.* The owner 
 may, however, maintain an action to redeem if he de- 
 sires ; indeed, this is the usual practice, as it brings the 
 question of title directly in issue.^ If the owner 
 
 1 See §§ 32, 38, ante. 
 
 ^ Reed v. Marble, 10 Pais^e (N. Y.), 410 (1843) ; Hall v. Nel- 
 son, 23 Barb. (N. Y.) 88 (1856) ; Bard v. Poole, 12 N. Y. 508 
 (1855) ; Kittle v. Van Dyck, 1 Sandf. Ch. {N. Y.) 76 (1843) ; 
 Diinlap V. Wilson, 32 111. 517 (1863) ; Erickson v. Rati'erty, 79 id. 
 210 (1875); Cord v. Hirsch, 17 Wis. 403 (1863); Baker v. 
 Hawkins, 29 id. 576 (1872) ; Taylor v. Collins, 51 id. 123 (1881). 
 See Williams v. Meeker, 29 Iowa, 292 (1870). 
 
 =* Davis V. Bechstein, 69 N. Y. 440 (1877). 
 
 * Van Slvke v. Shelden, 9 Barb. (M. Y.) 278 (1850) ; Watson 
 V. Spence, 20 Wend. (N. Y.) 260 (1838). In Kelgour v. Wood, 
 64 111. 345 (1872), it was held that ejectment could not be nnun- 
 tained. See Cutter v. Jones, 52 111. 84 (1869); see Fogal v. 
 Pirro, 10 Bosw. (N. Y.) 100 (1862). 
 
 '" See Miner v. Beekman, 50 N. Y. 337, 344 (1872), holding also
 
 92 PARTIES TO xMORTGAGE FORECLOSURES. 
 
 of the equity has assumed the payment of the mort- 
 gage, there is a double reason for making him a party, 
 as he has thereby become the principal debtor, and the 
 mortgagor only a surety ; and if a judgment of defi- 
 ciency is sought, it must be first against such owner/ 
 
 § 39. Intermediate purchasers and o^wners of the equity 
 of redemption v/ho are no longer owners, gen- 
 erally not necessary. 
 
 For the reasons stated in a preceding section, parties 
 who have once owned the equity of redemption in mort- 
 gaged premises, and again parted with the same by an 
 absolute conveyance, are not necessary to a foreclosure 
 for the purpose of perfecting the title.- As they have 
 no interest in the mortgaged property, they can have 
 no interest in an action affecting it. It is only when 
 latent equities, fraud or defects in the deeds may in- 
 validate the mesne conveyances of intermediate pur- 
 chasers, or when some of their deeds remain unrecorded, 
 that they and their grantors become necessar}^ parties. 
 If they and all their grantors, subsequent to the delivery 
 of the mortgage, have assumed the payment of the mort- 
 gage debt, they may properly be made defendants if a 
 
 that the action must be brought within ten years. Graudin v. 
 Hernandez, 29 Hun (N. Y.), '699, 403 (1883) ; Carll v. Butman, 
 7 Me. 102 (1830) ; Green v. Dixon, 9 Wis. 530 (1859). A person 
 who succeeds to the owner's interest may also redeem. Veach v. 
 Schaup, 3 Clarke (Iowa), 194 (1856) ; Porter v. Kilgore, 32 Iowa, 
 380 (1871). See the cases cited in notes 2 and 3, p. 89, ante. 
 
 ^ See § 103, post. 
 
 2 Lockwood V. Benedict, 3 Edw. Ch. (N. Y.) 472 (1841). In 
 point, Haley v. Beimett, 5 Port. (Ala.) 452 (1837) ; Merritt v. 
 Phenix, 48 Ala. 87 (1872) ; Lewis v. Elrod, 38 id. 17 (1861) ; 
 Scarry v. Eldridge, 63 Ind. 44 (1878) ; Barton v. Kingsbury, 43 
 Vt. 640 (1871) ; Soule v. Albee, 31 id. 142 (1858). See Vrooman 
 V. Turner, 69 N. Y. 280 (1877). See § 35, ante.
 
 PURCHASER PENDENTE LITE. 93 
 
 personal judgment for deficiency is sought against them, 
 or any of them.^ The interesting question of personal 
 liability for the payment of the mortgage debt when it 
 has been assumed by a grantee in his deed of con- 
 ve3^ance, will be fully considered in a subsequent ser^tion.^ 
 
 § 40. Purchaser pendente lite not necessary. 
 
 The general principle is now recognized by all the 
 courts of this country and of England, that a purchaser, 
 assignee or attaching creditor of mortgaged premises, 
 during the pendency of a suit to foreclose, is bound by the 
 decree made against the party to the action from whom he 
 derives title f it is not necessary to bring a party, so 
 acquiring title, before the court. The reasons for this 
 rule will be found in the two succeeding sections. Such 
 a purchaser acquires, of course, only the identical rights 
 of title or incumbrance which the person from whom he 
 
 1 Vrooman v. Turner, supra; Scarry v. Eldridge, Q'S Ind. 44 
 (1878). See LockAvood v. Benedict, H Edw. Ch. (N!y.)472 (1841). 
 
 - See § 103 e/ seq , po^t. 
 
 3 \Vatt V. Watt, 2 Barb. Ch. (N. Y.) 371 (1847); Jackson v. 
 Losee, 4 Sandf. Cli. (N. Y.) 381 (184(3); Curtis v. Hitchcock, 10 
 Paige (N. Y.), 39;» (1843); The People's Bank v. Hamilton Co., 
 lb. 481, 490; Zeiter v. Bowman, 6 Barb. (N. Y.) 133 (1849); 
 Cleveland v. Boerura, 23 id. 201 (185H) ; S. C, 3 Abb. (N. Y.) 
 294 ; S. C. on appeal from the judgment at special term, 27 Barb. 
 (N. Y.) 252 (1858); atf'd 24 N. Y. 618 (1862); Ostrom v. 
 McCann, 21 How. (N. Y".) 431 (1860); Lenihan v. Hamann, 55 
 N. Y". 652 (1873); Lamont v. Cheshire, 65 id. 30 (1875); Fuller 
 V. Scribner, 76 id. 190 (1879); Weeks v. Tomes, 16 Hun (N. Y.), 
 349 (1878) ; Horn v. Jones, 28 Cal. 194 (1865) ; Addison v. Crow, 
 5 Dana (Ky.), 279 (1837); Chickeriiiif v. Fullerton, 90 111. 520 
 (1878). See Loomis v. Riley, 24 111. 307 (1860), where a tenant 
 in common of an undivided half of certain lands mortgaged his 
 half during the pendency of a partition suit ; Rogers v. Holyoke, 
 14 Minn. 220 (1869). In Chapman v. West, 17 N. Y. 125 (1858), 
 the action was for the specific performance of a land contract. 
 See Fisher, §i^ 380-388, and the English cases cited.
 
 94 TARTIES TO MORTGAGE FORECLOSURES. 
 
 purchased held at the time of the transfer. The earlj 
 decisions upon the proposition of this section endeavored 
 to make a distinction between voluntary transfers and 
 those accomplished by operation of la w.^ It has been said 
 by one of our ablest judges,- that there are English and 
 American cases holding; that when the interest of a 
 party to the action is cast upon the transferee by 
 operation of law, and not by the act of such party, the 
 foreclosure will be defective, unless the transferee is 
 brought before the court; but he intimates that these 
 cases are not to be relied upon, though he refers to the 
 case of Seds;iuick v, Cleveland'^ as an illustration. 
 
 The statutes in most states now provide for filing a 
 notice of pendency of action, settling this question in ac- 
 cordance with the general principle above stated ; and it 
 matters not whether the transferee acquires his title b}^ 
 the voluntary act of the transferer, or b}' operation of 
 law. Though the plaintiff is not bound to amend his com- 
 plaint, so as to bring in a purchaser or an incumbrancer 
 pendente lite, he may do so if he chooses.; the purchaser 
 can appear and defend in the name of the party from 
 whom he acquired his interest,^ or he can be made a 
 
 1 Cleveland v. Boerum, 28 Bavb. (X. Y.) 20.5 (1856). See the 
 same case affirmed on appeal in 24 N. Y. filo (18(52). 
 
 - Cleveland v. Boernm. 24 N. Y. 609 (1862). per Wright, J., 
 a leading case; Sedgwick v. Cleveland, 7 Paige (N. Y.), 290, 
 291 (1838) ; Anon. v. Anon., 10 id. 20 (1842) ; Smith v. Sansrer, 3 
 Barb. Ch. (N. Y.) 860 (1848). These last two cases seem to be 
 overruled by Cleveland v. Boernm, 24 X. Y. 609(1862); Lenihan 
 V. Haniann, 55 id. 652 (1873). 
 
 ■' 7 Paii^e (X. Y.), 281 (1888). 
 
 4 Cleveland v. Boernm, 24 X. Y. 620. 621 (1862) ; The People's 
 Bank v. Hamilton Co., 10 Paiice (X. Y.). 484 (1843) : Fisher, 
 § 885; Foster v. Deacon, 6 Madd. (Enij:.) 59 (1821) : Coles v. 
 Forrest, 10 Beav. (Ensr.) 552 (1847).
 
 COMMON-LAW DOCTRINE OF LIS PENDENS. 95 
 
 party on his own application^ by substitution, or subro- 
 gation.^ 
 
 § 41. Common-law doctrine of lis pendens. 
 
 The doctrine of lis pende?is and the statutes enacted in 
 the several states to regulate the same, are of the 
 greatest inii^ortance to the plaintiff in determining who 
 are necessary defendants to a foreclosure, and of equal 
 importance to other parties having any interest in the 
 equity of redemption. Lord Bacon has stated the com- 
 mon-law rule to be that "no decree bindeth any that 
 Cometh in bona fide by conveyance of the defendant be- 
 fore the bill exhibiteth, and is made no party, neither 
 by bill or order ; but when he comes in pendente lite, and 
 while the suit is in full prosecution, and without any 
 order of allow^ance or privity by the court, then regularly 
 the decree bindeth."'' The rule had its origin in the 
 civil law, and was pungently stated in the legal maxim, 
 pendente lite, nihil innovetur. It is well settled that a judg- 
 ment in an action in rem binds not only the parties, but 
 also all others claiming or deriving title under them by 
 
 1 Cleveland v. Boerum, supra; The People's Bank v. Hamilton 
 Co., supra; Clow v. Derby Coal Co., 98 Penn. 432 (1881) ; Eyster 
 V. Gaff, 91 U. S. 521 (1875). 
 
 2 Hewai-d v. Huntington, 94 N. Y. 114 (18.^3). 
 
 ■^ Bacon's Works, vol. 4, page 515. In Bishop of Winchester v. 
 Paine, 11 Ves. (Eng.) 194, 201 (1805), Sir William Grant said 
 that " he who purchases during the pendency of the suit, is bound 
 by the decree that may be made against the person from whom he 
 derives the title ; the litigating parties are exempted from the 
 necessity of taking any notice of a title so acquired ; as to them 
 it is as if no such title existed, otherwise suits would be intermin- 
 able, or, which would be the same in effect, it would be the 
 pleasure of one party at what period the suit should be determined. 
 The rule may sometimes operate with hardship, but general con- 
 venience requires it."
 
 96 PARTIES TO MORTGAGE FORECLOSURES. 
 
 a transfer pende?ite lite} Indeed, text-writers deduce from 
 the cases the broad rule that decisions in rem are binding 
 and conclusive, not only on the parties actually litigating 
 the case and their privities, but also on all other 
 persons, if the suit was commenced against the proper 
 parties, and judgment was obtained bona fide and with- 
 out fraud. - 
 
 § 42. Ne"w York statutory provisions for lis pendens ; 
 
 other states. 
 
 Many of the states, in their codes or general statutes, 
 have enacted the common-law rule into a statutory 
 requirement and prescribed special rules of practice in 
 connection with it. New York first did this in 1823,^ 
 by a special statute, which was re-enacted in the 
 Revised Statu tes,"* and subsequently formed into § 132 
 of the old Code of Civil Procedure (§§ 1670 and 1671 of 
 the Code of 1880). Prior to 1851 the notice could be 
 filed only at the time of commencing the action; now it 
 can be filed witli the complaint, and becomes operative 
 at once before the summons is served on any of the 
 defendants. Prior to 1858 a grantee, whose deed was 
 
 1 Hull V. Lyon, 27 Mo. Rep. 570 (1^58) ; R. C. 1855, p. 1089; 
 Rog-ers v. Holyoke, 14 Miiiu. 220 (1869) ; McPherson v. House!, 
 2 Beas. (N. J. Eq.) 299 (1861) ; Youugma!i v. Elmira & W. Rail- 
 road, 65 Peim. 278 (1870). 
 
 - yee Cleveland v. Bderuni, 24 N. Y. 617 (1862). The learned 
 jurist, Theodore C. Dwight, as Commissioner of Appeals, in 
 Lamont v. Cheshire, 65 N. Y. oO, 36 (1875), (X)nsidered at length 
 the history and the nature of a notice of pendency of action, 
 ai.'d the office it was designed to fiiUill. iSee Bellamy v. iSabine, 
 1 De G-ex & Jones (Eng.), 566 (1857) a leading English case ; 
 also Hunt V. Hunt, 17 Pick. (Mass.) 118 (1885). 
 
 =* Laws of New York, 1828, p. 213, § 11. 
 
 ■* Revised statutes, vol. 2, p. 174, § 43.
 
 EFFECT OF FILING LIS PENDENS. 97 
 
 not recorded, had to be discovered by the plaintiff and 
 made a party to the action/ but since and at present 
 every person receiving or recording'^ his conveyance 
 after the filing of such notice with the complaint, even 
 though it be a few hoars only,^ is deemed a suljsequent 
 purchaser and incumbrancer ; he stands in the same 
 position as he would if he had actually purchased the 
 land, or received his incumbrance, after the filing of 
 such notice, and he is bound by such proceedings " to 
 the same extent as if he was a party to the action,"'^ — 
 that is, he is barred and foreclosed of all rights in the 
 mortgaged premises. A purchaser may be brought into 
 the action by a supplemental bill if desired.'' Prior to 
 1862 the lis pendens was inoperative as to each defend- 
 ant until the summons had been served upon him,'' l^ut 
 an amendment of that year (continued in the Code of 
 1880) made the notice operative from tlie time of filing 
 the complaint, and also fixed the limit of sixty days 
 
 1 Hall V. Nelson, 14 How. (N Y.) 32 (1856) ; S. C, 23 Barb. 88. 
 
 2 Ostroiu V. McCann, 21 How. (N. Y.) 431 (1860), citinar ?; 132 
 of the old New York Code ; Earle v. Barnard. 22 id. 437, 440 
 (1862) ; Kipp v. Brandt, 49 id. 358 (1875), strongly in point. Sup- 
 porting these cases, see Daniels v. Henderson, 49 Cal. 245 (1874), 
 and Aldrich v. iStephens, lb. 676 (1875). 
 
 •^ Ostrom V. McCann, supra : Stern v. O'Connell, 35 N. Y^. 104 
 (1866). See Weyh v. Boylan,'62 How. (N. Y.) 397 (1882), aff' d 
 63 id. 72 (1882), where, after the commencement of the action 
 and the filing of a Us jjendejis, the mortgagor conveyed his equity 
 of redemption and died ; the grantee was held an unnecessary 
 party on reviving the action. 
 
 •* New York Code, § 1671 ; Thomas on Mortgages, p. 255. 
 
 5 Harrington v. Slade, 22 Barb. (N. Y.) 161 (1856). See § 40, 
 ante. 
 
 « Burroughs v. Reiger, 12 How. (N. Y.) 172 (1856); Muscott 
 
 V. Wool worth, 14 id. 477 (1857) ; Butler v. Tomlinson, 38 Barb. 
 
 (N. Y.) 641 (1862) ; S. C, 15 Abb. (N. Y.) 88 (1862) ; Tate v. Jor- 
 
 •dan, 3 id. 392 (1856); Fuller v. Scribner, 16 Hun (N. Y.), 130 
 
 (1878); ard, 76 N. Y. 190 (1879). 
 
 7
 
 98 PARTIES TO MORTGAGE FORECLOSURES. 
 
 within which the summons must be served, or the notice 
 would become void.' 
 
 Prior incumbrancers and persons whose rights are 
 superior to those of the plaintiff are not affected by the 
 notice." So, also, a person who claims title by virtue 
 of a tax deed is not bound by the notice.'^ The notice 
 oilis pendens is made by statute constructive notice to per- 
 sons who are not parties to the action, but who acquire 
 their rights from or under those who have been brought 
 within the jurisdiction of the court. As their rights alone 
 are affected, they alone can take advantage of the omis- 
 sion to file tiie notice, or of any defects in it.* Whenever 
 there is a defect in filing the lis pendens, as the neglect 
 to file the complaint with it, and any person obtains an 
 interest in or a lien upon the equity of redemption from 
 a party defendant during the pendency of the action and 
 the continuance of the defect, he will not be bound by 
 the decree and may redeem f the purchaser at a sale 
 under the decree of foreclosure will receive a defective 
 title, although an order ma^' have Ijeen made that the 
 complaint be filed nunc pro tunc. 
 
 1 New York Code, § 1670 ; in point, Weeks v. Tomes, 16 Hun 
 (N. Y.), 349 (1878) ; aft 'd 7f> N. Y. 601 (1879). 
 
 2 IStuyvesant v. Hall, 2 Barb. Ch. (N. Y.) 151 (1847); «tuy- 
 vesaiit V. Hone, 1 Sandf. Ch. (N. Y.) 419 (1844) ; Bank v. Con- 
 nelly, 8 Abb. (N. Y.) 128 (1858) ; Chapman v. Draper, 10 How. 
 (N. 'Y.) 367 (1854); Chapman v. West. ImplVl, 17 N. Y. 125 
 (1858). 
 
 3 Becker v. Howard, 4 Hun (N. Y.), 359 (1875); aff"d, 66 
 N. Y. 5 (1876). 
 
 ^ White V. Coulter, 1 Hun (N. Y.), 357 (1874). 
 ■ 5 Weeks v. Tomes, 16 Hun (N. Y.), 849 (1878); Dakin v. 
 Insurance Co., 77 N. Y. 601 (1879). In point, Olson v. Paul, 56 
 Wis. 30 (1882).
 
 THE MORTGAGOR A MARRIED WOMAN. 99 
 
 § 43. Mortgagor a married, woman, having a separate 
 estate, necessary. 
 
 Where a married woman holds the fee title of property 
 in her own name as a separate estate, and mortgages 
 the same, or where she becomes the owner of the equity 
 of redemption in property j)reviously mortgaged, she is 
 a necessary party to a foreclosure for the purposes stated 
 in this chapter.^ A married woman had no capacity at 
 common law to make contracts, and consequently no 
 right to execute a mortgage on her separate estate. 
 Statutes in England and America have greatly enlarged 
 a married woman's rights in property, so that she can 
 now make valid contracts affecting her real estate ; but 
 in Massachusetts, New Jersey and Pennsylvania it is 
 necessary, even at the present day, for the husband to 
 join with his wife in the execution of a mortgage upon 
 her separate estate in order to make the mortgage valid.- 
 It is in New York,^ especially, that married women's 
 rights have been increased, so that at present the law 
 
 1 Cotide V. 8hepard, 4 How. (N. Y.) 75 (1849). For an exhaust- 
 ive history and review of the cases afiecting the rii4:ht of a feme 
 covert to mortgage her real estate, see the leading case of Albany 
 Fire Ins. Co. v. Bay, 4 N. Y. 9, 38 (1850); aff'.i: 4 Barb. 407 
 (1848); opinions by Jewett, Taylor and Pratt, JJ. Eaton v. 
 Nason, 47 Me. 132 (18(50) ; Ellis v. Keiivmi, 25 bid. 134 (1865) ; 
 Newhart V. Peters, 80 N. C. Rep. 106 (1879) ; Galwav v. Fuller- 
 ton, 2 C. E. Green (17 N. J. Eq.), 389 (1866) : McFerlin v. Meni- 
 fee, 6 Coldwell (Teim.), 499(1869) ; Hill v. Edmonds, 5 De G. & 
 8. (Erl^^) 603 (1852) : Thomas on Mort^^ages, p. 196. 
 
 2 Weed KSewiug Mach. Co. v. Emerson; 115 Mass. 554 (1874); 
 Armstrotig v. Ross, 20 N. J. Eq. 109 (1869); Merchant v. Thom- 
 son, 34 id. 73 (1881), and the cases cited ; Black v Galway, 24 
 Pcnn. Ht. 18 (1854). Conflicting witli this case, see Glass v.' 
 Warnick, 40 Penn. 140 (1861), and Gralinin v. Lony, 65 id. 383 
 (1870). «ee the New York act of 1848. 
 
 3 Laws of New York 1848, chap. 200; 1849, chap. 375; 18(50, 
 chap. 90; 1862, chap. 172; 1884, chap. 381.
 
 100 PARTIES TO MORTGAGE FORECLOSURES, 
 
 applicable to the subject-matter of this work, with 
 reference to a male or a feme sole, is equally applicable 
 with reference to nfeme covert. The interesting question 
 of a married woman's liability for a personal judgment 
 of deficiency will be fully considered hereafter.^ 
 
 § 44. Wife of mortgagor or o^vner of the equity of redemp- 
 tion necessaiy. 
 
 It has become a settled rule of law in all states where 
 the common-law doctrine of dower remains unchanged, 
 and in many states where statutes have prescribed a 
 wife's rights in the real estate of her husband, that the 
 inchoate right of dower of a wife in the lands of her 
 husband is a real and existing interest, and as much en- 
 titled to protection as the vested rights of a widow ; and 
 that neither can be impaired by any judicial proceedingto 
 which the wife or widow is not made a party. As 
 such rights constitute an interest in real estate, it is 
 plain that a wife or widow must be made a party to a 
 foreclosure suit where she has signed the mortgage, re- 
 leased her rights otherwise, or acquired those rights 
 subsequent to the execution of the mortgage. The 
 right of a wife to be endowed of an equity of redemp- 
 tion has long been put at rest. She is an absolutely 
 necessary party to an action in order to produce such a 
 title as a' purchaser at the sale will be compelled to 
 accept."^ If the mortgagor has two wives, both are 
 
 1 8ee §§ 96 and 97, post. 
 
 2 Bell V. The Maj-or, 10 Pai^re (N. Y.), 49, 67 (1S43) ; Denton 
 V. jSaiinv, 8 Barb. (N. Y.) 618 aSSO); Mills v. Van Voorhies, 20 
 N. Y. 412 (1859); Merchant's Bank v. Thomson, 55 id. 7 (1873); 
 Wheeler v. Morris. 2 Bosw. (N. Y.) 524, 529 (1858). See Kay v. 
 Whittaker, 44 N. Y. 565, 572 (1871), holding that the wife is not 
 an indispensable defendant to sustain the action, but that her rights
 
 WIFE OF MORTGAGOR A DEFENDANT. 101 
 
 necessary defendants.^ Though a wife may have made 
 a grant of her inchoate right of dower, she remains a 
 necessary party ; the grantee acquires no interest by the 
 conveyance, as an inchoate right of dower is inalienable." 
 Wherever the right of dower has been abolished by 
 statute, the wife is not a necessary defendant, as she 
 has no interest in her husband's lands.^ 
 
 will not becut off bv the decree, unlesssheis made a party ; Kittle 
 V. Van Dyck, 1 Haudf. Ch. (N. Y.) 76, 79 (1^43); Blydenburgh v. 
 Northrop, 13 How. (N. Y.) 289 (185 ■), relying upon Denton v. 
 Nanny, supra; Hubbell v. ISibley, 5 Lans. (N. Y.) 56(1871); 
 Mabnry v. Ruiz, 58 Cal. 11 (1881) ; Watt v. Alvord, 25 Ind. 533 
 (1865) ; Verry v. Robinson, 25 id. 14 (1865) ; Kissel v. Eaton, 
 64 id. 248 (1878); Daniels v. Henderson, 5 Fla. 452 (1854); 
 Smith V. Eustis, 7 Me. 41 (1830); Campbell v. Knights, 24 id. 
 332 (1844); Gage v. Ward, 25 id. 101 (1845); Richardson v. 
 Skoltield, 45 id. 386 (1858) ; Atkinson v. Stewart, 46 Mo. Rep. 
 510 (1870) ; Snyder v. Snyder, 6 Mich. 470 (1859) ; Swan v. Wis- 
 wall, 15 Pick. (Mass.) 1*26 (1833); Lund v. Woods, 11 Mete. 
 (Mass.) 566 (1846). See Rands v. Kendall, 15 Ohio Rep. 671, 675 
 (1846), where the law of dower in Ohio is explained, with citations 
 from cases and statutes ; Taylor v. Fowler, 18 id. 567 ; Conover 
 V. Porter, 14 Ohio St. 450 (1863) ; McArthur v. Franklin, 15 id. 
 485 (1864); S. C, 16 id. 193 (1865); State Bank of Ohio v. 
 Hinton, 21 id. 509 (1871); Ketchum v. Shaw, 28 id. 503 (1876) ; 
 Chiswell V. Morris, 1 McCarter (14 N. J. Eq.), 101 (1861) ; El- 
 dridge v. Eldridge, lb. 195; James v. Fields, 5 Heisk. (Tenn.) 
 394 (1871); Gresrg v. Jones, lb. 443; Calmes v. McCrocker, 
 8 Rich. (S. C.) 87 (1876). But see Verree v. Verree, 2 Brev. 
 (S. C.) 211 (1807), holding that in 1807 a wife was not entitled to 
 dower in an equity of redemption. In Newhall v. Lynn Bank', 
 101 Mass. 428 (1869), the wife of a husband who had made an 
 assignment in batd^ruptcy was held a necessary party ; but in 
 Huston V. Neil, 41 Ind. 504 (1873), it was held that a wife had no 
 interest in the partnership real estate of her husband, and ac- 
 cordingly was not, a necessary party to the foreclosure of a mort- 
 gage on the same. 
 
 1 Wood V. Chew, 13 How. (N. Y.) 86 (1856). 
 
 2 Earle v. Barnard, 22 How. (N. Y.) 437 (1862). 
 
 3 See Ethridge v. Vernoy, 71 N. C. Rep. 184 (1874). See 
 Thornton v. Pi^g, 24 Mo. Rep. 249 (1857), for the statute in 
 Missouri, foreclosure being held a statutory action at law, and
 
 102 PARTIES TO MORTGAGE FORECLOSURES. 
 
 If the wife has signed the mortgage, she is, of course, 
 a necessary defendant.' " The only reason why the wife 
 of a mortgagor, wlio joins in the execution of such an 
 instrument, should be made a party, is to bar the equity 
 of redemption in her right of dower, or to give her the 
 opportunity, before it is foreclosed, to redeem and pre- 
 vent its sale."^ If the mortgage was executed by 
 the husband before marriage, the wife is as necessary a 
 defendant as though it had been executed by both after 
 marriage and during coverture f after the husband's 
 death the widow remains a necessary party .^ 
 
 not an equitable action. See the preceding section for other 
 cases. 8ee Pitts v. Aldrich, 11 Allen (Mass.), 89 (1865). 
 
 1 Leonard v. Adm'r of Villars, 23 111. 377 (1860) ; Chambers v. 
 Nicholson, 80 Ind. 849 (1868) ; Hartshorne v. Hartshorne, 1 Green 
 Ch. (N. J.) 849 (1840) ; Hinchman v. Stiles, 1 Stockt. Ch. (N. J.) 
 361 (1853). Upon the general question of a wife's right of dower 
 in mortgaged i)rendses, see Campbell v. Caurpbell, 30 N. J. Eq. 
 415 (1879). See the cases cited in the first note to this section. 
 Cory V. Wheeler, 14 Wis. 281 (1861); Powell v. Ross, 4 Cal. 197 
 (1854). See Nimrock v. Scanlin, 87 N. C. Rep. 119 (1883). In 
 Pitts V. Aldrich, 11 Allen (Mass.), 89 (1865), the wife was held not 
 a necessary party where she had signed the mortgage. Colt, • 
 J., writing the opinion and collating the authorities, says that 
 the law of Massachusetts on this point differs from that of all the 
 other states. In Minis v. Minis, 1 Humph. (Tenn.) 425 (1839), 
 a widow who had si^'^ned a mortgage was held not a necessary 
 party. See Mclver v. Cherry, 8 i"d.'718 (1848). 
 
 2 Wright V. Langley, 86 111. 381, 388 (1865). 
 
 3 Smith V. Gardner, 42 Barb. (N. Y.) 856 (1864). See North- 
 rup V. Wheeler. 43 How. (N. Y.) 122 (1872), where the foreclosure 
 was bv advertisement; Gilbert v. Mai^irard, 1 Scam. (111.) 471 
 (1838).' See Bolton v. Ballard, 18 Mass.>27 (1816); Hildreth v. 
 Jones, lb. 525 ; Eaton v. Simonds, 14 Pick. (Mass.) 9cS (1888). 
 Seemingly contra, Bird v. Gardner, 10 Mass. 864 (1813). In 
 Wilson V. Scott, 29 Ohio St. {5oii (1876), the wife of a mortgagor, 
 who had executed the mortgage before marriage, was held not a 
 necessary defendant. See the Indiana and Illinois cases cited 
 on purchase-money mortgages in the following notes. 
 
 ^ Burton v. Lies, 21 Cal. 87 (1862).
 
 WIFE OF MORTGAGOR A DEFENDANT. 103 
 
 Where the mortgage was given for purchase-money, 
 the wife's inchoate right of dower attaches to the equity 
 of redemption, and she is just as necessary a defendant 
 as she would have been, had she signed the mortgage, 
 and her rights will not be affected unless she is made 
 a party to the action/ But in Illinois,- Indiana^ and 
 Michigan ^ the contrary ruling prevails, that the wife 
 is not a necessary defendant. If the wife does not 
 sign"" a mortgage executed by her husband during 
 coverture, an action to foreclose it will not affect her 
 rights, even if she is made a party, without allegations 
 
 1 Mills V. Van Voorhies, 20 N. Y. 412 (1859) ; S. C, 10 Abb. 
 (N. Y.) 152 (1859), aff'g 23 Barb. 125 (1856). JuDaE Selden, 
 writing the opinion, cites Stow v. Tifft, 15 Johns. (N. Y.) 458 
 (1818), and gives a sketch of the history of the statute for pur- 
 chase-money mortgao-es. Wheeler v. Morris, 2 Bosw. (N. Y.) 524 
 (1858); Blydenburgh V. Northrop, 13 How. (N. Y.) 289 (1856). 
 Breckett v. Baura, 50 N. Y. 8 (1872), per Rapallo, J., holds that 
 the wife is not a necessary party in the foreclosure of a purchase- 
 money mortgage by advertisement. Carter v. G-oodwin, 3 Ohio 8t. 
 75 (1853) ; Welch v. Buckins, 9 id. 331 (1859) ; Culver v. Harper, 
 27 id. 464 (1875) ; Fox v. Pratt, lb. 512 ; Young v. Tarbell, 37 
 Me. 509 (1854) ; Thompson v. Lyman, 28 Wis. 266 (1871) ; Cary 
 v. Wheeler, 14 id. 281 (1861); Foster v. Hickox, 38 id. 408 
 (1875); authorities collated and the subject generally discussed, 
 per Ryan. Ch. J. 
 
 2 Short V. Raub, 81 111. 509 (1876), relying upon Stephens v. 
 Bichnell, 27 id. 444 (1862). 
 
 3 Fletcher v. Holmes, 32 Ind. 497, 506, 536 (1870) ; opinions 
 per Elliott, J., and Gregory, Ch. J., collating and reviewing 
 the cases; Frozer, J., wrote a dissenting opinion. See Walters 
 v Walters, 73 Ind. 425 (1881). But dower was abolished in 
 Indiana by the Code of 1852, and. the wife was made an heir. 
 Hoskins v. Hutchings, 37 id. 324 (1871) ; May v. Fletcher, 40 id. 
 575 (1872), per Wooden, J., citing Fletcher v. Holmes, supra, and 
 collating the cases. Seethe Indina acts of 1875 and 1879. See 
 the early case of Nottingham v. Calvert, 1 Carter (Ind.), 527 
 (1849), ap})arently supporting the New York rule. 
 
 4 Amphlett v. Hibbard, 29 Mich. 298 (1874). 
 
 ^ Parmenter v. Binkley, 28 Ohio St. 32 (1875) ; Baker v. 
 Scott, 62 111. '6^ (1871) ; Sutton v. Jervis, 31 Ind. 265 (1869) ; Leary
 
 104 PARTIES TO MORTGAGE FORECLOSURES. 
 
 ill the complaint setting forth the facts, and even with 
 such allegations it is doubtful whether her rights will 
 be affected in any way.^ In an action brought by a 
 widow for the recovery of her dower in lands which 
 had been sold under the foreclosure of a mortgage which 
 she had not executed with her husband, her dower was 
 held paramount to the mortgage and not affected by the 
 foreclosure, although she was made a defendant under the 
 general allegation of having some interest in the mort- 
 gaged premises.' Where a widow's dower has been ad- 
 measured in premises mortgaged by her husband alone, 
 the decree of foreclosure should be for the sale of the 
 remaining two-thirds in the first j)lace, and then for the 
 sale of the admeasured third, — subject, however, to the 
 dower.^ If a wife or widow, having a right of dower, is 
 not made a party, it is believed that the mortgagor 
 and other defendants may object to the omission by 
 demurrer or answer.* The wife of a mortgagor is no 
 more a necessary party than the mortgagor himself 
 after she has joined in a deed with him, conveying their 
 equity of redemption to a purchaser.^ 
 
 V. Shaffer, 79 id. 567 (1881) ; Amphlett v. Hibbard, 29 Mich. 298 
 (1874) ; Mooiiey v. Maas, 22 Iowa, 380, 383 (1867). A mortgage 
 signed by a wife, but not acknowledged by her, is not so executed 
 as to release her dower. Westfall v. Lee, 7 Clarke (Iowa), 12, 14 
 (1858); Sheldon v. Patterson, 55 111. 507 a870). See Walsh v. 
 Wilson, 130 Mass. 124 (1881). 
 
 1 Lewis V. Smith, 9 N. Y. 502, 514, 519 (1854), affV H Barb. 
 152; Merchants' Bank v. Thomson, 55 N. Y. 7 (1873); Payn v. 
 Grant, 23 Hun (N. Y.), 134 (1880) ; Foster v. Hickox, 38 Wis. 
 408 (1875). 
 
 2 Lewis V. Smith, 9 N. Y. 502 (1854). 
 
 3 Morton v. Noble, 22 Ind. 160 (1864). 
 
 '^ See § 38, ante, last pai'agraph ; contra, Jones, § 1420. 
 ^ The reasons stated in § 35, ante, apply to the wife or widow 
 as well as to the mortgagor. Elmendorf v. Lockwood, 4 Lans.
 
 REMEDY OF WIFE WHEN OMITTED. 105 
 
 The remedy of the wife or widow, whenever she is 
 omitted as .a party, is to redeem,^ but this right to 
 redeem does not accrue until the death of the husband, at 
 which time the dower becomes fixed.'- She can, however, 
 assert her rights before the death of her husband, and 
 have the value of her inchoate dower computed by the 
 annuity tables and paid.' Ejectment cannot be main- 
 tained by a wife or a widow.* If the widow accepts a 
 devise or bequest, which is made to her in lieu of 
 dower, it is believed that she will not be a necessary 
 defendant.'' 
 
 § 45. Wife of mortgagor ; service of summons or process. 
 
 At common law, and in the chancery practice of 
 this state, the summons, or subpana, was not required 
 to be served upon the wife of the owner of the equity 
 of redemption, where she was made a party to the 
 
 (N. Y.) 393 (1871). In Maloney v. Horan, 12 -Abb. N. «. (N. Y.) 
 289 (1872), where a deed was set aside as fraudulent, the wife was 
 held restored to her dower. See Papkin v. Bumstead, 8 Mass. 
 491 (1812). 
 
 1 Mills V. Van Voorhies, 20 N. Y. 412 (1859) ; Ross v. Board- 
 man, 22 Hun (N. Y.), 527 (1880) ; Bell v. Mayor of New York, 10 
 Pai^e (N. Y.), 49 (1843); Denton v. Nanny, 8 Barb. (N. Y.) 618 
 (1850) ; Carll v. Butman, 7 Me. 102 (1830) ; Gibson v. Crehore, 5 
 Pick. (Mass.) 146 (1827) ; Van Vranker v. Eastman, 7 Mete. 
 (Mass.) 157 (1843). See Sheldon v. Patterson, 55 111. 507 (1870), 
 where several morto"ages, some of which the wife had not exe- 
 cuted, were foreclosed in one action ; Opdyke v. Bartles, 3 Stockt. 
 Ch. (N. J.) 133 (1856). 
 
 2 White V. Coulter, 1 Hun (N. Y.), 357, 366 (1874), modilied in 
 58 N. Y. 629 (1874) ; Morton v. Noble, 22 Ind. 160 (1864), followed 
 in Grable v. McCulloch, 27 id. 472 (1867). 
 
 •^ Unger v. Loiter, 32 Ohio St. 210 (1877). 
 
 ^ Smith V. Gardner, 42 Barb. (N. Y.) 356 (1864). 
 . ■'• Zaegel v. Kuster, 51 Wis. 31 (1881). See Lewis v. Smith, 9 
 N. Y. 502 (1854).
 
 106 PARTIES TO MORTGAGE FORECLOSURES. 
 
 foreclosure for the purpose of cutting off her inchoate 
 right of dower ; but the husband was bound, except 
 where the estate was the separate property of the wife, 
 to enter a joint appearance and to put in a joint answer 
 for himself and wife. This practice was based upon 
 the common-law doctrine that a husband and wife are 
 one person, and that the wife's inchoate right of dower 
 was a kind of interest which resulted from the marital 
 relation, and did not belong to her as a separate estate.^ 
 " The general rule is, that the service of a subpoena 
 against husband and wife on the husband alone is a good 
 service on both, and the reason is, that the husband and 
 wife are one person in law, and the husband is bound 
 to answer for both." - It must be kept in mind that 
 such service upon the husband is good only when the 
 wife's interest in the property is an inchoate right of 
 dower ; when her sej)arate property is concerned in the 
 action, she must be personally served.'^ It is to be fur- 
 ther observed that the summons or process must be 
 directed to the wife ; if her name is omitted, the court 
 acquires no jurisdiction of her, and her inchoate right 
 of dower will not be cut off or affected in any way by the 
 action ; her right to redeem would become perfect at 
 the death of her husband. 
 
 1 Ferguson v. Smith, 2 Johns. Ch. (N. Y.) 139 (1816) ; Leavitt 
 V. Cruger, 1 Paige (N. Y.), 421 (1829) ; Eckerson v. Volhner, 11 
 How. (N. Y.) 42 (1855); Foote v. Lathrop, 53 Barb. (N. Y.) 183 
 (1869), appeal dismissed in 41 N. Y. 358 (1869); Lathrop v. 
 Heacock, 4 Lans. (N. Y.) 1 (1871). 
 
 2 Ferguson v. Smith, supra, per Chancellor Kent. 
 
 3 Watson V. Church, 3 Hun (N. Y.), 80 (1874) ; Lathrop v. 
 Heacock, 4 Lans. (N. Y.) 1 (1871): White v. Coulter, 3 T. & C. 
 (N. Y.) 608 (1874) ; Watson v. Church, 5 id. 243 (1875) ; Mills v. 
 Van Voorhies,10 Abb. (N. Y.) 152 (1859) ; McArthur v. Franklin, 
 15 Ohio St. 485 (1864).
 
 SERVICE OF SUMMONS ON WIFE IN NEW YORK. 107 
 
 It is believed that this practice has been changed in 
 New York by the Code of Civil Procedure. There is 
 some conflict of opinion in the reported cases as tu the 
 interpretation of § 450,' but the latest decisions indicate 
 that the summons must be served upon the wife, and 
 that service upon her husband alone is not sufficient.' 
 In a case in Maryland, a summons was directed to the 
 wife, but not served upon her ; the court said that as she 
 had a potential right of dower, and was not within its 
 jurisdiction, she was not affected by the action f and in 
 another case, where a husband appeared and confessed 
 a bill for the foreclosure of a mortgage executed by him- 
 self and wife, the wife was held not bound by the de- 
 cree, as she did not appear in person and no summons 
 was issued against her.^ Under the old practice, too, 
 the wife could not appear separately and on her own 
 account in an action to cut off her inchoate dower, 
 without leave of the court ; now, however, there is no 
 question but that the wife of the owner of the equity 
 of redemption may appear and defend in her own 
 name and by her own attorney, as though she were a 
 feme sole.'' After the death of the husband, service 
 
 1 Old New York Code, § 114. 
 
 2 White V. Coulter, 59 N. Y. 629 (1874), modifyino- 1 Hun, 
 357 (1874). See Weil v. Martin, 24 Hun (N. Y.), 645 (1881); 
 Hubbell V. Sibley, 5 Lans. (N. Y.) 51 (1871). In Nortlirup v. 
 Wheeler. 43 How. (N. Y.) 122, 123 (1872), the foreclosure was 
 by advertisement, and service uj)on the wife was held indispen- 
 sable under the statute. See also the cases cited below, 
 
 3 Hurtt V. Crane, 36 Md. 29 (1872). 
 ^ Pope V. North, 33 III. 440 (1804). 
 
 •'■' Janinski v. Heidelberg, 21 Hun (N. Y.), 439 (1880); 
 Muser v. Miller, 3 Civ. Pro. Rep. (N. Y.) 394 (1883) ; S. C, 65 
 How. (N. Y.) 286 (1883) ; Throoi)'s Code, page 440 ; New York
 
 108 PARTIES TO MORTGAGE FORECLOSURES. 
 
 of the summons or notice upon the widow is indispen- 
 sable/ 
 
 § 46. Wife of mortgagor or owner of equity of redemption 
 not necessary in those states where the common- 
 la^v doctrine of dow^er has been changed. 
 
 In those states where statutes have been enacted 
 which completely sever the husband and wife, and 
 make them independent of each other, as to their 
 rights in real property, the wife is not a necessary party 
 to an action to foreclose a mortgage upon her husband's 
 property, even though she signed the mortgage.'- The 
 reason of this rule is, that, as she has no interest 
 whatever in her husband's real estate, she can have no 
 interest whatever in an action affecting it. In North 
 Carolina the husband has absolute dominion over his 
 land during his life, and can give a perfect conveyance 
 of it without the consent of his wife ; in that state, 
 therefore, the wife is not a necessary party to the fore- 
 closure of a mortgage against her husband's property.^ 
 But if the wife has signed the bond or instrument of 
 indebtedness, charging herself with its payment, and a 
 personal judgment for deficiency is sought against her, 
 she is a necessary party for that purpose.* 
 
 Code, § 450 ; Fitzgerald v. Quaini, 1 Civ. Pro. Rep. (N. Y.) 278 
 (1881) ; 8. C, lb. 279 ; Fitzsimous v. Harrington, lb. 360 ; co7itra, 
 Fitzgerald v. Qtiann, lb. 273. 
 
 1 King V. Diintz, 11 Barb. (N. Y.) 191 (1851). See § 44, ante, 
 and the cases cited. 
 
 - Miles V. Smith, 22 Mo. 502 (1856) ; Thornton v. Pigg, 24 id. 
 249 (1857) ; Powell v. Ross, 4 Cal. 197 (1854) ; Etheridge v. Ver- 
 noy, 71 N. C. Rep. 185 (1874). See Stevens v. Campbell, 21 Ind. 
 471 (1863). 
 
 ■^ Etheridge v. Vernoy, 71 N. C. Rep. 185 (1874). 
 
 ^ See §§ 96 and 97, post.
 
 WHEN HUSBAND A NECESSARY PARTY. 109 
 
 § 47. The husband of a mortgagor -who is a married -woman, 
 having a separate estate, generally not necessary. 
 
 In most states where the common-law doctrine of 
 curtesy remains unmodified by statute, a husband who 
 joins with iiis wife in executing a mortgage on her 
 separate real property is not a necessary defendant, 
 if the sale in the action to foreclose takes place 
 during the wife's Hfe-time.^ Neither by common-law 
 nor the statute of any state does a husband have any 
 interest in his wife's real property until her death. This 
 is the general rule ; but in some states the husband is 
 deemed a necessary party, owing to statutory enact- 
 ments and the special rules of their courts.- Four 
 things are requisite to an estate by curtesy,'^ to wit : 
 marriage, actual seisin of the wife, issue, and the death 
 of the wife ; and in New York the wife must die intes- 
 tate. Upon the death of the wife intestate, after the 
 accomplishment of these four requisites, the husband 
 
 1 Trustees of Jones Fund v. Roth, 18 Wk. Dig. (N. Y.) 459 
 (1883), citing the statutes, and explaining the legal reasons for 
 tfie rule; contra, Jones, § 1424. 
 
 2 The husband has been held a necessary party in the follow- 
 g cases : Andrews v. y wanton, 81 Ind. 474 (1882) ; Hilton v. 
 
 Lothrop, 46 Me. 297 (1858) ; Wolf v. Banning, 8 Minn. 202 
 859); Ya.^-er v. Merkle. 26 id. 429 (1880). Landon v. Burke, 
 36 Wis. 378 (1874), cites a statute making the husband a necessary 
 party ; Mavrich v. Grier, 3 Nev. 32 (1867). In some states a 
 mortgage executed by a married woman upon her separate real 
 estate is void, unless her husband joins in its execution ; in these 
 states he is of course a necessary party to a foreclosure. Weed 
 Sewing Mach. Co. v. Emerson, 115 Mass. 554 (1874). ISee the 
 Mass. Laws of 1874. chap. 184 ; Harrison v. Brown, 16 Cal. 287 
 (1860) ; Camden v. Vail, 23 id. 633 (1863) ; Black v. Galway, 24 
 Penn. 18 (1854). See the New York act of 1848 ; also § 43, ante, 
 and the second note to the section. 
 ■^ 4 Kent, 29.
 
 110 PARTIES TO MORTGAGE FORECLOSURES. 
 
 becomes a necessary defendant in order to cut off his 
 curtesy and to perfect the title/ 
 
 In those states where statutes have made wholly 
 separate and independent of each other the respective 
 estates of a husband and a wife, the husband has no 
 right to curtes}^ nor to any other interest in his wife's 
 real propertj^ and is consequently not a necessary part}^, 
 so far as the title is concerned. If, however, he has 
 obligated himself for the indebtedness by signing a note 
 or bond, he is a necessary party if a personal judgment 
 for a deficiency is sought against him.'- 
 
 § 48. Heirs of mortgagor or owner of the equity of redemp- 
 tion necessary. 
 
 The heirs'' of a mortgagor or person who dies seized 
 of the equity of redemption in mortgaged premises are 
 as necessarj^ parties to a foreclosure as the deceased 
 
 1 Leggett V. McClelland, 89 Ohio, 624 (1883) ; Foij-al v. Pirro, 
 10 Bosw. (N. Y.) 100 (1862). 
 
 - Bnildiiier, Loan & kSaviiigs Assoc, v. Camnian, 11 N. J. Eq. 
 (3 8tockt.) 382 (1857) ; Tbomtoji v. Pigg, 24 Mo. 249 (1857); Rid- 
 dick V. Walsh, 15 id. 519, 538 (1852). See i<i^ 92 and 93, post. 
 
 3 Willianiso!! v. Field, 2 8andf'. Ch. (N. Y.) 533 (1845); 
 Bigelow V. Bush, 6 Paiije (N. Y.), 345 (1837) ; Leonard v. Morris, 
 9 id. 90 (1841); WoodV. Moreliouse, 1 Lans. (N. Y.) 405 (1869); 
 Kiernan v. Blackwell, 27 Ark. 235 (1871); Pillow v. Sentelle, 39 
 id. 61 (1883); Brown v. Orr, 29 Cal. 120 (1865) ; Burton v. Lies, 
 21 id. 87,91 (1862); Pritchard v. Elton, 38 Conn 434 (1871); 
 Biitton V. Hunt, 9 Kan. 228 (1872); Brenner v. Bigelow, 8 id. 
 496, 504 (1871); Abbott v. Godfroy's Heirs, 1 Midi. 178 (1849), 
 per Miles, J., collating and reviewing the authorities. Duval v. 
 McCloskey, 1 Ala. 70S (1840) ; Erwin v. Ferguson, 5 id. 158 
 (1843) ; Hunt v. Acre, 28 id. 580 (1856) : Lane v. Erskine, 13 111. 
 501 (1851\ approved and followed in Harvey v. Pius, 14 id. 217 
 (18.52); tSlaughter v. Foust, 4 Blackf. (Ind.) 379 (1837) ; Shaw v. 
 Hoadley, 8 id. 165 (1846); Ts'ewkirk v. Burson, 21 Iiid. 129 
 (1863) ; McKay v. Wakefield, 63 id. 27 (1878) ; White v. Ritt- 
 niyer, 30 Iowa, 268, 272 (1870), citing many cases and authorities ;
 
 HEIRS OF MORTGAGOR NECESSARY. Ill 
 
 mortgagor or owner would have been, if the action had 
 been brought in his life-time, as they succeed by 
 operation of law^ under the statute of descent to the en- 
 tire interest of the decedent in the property, the same 
 as a purchaser would succeed to such interest by grant. 
 It is not sufficient to make the personal representatives 
 of the deceased owner alone defendants,' except in cases 
 of foreclosure by advertisement.- The guardian of an 
 infant heir is not a necessary party, but the infant must 
 be made a defendant, and the process of the court must 
 
 Smith V. Mainnng-. 9 Mass. 422 (1812); Barrett v. Cochran, 8 
 Rich. (S. C.) 48 (1875); Williams v. Beard, 1 id. 809 (1869); 
 (xeorge v. Cooper, 15 W. Va. ijQ>3 (1880); Houy-htoii v. Mariner, 
 7 Wis. 244 (1858) ; Stark v. Brown, 12 id. 572 (18(30). See the 
 statute of 1842; Zae^el v. Knster, 51 Wis. 31 (18^1), explaining 
 the statute of 1860, chap. 'S{5o ; Denison v. League, 16 Tex. o99, 
 409 (1856); Averett v. Ward, 1 Busbee's Eq. (N. C.) 192 (1853). 
 In Indiana the widow is made an heir by statute, and is a neces- 
 sary party. See Fletcher v. Holmes, 32 lud. 497, 510 (1870), and 
 the cases cited. A sale lias been held wholly void for the omission 
 of the heirs. Kenshaw v. Taylor, 7 Or. 31 5 (1879); Shiveley's 
 Adm's V. Jones, 6 B. Mon. (Ky.) 274 (1845). In Massachusetts, 
 where there is a tenant in })Ossession on whom to serve the pro- 
 cess, the heirs are not necessary parties. Shelton v. Atkins, 22 
 Pick. (Mass.) 71 (1839). The heii's of a sub-vendee are necessaiy 
 defendants in the foreclosure of a land contract, Batre v. Auze's 
 Heirs, 5 Ala. 173 (1843). 
 
 1 Stark V. Brown, 12 Wis. 572 (1860). See the statute of 1842, 
 referred to; Zaegel v. Kuster, 51 id. 31 (IS'^l). In Missouri the 
 heirs are by statute not necessary parties, Perkins v. Wood, 27 
 Mo. Rep. 547(1858); Code of 1845. See Dixon"s Adm's v Cuyler's 
 Adm's, 27 Ga. 248 (1859), holding the ])ersonal representatives 
 instead of the heirs necessary parties. See § 51, i:ost. 
 
 - Low V. Purdy, 2 Lans. (N. Y.) 424 (1869); Mackenzie v. 
 Alster, 64 How. (N. Y.) 388 (1882). See g 51, post, and the cases 
 cited in the last para,y-raph. In IlliTiois, in a foreclosure by scire 
 facias, it has been held sufficient under the statute to make either 
 the heirs, or the executoi\s or administrators parties. Rockwell v. 
 Jones, 21 111. 279 (1859); John v. Hunt, 1 Blackf. (Ind.) 324 
 (1824).
 
 1 1 2 PARTIES TO MORTGAGE FORECLOSURES. 
 
 be personally served upon him.^ In reviving a foreclosure 
 commenced against a deceased mortgagor in his life-time, 
 his heirs are necessary parties in order to produce a perfect 
 title. Thus, a grantor died during the pendency of an 
 action in the nature of a foreclosure, for an accounting 
 and sale of the premises, brought upon a deed given to 
 secure an advance of money ; and the suit having been 
 revived against his administrator alone,. a bidder at the 
 sale was relieved of his bid on the ground that the title 
 offered was defective, the heirs having been omitted as 
 defendants.^ The general principles of law that have 
 been previously stated as rendering a mortgagor or an 
 owner of the equity of redemption by purchase a neces- 
 sary party, are equally applicable to the heirs at law of 
 such a mortgagor or owner;^ 
 
 If the mortgagor parted in his life-time with the 
 equity of redemption, his heirs at law are not necessary 
 parties;^ but where the mortgagor at his decease still 
 holds an equitable interest in the equity of redemption, 
 his heirs, succeeding to his identical rights, will or will 
 not be necessary parties according to the rules of law 
 previously stated;^ If a judgment for deficiency is 
 
 1 Alexander v. Frary, 9 Ind. 481 (1857) ; Moore v. Starks, 
 1 Ohio St. 369 (1853). See the New York Code, § 426. 
 
 2 Dodd V. Neilson, 90 N. Y. 243 (1882). In Givens' Adm'rs v. 
 Daveiiportj 8 Tex. 451 (1852), the heirs of a mortgagor who 
 died pending the foreclosure were held not necessary parties in 
 revivinjj- it ; aliter where the action was connnenced against the 
 personal representatives after the death of the mortgagor. 
 
 3 Qgg S 38 cintG. 
 
 -t Dalv V. 'Burc'hall, 13 Abb. N. S. (N. Y.) 264,268 (1872). 
 In point, Wilkins & Hall v. Wilkins, 4 Port. (Ala.) 245 (1837) ; 
 Medlev v. Elliott, 62 111. 5S2 (1872) ; Hibernia Savings Society 
 V. Herbert, 53 Cal. 375 (1879). See § 35, ante, 
 
 ■' See §§ 36 and 37, cmte.
 
 HEIRS OF MORTGAGOR NECESSARY. 113 
 
 sought against the estate of a deceased mortgagor, or of 
 a deceased purchaser, who has duly assumed the pay- 
 ment of the mortgage debt, the legal representatives of 
 the decedent are necessary parties for that purpose ; ^ 
 but they are not necessary parties for the purpose of 
 foreclosing the title.'- The reason for tliis is, that in 
 most states the executors and administrators, or legal 
 representatives, of a deceased person receive no title or 
 interest in the land. In those states, hoAvever, where 
 the real as well as the personal property passes into the 
 hands of executors or administrators, they are neces- 
 sary parties to a foreclosure in the place of the heirs, 
 who are then not necessary parties ; •' and in statutory 
 foreclosures by advertisement in New York the personal 
 representatives are indispensable parties.* If the heirs, 
 or any of them, are omitted as parties, any defendant 
 interested in the action may object by demurrer, if the 
 defect appears upon the face of the complaint, or by 
 answer, and compel such omitted heir to be made a 
 party."^ 
 
 Where the decedent leaves a will, devising the equity 
 of redemption in mortgaged premises, the devisees and 
 beneficiaries become necessary parties instead of the 
 heirs at law." As the probate of a will of real estate 
 may be impeached " within a limited time, it is proper, 
 and may be necessary under certain circumstances, to 
 
 1 See §§ 98 and 99, pos/. 
 
 2 Le-onard v. Morris, 9 Paige (N. Y.), 90 (1841). 
 
 3 Harwood v. Marys, 8 Cal. 580 (1857). 
 
 ^ 8ee § 51, post, the last paragraph, and the cases cited. 
 •'' tSee § 38, ante. 
 
 ^ See § 49, pout, on devisees; Hunt v. Acre, 28 Ala. 580 (1856), 
 ^ New York Code, § 2627. 
 8
 
 114 PARTIES TO MORTGAGE FORECLOSURES. 
 
 make the heirs at law also parties. The plaintiff omits 
 them at the risk of their subsequently redeeming. 
 
 Where the title to mortgaged premises is conveyed to 
 a man and his wife as tenants by the entirety/ or is 
 held jointly by partners or others, the heirs of one of 
 the deceased joint owners are not necessary parties to 
 cut off the equity of redemption and to perfect the title by 
 foreclosure ; if, however, the deceased joint owner signed 
 the bond or became in any way liable for the mortgage 
 debt, his legal representatives are proper parties for the 
 purpose of obtaining a judgment of deficiency against 
 his estate. The reason for this rule is based on the 
 common-law doctrine of survivorship, by which the 
 entire title, upon the death of any of the joint owners, 
 vests in the survivors. - 
 
 § 49. Devisees of mortgaged premises necessary. 
 
 We have already seen that when the title to mort- 
 gaged premises devolves upon heirs at law under the 
 statute of descent, they are necessary parties to a fore- 
 closure. A testator is authorized by statute to make a 
 will, superseding the statute of descent in the disposi- 
 tion of his property. Following the analogy of the 
 rule which makes an heir a necessary party, the person 
 or devisee to whom the testator passes the title of his 
 mortgaged premises by will is also a necessary party to 
 foreclose the equity of redemption, as he becomes the 
 owner of the same.'^ A mortgage executed by a devisee 
 
 1 Bertles v. Nunan, 92 N. Y. 152 (1883). See § 38, cmte, the 
 last paragraph. 
 
 2 4 Kent, p. 360, 12th ed. (Hohues"). 
 
 3 Nodine v. Greenfield, 7 Paige (N. Y.), 547 (1839); Leggett 
 V. Mut. Life Ins. Co., (J4 Barb. (N. Y.) 36 (1872); Robinson v.
 
 DEVISEES OF MORTGAGED PREMISES NECESSARY. 115 
 
 upon lands received by will, is always subject to equities 
 existing against the premises at the time of the testator's 
 death.^ If the entire title to the premises is devised, 
 the heir, of course, is not a necessary party, as he has 
 no interest in the property/ As a surrogate's decree, 
 admitting a will of real estate to probate, is only pre- 
 sumptive evidence of the matters adjudged in the 
 decree, and the probate of the will may be impeached 
 within a limited time, the heirs at law may, during 
 such time, become necessary defendants,^ and they ought 
 not to be omitted from the action if any of them dispute 
 the validity of the will. Until a decree is made, admit- 
 ting a will to probate, the heirs are necessary -parties ; 
 and it is believed that the devisees are also necessary. 
 It is suggested that in such a case the rule of law may be 
 applied which renders both the vendee and the vendor 
 in a land contract of mortgaged premises necessary 
 parties.^ 
 
 § 50. Legatees and annuitants necessary. 
 
 A. legacy or an annuity charged by a will upon mort- 
 gaged premises is a specific lien upon the same, as 
 though the decedent had mortgaged or otherwise in- 
 
 Robitison, 1 Laris. (N. Y.) 117 (1869); kSaiulersou v. Edwards, 
 111 Mass. 335 (1873) ; Savings & Loan Society v. Glbbs, 21 Cal. 
 595 (1863). It matters not whether the devise is absolute or in 
 trust; Coles V. Forrest, 10 Beav. (Eng.) 552 (1847); Graham's 
 Exec'rs v.Carter, 2 Hen. & M. (Va.) 6 (1807) ; Mavo v. Tomkies, 
 6 Munf. (Va.) 520 (1820). 
 
 ^ Simons v. Bryce, 10 Rich. (S. C.) 354 (1878). 
 
 -' Macclesfield v. Fitton, 1 Vern. (Euif.) 168 (1683); Lewis v. 
 Nancrle, 2 Ves. Sen. (Eng.) 431 (1752); S. C, Ambl. 150. 
 
 ■' New York Code, ^ 2627. See the lueceding section: exactly 
 in point, Hunt v. Acre, 28 Ala. 580 (1856). 
 
 '^ See § 37, ante.
 
 116 PARTIES TO MORTGAGE FORECLOSURES. 
 
 cumbered the equity during his life-time ; and the bene- 
 ficiary of such a legacy or annuity is an indispensable 
 party in an action to foreclose.^ It seems, however, 
 where a legacy is made generally from the estate, and 
 not charged specifically upon the mortgaged premises, 
 that the legatee is not a necessary party ; but such a 
 legatee may become an indispensable party if there is 
 an insufficiency of personal property to pay the legacy,'^ 
 and it becomes necessary to resort to the mortgaged 
 premises to produce a fund to pay it. 
 
 § 51. Executors and administrators generally not neces- 
 sary. 
 
 In New York and many other states the administrator 
 of a person who dies seized of an equity of redemption 
 is not a necessary party defendant to a foreclosure,'^ ex- 
 cept where the action is commenced during the pen- 
 dency of a proceeding in a probate court to sell the 
 decedent's equity of redemption to pay his debts.* 
 The reason for this rule is, that administrators have 
 
 1 Hebron Society v. Schoen, 60 How. (N. Y.) 185 (1880) ; Mc- 
 Gown V. Yerks, 6 Johns. Ch. (N. Y.) 450 (1822); Bachelor v. 
 Middleton, 6 Hare (Eng.), 75 (1847). 
 
 - Hebron Society v. Schoen, supra. 
 
 ^ For the JNew Y'ork cases see § 48, ante. Dodd v. Neilson, 90 N. 
 Y. 243 (1882), hekl that it was not sufficient to make the personal 
 representatives defendants ; the heirs were also necessary. Wil- 
 kins V. Wilkius, 4 Port. (Ala.) 245 (1837) ; Judge v. Boardman, 
 2 Ala. 381 (1841) ; Erwin v. Ferguson, 5 id. 158 (1843) ; but held 
 necessary in Doolev v. Yillalonga, 61 id. 129 (1878) ; Rockwell ^. 
 Jones, 21 111. 279 (1859) ; Bissell v. Marine Co. of Chicago, 55 id. 
 165 (1870) ; Trapier v. Waldo, 16 S. C 276 (1883) ; Houghton v. 
 Mariner, 7 Wis. 244 (1858) ; Stark v. Brown, 12 id. 572 (1860). 
 The personal representative of a deceased joint mortgagor should 
 not be made a party, according to Martin v. Harrison, 2 Tex. 
 456 (1847) ; Wiley v. Pinson, 23 id. 486 (1859). 
 
 * New York Code, §§ 2749, 2797, 2798.
 
 LEGAL REPRESENTATIVES NOT NECESSARY. 117 
 
 no interest in the real estate of a decedent.^ Neither 
 are executors necessary parties, unless their office 
 is coupled with an interest in the property by trust, 
 power of sale or otherwise. In a few states, personal 
 representatives are held indispensable'- parties defend- 
 ant, while a majority of the decisions indicate that it is 
 a proper and advisable p ractice always to bring before 
 the court the legal representatives of a deceased owner 
 of an equity of redemption."^ 
 
 1 Willard v. Nason, 5 Mass. 240 (1809). See § 48, ante. 
 
 - In Missouri a statute makes it sufficient to bring the personal 
 representatives into the action ; Riley's Adm'rs v. McCorcl's 
 Adm'rs, 21 Mo. Rep. 285 (1855) ; S. C, 24 id. 265 (1857) ; Miles 
 V. Smith, 22 id. 502 (185H), holding the personal representatives 
 indispensable ; Cadwallader v. Cadwallader, 26 id. 76 (1857) ; Per- 
 kins V. Wood, 27 id. 547 (1858) ; Randolph v. Widow, etc., of 
 Chapman, 21 La. Ann. 486 (1869). See Dixon v. Cuyler, 27 Ga. 248 
 (1859), holding the heirs not necessary parties. Hall v. Musler, 1 
 Disney (Ohi'o), 26 (1855). In Biggerstoff v. Loveland, 8 Ohio 
 Rep. 44 (1887), it was held sufficient to make the personal repre- 
 sentatives parties defendant on the ground that the statute reads, 
 "heirs, executors or administrators." See, also, Heighway v. 
 Pendleton, 15 Ohio Rep. 7.-!5, 749, 758 (1846), where it was held 
 that the statute of 1807 made the equity of redemption a " chat- 
 tel descendible " to the personal representatives, and not to the 
 heirs. Massie's Heirs v. Donaldson, 8 Ohio Rep. 377 (1838); 
 Wallace v. Holmes, 40 Penn. 427 (1861), citing the statute ; Hun- 
 secker v. Thomas, 89 id. 154 (1879) ; Mebane v. Mebane, 80 N. 
 C. Rep. 38 (1879), distinguishing and ruling contrary to Averett 
 V. Ward, 1 Busbee's Eq. (N. C.) 192 (1853) ; Gibbes v. Holmes, 
 10 Rich. Eq. (S. C.) 484, 493 (1859) ; Wright v. Eaves, lb. 582; 
 Bryce v. Bowers, 11 id. 41 (1859). See Trapier v. Waldo, 16 S. 
 C. 276 (1883), apparently overruling these cases. In Texas it 
 has been held necessary under a statute to present the claim on 
 the mortgage to the personal representatives before foreclosing ; 
 Graham v. Vinning, 1 Tex. 639 (1847); the remedy against the 
 mortgagor's estate must be pursue^i in the probate court. Lim- 
 ited in Cole V. Robertson, 6 Tex. 356 (1851), to the effect that a 
 foreclosure in rem, but not an action m personam, can be maintained 
 without a previous demand on the personal re})resentatives. 
 
 ^ Personal representatives are held proper parties in Brenner 
 V. Bigelow, 8 Kan. 498, 504 (1871) ; Fallon v. Butler, 21 Cal. 24
 
 118 PARTIES TO MORTGAGE FORECLOSURES. 
 
 In the statutory foreclosure of mortgages by adver- 
 tisement in New York, the rule is fixed and absolute 
 that the notice must'be served upon the " mortgagor, or, 
 if he is dead, upon his executor or administrator;'' ^ it is 
 not required to be served upon the heirs or devisees. 
 If no personal representatives have been appointed, 
 foreclosure by advertisement cannot be maintained.- 
 
 § 52. Trustees holding an interest of "whatever kind in 
 mortgaged premises for beneficiaries necessary. 
 
 Whenever the title to, or an interest in, mortgaged 
 premises is passed to a person in trust for specific pur- 
 poses, for the benefit of other persons, the trustee is 
 always a necessary party to a foreclosure in order to 
 cut off the entire equity of redemption. The reported 
 cases are almost without an exception in sustaining 
 this proposition, no matter what the character or pur- 
 pose of the trust.^ Though none of the cases state the 
 
 (1862) ; Savings and Loan Society v. Gibbs, lb. 595 (1863) ; Bar- 
 ton V. Lies, lb. 87 (1862) ; Darlini^ton v. Effey, lo Iowa, 177 
 " (1862). 
 
 1 Cole V. Moffitt, 20 Barb. (N. Y.) 18 (1854) ; Anderson v. 
 Austin, 34 id. 319 (1861); Hornby v. Cramer, 12 How. (N. Y.) 
 490(1855) ; Low v. Purdy, 2 Lans. (N. Y.) 424 (1869) ; 2 R. S. 
 545 ; Laws of 1844, chap. 346 ; New York Code, § 2388, sub- 
 div. 4. 
 
 2 Mackenzie v. Alster, 64 How. (N. Y.) 388 (1882) ; S. C, 12 
 Abb. N. C. (N. Y.) 110. Boardman, J., queries, in Van Schaack 
 V. Sanders, 32 Hun (N. Y.), 515 (1884), S. C, 19 Week. Dig. (N. 
 Y.) 170, whether service on a devisee is not sufficient where the 
 executors have not qualified. 
 
 ■' Williamson v. Field's Ex'rs, 2 Sandf. Ch. (N. Y.) 533, 563 
 (1845) ; King v. McVicker, 3 id. 193 (1846) ; Christie v. Herrick, 
 1 Barb. Ch. (N. Y.) 254 (1845); Paton v. Murrav, 6 Paiye (N. 
 Y.), 474 (1837) ; Nodine v. Greenfield, 7 id. 547 (l'839) ; Grant v. 
 Duane, 9 Johns. Rep. (N. Y.) 591 (1812) ; Case v. Price, 9 Abb. 
 (N. Y.) Ill (1859); Le^^gett v. Mutual Ins. Co., 64 Barb. (N. Y.) 38 
 (1872) ; Bard v. Poole,"l2 N. Y. 495 (1855) ; Toole v. McKiernan,
 
 TRUSTEES NECESSARY DEFENDANTS. 119 
 
 reason for this principle, it is believed that it is based 
 upon the flict that all trustees are held accountable and 
 responsible by the courts for the performance of their 
 trusts, and that without being made parties they would 
 have no opportunity to be heard in an action which 
 affected the subject of their trust. Even though the 
 trust were not coupled with an interest, there might be 
 latent equities which would impair the title offered 
 at a foreclosure sale if the trustee were omitted as a 
 party defendant. It is specially necessary, and, in fact, 
 indispensable, to make a trustee of an express trust, or 
 one who has an interest coupled with a trust, a party.^ 
 Trusts created by wills are so various in character and 
 often approach so near a mere power, that each case 
 must be judged by itself as it arises ; and this is notably 
 true when it is remembered that the common-law theory 
 of trusts and the statute enactments of the various 
 states respecting them are so complicated and intricate.^ 
 The trustee must be made a party in his representative, 
 and not in his individual, capacity.^ 
 
 48 Supr. Ct. (N. Y.) 163 (1882) ; Walsh v. Truesdale, 1 Bradwell 
 111. App. 126 (1877) ; Clark v. Reyburn, 8 Wal. (U. H.) 318 
 (1868); Fisher on Mortgages, §§ 365, 367; Walton v. Jones, 2 
 Y. & C. C. C. (Eng.) 244 (1843). The heirs at law of a trustee are 
 not necessary parties ; N. & C. Brid^-e Co. v. Douglass, 12 Bush 
 (Ky.), 719 (1877). See Gardner v.^Brovvn, 21 Wal. (U. S.) 36 
 (1874), where the trustee had not filed a required bond. 
 
 1 In Case v. Price, 17 How. (N. Y.) 348 (J 859), it was held 
 that when no estate, legal or equitable, vested in the trustee, he 
 was not a necessary party ; allter when the trustee takes any 
 interest in the property. See the cases cited supra. 
 
 2 Nodine v. Greenfield, 7 Paige (N. Y.), .547 (1839). 
 
 3 Rathbone v. Hooney, 58 N. Y. 463 (1874).
 
 120 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 53. Cestuis que trust and beneficiaries necessaiy. 
 
 The decisions of the courts and the statutes of this 
 state have long estabhshed the dictum that the cestuis 
 que trust and beneficiaries of a trust are necessary de- 
 fendants to a foreclosure, in order to cut off the entire 
 equity of redemption.^ Judge Story says : " It will 
 not in general be sufficient if the equity of redemption 
 is conveyed or devised to a trustee in trust, to bring him 
 before the court ; but the cestuis que trust (the beneficia- 
 ries) should also be made parties."- "It is conceded to 
 be the general rule, that if the equity of redemption is 
 vested in a trustee in trust, the cestuis que trust must be 
 
 ^i^Williamsou v. Field, 2 Sandf. Ch. (N. Y.) 562 (1845) ; King 
 V. McVifkar, 3 id. 192 (1846): Nodine v. Greenfield, 7 Paige (N. 
 Y.), 544 (1839) ; Leggett v. Mutual L. I. Co., 64 Barb. (N.Y.) 23, 
 86 (1872), reversed in part in 53 N. Y. 400 ; Case v. Price, 17 
 How. (N. Y._) 348 (1859) ; Terrett v. Crombie, 6 Lans. (N. Y.) 82 
 (1872), modified in 55 N. Y. 683 ; Toole v. McKiernan, 48 8apr. 
 Ct. (N. Y.) 163 (1882). 8ee Dodd v. Neilson, 90 N. Y. 243, 247 
 (1882). In Lockman v. Reilley, 10 Abb. N. C. (N. Y.) 351 (1881), 
 certain beneficiaries were held unnecessary parties ; but in that 
 case the equity of redemption had been changed into personalty 
 by the terms of a will. Woolner v. Wilson, 5 111. App. 439 (1880) ; 
 Day V. Wetherby, 29 Wis. 363 (1872) ; Clark v. Reyburn, 8 Wal. 
 <U. S.) 318 (1868). 8ee Broward v. Hoeg, 15 Fla. 370 (1875), for 
 a case where alleged beneficiaries were held not necessary par- 
 ties. In Johnson v. Robertson, 31 Md. 476 (1869), the cestui que 
 trust, being a non-resident, was held an unnecessary party ; her 
 interests were held bound by a decree taken pro toufesso against 
 her trustee. In Wood v. Nisbit, 20 Ga. 72 (1856), the premises 
 were conveyed to a person as trustee, who executed a purchase- 
 money mortgage as trustee ; the cestui que trust was held not a 
 necessary party. Contrary to the text, see Fisher, § 367 et seq., 
 and the English cases, iSale v. Kitson, 17 Jur. 171; 3 De G., M. 
 & G. 119 (1853) ; Hanman v. Riley, 9 Hare App. 40 (1852) ; 
 Goldsmid v. iStonehewer, 9 Hare App. 39 ; 17 Jur. 199 (1852) ; 
 Tuder v. Morris, 1 8m. & Gif. 503 (1853) ; Cropper v. Mellersh, 1 
 N. 8. Jur. 299 (1855). 8ee Coler v. Forrest, 10 Beav. 557 (1847). 
 2 8tory's Eq. PL, §§ 193-197.
 
 CESTUIS QUE TRUST NECESSARY DEFENDANTS. 121 
 
 made parties to the foreclosure."^ And even where the 
 receipt of trustees was to discharge purchasers from all 
 liability to the beneficiaries, the equity of redemption 
 having been conveyed to trustees to sell and divide 
 among persons specified, the cestids que trust were 
 held necessary parties to a bill brought to foreclose 
 the mortgage.- The nature of the trust should appear 
 on the fiice of the instrument creating it. Where the 
 conveyance does not reveal the fact that it is a trust 
 deed, together with the names of the beneficiaries, the 
 foreclosure will produce a perfect title, and the rights of 
 the cestuis que trust will be cut off, though they are not 
 made parties to the action.'^ 
 
 As far as the reported cases show, there are only 
 two exceptions to the general rule above stated. First, 
 " in cases of remote limitation of the equity of redemp- 
 tion, in which, on account of the impossibility of bring- 
 ing in parties not in esse, or not ascertained, but who 
 may ultimately become entitled,* it is held sufficient to 
 bring before the court the persons in esse who have the 
 first estate of inheritance, together with the persons 
 having all the precedent estates and prior interests."^ 
 But where a mortgagor conveyed his equity of redemp- 
 
 1 Williamson v. Field, 2 iSandf. Ch. (N. Y.) 562 (1845), a leading 
 case, per Vice-Chancellor ISandford. All the books agree in 
 sustaining this proposition. Story's Eq. PL, §§ 198, 194, 207. 
 Calvert on Parties, 181, 182; Grore v. iStacpoole, 1 Dow's P. C. 
 (Eng.) 18. 81 (1818), per Lord Eldon. ^ 
 
 ^ Calverley v. Phelp, 6 Madd. (Eng.) 229 (1822). 
 
 3 Brown v. Cherry, 38 How. (N. Y.)852 (1870); S. C, 56 Barb. 
 (N. Y.) 685. 
 
 ■* Williamson v. Field, supra. Special attention is called to 
 this case for its learned and exhaustive discussion of the relation 
 of trustees to their cestuis que trust, in cases of mortgage fore- 
 closure.
 
 122 PARTIES TO MORTGAGE FORECLOSURES. 
 
 tion to trustees in settlement for his daughter on her 
 marriage, out of which she was to receive an annuity, 
 and the trustees were to raise oat of the same a sum of 
 money for the cliikh^en of the marriage, the daughter 
 and her children were deemed necessary parties to a 
 suit for the foreclosure of the mortgage.^ Second, in 
 cases where the beneficiaries are so numerous that it 
 would be intolerably oppressive to compel the plaintiff 
 to bring them all into the action, it is held sufficient 
 to make the trustees defendants.- Thus, in a case 
 where real estate had been purchased by a joint fund 
 raised by subscriptions from above two hundred and 
 fifty subscribers, and the property was conveyed to A., 
 B. and C. as trustees, who executed a purchase-money 
 mortgage. Chancellor Kent held on the foreclosure that 
 " the trustees were selected in this case to hold and 
 represent the property for the sake of convenience, and 
 because the subscribers were too numerous to hold and 
 manage the property as a co-partnership. The trus- 
 tees are sufficient for the purpose of this bill, which is 
 for a sale of the pledge ; it would be intolerably oppres- 
 sive and burdensome, to compel the plaintiff to bring in 
 all of the cestids que trust. The delay and the expense in- 
 cident to such a proceeding would be a reflection on the 
 justice of the court. This is one of those cases in which 
 the general rule cannot and need not be enforced ; for 
 the trustees sufficiently represent all the interests con- 
 cerned ; they were selected for that purpose, and we 
 
 1 Anderson v. Stather, L. J. (Eq.) 16 vol. N. S. (Eng.) 152 
 (1845), before ^ir Kxight Bruce, Vice-Chaxcellor. 
 
 2 Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 197 (1816); 
 Christie V. Herrick, 1 Barb. Ch. (X. Y.) 254 (1845); Paton v. 
 Murray, 6 Paige (N. Y.), 474 (1837).
 
 CESTUIS QUE TRUST, WHEN NOT NECESSARY. 123 
 
 need not look beyond them."^ Where a trust is created 
 for the benefit of numerous creditors, the same ex- 
 planation holds good, and the creditors are not neces- 
 sary parties, but may be safely represented by the trus- 
 tees f but the beneficiaries may properly be made de- 
 fendants, if the plaintifi" desires to bring them into the 
 action.^ 
 
 The statutes of many states are clear in declaring 
 that in cases of trusts made to one or more persons to 
 the use of another, no estate or interest, legal or equi- 
 table, shall vest in the trustee ; but that every benefi- 
 ciary who by virtue of a trust is entitled to the actual 
 possession of lands and the profits thereof, shall be 
 deemed to have a legal estate therein, according to his 
 beneficiary interest.* No court has ever held, so far as 
 can be ascertained, that a cestui que trust may be 
 omitted as a party to a foreclosure, except in the two 
 cases already mentioned.'^ Even where a trustee exe- 
 cuted the mortgage under authority of a court, it was 
 held that the beneficiaries were necessary parties ;'' the 
 
 1 Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 197 (1816). 
 
 2 Grant v. Duane, 9 Johns. Rep. (N. Y.) 591 (1812). See the 
 clear opinion of Caton, J., in Willis v. Henderson, 4 Scam. (111.) 
 13, 20 (1842) ; Fisher, § 374. For the English cases, see Newton v. 
 Earl of Egmont, 4 Sim. 574 (1831) ; 5 id. 130 ; Thomas v. Dun- 
 ning, 5 De G. & S. 618 (1852) ; Troughton v. Binkes, 6 Ves. 573 
 (1801), A few creditors may represent the remainder ; Holland 
 V. Baker, 3 Hare, 68 (1842). See also Powell v. Wright, 7 Beav. 
 444 (1844) ; Gore v. Harris, 15 Jur. 761 (1850) ; Smart v. Brad- 
 stock, 7 Beav. 500 (1844) ; Doodv v. Higsritis, 9 Hare Appx. 32 
 (1852); Wallwyn v. Coiitts, 3 Mer. 707 (1815) ; Garrard v. Lord 
 Louderdale, 3 Sim. 1 (1822) ; Law v. Bagwell, 4 Dru. & W. 406. 
 
 ■^ Union Bank v. Bell, 14 Ohio St. 200 (1862). 
 4 1 N. Y. R. S. 728, §§ 47, 49. Rawson v. Lampman, 5 N. 
 Y. 456 (1851). 
 ^ See § 52, ante, and the notes, for special instances. 
 « Williamson v. Field, 2 Sandf. Ch. (N. Y.) 533 (1845).
 
 » 
 
 124 PARTIES TO MORTGAGE FORECLOSURES. 
 
 same would hold true if the mortgage were executed 
 by a trustee under authority contained in a will or 
 other instrument.^ The general rule of law of this 
 section is undoubtedly founded on the broad principle, 
 that all persons having an interest in the equity of 
 redemption should be made parties, and that none of 
 them are concluded as to tlieir rights unless they are 
 brought into the action and the court acquires jurisdic- 
 tion of them. Although the trustee has a quasi interest 
 in the premises, the beneficiaries are, nevertheless, the 
 actual parties in interest, owning as they do the equitable 
 if not the legal title to the premises. 
 
 § 54. Remaindermen and reversioners necessary. 
 
 All persons having a vested estate of inherit- 
 ance in remainder or reversion in mortgaged prem- 
 ises must be brought into court in an action to 
 foreclose a mortgage ; but where there are several 
 future and contingent interests in the equity of redemp- 
 tion in mortgaged premises, it is not necessary gener- 
 ally to make every person having a future and contin- 
 gent interest a party to a bill of foreclosure. It seems 
 sufficient if the person who has the first vested estate 
 of inheritance, and the several intermediate remainder- 
 men and persons having or claiming rights or interests 
 in the premises prior to the vested estates, are brought 
 before the court."- It is clear equitable law that in order 
 
 1 Albany Fire Ins. Co. v. Bay, 4 N. Y. 9, 19 (1850). 
 
 2 Williamson v. Field, 2 Sandf. Ch. (N. Y.) 533, 563 (1845) ; 
 Eagle F. Ins. Co. v. Cammet, 2 Edw. Ch. (N. Y.) 127 (1833); 
 Nodine v. Greenfield, 7 Paige (N. Y.), 544 (1859) ; Le^sett v. 
 Mutual Life Ins. Co., 64 Barb. (N. Y.) 23, 36 (1872) ; Rathbone 
 V. Hooney, 58 N. Y. 463 (1874). iSee Lockman v. Reilley, 10
 
 REMAINDERMEN AND REVERSIONERS. 125 
 
 to make a foreclosure valid as against all claimants, he 
 who has the first estate of inheritance must be brought 
 before the court ; and even then the intermediate re- 
 maindermen for life ought also to be brought before the 
 court, to give them an opportunity to pay off the mort- 
 gage if they desire.^ In a case where mortgaged 
 premises were bequeathed by a mortgagor to his wife for 
 life with remainder in fee to the children of his brother 
 who should be living at the time of her death, and to 
 the issue of such of the children as should then have 
 died leaving issue, with the power to his executors to 
 sell his real estate and invest the proceeds for the bene- 
 fit of the devisees, the court decided that the children 
 of the brother who were in esse at the death of the 
 testator, took vested remainders in fee, subject to open 
 and let in after-born children, and subject also to be 
 divested by death during the continuance of the life 
 estate of the widow, or to be defeated by the execution 
 of the power of sale given to the executors by the ^\\W ; 
 and that accordingly the children of the brother who 
 were in esse at the time of filing the bill, ought to have 
 
 Abb. N. C. (N. Y.) 351 (1881), where questions affecting the inter- 
 pretation of a will were also involved. See Iowa Loan & Trust 
 Co. V. King, 58 Iowa, 598 (1882). See Breit v. Yeaton, 101 111. 
 242 (1882), an action for partition. For the English authorities, see 
 Fisher, § 809 et seq. ; Lloyd v. Johnson, 9 Ves. 37 (1802) ; Giffbrd 
 V. Hort, 1 Sch. & Lef. 386, 408 (1804) ; Roscarrick v. Barton, 1 
 Ch. Ca. 218 (1671) ; Sutton v. Stone, 2 Atk. 101 (1740) ; Fish- 
 wick V. Lowe, 1 Cox Cas. in Eq. 411 (1787) ; Choppell v. Rees, 1 
 De G., M. & G. 393 (1852) ; Gove v. Stockpole, 1 Dow, 18, 31 
 (1813); Cholraondeley v. Clinton, 2 Jac. & W. 133 (1820); Hop- 
 kins v. Hopkins, 1 Atk. 581, 590 (1738); Kerrick v. Safiery, 7 
 Sim. 317 (1835); Piatt v. Spriyg, 2 Vern. 304(1693); Yates v. 
 Hanibly, 2 Atk. 237 (1741). 
 
 ^ Gove V. Stockpole, 1 Dow (Eng.) Rep. 31 (1813); opinion 
 rendered in the House of Lords, per Lord Chancellor Eldon.
 
 126 PARTIES TO MORTGAGE FORECLOSURES. 
 
 been made parties to the foreclosure, and that their 
 equity of redemption was not barred by a decree in a 
 suit in which the widow, the executors and the heirs 
 at hiw alone were made parties.^ 
 
 All the courts are agreed in cases involving these 
 questions, that there must be a defendant who is a per- 
 son in esse,- and who holds a vested estate of inherit- 
 ance ; and they are farther agreed that all persons 
 having estates and interests prior or superior thereto, 
 must be defendants.'^ As Vice-Chancellor McCoun 
 says, "A decree against the party having the estate of 
 inheritance will bind those in remainder or who in any 
 way come afterwards; there must be a clear tenancy 
 in tail to dispense with the necessity of a remainderman 
 being a party to a bill of foreclosure. If there be an 
 express estate for life, and it is doubtful whether the same 
 person is also tenant in tail, the remainderman who has 
 the first estate of inheritance ought to be a party."* 
 
 1 Nodiiie V. Greenfield, 7 Paige (X. Y.), 544 (1839), a leading 
 case, per Chaacellor Walworth, citing and quoting Lord 
 Eldon, supra. 
 
 2 See Clark v. Reybiirn, 8 Wal. (U. 8.) 318 (1808), where mort- 
 gaged preniirses had been conveyed in trust for the benefit of 
 children born an i to be born ; all the children in esse at the time 
 of filing the bill of foreclosure were held necessary parties. See 
 the case cited supra in this section. 
 
 3 English authorities: Fisher, §g 311-315. A tenant for life 
 is necessary; Reyuoldson v. Perkins, Auibl. 564 (1769). See Hand- 
 cock V. Shaen, Coll. P. C. 122 (1701), holding that intermediate 
 remaindermen are necessary. See Chappell v. Rees, 1 De G., M. 
 & G. 393 (1852) ; Gove v. Stockpole, 1 Dow Rep. 31 (1813). 
 
 * Eagle F. Ins. Co. v. Comrnet, 2 Edw. Ch. (N. Y.) 128 (1833). 
 In this case M. C. mortgaged real estate and died after making 
 his will, by which he gave all his real and personal estate to his 
 widow until second marriage or death ; then to his daughter 
 Mary, as long as she should live ; and if she should have no heirs 
 at her death, then to ^'o to the children of J. C. It was lield
 
 ASSIGNEES IN BANKRUPTCY, ETC., AND RECEIVERS. 127 
 
 Though the cases are uniform in using the term, " the 
 first estate of inheritance," it would certainly be advis- 
 able to make even the remotest remainderman or rever- 
 sioner, if he is in esse, also a party ; it will avoid the 
 raising of any question by him upon the determination 
 or failure of the intermediate estate. 
 
 § 55. Assignee in bankruptcy and by voluntary general 
 assignment, and receiver, necessary. 
 
 An assignee in bankruptcy, under the former national 
 bankrupt act, or by voluntary general assignment under 
 the statutes of the several states, of the owner of the 
 equity of redemption in mortgaged premises, is a necessary 
 defendant^ to a foreclosure, if the petition in bankruptcy 
 or the voluntary assignment was made before the com- 
 mencement of the action to foreclose ; so also the 
 receiver of an insolvent corporation is a necessary defend- 
 that the daughter Mary had only a life estate, and that on a bill 
 of foreclosure the children of J. C. ought to have been made 
 parties. " The first tenant in tail," says Lord Camden, " is suffi- 
 cient ; he sustains the interests of everybody ; thus any 
 remaindermen are considered ciphers." Revnoldson v. Perkins, 
 Ambl. (Eng.) 564 (1769). 
 
 1 Cleveland v. Boerura, 28 Barb (N. Y.) 205 (1856) ; aflf'd 
 24 N. Y. 613 (L'-56); Lenihan v. Haman, 55 id. 652 
 (1873) ; Eyster v. Gaff, 91 U. 8. 521 (1875| ; Bard v. Poole, 12 
 N. Y. .507 (1855), a case of voluntary assis/nnient ; Winslow v. 
 Clark, 47 N. Y. 261, 263 (1872) ; Spring? v. 8hort, 90 id. 538, 545 
 (1882) ; Gardner v. Brown, 21 Wal. (U": H.) 36 (1876) ; Stimpson 
 V. Pease, 53 Iowa, 572 (1880) ; Harris v. Cornell, 80 111. 54 
 (1875). In Chickering v. Failes, 26 id. 507 (1861), the assignee 
 was held a necessary party if the foreclosure was by an equi- 
 table action, but not if it were conducted by scire facias. King 
 v. Bowman, 24 La. Ann. 506 (1872) ; Freeland v. Freeland, 102 
 Mass. 475 (1869); Moors v. Albro, 129 id. 9 (1880); Thorpe v. 
 Ricks, 1 Devereux & B. Eq. (N. C.) 619, 620 (1837) ; Dwyer v. 
 Garlough, 31 Ohio «t. 158 (1877) ; Fisher, § 308.
 
 128 PARTIES TO MORTGAGE FORECLOSURES. 
 
 aiit.^ This rule follows in analogy the broader principle of 
 law which makes the owner of the equity of redemption 
 always a necessary party to a foreclosure in order to pro- 
 duce a perfect title.'- The assignee succeeds by the 
 assignment to all the rights of the assignor, and 
 becomes the owner of the equity. It must be carefully 
 noticed, that tO make the assignee a necessary party, 
 the assignment must be made while the assignor owns 
 the equity and before the commencement of the action 
 to foreclose. The assignor is not a necessary party 
 after the assignment f but he may properly be made a 
 defendant.^ 
 
 Among the early decisions in New York^ it was held 
 that if an assignment were made during the pendency 
 of an action to foreclose, the decree of sale would be 
 void as against the assignee, unless he were brought in 
 as a party. The later decisions in all the courts of the 
 country, however, are uniform in applying to assignees 
 in bankruptcy the general rule previously stated, that 
 purchasers pendente lite are not necessary parties.*^ Jus- 
 tice Miller held, in the Supreme Court' of the United 
 
 1 Rayiior v. 8elmes, 52 N. Y. 579 (1873), reversing 7 Lans. 440. 
 
 2 See §§ 34 and 38, ante. 
 
 3 Kerrick v. Saffery, 7 Sim. (Eng.) 317 (1835) ; Llovd v. Lan- 
 der, 5 Madd. (Eno-.) 282 (1821) ; Collins v. Shirley, 1 R. & M. 
 (Eng.) 638 (1830)*; Rochfort v. Battersby, 14 Jur. (Eng.) 229 
 (1849) ; Fislier, i^ 306. 
 
 -t Fisher, i^ 307 ; Cashell v. Kelly, 2 Drn. & War. (Eng.) 181 ; 
 Raffertv v. King, 1 Keen. (Eng.) 619; Eades v. Harris, 1 Y. & 
 C. (Eng) 234 (1842); Sinyleton v. Cox, 4 Hare (Ens:.) 326 
 (1845) ; Collins v. Shirley, 1 Russ. & M. (Eng.) 638 (1830) ; 9 
 Sim. 39. t ; Franklyn v. Fern, Barn. Ch. (Enff.) folio 30, 32 (1740). 
 
 5 Johnson v. Fitzhuffh, 3 Barb. Ch. (N. Y.) 360 (1848) ; Sedg- 
 wick V. Cleveland, 7 Paiue (N. Y.), 290 291 (1838) ; Burr v. Burr, 
 10 id. 20(1842). 
 
 " See § 40, ante. See the cases cited supra. 
 
 ^ Eyster v. Gaff, 91 U. S. 521 (1875).
 
 ASSIGNEE PENDENTE LITE NOT NECESSARY. 129 
 
 States, that where the assignee in bankruptcy of a 
 mortgagor is appointed during the pendency of a fore- 
 closure of the mortgaged premises, he stands as any 
 other purchaser would stand, on whom the title had 
 fallen after the commencement of the suit. If there is 
 any reason for interposing, the assignee should have 
 himself substituted for the bankrupt or be made a 
 defendant on petition, Justice Allen, in deciding the 
 same question in the New York Court of Appeals,^ in 
 1873, held substantially the same ruling, and further 
 that such a foreclosure might be restrained by injunc- 
 tion by a United States court in bankruptcy, but that, 
 if allowed to proceed, the purchaser at the sale would 
 acquire a good title as against the mortgagor or owner 
 of the equity of redemption and against all parties 
 claiming under them, including an assignee in bank- 
 ruptcy. An exhaustive discussion of the question 
 decided in these cases was given by Justice Strong in 
 Cleveland v. Boenim.'- Indeed, this was the earliest 
 case to sustain the proposition of this section ; it col- 
 lates and reviews all the previous cases. The error 
 of the early decisions was due to the distinction made 
 by the courts between transfers made pendente lite by 
 the voluntary act of the assignor and those accomplished 
 by operation of law. 
 
 § 56. Infants, lunatics, idiots and habitual drunkards 
 necessary parties. 
 
 Provision has been made in the statutes of most of 
 the states for a proceeding to dispose of the real prop- 
 
 1 Lenihati v. Ilamami, 55 N. Y. 652 (1878). 
 
 2 23 Barb. (N. Y.) 2(J5 ; ard 24 N. Y. 613 (1856). 
 

 
 130 PARTIES TO MORTGAGE FORECLOSURES. 
 
 erty of infiints, lunatics, idiots and habitual drunkards 
 by sale, mortgage or lease. Prior to these statutes 
 there was a proceeding in the common -law practice to 
 accomplish the same purpose. Where a mortgage has 
 been executed by a guardian or a committee of an 
 incompetent person pursuant to an order of a court, the 
 infant, lunatic, idiot, or habitual drunkard, as the case 
 may be, is a necessary defendant in an action to fore- 
 close the mortgage.^ Some of the states declare the 
 effect of such conveyances. The New York Code of Civil 
 Procedure declares that such a mortgage " has the same 
 validity and effect as if it was executed by the person in 
 whose behalf it was executed, and as if the infant was 
 of full age, or the lunatic, idiot, or habitual drunkard 
 was of sound mind and competent to arrange his own 
 aiFairs."-' A mortgage executed under such a proceed- 
 
 1 Prentiss V. Cornell, 31 Hnn (N.Y.), 167 (1883) ; see Agricultu- 
 ral Ins. Co. V. Barnard, 96 N. Y. 525 (1884), holding also that a 
 bond is not necessary with such a mortgage, but it is discretion- 
 ary in the court to require it. See Lvon v. Lyon, 67 id. 250 
 (1876) ; McManis v. Rice, 48 Iowa, 361 (1878). In Eslava v. 
 Le Pretre, 21 Ala. 504 (1852), the committee of a lunatic, who 
 had been irregularly appointed, executed a mortgage jointly 
 with her husband ; on foreclosure the lunatic was held a neces- 
 sary party, owing to the defect in the ap] ointment. In Parker 
 V. Lincoln, 12 Mass. 16 (1815), a mortgage was executed to an 
 infant who had a guardian ; the mortgagor, bringing an action 
 to redeem, was obliged to make both the infant and his guardian 
 parties to the action. It would seem that in Illinois an infant is not 
 a necessary party in any legal proceedings where he has a guard- 
 ian to represent his interests; Merritt v. Simpson, 41 111. 391 
 <1866) ; Campbell v. Harmon, 43 id. 18 (1867). In Boston Bank 
 V. Chamberlain, 15 Mass. 220 (1818), an infant had executed a 
 mortgage ; after reaching his majority he conveyed the premises 
 subject to the mortgage. In an action to foreclose, infancy at the 
 time of executing the mortgage was pleaded in defense, but held 
 no bar to its validity. 
 
 2 New York Code, § 2358 ; Matter of Application of Mary E.
 
 INFANTS, IDIOTS, ETC., AS DEFENDANTS. 131 
 
 ing does not bind a wife's inchoate right of dower, and 
 she is not a necessary or proper party to a foreclosure 
 of the mortgage unless she has voluntarily signed it.^ 
 If an infant or incompetent person whose real property 
 has been mortgag^ in such a proceeding should die 
 before an action to foreclose was commenced, his heirs, 
 devisees or legatees, as the case might be, would become 
 necessary parties.'- It is to be observed that a proceed- 
 ing to mortgage the property of an infant or incompe- 
 tent person is statutory ; and it is assumed here that 
 the proceeding has been properly conducted, and the 
 mortgage duly executed. The plaintiff 'in the fore- 
 closure must allege in his complaint facts, showing the 
 interest of the infant or incompetent person in the 
 premises if he is made a defendant.^ Great care should 
 be taken to secure legal service of the summons upon 
 the infant or incompetent person ; it is also essential 
 that a guardian ad litem be appointed to represent the 
 interests of the infant."^ The guardian or committee 
 who executes the mortgage pursuant to an order of the 
 court is a very desirable, if not an indispensable, party 
 to the action to foreclose, especially as he is interested 
 in caring for any surplus that may arise, and in seeing 
 that no deficiency is created. 
 
 Price, 67 N. Y. 281 (187(3); Valentine v. Ilaff, 72 N. Y. 184 
 (1878) ; Cole v. Gourlay, 9 Huu (N. Y.), 498 (1877). 
 ^ Hee § 44, ante. 
 
 2 8ee §§ 48, 49, 50, ante. 
 
 3 Aldrich v. Lapliam, 6 How. (N. Y.) 129 (1850). 
 
 ^ Hee Ingersoll v. Mangam, 84 N. Y. 622 (1881), stating what 
 constitutes proper service on a non-resident infant under the age 
 of fourteen years. Where there is a defect in the action which 
 results in a failure to cut off the interest of the infant, he can 
 maintain an action to set aside the foreclosure as to himself, on 
 arriving at his majority; McMurrav v. McMurray. iS^S N. Y. 175 
 (1876).
 
 132 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 57. Mortgage executed by administrator or executor to 
 pay decedent's debts ; heirs and devisees of the 
 decedent necessary. 
 
 Many of the states have made statutory provisions 
 in their Codes or otherwise for disposing of a deceased 
 person's real estate to pay his debts, which provisions 
 are, in form and purpose, not unUke those made for dis- 
 posing of the property of infants and incompetent per- 
 sons. The practice under such provisions varies in dif- 
 ferent states. But it is a general principle of law, 
 recognized by all courts, that administrators or execu- 
 tors in mortiiagino; or sellino; a decedent's real estate act 
 simply in a capacity representative of the decedent, and 
 are guided by orders of the probate court. The title 
 to the premises mortgaged in such a proceeding vests in 
 the heirs or devisees immediately upon the death of 
 the decedent, and is incumbered only pursuant to a 
 statutory proceeding designed to marshal and pay his 
 debts. In New York it is declared that a mortgage 
 executed pursuant to such a proceeding has the 
 same effect as if it had been made by the decedent 
 immediately before his death. ^ The administrator or 
 executor who signed the mortgage under the order of 
 the probate court is a very proper, if not an absolutely 
 necessary, party to an action to foreclose, as he is in 
 some measure interested in the action,' 
 
 § 58. Corporations necessary parties by corporate nanie. 
 
 Corporations play such an important part in the com- 
 mercial, industrial and social life of this age that legis- 
 
 1 New York Code, § 2760. 
 
 2 See McMaimis v. Rice, 48 Iowa, 361 (1878).
 
 CORPORATIONS DEFENDANTS. 133 
 
 latures and courts have materially enlarged their rights 
 and privileges so that more than ever they are a " single 
 individual"^ in the law. They are generally vested 
 with all the rights and may assume all the obligations 
 known to the law. With limited exceptions they may 
 acquire real estate and convey the same hy deed or 
 mortgage.- 
 
 Whenever a corporation in its corporate name 
 becomes the owner of the equity of redemption in 
 mortgaged premises or executes a mortgage upon its 
 real estate, it is a necessary defendant to a foreclosure 
 in its corporate name.^ This rule is based upon the 
 broad principle that corporations may sue and be sued 
 in law by their corporate names.^ 
 
 § 59. Tenants and occupants necessary. 
 
 Every tenant who takes a lease from the owner of 
 the equity of redemption in mortgaged premises subse- 
 quent to the execution and delivery of the mortgage is 
 a necessary defendant to a foreclosure.'^ The occujDant or 
 
 1 2 Kent, 267. 
 
 2 See Aurora Agricultural & H. Society v. Paddock, 80 111. 263 
 (1873). As to what is necessary to authorize a manufacturing 
 corporation to execute a mortgage in New York, see G. Sugar 
 Co. V. Whitin, 69 N. Y. 328 (1877) ; Rochester Savings Bank v. 
 Averell, 96 id. 467 (1884). 
 
 3 Donnelly v. Rusch, 15 Iowa, 99 (1863); Ottawa Northern 
 Plank Road Co. v. Murray, 15 111. 336 (1854) ; Reed v. Bradley, 
 17 id. 321 (1856). 
 
 ■^ 2 Kent, 283, 292 ; People's Bank v. Hamilton Manufacturing 
 Co., 10 Paige (N. Y.), 481 (1843). 
 
 5 Clarkson v. Skidmore, 46 N. Y. 297 (1871). modifying 2 
 Lans. (N. Y.) 238; Whalen v. White, 25 id. 462 (1862); Globe 
 Marble Mills Co. v. Quinn, 76 id. 23 (1879); Hirsch v. Living- 
 ston, 3 Hun (N. Y.), 9 (1874) ; S. C, 48 How. (N. Y.) 243. See 
 Peck V. Knickerbocker Ice Co., 18 Hun (N. Y.), 183 (1879); Ful-
 
 134 PARTIES TO MORTGAGE FORECLOSURES. 
 
 person in possession of the premises at the time of the 
 commencement of the foreclosure is also indispensable, 
 no matter how or under what circumstances he came 
 into possession.^ Atenant or occupant not made a party 
 is not bound by the decree, and if omitted, he cannot 
 be ejected till the expiration of his tenancy."- His 
 omission will, moreover, produce such a defect of title 
 as to relieve a purchaser at the sale of his bid.^ 
 
 A tenant is not affected by a foreclosure, till the sale 
 is consummated and the deed delivered.^ And if he is 
 omitted as a party, he will be entitled to the emblements, 
 and all crops that may be grown before the expiration 
 of his term ; the purchaser at the sale receives his title 
 subject to the rights of the tenant.'' In a case where 
 pending a foreclosure a tenant went into possession, 
 raised and cut a crop of wheat before the action was 
 concluded, he was allowed to carry it away.*^ If a ten- 
 
 ler V. Van Geeseii, 4 Hill (N. Y.), 171 (1843). See Zeiter v. Bow- 
 man, 6 Barb. (N. Y.) 183 (1849) ; Clason v. Corley, 5 Handf. S. 
 C. (N. Y.) 447 (1852) ; Ostrom v. McCann, 21 How. (N. Y.) 432, 
 433 (1860) ; Campbell v. Savag-e, 33 Ark. 678 (1879) ; Fletcher v. 
 Gary, 103 Mass. 475 (1870) ; Tuttle v. Lane, 17 Me. 437 (1840); 
 Hemphill v. Ross, m N. C. 477, 480 (1872) ; Gortside v. Outlay, 
 58 111. 210, 215 (1871). 
 
 1 McLain v, Badgett & Smith, 4 Ark. 244 (1842) ; Buckner v. 
 Sessions, 27 id. 219 (1871) ; Cox v. Vickers, 35 Ind. 27 (1870) ; 
 Ostrom V. McCann, 21 How. (N. Y.) 431, 433 (1860). 
 
 - Suiter v. Turner, 10 Iowa, 517, 527 (1860) ; Downard v. GrofF, 
 40 id. 597, 598 (1875) ; Sproule v. Samuel, 4 Scam. (111.) 135, 139 
 (1844). In point, Richardson v. Hadsail, 106 111. 476, 479 (1883) ; 
 McDermott v. Burke, 16 Cal. 580 (1860) ; Delespine v. Campbell, 
 45 Tex. 268 (1879). See the New York cases, supra. 
 
 3 Hirsch v. Livingston, 3 Hun (N. Y.), 9 (1874) ; S. C, 48 How. 
 (N. Y.) 24;.'. 
 
 4 Whalin V. White, 25 N. Y. 462 (1862). 
 
 5 Cassilly v. Rhodes, 12 Ohio Rep. 88 (1843), a leading case on 
 the subject of tenants' rie:hts. 
 
 6 Johnson v. Camp, 5l"lll. 219 (1869).
 
 TENANTS AND OCCUPANTS DEFENDANTS. 135 
 
 ant is made a party and his rights are cut off by the 
 action, he will be entitled from the surplus money, if any, 
 to the value of his unexpired term and damages for eject- 
 ment ; if there is no surplus, an action will stand against 
 the lessor for damages.^ Foreclosure before the expiration 
 of a tenant's term will not prejudice his right to remove 
 fixtures.- A tenant or other person, who holds posses- 
 sion after the execution and delivery of the deed by the 
 referee to sell, may be ejected at once, if he was made 
 a party to the action f but in some states confirmation 
 of the referee's report of sale is necessary before eject- 
 ment can be maintained.* 
 
 1 Clarksoii v. Skidmore, 46 N. Y. 297 (1871), modifying 2 
 Lans. 238. 
 
 2 Globe Marble Mills Co. v. Quinn, 76 N. Y. 23 (1879). 
 
 3 New York Code, § 2232 ; Hirsch v. Livingston, 3 Hun (N. 
 Y.), 9, 10 (1874). 
 
 4 Astor V. Turner, 11 Paige (N. Y.), 436 (1845) ; Clason v. 
 Corley, 5 Sandf. S. C. (N. Y.) 447 (1852); Peck v. Knicker- 
 bocker Ice Co., 18 Hun (N. Y.), 183, 186 (1879).
 
 CHAPTER 11. 
 
 SUBSEQUENT MORTGAGEES AND LIENORS. 
 
 § 60. Introductory. 
 
 61. yubsequent mortgagees, still owning their mortgages, 
 
 necessary parties. 
 
 62. Subsequent judgment creditors, still owning judg- 
 
 ments, necessary. 
 
 63. Mechanic's lien, owner of, necessary. 
 
 64. Subsequent mortgagee, judgment creditor or other 
 
 lienor, an assignor no longer holding the incum- 
 brance, and intermediate assignors, not necessary. 
 
 65. Subsequent mortgagees or other lienors, still holding 
 
 any kind of an equitable or contingent interest in 
 the lien, or being part or joint owners, generally 
 necessary. 
 Q6. Assignee of subsequent mortgage, judgment or other 
 lien, necessary. * 
 
 67. Assignee of subsequent mortgage or lien pendente lite 
 
 not necessary. 
 
 68. Incumbrancer pendente lite not necessary. 
 
 69. Subsequent mortgagee or lienor a married woman, does 
 
 not alter the rule ; necessary. 
 
 70. Heirs, devisees, legatees and annuitants of deceased 
 
 subsequent mortgagee or lienor generally not neces- 
 sary. 
 
 71. Executors and administrators of a deceased subsequent 
 
 mortgagee or lienor necessary. 
 
 72. Assignee in bankruptcy and voluntary general as- 
 
 signee of subsequent mortgagee or lienor necessary.
 
 INTRODUCTORY SUBJECT OF CHAPTER. 137 
 
 ' ^ 73. General guardian of infant and committee of lunatic, 
 idiot or habitual drunkard, trustees and beneficiaries 
 holding subsequent mortgage or lien, necessary. 
 74. Purchasers at tax sales, boards of supervisors, state 
 comptrollers and municipal corporations parties. 
 
 § 60. Introductory. 
 
 In this chapter will be continued the consideration of 
 parties who are necessary to a foreclosure for the pur- 
 pose of rendering to the purchaser at the sale as perfect 
 a title as the mortgagor could have granted at the 
 time of the execution of the mortgage ; that is, such a 
 title as a court would compel a bidder at the sale to 
 accept. As has been stated, this part of the work is 
 devoted to those parties who are necessary and indispen- 
 sable to the accomplishment of such a purpose. 
 
 In the preceding chapter attention has been given 
 exclusively to those parties who are necessary to an 
 action to foreclose and cut off the fee title and the 
 entire equity of redemption as it existed in the mort- 
 gagor and the owners of the equity from him by grant, 
 descent, devise or otherwise, even to the remotest 
 degree in quantity of title or interest. In this chapter 
 attention will be given entirely to those parties who 
 acquired incumbrances and liens upon the equity of 
 redemption subsequent to the execution of the mort- 
 gage under foreclosure. It is to be kept clearly in mind 
 that the word ".necessary," as it will be used in this 
 chapter, has its meaning limited and defined by the 
 purpose of the plaintiff in the action, which is, as has 
 been stated, to produce and offer at the foreclosure 
 sale a perfect title. The word "necessary" has
 
 138 PARTIES TO MORTGAGE FORECLOSURES. 
 
 been used by courts and text-book writers with a 
 great deal of inaccuracy and confusion, simply because 
 applied with an absolute and invariable meaning, 
 whereas it is a general and indefinite term and always 
 relative in signification. 
 
 Keeping it in view, then, that it is the design of this 
 chapter to consider those parties who have acquired an 
 interest in the equity of redemption by lien or incum- 
 brance subsequent to the execution of the mortgage 
 under foreclosure, it may be said generally that all such 
 parties are necessary to an action to foreclose, in order 
 to extinguish their claims and the claims of all persons 
 holdino; under them. It matters not whether the lien 
 is created by the voluntary act of the owner of the 
 equity, as in executing a mortgage, or by process and 
 operation of law, as in docketing a judgment against 
 him. The theory of the law is, that such an incum- 
 brance is a pledge of the equity for the debt, and gives 
 the lienor an equitable interest in the mortgaged prem- 
 ises. As the owner of the equity may, by an absolute 
 conveyance, transfer his entire interest, and thereby 
 make his transferee a necessary party, as we have seen, 
 so he can on the same principle pledge, by a mortgage, 
 judgment or otherwise, a part or the whole of his interest 
 in the premises, and thereby render the incumbrancer a 
 necessary party in order to wipe out his interest. 
 Though a lienor does not acquire the fee title to the equity, 
 he acquires an interest in the premises which the statutes 
 of the various states have long established, and which the 
 courts have long recognized and sustained ; and which 
 parties, dealing with the premises, cannot ignore, except 
 at their own peril. It is to be observed here that the
 
 EFFECT OF OMITTING SUBSEQUENT LIENORS. 139 
 
 interests in the mortgaged premises held by parties 
 considered in this chapter are personal property, while 
 the interests held by parties considered in the pre- 
 ceding chapter were estates m real property. 
 
 An action to foreclose will not be dismissed if subse- 
 quent incumbrancers are not made parties ; it can be 
 sustained without them, but their rights will not be 
 concluded and their interests in the mortgaged prem- 
 ises extinguished, unless they are brought into the 
 action.^ It has been held that an incumbrancer may 
 even be dismissed from the action on motion of the 
 plaintiff, unless he objects ;- and a subsequent incum- 
 brancer may intervene and be made a defendant on his 
 own application.^ 
 
 § 61. Subsequent mortgagees, still ow^ning their mort- 
 gages, necessary parties. 
 
 All authorities in all countries where mortgages are 
 foreclosed by equitable actions are agreed that subse- 
 quent and junior mortgagees are necessary parties to the 
 foreclosure of a prior mortgage in order to extinguish 
 and cut off their liens.^ The action can be sustained 
 
 ^ Donnelly v. Rusch, 15 Iowa, 99 (1863) ; Hiniestreet v. Win- 
 nie, 10 id. 430 (1860), relied upon in iStreet v. Beal, 16 id. 68, 70 
 (1864). 
 
 2 Himestreet v. Winnie, supra. 
 
 ^ Parott V. Hughes, 10 Io\Va, 459 (1860). 
 
 4 Waller v. Harris, 7 Paige (N. Y.), 167 (1838) ; Benedict v. 
 Gilraan, 4 id. 58 (1833) ; Vroom v. Ditmas, 4 id. 526 (1834) ; Van- 
 derkemp v. 8helton, 11 id. 28 (1844); Peabody v. Roberts, 47 Barb. 
 (N.Y.) 91 (1866) ; Brainard v. Cooper, 10 N. Y. 356 (1852); Gage v. 
 Brewster, 31 id. 218 (1865) ; Arnot v. Post, 6 Hill (N. Y.), 65 
 (1843) ; Franklyn v. Hayward, 61 How. (N. Y.) 43 (1881) ; Chores 
 V. Hcott River Co., 21 Cal. 135 (1862) ; Whitney v. Higgins, 10 id. 
 547, 551 (1858) ; Montgomery v. Tiitt, 11 id. 307, 314 (1858) ; Car- 
 penter v. Brenham, 40 id. 221 (1870); fcJmith v. Chapman, 4 Conn.
 
 140 PARTIES TO MORTGAGE FORECLOSURES. 
 
 without them, but a defective title would be offered at 
 the sale which no court would compel a bidder to ac- 
 cept.- The rule has long been settled that in a bill to 
 foreclose a mortgage, the rights of incumbrancers 
 not made parties to the suit, are not barred or 
 
 346 (1822); Goodman v. White, 26 id. 820(1857); Broome v. Beers, 
 6 id. 207 (1826) ; 8wift v. Edsoii, 5 id. 534 (1825) ; Strang v. Allen, 
 44 111.428(1867); Hodgen v. Gutteiy, 58 id. 431 (1871). See 
 Shinn v. Shinn, 91 id. 477 (1879), where the action was upon a deed 
 of trust in the nature of a mortgage. In Kenyon v. Shreck, 52 
 111. 382 (1869), subsequent incumbrancers were held not necessary 
 parties to a proceeding for foreclosure by scire facias ; aliter, if the 
 foreclosure is bv an action in equity. Proctor v. Baker, 15 Ind. 178 
 (1860) ; Murdock v. Ford, 17 id. 52 '(1861) ; Holmes v. Bybee, 34 id. 
 262 (1870); Hasselman v. McKernan, 50 id. 441 (1875); McKernan 
 V. Neff, 43 id. 503 (1873); Hosford v. Johnson, 74 id. 479, 481 (1881); 
 Catterlin v. Armstrong, 79 id. 514 (1881). See also, in point, 
 Pattison v. Shaw, 6 id. '377 (1855) ; Mack v. Graver, 12 id. 254 
 (1859), holding junior incumbrancers proper, but not necessary, 
 parties. Meredith v. Lackay, 14 id. 529 (1860) ; S. C, 16 id. 1 ; 
 Anson v. Anson, 20 Iowa, 58 (1865) ; Knowles v. Rablin, lb. 103 ; 
 Johnson v, Harmon, 19 id. 56 (1865); Walker v. Schreiber, 47 
 id. 529 (1877); Newcomb v. Dewey, 27 id. 381 (1869) ; Macey v. 
 Fenwick, 4B. M. (Ky.) 309 (1843) ; Rogers v. Holyoke, 14 Minn. 
 220 (1869); Mills v. Traylor, 30 Texas, 7 (1867); Hinson v. 
 Adriari, 86 N. C. 61 (1882) ; Farwell v. Murphy, 2 Wis. 533 
 (1853) ; Murphy v. Farwell, 9 id. 102 (1859) ; Deuster v. Mc- 
 Camus, 14 id. 307 (1861) ; Moore v. Cord, 14 id. 213 (1861) ; 
 Weed V. Beebe, 21 Vt. 495 (1849) ; Brown v. Nevitt, 5 C. (Miss.) 
 801 (1854) ; Jones, § 1425 ; Thomas, p. 244. For the English 
 authorities, see Fisher, § 318 ; Adams v. Paynter, 1 Coll. 530 
 (1844); Tylee v. Webb, 6 Beav. 552 (1843) ; Johnson v. Holds- 
 worth, 1 Sim. N. S. 106 (1850) ; Burgess v. Sturges, 14 Beav. 440 
 (1851) ; Delabere v. Norwood, 3 Sw..l44 (1818); Payne v. Comp- 
 ton, 2 Y. & C. 457 (1837). See the following section and notes ; 
 also the cases cited in the remaining notes to this section. In 
 Rowan v. Mercer, 10 Humph. (Tenn.) 359 (1849), subsequent 
 mortgagees were held proper, but not necessary, parties ; the 
 decree and sale were held conclusive wdthout them. 
 
 ^ Hess V. Feldkamp, 2 Disney (Ohio), 332 (1858) ; Cullum v. 
 Batre, 2 Ala. 415 (1841), correcting Judson v. Emanuel, 1 Ala. 
 598 (1840). See Russell v. Mullanphy, 4 Mo. Rep. 319 (1836) ; 
 Valentine v. Havener, 20 id. 133 (1854) ; Hay ward v. Stearns, 
 39 Cal. 58 (1870). See the cases supra.
 
 SUBSEQUENT MORTGAGEES DEFENDANTS. 141 
 
 affected by the decree.^ If the foreclosure is con- 
 ducted by advertisement, the same rule prevails." If 
 the subsequent mortgagee is a trustee for namerous 
 bondholders, it is sufficient to make him a defendant in 
 his representative capacity, without bringing the bond- 
 holders into the action ; a bondholder may interplead, 
 however, pro interesse suo.^ The successor of a trustee is 
 also a necessary defendant if he has accepted the trust.^ 
 If a junior mortgagee is omitted as a party, his remedy 
 is to redeem from the sale under foreclosure ;"' and this 
 right must be exercised in most states within ten years 
 from the time when the mortgage debt becomes due.*^ 
 In his redemption an accounting of rents and profits 
 can be compelled,'' and the junior mortgagee will be 
 
 i McCall V. Yard, 1 Stockt. Ch. (9 N. J. Eq.) 358 (1853) ; S. 
 C, 3 id. 58 (1855). tSee also Willink v. Morris Canal & Banking 
 Co., 3 Green Ch. (N. J.) 377 (1843) ; Gould v. Wheeler, 28 N. J. 
 Eq. 541 (1877). 
 
 2 Winslow V. McCall, 32 Barb. (N. Y.) 241 (1860). 
 
 3 McElrath v. Pittsburgh & S. R. Co., 68 Penn. 37(1871); 
 Supervisors of Iowa County v. Mineral Point R. R., 24 Wis. 93 
 (1869). 
 
 4 Delaplaine v. Lewis, 19 Wis. 476 (1865). 
 
 ^ Wiley V. Ewing, 47 Ala. 418 (1872) ; Carpentier v. Brenhani, 
 40 Cal. 221 (1870); Newcoinb v. Dewey, 27 Iowa, 381 (1869); 
 Gower v. Winchester, 33 id. 303 (1871) ;" Hodgen v. Gutterv, 58 
 111. 431 (1871); Clary v. Marshall, 5 B. Mon. (Ky.) 274 (1845); 
 Cooper V. Martin, 1 Dana (Ky.), 25 (1833) ; Roriey v. Bell, 9 
 Dana (Ky.), 4 (1839) ; Bank of U. S. v. Carroll, 4 B. Mon. (Ky.) 
 50 (1843); Baker v. Pierson, 6 Mich. 522 (1859); Avery v. Ryer- 
 8on, 34 id. 362 (1876) ; Renand v. Brown, 7 Neb. 449 (1878)". ^ee 
 the cases stqjra. 
 
 6 Gage V. Brewster, 31 N. Y. 218 (1865); Peabody v. Roberts, 
 47 Barb. (N. Y.) 91 (1866) ; County of Floyd v. Cheney, 57 Iowa, 
 160, 163 (1881) ; Gower v. Winchester, 33 id. 303 (1871) ; Craw- 
 ford V. Taylor, 42 id. 260 (1875). In Illinois the time is only 
 seven years; Ewing v. Ainsworth, 53 111. 464 (1870). 
 
 ■^ Ten Eyck v. Casad, 15 Iowa, 524 (1864) ; Gage v. Brewster, 
 31 N. Y. 218 (1865). See the next note.
 
 142 PARTIES TO MORTGAGE FORECLOSURES. 
 
 obliged to pay only the mortgage del^t, j^rincipal and 
 interest, without the costs of" the previous foreclosure.^ 
 Though the property may have been sold under fore- 
 closure for less than the mortgage, the party redeeming 
 will nevertheless be obliged to pay the amount due on 
 the mortgage with interest; if the property sold for 
 more than the amount of the mortgage, its selling price 
 becomes the amount to be paid to redeem.^ After a 
 mortgage has been paid, an action to redeem cannot be 
 maintained upon it.'^ It has been held in some cases 
 that a junior mortgagee, who was omitted as a defendant 
 in an action to foreclose a senior mortgage, may main- 
 tain an action for the foreclosure of his own mortgage, 
 instead of redeeming from the sale under the senior 
 mortgage, and becoming thereby the equitable assignee 
 of the senior mortsage.^ "There seems to be no im- 
 
 1 Gagev. Brewster, supra; opinions per Denio, Ch. J., Ingra- 
 HAM and Mullen, JJ. Mullen, J., in his opinion, makes a care- 
 ful analysis and review of Chanckllor Walworth's opinion in 
 Vanderkanip v. Shelton, 11 Paio-e (N. Y.), 28 (1844), approving it 
 in all respects. tSee Brainerd v. Cooper, 10 N. Y. 356 (1852) ; 
 Vroom V. Ditraas, 4 Paige (N. Y.), 526 (1884); Benedict v. Gil- 
 man, 4 id. 58 (1883), reviewed and commented on in the same 
 opinion. See also Belden v. Slade, 26 Hun (N. Y".), 635 (1882). 
 
 '^ Johnson v. Harmon, 19 Iowa, 56 (1865), per Wright, Ch. J., 
 writing an exhansiive opinion. American Buttonhole Co. v. 
 Burlington M. L. Association, 61 Iowa, 464 (1883). 
 
 3 McHenry v. Cooper, 27 Iowa, 137, 141 (1869). 
 
 ^ Peabody v. Roberts, 47 Barb. (N. Y.) 91 (1866). In Walsh 
 V. Rutgers Fire Ins. Co., 13 Abb. (N. Y.) 33 (1862), such a fore- 
 closure was held necessarv. McKernan v. Neff, 43 Ind. 503 
 (1873); Coleman v. Witherspoon, 76 id. 285 (1881); Chilver v. 
 Weston, 27 N. J. Eq. 435 (1876); Atwater v. West, 28 id. 
 361 (1877), an important case; Besser v. Hawthorn, 3 Ores". 129 
 (1869); lb. 512; Stewart v. .Johnson, 30 Ohio St. 24 (r876); 
 Murphy v. Farwell, 9 Wis. 102 (1859). In Bache v. Pnrcell, 6 
 Hun (N. Y^.), 518 (1876), a junior mortgagee was allowed to fore- 
 close, even though he had been made a party defendant to a
 
 SUBSEQUENT MORTGAGEES DEFENDANTS. 143 
 
 propriety under the authorities in conchiding the plain- 
 tiff may maintain the present action as only for the 
 foreclosure of his mortgage, notwithstanding the fore- 
 closure and sale previously had under the senior mortgage. 
 This conclusion is of very great practical importance 
 in cases like the one now before the court, because it is, 
 to say the least, exceedingly doubtful whether the action 
 to redeem can be brought after the expiration of ten 
 years from the time the mortgage debt became due, or 
 the last payment was made upon it. * ^- =^ jf 
 an action to redeem in a case like the present one is the 
 only action which the incumbrancer can maintain, and 
 that must be commenced within ten years after the 
 right has accrued, a legal anomaly after that will be 
 presented of a party having a demand presumed by law 
 to be unpaid, without any legal or equitable means of 
 applying towards its payment the security created ex- 
 pressly for that purpose." ^ A junior mortgagee or in- 
 cumbrancer, who is omitted in the foreclosure of a prior 
 mortgage, may be cut off by a strict foreclosure - con- 
 ducted by the purchaser at the foreclosure sale, who by 
 his purchase of the premises becomes the equitable 
 assignee of the prior mortgage.'' 
 
 A junior mortgagee, who owns a prior mortgage, 
 
 foreclosure by a senior niort^^agee. But see Fliess v. Buckley, 
 90 N. Y. 28(J (1^182), holding that a junior mortgagee cannot 
 maintain a foreclosure to reach surplus moneys arising on the 
 foreclosure of a senior mortgaije. 
 
 1 Peabody v. Roberts, 47 Barb. (N. Y.) 91, 102 (1866), per Dan- 
 iels, J., whose o])inion seems to be at variance with Gage v. 
 Brewster, 31 N. Y. 218 (1865). 
 
 2 Franklyn v. Hay ward, 61 IIow. (N. Y.) 43 (1881) ; Brainard 
 V. Cooper, 10 N. Y. 359 (1852). 
 
 •'' Gage V. Brewster, 31 N. Y. 218 (1865) ; Brainard v. Cooper, 
 10 id. 356 (18.52).
 
 144 PARTIES TO MORTGAGE FORECLOSURES. 
 
 must set forth, in his complaint to foreclose the prior 
 mortgage, his claim upon the junior mortgage, or it will 
 be cut off by the action ; he cannot compel the 
 premises to be sold subject to his junior mortgage. 
 " The practice of the court requires that the complain- 
 ant in his bill should set out all his claims upon the 
 mortgaged property, and have the same in that suit 
 duly litigated and disposed of by the decree, and that, 
 if he omits to set out any incumbrance which he holds 
 upon the premises junior to the mortgage described in 
 the bill, such junior incumbrance will be cut off by a 
 sale on a decree foreclosing the first mortgage, and 
 making no allusion to any further incumbrance." ^ A.S 
 a general rule a foreclosure bars the claims of all per- 
 sons having liens subsequent to the mortgage foreclosed, 
 who are parties to the suit. The plaintiff is a party, 
 and if he fails to set up his claim on the junior 
 mortgage, the neglect is his own, and cannot be remedied 
 by undertaking to impose a condition on the judgment 
 of foreclosure and sale for which the judgment itself 
 gives no warrant. If the subsequent mortgagee has re- 
 leased the mortgaged premises from the lien of his 
 mortgage, he is no longer a necessary defendant. 
 
 § 62. Subsequent judgment creditors, still owning judg- 
 ments, necessary. 
 
 A person who obtains and dockets a judgment against 
 the owner of an equity of redemption in mortgaged 
 
 1 Homoeopathic Medical Life Ins. Co. v. Sixbury, 17 Hun (N. 
 Y.), 428 (1879), per Talcott, P. J. ; Tower v. White, 10 Paige 
 (N. Y.), 39S (1843) ; Roosevelt v. Ellithrop, 10 id. 415 ; Wheeler 
 V. Van Kuran, 1 Barb. Ch. (N. Y.) 490 (1846) ; Walsh v. Rutgers 
 Fire Ins. Co., 13 Abb. (N. Y.) 33 (1861).
 
 JUDGMENT CREDITORS NECESSARY DEFENDANTS. 145 
 
 premises is a necessary defendant to a foreclosure of 
 the mortgage commenced after the docketing of the 
 judgment ;^ a judgment creditor cannot be joined by 
 the mortgagee as a co-plaintiff.'^ In some states judg- 
 ment creditors are held only proper and not indispensa- 
 ble parties ; but the courts which hold this are agreed 
 that a judgment creditor's rights are not affected, unless 
 he is brought into the action, and that his omission 
 produces an imperfect title.^ In Maryland it seems to 
 be the rule to make prior as well as subsequent incum- 
 brancers parties to a foreclosure.* The above general 
 rule applies if the foreclosure is conducted by advertise- 
 ment under the statute ; all judgment creditors must 
 be served with the notice,'' and if a judgment is per- 
 
 1 Haines v. Beach, 3 Johns. Ch. (N. Y.) 466 (1818) ; Shaw v. 
 McNish, 1 Barb. Ch. (N. Y.) 328 (1846) ; Benedict v. Gilraan, 4 
 Paige (N. Y.), 58 (1833) ; Vrooni v. Ditmas, lb. 531 ; People's 
 Bank v. Hamilton Manuf. Co., 10 id. 481 (1843) ; INiagaia Bank 
 V. Roosevelt, 9 Cow. (N. Y.) 409 (1827) ; Arnot v. Post, 6 Hill 
 (N. Y.), 65 (1843) ; Winebrener v. Johnson, 7 Abb. N. 8. (N. Y.) 
 202 (1869) ; Brainard v. Cooper, 10 N. Y. 356 (1852) ; Morris v. 
 Wheeler, 45 id. 708 (1871) ; Virdin v Slocum, 71 id. 345 (1877) ; 
 Hubbell V. Sibley, 5 Lans. (N. Y.) .56 (1871) ; Alexander v. Green- 
 wood, 24 Cal. 505 (1864); Ritch v. Eichelberger, 13 Fla. 169' 
 (1870) ; Strani^ v. Allen, 44 111. 42S (1867) ; Kelgoiir v. Wood, 64 
 id. 345 (1872)^ Wylie v. McMakin, 2 Md. Ch. Dec. 413 (1848) ; 
 Ducker v. Belt, 3 id. 13 (1850); Hinsoii v. Adrian, 86 N. C. 61 
 (1882). See the precedini( section and notes. 
 
 2 Felder v. Murphy, 2 Rich. Eq. (S. C.) 58 (1845). 
 
 '•' Person v. Merrick, 5 Wis. 231 (1856). In Leonard v. Groome, 
 47 Md. 499 (1877), the judgment creditor was held not indispen- 
 sable on the ground that he was presumed to know of the senior 
 mortgage, and therefore to be able to protect his own interests. 
 See Harris v. Hooper, 50 id. 537 (1878) ; see also Gaines v. 
 Walker, 16 Ind. 361 (1861), holding a judgment creditor ordy a 
 projjer party. See the preceding section and the note on the 
 Indiana decisions. 
 
 4 Heuisler v. Nickum, 38 Md. 270 (1873) ; Tome v. Mer. Mac. 
 B. & L. Co., 34 id. 12 (1870) ; Md. Code, vol. 2, art. 4, §§ 782-792. 
 
 ■> Root V. Wheeler, 12 Abb. (N. Y.) 294 (1861). 
 10
 
 146 PARTIES TO MORTGAGE FORECLOSURES. 
 
 fected against the owner of the equity at any time after 
 the first publication of the notice and before the day of 
 sale, the judgment creditor becomes a necessary party 
 and must be served with the notice. This ruling is 
 based on the language of the statute.^ 
 
 In a recent foreclosure certain judgment creditors 
 were not originally made parties; but after the entry 
 of judgment they appeared by attorneys, on whose stip- 
 ulation it was ordered that all papers and proceedings 
 be amended nunc pro tunc, by inserting their names in 
 the decree, and that they be bound in all respects by the 
 action. The bidder at the sale refused to complete 
 his purchase on the ground that there was a defect of 
 parties in the omission of the judgment creditors ; the 
 court determined that it was incumbent upon the plain- 
 tiff to establish unequivocally the authority of the 
 attorneys to enter into the stipulation, and that without 
 such authority the judgment creditors were not bound, 
 and the bidder could not be compelled to take the title.^ 
 The omission of a judgment creditor, wdio holds a judg- 
 ment against the owner of a hfe estate in mortgaged 
 premises, will produce such a defect of title as to release 
 a bidder from his bid at the foi'eclosure sale.'' 
 
 If a judgment is docketed against a person who sub- 
 sequently purchases real estate and executes a purchase- 
 money mortgage thereon, the judgment becomes an 
 incumbrance on the equity of redemption subsequent 
 
 1 Groff V. Morehouse, 51 N. Y. 503 (1873). 
 
 2 Lyou V. Lyon, 67 N. Y. 250, 253 (1876), per Miller, J. 8ee 
 also Waldo v. Williams, 2 Scam. (111.) 471 (1840), where the omis- 
 sion was corrected b}^ an alias writ. 
 
 •^ Verdin v. Slociim, 71 N. Y. 345 (1877), reversing 9 Hun, 150 
 <1876).
 
 WHAT CREDITORS NOT NECESSARY DEFENDANTS, 147 
 
 in its lien to the purchase-money mortgage, and the 
 judgment creditor is a necessary defendant to a fore- 
 closure of the mortgage/ Likewise a judgment against a 
 person who in any way becomes the owner of the equity 
 of redemption in mortgaged premises becomes a lien 
 upon the premises, and the judgment creditor is a neces- 
 sary party in an action to foreclose the mortgage. A 
 judgment is a lien from the time it is docketed,- but if 
 the proceedings to recover the judgment have not been 
 completed, the judgment is not a lien and the judgment 
 creditor is not a necessary defendant. Thus a party who 
 had recovered an award against a mortgagor, but had 
 not yet reduced it to a judgment, has been held not a 
 necessary party, for the reason that he had no lien on 
 the land f and where creditors had perfected their 
 judgments against a mortgagor a few days after he had 
 made a general assignment, they were held unnecessary 
 parties, and though they were made parties to the action, 
 they were not allowed to interpose a defense, as the 
 assignee was the only necessary defendant."* A creditor 
 at large has no status in court, and is not a necessary 
 nor a proper party ; he will not even be allowed to inter- 
 vene on his own application.^ What is said here refers 
 to money judgments ; but the same rules apply to equit- 
 able decrees and orders affecting mortgaged premises, 
 which are entered in a "judgment book," and also 
 
 1 Winebrenuer V. Johnson, 7 Abb. N. S. (N. Y.) 202 (1869); 
 De Haussure v. BoUmann, 7 Rich. (S. C.) H29, 339 (1875). 
 
 2 New York Code, §g 1250, 1251 ; Allen v. Case, 13 Wis. 621 
 (1861). 
 
 3 Jones V. Winans, 20 N. J. Eq. 96 (1869). 
 
 4 Hpring V. Short, 90 N. Y. 538, 545 (1882). 
 
 5 People V. Erie Railway Co., 56 How. (N. Y.) 122 (1878); 
 Gardner v. Lan.sing, 28 Hun (N. Y.), 413 (1883).
 
 148 PARTIES TO iMORTGAGE FORECLOSURES. 
 
 to the persons benefited or bound by such decrees and 
 orders/ A judgment creditor who has levied an execu- 
 tion remains a necessary party until the sheriff's certifi- 
 cate of sale is issued to the purchaser, and his judgment 
 has been satisfied in full/- An attaching creditor is 
 also a necessary party ,'^ but a judgment creditor whose 
 judgment is docketed pending the foreclosure, is not a 
 necessary defendant ; he may, however, intervene by 
 petition, or redeem before the sale/ If a subsequent 
 judgment creditor is omitted as a party defendant, any 
 defendant who has a real interest in the premises may 
 object by demurrer, if the defect appears on the face of 
 the complaint, or by answer if it does not so appear, 
 and compel the omitted party to be brought into court;^ 
 This rule is consistent with equity practice and princi- 
 ples, and is believed to have its foundation in the fact 
 that if a judgment creditor were omitted, the title 
 offered at the sale would be defective, and no bidder 
 would offer as much as for a perfect title, thereby caus- 
 ing a loss to parties having an interest in or a lien upon 
 the equity of redemption. 
 
 1 New York Code, § 1236. 
 
 2 See § 37, a72le. In point, Bullard v. Leach, 27 Vt. 491" 
 (1854). In Woods v. Love, 27 Mich. 308 (1854), the purchaser at 
 an execution sale, to whom a sheriff's certificate had been issued 
 and registered, was held an unnecessary party ; but see § 37, 
 ant.e. 
 
 ^ Lyon V. 8andford, 5 Conn. 547 (1825) ; Bramhall v. Flood, 
 41 id. 68 (1874) ; Campion v. Kille, 1 McCarter (14 N. J. Eq.), 
 229 (1862); 2 id. 476: Chandler v. Dyer, 37 Vt. 345 (1864), 
 overruling Nichols v. Holgate, 2 Aik. (Vt.) 138 (1826), and the 
 dictum in Downer v. Fox, 20 Vt. 388 (1848). See also the statute 
 of 1864. 
 
 '^ People's Bank v. Hamilton Manuf. Co., 10 Paige (N. Y.), 
 482 (1843). See § 68, poi^t, on incumbrancers pendente Ute. 
 
 5 Leveridge v. Marsh, 30 N. J. Eq. 59 (1878); Ballard v. 
 Anderson, 18 Tex. 377 (1857). See § 38, ayite^ last paragraph.
 
 REDEMPTION BY OMITTED JUDGMENT CREDITOR. 149 
 
 Whenever a judgment creditor is omitted as a defend- 
 ant and the mortgaged premises are sold under a decree 
 of foreclosure, his only remedy is to redeem,^ Under 
 the early New York decisions, a judgment creditor was 
 required to issue a fieri facias, or execution, against the 
 equity of redemption in order to obtain a sheriff's cer- 
 tificate of sale and deed, thereby making his judgment 
 a specific instead of a general lien, before he could 
 redeem ;- but it is now well settled that a judgment 
 creditor, omitted as a party to the foreclosure, may redeem 
 directly with his judgment as a general lien, instead of 
 making it a specific lien by execution and a sheriff's 
 sale. Thus certain judgment creditors who had been 
 omitted as parties to a foreclosure issued an execution, 
 
 1 Braiuard v. Cooper, 10 N. Y. 856 (1852) ; Gage v. Brewster, 
 31 id. 218 (1865) ; Winebreiier v. Johnson, 7 Abb. N. S. (N. Y.) 
 202 (1869); Belden v. Slade, 26 Hun (N. Y.), 6B6 (1882); New- 
 comb V. Dewey, 27 Iowa, o81 (1869) ; American Buttonhole Co. 
 V. Burlington M. L. Asso., 61 id. 464 (1883), relying upon Anson 
 V. Anson, 20 id. 55 (1865); Jones v. Harstock, 42 'id. 147 (1875). 
 8ee also Rice v. Kelso, 57 id. 115, 118 (1881) ; Wright v. Howell, 
 35 id. 288, 292 (1872); Stuart v. Scott, 22 Kan. 585 (1880) ; Mar- 
 tin V. Fridley, 23 Minn. 13 (1876) ; Pratt v. Frear, 13 Wis. 462 
 (1861). As to what amount must be paid to redeem, see Iowa 
 Co. V. Beeson, 55 Iowa, 262 (1880). See also the preceding section. 
 
 * In New Y^'ork and most other states the redemption must be within 
 ten years See the cases cited in the first note to this section. 
 But in Illinois the redemption must be within seven years ; Ewing 
 V. Ainsworth, 53 111. 464 (1870). See Miller v. Finn, 1 Neb. 254 
 (1870), holding that redemption will not be allowed if the pur- 
 chaser under the foreclosure offers to pay the claim of the omitted 
 incumbrancer. 
 
 2 Arnot V. Post, 6 Hill (N. Y.), 66 (1843) ; Niagara Bank v. 
 Roosevelt, 9 Cow. (N. Y.) 413 (1827) ; Winebrener v. Johnson, 
 supra; Brainard v Cooper, 10 N. Y. 362 (1852). Thus, in Arnot 
 V. Post, supra, Bronson, J., held that an omitted judgment 
 creditor's right to sell after the foreclosure is just as perfect as it 
 is before, and a sale is the only mode in which he can assign 
 his legal rights. Without a sale he has nothing- but a lien, but 
 by a sale the purchaser acquires a real interest in the land.
 
 150 PARTIES TO MORTGAGE FORECLOSURES. 
 
 and in time obtained a sheriff's deed ; they then brought 
 an action to redeem, and it was held that the judgment 
 creditors, not having been made parties to the action by 
 which the mortgages were foreclosed, were not bound 
 by the decree, and that the foreclosure as to them was 
 utterly void. The judgment creditors would, there- 
 fore, have a right to redeem the premises from the 
 purchaser at the sale under the judgment of foreclosure, 
 even though they had not made their liens specific by 
 an execution and sale upon their judgments. And the 
 foreclosure being, under the decisions of the Court of 
 Appeals, utterly void as to said judgment creditors, it 
 necessarily follows that they had a right to issue execu- 
 tion and sell the premises under it in the same manner 
 as if the mortgage had not been foreclosed ; and it 
 further follows that the purchaser at said sale upon 
 receiving his deed from the sheriff acquired a good title 
 to the extent of the right, title and interest of the 
 judgment debtor in said premises at the time of the 
 docketing of the judgments against him, or which 
 he at any time thereafter acquired in the premises.^ 
 At present a judgment creditor has the alternative 
 practice of redeeming directly under his general lien, or 
 
 1 Winebrener v, Johnson, 7 Abb. N. 8. (N. Y.) 208 (1869), per 
 Freedman, J., citins^ and relying upon Brainard v. Cooper, 10 
 N. Y. 356 (1852) ; Haines v. Beach, 3 Johns. Ch. (N. Y.) 460 
 (1818). Brainard v. Cooper was before the New York Court of 
 Appeals three times for argument, and now stands as the leading 
 case upon the rights of judgment creditors who are omitted as 
 parties to a foreclosure. The question as to whether a naked or 
 a general judgment lien is a sufficient title to maintain an action 
 for redemption is considered at length, and after an exhaustive re- 
 view of the English and American cases, Gardner, J., writing 
 the opinion, concludes that such a general judgment lien is a suf- 
 ficient title without execution and a sheriff"s deed to make it 
 specific.
 
 OWNER OF mechanic's LIEN NECESSARY. 151 
 
 of issuing an execution and redeeming under the specific 
 lien of a sheriff's deed. A purchaser at a foreclosure 
 sale, in his relation to a judgment creditor, is deemed 
 merely an equitable assignee of the mortgage.^ A re- 
 deeming creditor is now obliged to pay only the mort- 
 gage debt, principal and interest, without the costs of 
 the foreclosure ; but the purchaser at the foreclosure sale 
 and his grantees are entitled to an accounting of rents, 
 taxes and disbursements for improvements.- 
 
 § 63. Mechanic's lien, owner of, necessary. 
 
 All persons holding mechanics' liens, which, as incum- 
 brances upon the mortgaged premises, are subsequent 
 to the mortgage, are necessary parties to an action to 
 foreclose.^'^ It may not always be easy to determine 
 whether a mechanic's lien, as a lien upon the premises, 
 is subsequent to the mortgage, but questions affecting 
 that subject cannot be discussed here ; for the purposes 
 of this work it is assumed that the mechanic's lien is 
 subsequent. A mechanic's lien is a special statutory 
 charge upon real estate, peculiar to American law ; the 
 English law knows no such lien.^ As the various states 
 have regulations of their own, and the statute jaws of 
 New York concerning mechanics' liens are so confused 
 and inharmonious for different parts of the state, it is 
 
 ^ Brainard v. Cooper, supra; Arnot v. Post, 6 Hill (N. Y.), 
 67 (1843). 
 
 2 Brainard v. Cooper, supra; Gage v. Brewster, 31 N. Y. 218 
 (1865) ; Winebrener V. Johnson, 7 Abb. N. S. (N. Y.) 211 (1869). 
 
 =* Emi^a-ant Industrial W. Bank v. Goldman, 75 N. Y. 127, 129" 
 (1878); Payne v. Wilson, 74 id. 348 (1878); Jones v. Harstock,. 
 42 Iowa, 147 (1875) ; Jones, § 479 a. 
 
 * Kneeland on Mechanics' Liens, pp. 8-18.
 
 152 PARTIES TO MORTGAGE FORECLOSURES. 
 
 impossible to state any very general rules affecting 
 them, except that a notice of the lien is uniformly 
 required to be filed in the office of the clerk of the 
 county where the premises are situated, and that a 
 mortgagee foreclosing is bound to take notice of no liens 
 except those which are filed subsequent to the execution 
 of his mortgage and prior to the commencement of the 
 action and the filing of the lis pendens. The rules of 
 law and practice which have been stated as applying to 
 subsequent mortgagees and judgment creditors, it is 
 believed, apply with equal force to the owners of 
 mechanics' liens. 
 
 § 64. Subsequent mortgagee, judgment creditor or other 
 lienor, an assignor no longer holding the incum- 
 brance, and intermediate assignors, not necessary. 
 
 No principle of law or practice is more familiar than 
 that only those parties who are interested in the sub- 
 ject-matter of an action should be brought before the 
 court. It is almost axiomatic that a subsequent lienor, 
 who has parted absolutely with his lien, can have no 
 interest in an action to foreclose a prior mortgage. 
 There are almost no cases which pointedly support this 
 proposition ; but it is beyond dispute, as reasoned from 
 analogous^ cases, that the proposition is true. Chan- 
 
 1 Whitney v. McKiniiey, 7 Johns. Ch. (N. Y.) 144 (1823); 
 Christie V. Herrick, 1 Barb. Ch. (N. Y.) 255 (1845) ; Ward v. 
 Van Bokkelen, 2 Pai^e (N. Y.), 289 (1830) ; Andrews v. Gilles- 
 pie, 47 N. Y. 487 (1872). These cases are quoted from in §§ 75, 
 76 and 77, po^t. They uniformly hold that a mortgagee who 
 has made an absolute and unconditional assignment of his mort- 
 gage is not a necessary party to an action brought to foreclose 
 the same mortgage. If such a mortgagee and assignor is not a 
 necessary party, it must certainly follow that a subsequent mort-
 
 ASSIGNOR OF A JUNIOR LIEN NOT NECESSARY. 153 
 
 cellor Kent has held it as a general j^rinciple " that a 
 person who has no interest in the suit and is a mere 
 witness, against whom there could be no relief, ought 
 not to be a party ; "^ and further, where an assignment 
 is absolute and " the mortgagee parts with all his inter- 
 est in the mortgage, and there is nothing special and 
 peculiar in the case, that there is no necessity to make 
 the mortgagee a party to a bill to foreclose." More- 
 over, if the assignment were absolute and uncondi- 
 tional on its face, while the mortgagee retained some 
 equitable interest in the mortgage, it would be unjust 
 and contrary to first principles to hold a j^rior mort- 
 gagee foreclosing responsible for not taking notice 
 of equities existing between a subsequent mortgagee and 
 his assignee when he had no knowledge of the same. 
 If, however, knowledge of such equities were brought 
 to the mortgagee foreclosing, it would be dangerous for 
 him to omit either the assignor or the assignee of the 
 subsequent mortgage. If a junior mortgagee has been 
 paid in full, he is, of course, no longer a necessary or 
 proper defendant.- All that has been said in this section 
 with reference to subsequent mortgagees and their 
 assignees applies with equal force to subsequent holders 
 of judgments, mechanics' and other liens, and their 
 assignees.'^ 
 
 gagee, who has parted with his entire interest in the mortgage, 
 is not a necessary party to an action brought to foreclose a prior 
 mortgage. Most in point, see Winslow v. McCall, 32 Barb. (N. 
 Y.) 241 (18H0), relying upon Wetmore^v. Roberts, 10 How. (N. 
 Y ) 51 (1855). 
 
 1 Whitney v. McKiiniey, 7 Johns. Ch. (N. Y.) 147 (1823). 
 
 2 Jones, § 1430; McHenry v. CJooper, 27 Iowa. 137 (1869). 
 
 3 In McKee v. Murphy, 34 «upr. Ct. (N. Y.) 261 (1872), though 
 a judgment creditor had assigned his judgment with a power of
 
 154 PARTIES TO MORTGAGE FORECLOSURES. 
 
 The principles of law stated in this and the immedi- 
 ately succeeding sections are so axiomatic to the prac- 
 ticing attorney, and are so little discussed by writers on 
 the subject of this work, that it may seem useless to 
 mention them here ; but the headings of these sections 
 seemed necessary to the author, in order to sustain and 
 preserve the logical analysis and arrangement of the 
 subject. A slight examination will show that the anal- 
 ysis of this chapter follows in many respects that of 
 the first chapter of this part of the work. The object 
 of this is to embrace every possible and conceivable 
 case of an incumbrance that could arise, whether the 
 courts have rendered decisions upon it or not. 
 
 § 65. Subsequent mortgagees or other lienors, still holding 
 any kind of an equitable or contingent interest in 
 the lien, or being part or joint owners, generally- 
 necessary . 
 
 Whenever a person holding a subsequent mortgage, 
 judgment or other lien on mortgaged premises assigns 
 » his lien conditionally, as a collateral security or other- 
 wise, so that he retains an equitable interest in it, he is 
 a necessary party to an action to foreclose a prior 
 mortgage.^ The assignee of the subsequent mortgage 
 lien is also a necessary party. It is believed, however, 
 
 attorney, he was held a necessary defendant, the power of attor- 
 ney not operating as an absolute assignment. 
 
 1 In Blair & Co. v. Mai'sh, 8 Iowa, 144 (1859), the assignor and 
 the assignee of a " title bond " were both made parties to the 
 foreclosure of a prior existing mortgage, the title bond having 
 been assigned merely as a collateral security. A junior mort- 
 gagee, who has assigned his mortgage as a collateral security, 
 may redeem from a senior mort^'agee foreclosing ; Manning v. 
 Markel, 19 Iowa, 103 (1865).
 
 CONDITIONAL ASSIGNOR OF JUNIOR LIEN. 155 
 
 that this proposition should be qualified to the effect 
 that the plaintiff to the foreclosure must have notice 
 from the record or otherwise of the character and con- 
 ditions of the assignment. The reason for this rule 
 evidently is, that all outstanding interests in the equity 
 of redemption by lien or otherwise must be reached and 
 covered by the action. The law sustaining the propo- 
 sition of this section is analogous in principle to that 
 which requires a mortgagor who has apparently parted 
 with his equity of redemption, but still holds an equi- 
 table interest in it, to be made a defendant to a fore- 
 closure.^ 
 
 There is another line of cases- which, by analogy, 
 support the proposition of this section. They uniformly 
 hold, where a mortgage is assigned as a collateral se- 
 curity, and an action to foreclose is commenced by the 
 assignee or the assignor, the other refusing to become a 
 co-plaintiff, that he can and must be made a party de- 
 fendant to the action, for the reason that otherwise a 
 perfect decree could not be " made which would protect 
 the mortgagor and the purchaser of the mortgaged 
 premises from any future claims which the assignor 
 might make."" If this law is good for a prior mortgage 
 under foreclosure, why is it not equally good for a sub- 
 sequent mortgage, under precisely the same circum- 
 stances ? The only difference is, that in the foreclosure 
 
 1 See § 37, ante. 
 
 2 Slee V. Manhattan Company, 1 Paige (N. Y.), 48 (1828) ; 
 Christie v. Herrick, 1 Barb. Ch. (N. Y.) 254 (1845) ; Kittle v. 
 Van Dyck, 1 Sandf. Ch. (N. Y.) 76 (1843) ; Andrews v. Gillespie, 
 47 N. Y. 487 (1872) ; Bloomer v. 8turges, 58 id. 168, 177 (1874). 
 See §§ 78 and 79, pod, and the notes and cases cited. 
 
 3 Christie v. Herrick, 1 Barb. Ch. (N. Y.) 254, 259 (1845), per 
 Chancellor Walworth.
 
 156 PARTIES TO MORTGAGE FORECLOSURES. 
 
 of the prior mortgage, the mortgagee and the assignee 
 are cognizant of the equities between them, while in 
 the latter case the plaintiff may have no knowledge of 
 the equities existing between the subsequent mortgagee 
 and his assignee. 
 
 § 66. Assignee of subsequent mortgage, judgment or other 
 lien, necessary. 
 
 A party who acquires unconditionally, by assignment 
 or otherwise, the whole of a junior mortgage, judgment 
 or other lien upon mortgaged premises, becomes at once 
 the party in interest in place of the lienor, and is conse- 
 quently a necessary defendant in an action to foreclose 
 a prior mortgage.^ This proposition, like those stated 
 in the two preceding sections, is deduced from general 
 principles of law quite as much as it is induced as a 
 conclusion from adjudged cases. Chancellor Walworth, 
 however, has held in an action to foreclose a mortgage 
 that " it is now well settled, at least in this state, that 
 after an absolute assignment of a chose in action the 
 assignee, at law as well as in equity, is considered the 
 real party to the suit. A decree in equity between 
 the defendant and the assignee would now have the 
 same effect in a court of law as if the assignor was a 
 party to such decree."- " This court does not look at 
 
 1 In point, Winslow v. McCall, 32 Barb. (N. Y.) 241 (1860), 
 relying upon Wetmore v. Roberts, 10 How. (N. Y.) 51 (1855), 
 which hohls further that the assignee may redeem, the same as 
 the original lienor, if he is omitted as a defendant. In point, 
 Agustine v. Doud, 1 111. App. 588 (1877). See also White v. Bart- 
 lett, 14 Neb. 320 (1883), where the assignment was not recorded 
 and the plaintifi' had no knowledge of it ; the action was held to 
 cut olf the subsequent mortgage, although the assignee was not 
 
 . made a defendant. 
 
 2 Ward V. Van Bokkelen, 2 Paige (N. Y.), 289, 295 (1830). A 
 note to this decision by Mr. Paige, the reporter, gives an exhaust-
 
 ASSIGNEE OF JUNIOR LIEN NECESSARY. 157 
 
 the nominal parties to a contract. They look at the real 
 parties to it at the time the suit is commenced — the 
 parties in actual interest — and recognize their rights in 
 the same manner as if the contract was executed by or 
 to them. Thus the assignee of a chose in action is 
 recognized as the real party, and this court, rejecting 
 all legal fictions, treats him as such, and insists that 
 the suit shall be brought in his name."^ The law sup- 
 porting the proposition stated in this section is anal- 
 ogous to that which makes the purchaser and owner of 
 the equity of redemption by grant from a mortgagor a 
 necessary party to a foreclosure ;- the only difference 
 being that in the latter case the defendant holds the fee 
 title, while in the former he held only a lien on the fee. 
 
 § 67. Assignee of subsequent mortgage or lien pendente 
 lite not necessary. 
 
 A person wdio during the pendency of an action to 
 foreclose a mortgage purchases a mortgage, judgment or 
 other incumbrance upon the mortgaged premises, which 
 is subsequent in its lien to the mortgage under fore- 
 closure, is not a necessary party to the action, and the 
 plaintiff will not be obliged to bring such a purchaser be- 
 fore the court f the purchaser may, however, as he suc- 
 
 ive discussion of the question of the assignment of choses in 
 action, citing many cases in chronological order from English and 
 American reports, showing that in the early part of this century 
 the assignor still remained a necessary party, while the assignee 
 was hardly deemed proper. 
 
 1 Western Reserve Bank v. Potter, Clarke Ch. (N. Y.) 437 
 (1841), per Vice-chancellor Whittlesey. 
 
 '^ Hee § 38, ante. 
 
 ^ In point, Case v. Bartholow, 21 Kan. 300 (1878), where a sub- 
 sequent mortgage was purchased pending the foreclosure of a 
 prior mortgage.
 
 158 PARTIES TO MORTGAGE FORECLOSURES. 
 
 ceeds to all the rights of the subsequent lienor, appear 
 and defend in the name of the party from whom he ac- 
 quires his lien, or be substituted on application in his 
 place. ^ The statutory enactments of the Code, which 
 were discussed in the preceding chapter as applying to 
 the equity of redemption, aj)ply with equal force to liens 
 upon that equity.'- To sustain the proposition stated in this 
 section, resort must be had to the principle of analogy, 
 as there are no reported cases bearing directly upon the 
 point. As has been shown, the purchaser of the equity 
 of redemption in mortgaged premises, during the 
 pendency of an action to foreclose, is not a necessary 
 defendant ; ' no reason presents itself why the purchaser 
 of a lien on the same equity of redemption under similar 
 circumstances should be made a defendant. It is assumed, 
 of course, that the assignor of the purchaser pendente lite 
 is a party defendant to the action ; a purchaser pe?idente 
 lite, if his assignor is not a party to the action, is no 
 more bound by the decree of foreclosure than would be 
 the assignor himself. The assignee of a mortgage is 
 an incumbrancer within § 1671 of the New York Code 
 of Civil Procedure, and if he takes title by assignment 
 
 1 See Koch v. Piircell,45 Supr. Ct. (X. Y.) 162 (1879), as 1o the 
 rights of siich an assignee with reference to the action, and any- 
 surplus arising on the sale. See Fisher, §i5 880-388, and the Eng- 
 lish cases cited. See §§ 41 and 42, ante, where a discussion of the 
 common-law doctrine of Us pendens and of the statutory enact- 
 ments in the various states- is given. It may be generally stated 
 that the principles of law there presented, as applying to the 
 purchaser of the equity of redemption in mortgaged premises 
 during an action to foreclose, apply also to a purchaser of the lien 
 on the same equity during the foreclosure. The statute of lis 
 pendens in New York also unquestionably supports this proposi- 
 tion. 
 
 ^ See § 42, ante. 
 
 3 See § 42, ante. *
 
 INCUMBRANCER PENDENTE LITE NOT NECESSARY. 159 
 
 after (or records his assignment subsequently to) the 
 filing of a lis pendens, he is chargeable with notice.^ 
 
 § 68. Incumbrancer pendente lite not necessaiy. 
 
 Likewise it is reasoned by analogy that a person who 
 obtains a lien by mortgage, judgment'- or otherwise upon 
 the equity of redemption in mortgaged premises, during 
 the pendency of an action to foreclose, is not a neces- 
 sary party to the action, providing it was commenced^ or 
 the lis pendens was filed* before the lien was obtained or 
 recorded;^ In such a case, however, while the plaintiff 
 is not bound to bring the incumbrancer before the court, 
 the incumbrancer himself may intervene by petition at 
 any time before sale, and if allowed by the court to 
 come in at all, he will obtain as good and perfect a stand- 
 ing in the case as any other joarty, and may defend if 
 he has a defense to offer.*^ 
 
 1 Hovey v. Hill, 3 Lans. (N. Y.) 107 (1870); Lamont v. 
 •Cheshire, 6' N. Y. 39 (1875). 
 
 2 Montgomery V. Birge, 31 Ark. 491 (1876); Linn v. Patton, 
 10 W. Va. 187 (1877). 
 
 3 Lyon V. Hanford, 5 Conn. 548 (1825). 
 
 * Fuller V. Hcribner, 16 Hun (N. Y.), 130 (1878) ; aff"d 76 N. 
 Y. 190 (1879). 
 
 5 Bank of U. S. v. Carroll, 4 B. Mon. (Ky.) 50 (1843). Hee 
 § 42, ante. 
 
 6 F. and M. Bank of Milwaukee v. Luther, 14 Wis. 96 (1861). 
 See People's Bank v. Hamilton Mfg. Co., 10 Paige (N. Y.), 481 
 (1843), where a creditor obtained a judgmenr against the owner 
 of the equity of redemption, atid docketed the same about a 
 week after the decree of foreclosure was entered, but before the 
 sale ; a lis pefidens had been duly filed at the commencement of 
 the action. Execution was issued and the judii'ment creditor bid 
 in the premises ; he thereupon presented to the court his petition, 
 setting forth all the facts of the case and his defense. Chan- 
 cellor Walworth recognized the petition, and held it to be the 
 proper practice and procediu-e, but refused to allow the judgment 
 creditor to intervene, for the reason that his petition did not state 
 a defense in proper form.
 
 160 PARTIES TO MORTGAGE FORECLOSURES. 
 
 A lis pendens is not effective till the complaint is filed, 
 and the complaint cannot he filed nunc pro tunc so as to 
 afiect the rights which a judgment creditor may have ac- 
 quired in the meantime.^ In a case where a judgment 
 had been recovered and docketed against the owner of the 
 equity of redemption in mortgaged premises, after the 
 f}\ingo^ -ei lis pendens and the service of the summons upon 
 one or more of the defendants, but prior to the service 
 upon the owner of the equity, the court would not 
 relieve the bidder at the sale of his bid, on the ground 
 of a defect of parties to the action ; the judgment cred- 
 itor was not a necessary party." In another case, where 
 no lis pendens had been filed and a judgment was recov- 
 ered and docketed between the time of entering the 
 decree of foreclosure and the day of sale, it was held 
 that the judgment creditor could merely redeem at any 
 time before the sale, but that thereafter his rights 
 would be effectually barred.^ In the foreclosure of a 
 senior mortgage the owner of a junior recorded mort- 
 gage was omitted as a party, as the deed from the 
 original mortgagor to the person executing tlie junior 
 mortgage had not been recorded, and the senior mort- 
 gagee had no notice of the deed or subsequent mort- 
 gage from the record or otherwise; the rights of the 
 junior mortgagee were held concluded and cut off* by 
 
 1 Weeks v. Tomes, 16 Hun (N. Y.), 349 ; atf'd 76 N. Y. 601 
 (1879). 
 
 2 Fuller V. Scribner, 76 N. Y. 190 (1879), aff'g 16 Hun, 130, 
 and d'stinguishing Rogers v. Bonner, 45 N. Y. 379 (1871); the 
 judgement creditor was a subsequent incumbrancer within the 
 meaning of §§ 1670 and 1671 of the New York Code. 
 
 3 McHe;iry v. Cooper, 27 Iowa, 137, 146 (1869). iSee Pratt v. 
 Pratt, 96 111. 184 (1880), where a second mortgage was executed 
 pendin^t^ a foreclosure.
 
 SUBSEQUENT LIENOR, A MARRIED WOMAN. 161 
 
 the action/ In another case the owner of a recorded 
 unindexed second mortgage was omitted as a party 
 defendant to the foreclosure of a prior mortgage, and 
 the foreclosure was held void as to him.- 
 
 § 69. Subsequent mortgagee or lienor a married vroman. 
 does not alter rule ; necessary. 
 
 Mortgages, judgments and all other liens upon real 
 estate are now unquestionably personal property. At 
 common-law the husband became upon marriage the 
 owner of his wife's personal property, including, of 
 course, mortgages, judgments, etc., even though they 
 were placed in the wife's name after marriage. In an 
 action to foreclose a prior mortgage the husband of 
 a woman who held a subsequent incumbrance was, un- 
 doubtedly, necessary as a party defendant to the action ; 
 she was also a necessary party. The common-law 
 rule has, however, been so completely superseded that it 
 is believed there is no state in America where it is now 
 in force. It is safely asserted that the husband of a 
 feme covert, who holds a subsequent lien upon premises 
 under foreclosure by a prior mortgagee, is not a neces- 
 sary party to the action. The wife, however, who 
 holds the lien in her own name, is always as necessary 
 a party as though she were a feme sole.^ Likewise, the 
 wife of a person holding a subsequent lien is not a 
 necessary party, as she has no interest in it.* 
 
 1 Kipp V. Brandt, 49 How. (N. Y.) 358 (1875). 
 
 2 Mutual Life ins. Co. v. Dake, 1 Abb. N. C. (N. Y.) 380 
 (1876); art'd 87 N. Y. 257 (188 ij. 
 
 ■' See §§61 and 62, ante. 
 
 4 See Kay v. Whittaker, 44 N. Y. 565 (1871). 
 
 11
 
 162 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 70. Heirs, devisees, legatees and annuitants of deceased 
 subsequent mortgagee or lienor generally not 
 necessary. 
 
 Under the statutes of no state do the heirs at law receive 
 the legal title and possession of the personal property 
 of a deceased person. It is the theory of American law 
 that upon a person's death the title to all his personal 
 property vests in an executor or administrator, while 
 the title to his real property always vests in his heirs or 
 devisees. Consequently the heirs and devisees of a 
 decedent, who at the time of his death held a subsequent 
 lien upon mortgaged premises, are neither necessary nor 
 proper parties to an action to foreclose a prior mortgage.^ 
 In an action where the heirs and the executors of a 
 deceased subsequent mortgagee were all made parties to 
 the foreclosure of a prior mortgage, it was held, where 
 the question was, whether the plaintiff could tax costs 
 for five defendant [heirs, that " there was no necessity 
 nor any apparent excuse for making the five children of 
 the subsequent mortgagee parties. The executor fully 
 represented the rights of the decedent as a junior mort- 
 gagee, and the heirs at law should not have been made 
 defendants. The extra costs of making them parties 
 must therefore be disallowed."'^ The same proposition 
 is also true of devisees, legatees and annuitants, under 
 a will, for they take no title to the subsequent lien, as 
 it passes at once to the executor, unless it is bequeathed 
 specifically to the devisee, legatee or beneficiary, in 
 which case he, as the immediate owner of the same, 
 
 1 Shaw V. McNish, 1 Barb. Ch. (N. Y.) 328 (1846). See §§ 48, 
 49 and 50, ante, and the cases cited. 
 
 ^ Shaw V. McNish, supra, per Chancellor Walworth.
 
 PERSONAL REPRESENTATIVES OF JUNIOR LIENOR. 163 
 
 would become a necessary defendant. The beneficiary, 
 in such a case, takes title directly, as he would by a 
 specific assignment from the testator in his life-time.^^^' ' 
 
 § 71. Executors and|administrators|of a cleceased|subse- 
 quent mortgagee or lienor necessaiy. 
 
 As has been previously stated, the entire personal 
 estate of a decedent, both at law and in equity, includ- 
 ing mortgages, judgments and* all kinds of liens upon 
 real estate, vests in his personal representatives, — that 
 is, in his executors or administrators. Without excep- 
 tion in any state in the Union the executor or adminis- 
 trator takes the entire legal title to all kinds of liens 
 created upon real estate. Of course, the title which a 
 personal representative has in the goods of a decedent 
 is not the absolute ownership which a person has in his 
 own property ; nevertheless the law treats the personal 
 representative as the absolute owner, with full control 
 and power of disposition, as if the property were his 
 own. It easily follows that the executor or adminis- 
 trator of a deceased subsequent mortgagee or lienor is 
 a necessary defendant in an action to foreclose a prior 
 mortgage, representing, as he does, the entire interest of 
 the junior lienor.^ If a subsequent lien is specifically 
 
 1 III Jeneson v. Jeuesoii, 66 111. 260 (1872,) a decedent gave one 
 of several notes secured by a mortgage to an heir, who was held a 
 necessary defendant to the foreclosure of a prior morts^age. 
 
 2 Lockman v. Reilly, 95 N. Y. 64 (1884) ; Shaw v.'McNish, 1 
 Barb. Ch. (N. Y). 326 (1846), quoted from in the preceding sec- 
 tion ; Ger. Sav. Bank v. Muller, 10 Week. Dig. (N. Y.) 67 (1880) ; 
 White v. Rittemeyer, 30 Iowa, 268, 272 (1870), citing many cases 
 and authorities. Shields v. Keys, 24 id. 298, 307 (1868), was 
 a foreclosure of a mechanic's lien, citing Baldwin v. Thompson, 
 15 id. 504 (1864), and Barton v. Hintrager, 18 id. 348 (1865). See 
 §§ 48, 49 and 50, ante. In Lockman v. Reilly, 95 N. Y. 64
 
 164 PARTIES TO MORTGAGE FORECLOSURES. 
 
 bequeathed, the beneficiary becomes a necessary party 
 in place of the executor. If a subsequent lienor dies 
 during the pendency of an action to foreclose, the action 
 must be revived against his personal representatives. 
 It is intimated that if a deceased subsequent lienor was 
 a non-resident of the state, the plaintiff foreclosing may 
 take out letters of administration for the purposes of the 
 action in the county where the mortgaged premises are 
 situated ;^ but provision is made in the practice of most 
 states for serving the summons upon non-residents by 
 publication or otherwise. 
 
 If no administrator or executor has been appointed 
 or has qualified as the personal representative of a de- 
 ceased subsequent mortgagee or lienor, it is doubtful 
 whether the plaintiff foreclosing a prior mortgage can 
 properly and safely rely upon making only the heirs 
 at law and next of kin of the subsequent lienor parties 
 defendant to the action. This practice is sometimes 
 resorted to where the heirs at law and next of kin are 
 few in number and can be easily served ; they are, in- 
 deed, the actual and ultimate owners of the subsequent 
 lien, but, as has been seen, they are neither necessary nor 
 proper parties where there is a personal representative."- 
 Even though it may be inconvenient, and may often 
 necessitate considerable delay, it is nevertheless the safest 
 
 (1884), per Rapallo J., the premises were bought in by an executor 
 who was plaintiff in the foreclosure of a junior mortgage ; on the 
 foreclosure of the senior mortgage the executor of the junior 
 mortgagee was held the only necessary defendant, as the real 
 estate was to be regarded as personalty. 
 
 - Jones, § 1428. In point, Lothrop's Case, 33 N. J. Eq. 246 
 (1880). 
 
 ~ 8ee the preceding section ; Fisher, § 359 ; Whittla v. Halli- 
 day, 4 Dru. and War. (Eng.) 267 (1827).
 
 ASSIGNEE IN BANKRUPTCY OF JUNIOR LIENOR. 165 
 
 practice and the one here recommended, to cause an 
 administrator of such deceased subsequent lienor to be 
 appointed before the action to foreclose is commenced, 
 or at least before it proceeds to judgment.^ 
 
 § 72. Assignee in bankruptcy and voluntary general 
 assignee of subsequent mortgagee or lienor 
 necessary. 
 
 The case of Bard v. Poole' holds quite pointedly that 
 an assignee in bankruptcy, who receives from his 
 assignor an interest in a mortgage, is a necessary de- 
 fendant in an action for the foreclosure of a prior 
 mortgage. To sustain the proposition of this sec- 
 tion, resort is again had to reasoning by analogy, 
 upon which so much of this chapter is dependent. The 
 same rules and illustrations which have shown an 
 assignee in bankruptcy of the owner of the equity of 
 redemption^ in mortgaged premises to be a necessary 
 defendant in an action to foreclose, apply, it is believed, 
 with equal force to an assignee in bankruptcy of a person 
 holding a lien upon the same equity of redemption ; the 
 assignee is equally a necessary party in both cases.* 
 
 1 In point, Lothrop's Case, 33 N. J. Eq. 246 (1880), where lim- 
 ited administration was granted for the purposes of the foreclosure. 
 See Roger v. Weakly, 2 Port. (Ala.) 516 (1835). In point, Fisher, 
 § 369. See Long v. Storie, 23 L. J. (Oh.) N. S. (Eng.) 200 (1853), 
 where a creditor was appointed administrator for the purposes of 
 the action. 
 
 2 12 N. Y. 495, 507 (1855), per Denio, J. 
 ^ See § 55, ante. 
 
 ■* Reference is had to § Q6, ante, where it appears that the 
 assignee of a subsequent lien by sale and transfer is a neces- 
 sary party. The same title and interest being transferred to an 
 assignee in bankruptcy, no reason presents itself why the assignee 
 in bankruptcy is not also a necessary defendant. From the
 
 166 TARTIES TO MORTGAGE FOREOLOSURES. 
 
 The same rules apply to assignees by voluntary general 
 assignment and to receivers of insolvent corporations. 
 If the assignee dies pending the foreclosure and after 
 having been made a defendant, the action must be re- 
 vived against his successor in office, or the right to re- 
 deem will survive to the successor.^ 
 
 § 73. General guardian of infant, and committee of 
 lunatic, idiot or habitual drunkard, trustees and 
 beneficiaries, holding subsequent mortgage or 
 lien, necessary. 
 
 If a subsequent mortgage is drawn in the name 
 of the general guardian or committee of an incompetent 
 person, the guardian or committee will, unquestion- 
 ably, be a necessary party defendant in an action to 
 foreclose a prior mortgage, and the beneficiary will 
 also be a very proper, if not a necessary, party,- If, 
 however, the subsequent lien is executed or recovered 
 in the name of the beneficiary, then the infant, lunatic, 
 idiot or habitual drunkard will be a necessary party 
 in his own name, without his guardian or committee 
 appearing as a party to the action. The process of the 
 
 proposition presented in § 37, ante, the reasoning by analogy 
 becomes even stronger. 
 
 1 Avery v. Rverson, 84 Mich. 362 (1876). 
 
 2 In Willink v. Morris Canal Banking Co., 3 Green Ch. (N. J.) 
 377 (1843), the trustees and cestiiis que trust were both held neces- 
 sary defendants; but in Iowa County v. Mineral Point R. R., 24 
 Wis. 93 (1869), it was held sufficient to make the trustee repre- 
 senting the bondholders a defendant, and that the bondholders 
 would be bound by the decree, they being too numerous to be 
 brought into the action. See Shinn v. Shinn, 91 111. 477 (1880) ; also 
 the English cases, Whetherelly v. Collins, 3 Madd. 255 (1818), 
 and Osbourn v. Fallows, 1 Russ. & M. 741 (1830), stating cir- 
 cumstances under which the beneficiaries are not necessary 
 parties.
 
 PURCHASERS AT TAX SALES, PROPER PARTIES. 167 
 
 court, however, is generally required to be served upon 
 the guardian or committee as well as upon the incom- 
 petent person.^ 
 
 § 74. Purchasers at tax sales, boards of supervisors, state 
 comptrollers and municipal corporations, parties. 
 
 It is a universal principle of law that unpaid taxes 
 are a lien upon the real estate against which they are 
 assessed prior to mortgages, judgments, and all other 
 incumbrances. When real estate is* sold for the satis- 
 faction of unpaid taxes, the purchaser likewise acquires 
 a title that is good against all pre-existing incumbrances 
 to the extent of his , purchase price and against the 
 world, unless divested by an incumbrancer redeeming. 
 Purchasers at tax sales, and states, counties and cities, 
 for whose benefit any unpaid tax was levied, are not 
 necessary parties to the foreclosure of a mortgage upon 
 the premises taxed ; but they are very proper parties 
 as prior incumbrancers for the purpose of determining 
 the exact amount of their claims, and of having them 
 extinguished as liens upon the property, by a provision 
 in the judgment for their payment out of the proceeds 
 of the sale.' A purchaser at a tax sale will not be affected 
 by the subsequent foreclosure of a mortgage to which 
 he is not made a party."' The purchaser's title is 
 absolute and prior to the mortgage, subject only to be 
 redeemed by the mortgagee. Under the rulings of the 
 courts it is clearly the best practice to make purchasers 
 at tax sales, the owners of tax certificates, and all parties, 
 
 1 New York Code, § 426. 
 
 2 Roosevelt Hospital v. Dowley, 57 How. (N. Y.) 489 (1878), 
 pel' Van VoRST, J. fSee Part IV, post. 
 
 ■' Becker v. Howard, 66 N. Y. 5, 8 (1876).
 
 168 PARTIES TO MORTGAGE FORECLOSURES. 
 
 domestic corporations and others, having any interest 
 in unpaid taxes, parties defendant to a foreclosure, that 
 their claims may be ascertained and paid.^ 
 
 Provision is made in the New York Code and in the 
 statutes of some other states, requiring the referee to 
 sell, or the master in chancery, to pay all outstanding 
 taxes, assessments, water rates, etc., from the proceeds 
 of the sale.- Where such provision can be made in the 
 decree of sale, it is not so desirable to make parties 
 holding taxes defendants to the foreclosure. 
 
 1 See the cases, s^upra ; Becker v. Howard, 4 Hun (N. Y.), 359 
 (1875), per E. Darwin Smith, J. ; Ayres v, Adair County, 61 
 Iowa, 728 (1883), per Adams, J., discussing at length the rights 
 of a purchaser at a tax sale in relation to a pre-existing mort- 
 gage. See Crum v. Cotting, 22 Iowa, 411 (1867). See 12 S. C, 
 488. 
 
 2 New York Code, § 1676.
 
 CHAPTER III. 
 
 PARTIES HOLDING PART OR EQUITABLE INTERESTS IN THE MORT- 
 GAGE UNDER FORECLOSURE, OR IN LIENS CONTEMPORARY 
 THEREWITH, NOT JOINING AS PLAINTIFFS, NECESSARY 
 DEFENDANTS. 
 
 § 75. Introductory. 
 
 76. Assignor having made an absolute assignment of the 
 
 mortgage, or no longer holding an interest in it, not 
 necessary. 
 
 77. Assignee of a mortgage absolutely assigned, never a 
 
 necessary defendant. 
 
 78. Assignor of a mortgage assigned conditionally or as 
 
 collateral security, a necessary party. 
 
 79. Assignee of a mortgage assigned as collateral security, 
 
 a necessary defendant, when the foreclosure is com- 
 menced by the assignor or mortgagee. 
 
 80. Joint or several mortgagees ; action commenced by one, 
 
 the others necessary defendants. 
 
 81. Contemporary and equal mortgagees ; foreclosure com- 
 
 menced by one, others necessary defendants. 
 
 82. Owrnership of mortgage doubtful, or in dispute ; action 
 
 commenced by one claimant, other claimants advis- 
 able defendants. 
 88. Trustees and beneficiaries sometimes necessary de- 
 fendants. 
 
 § 75. Introductory. 
 
 In the two preceding chapters, attention has been 
 given to those parties who were necessary defendants 
 in an action to foreclose a mortgage, in order to extin- 
 guish the entire equity of redemption and all the hens 
 that had accrued upon it since the execution of the
 
 170 PARTIES TO MORTGAGE FORECLOSURES. 
 
 mortgage. It .sometimes occurs that a mortgage is held 
 by joint owners, or that there are liens contemporary 
 with it, or that it is assigned collaterally or conditionally, 
 wherebj'' equitable questions are raised as to its true 
 ownership. Part owners and others having equitable 
 interests in the mortgage under foreclosure may refuse 
 to join as co-plaintiffs. In such cases it is always neces- 
 sary to make them defendants, that their interests may 
 be extinguished. This rule is based upon the general 
 principle which was early' considered in this work, that 
 all parties interested in the mortgage or in the mortgaged 
 premises are necessary parties, plaintiff or defendant, in 
 an action to foreclose. It is also a well-recognized rule, 
 especially in equitable actions, that a person interested in 
 the subject-matter of an action, who refuses to become 
 or who is omitted as a co-plaintiff, may be made a 
 defendant.'- 
 
 It is to be observed that the parties defendant dis- 
 cussed in this chapter could equally well be parties 
 plaintiff, with one or two exceptions ; and that, being 
 omitted or refusing to join as parties co-plaintiff, they 
 become absolutely necessar}^ parties defendant in an 
 action to foreclose, in order to produce at the sale a per- 
 fect title and to accomplish the purposes for which a 
 party is necessary, as repeatedly stated in this part of 
 the work. Chancellor Walworth, in considering the 
 necessity of making a party holding an equitable interest 
 in the mortgage a party to the action in order to produce 
 a perfect decree for the purchaser at the sale, has held, 
 "Where the mortgage is assigned as a mere security for 
 
 ^ See § 3, ante. 
 
 2 New York Code, § 449.
 
 ALL PERSONS INTERESTED IN MORTGAGE, NECESSARY. 171 
 
 the payment of a debt, or where but a part of the 
 mortgage debt is assigned to the plaintiff, the as- 
 signor is a necessary party to a bill filed to fore- 
 close the mortgage, so that a perfect decree may 
 be made which will protect the mortgagor and the 
 purchaser . of the mortgaged premises under the 
 decree to be made in the suit from any future claims 
 which the assignor may make, notwithstanding his 
 assignment."^ A conveyance upon a foreclosure sale, to 
 produce this result, must convey the entire interest of 
 the mortgagor and the mortgagee, and be an entire bar 
 against each of them and against all persons claiming 
 under them. The New York Code of Civil Procedure 
 provides " that a conveyance upon the sale, made pur- 
 suant to a final judgment in an action to foreclose a 
 mortgage upon real property, vests in the purchaser the 
 same estate, only, that would have vested in the mort- 
 gagee, if the equity of redemption had been foreclosed. 
 Such a conveyance is as valid, as if it was executed by 
 the mortgagor and the mortgagee, and is an entire bar 
 against each of them, and against each party to the action 
 who was duly summoned, and every person claiming 
 from, through or under a party, by title accruing after 
 the filing of the notice of the pendency of the action, as 
 prescribed in the last section."^ It is apparent then 
 that if any person, who holds an interest in the mort- 
 gage under foreclosure as part owner or otherwise, is 
 omitted as a party to the action, the decree will not be 
 
 1 Christie v. Herrick, 1 Barb. Ch. (N. Y.) 259 (1845) ; Johnson 
 V. Hart, 3 Johns. Cas. (N. Y.) 822 (1802) ; Hobart v. Abbot, 2 P. 
 Wms. (Eng.) 643 (1731) ; New York Code, § 1632. 
 
 2 New York Code, i? 1632.
 
 172 PARTIES TO MORTGAGE FORECLOSURES. 
 
 binding upon him and his interest will not be cut off, 
 his relation to the subject-matter of the action continues 
 as though the action had never been commenced. 
 
 § 76. Assignor having made an absolute assignment of the 
 mortgage, or no longer holding an interest in it, 
 not necessary. 
 
 When the owner of a bond and mortgage makes an 
 absolute and unconditional transfer of the same by 
 assignment or otherwise, he ceases to have any interest 
 in it, and is, consequently, no longer a necessary party 
 to an action to foreclose the mortgage ;^ neither are 
 his heirs, executors or administrators necessary parties.^ 
 An administrator who assigned a mortgage to an 
 heir as part of his distributive share of the decedent's 
 estate, is not a necessary party to a foreclosure brought 
 
 1 Ward V. Vail Bokkeleii, 2 Paige (N. Y.), 295 (1830) ; Chris- 
 tie V. Herrick, 1 Barb. Ch. (N. Y.) 254 (1845); Whitney v. Mc- 
 Kinney, 7 Johns. Ch. (N. Y.) 147 (1828) ; Western Reserve Bank 
 V. Potter, Clarke Ch. (N. Y.) 437 (1841) ; Andrews v Gillespie, 
 47 N. Y. 487 (1872); Clark v. Mackin, 95 id. 346 (1884); Bar- 
 raque v. Manuel, 7 Ark. 516 1847) ; Walker v. Bank of Mobile, 
 6 Ala. N. rt. 452 (1844) ; Prout v. Hoge, 57 id. 28 (1876) ; Garrett 
 V. Puckett, 15 Ind. 485 (1860) ; Gower v. Howe, 20 id. 396 (1863) ; 
 Markel v. Evans, 47 id. 326 (1874). But held necessary in Strong 
 V. Downing, 34 id. 300 (1870). In point, Wilson v. Spring, 64 111. 
 14 (1872), where the assignor assigned one of a number of notes 
 secured by a mortgage ; Williams v. Smith, 49 Me. 564 (1861) ; 
 Miller v. Henderson, 2 Stockt. Ch. (N. J.) 320 (1855). Aliter, if 
 the assignment is not absolute, Larimer v. Clemer, 31 Ohio St. 
 499 (1877) ; Omohundro v. Henson, 26 Gratt. (Va.) 511 (1875) ; 
 Scott V. Ludington, 14 W. Va. 387 (1878). See Wright v. Sperry, 
 21 Wis. 381 (1867), and the note to the case in § 8, ante ; Fisher, 
 § 347, and the English authorities cited. 
 
 - But in North Carolina the heirs of the mortgagee are held 
 necessary parties to a bill of foreclosure. Etheridge v. Vernoy, 
 71 N. C. 184, 186 (1874) ; S. C, 70 N. C. 713 ; Kerchner v. 
 Fairlev, 80 id. 25 (1879). See also Pullen v. Heron Mining Co., 
 71 id. 567 (1874).
 
 ASSIGNOR OF MORTGAGE NOT NECESSARY. 173 
 
 by the heir.' Chancellor Kent held, in 1823, that 
 " where the assignment is absolute, and the mortgagee 
 parts with all his interest in the mortgage, and there is 
 nothing special or peculiar in the case, the assignee is 
 under no necessity to make the mortgagee a party to a 
 bill to foreclose. The general principle is, that a person 
 who has no interest in the suit and who is a mere wit- 
 ness, against whom there could be no relief, ought not to 
 be a party."- Another learned jurist, in referring to the 
 history and the reasons for this principle, determined 
 that it is " well settled that where there has been an 
 absolute assignment of all the interest of the mortgagee 
 in the debt secured by the mortgage, he is not a neces- 
 sary party to a bill to redeem, or to a bill of foreclosure. 
 The reason why it was formerly considered necessary 
 to make the assignor of a chose in action a party to a 
 bill in equity brought by the assignee, I apprehend must 
 have been, that courts of law did not sanction and pro- 
 tect such assignments, considering them a species of 
 maintenance ; and the assignor having the legal title 
 or interest in the thing assigned, might sustain an action 
 at law thereon, notwithstanding a decree in equity to 
 which he was not a party. This reason has long since 
 ceased, and the above settled rule is jiow in force. "^ 
 If the assignor has guaranteed the payment or coUec- 
 
 1 Westerfield v. Spencer, 61 Ind. 339 (1878). 
 
 2 Whitney v. McKinney, 7 Johns. Cli. (N. Y.) 147 (1823) ; 
 Fenton v. Hughes, 7 Ves. (Eng.) 287 (1802). See also McGuffey 
 V. Finley, 20 Ohio Rep. 474 (1851), and the note on the case in § 8, 
 ante; Grant v. Ludlow, 8 Ohio St. 2 (1857). 
 
 3 Ward V. Van Bokkelen, 2 Paige (N. Y.), 295 (1830), per 
 Chancellor Walworth. See also Chambers v. Goldwin, 9 Ves. 
 (En^.) 269 (1804) ; Newman v. Chapman, 2 Rand. Rep. (Va.) 93 
 (1823) ; Clark v. Mackin, 95 N. Y. 346 (1884).
 
 174 PARTIES TO MORTGAGE FORECLOSURES. 
 
 tion of the mortgage debt, he is a necessary party 
 defendant if a judgment for deficiency is sought against 
 him.' If usury, fraud or other defenses or equities 
 existed against the mortgage in its inception or while 
 the mortgagee held it, he will be as assignor a very proper, 
 if not a necessary, party to the foreclosure conducted 
 by his assignee f so also if the assignment is imperfect 
 in form,'^ or is by parol ,^ the assignor will be held a neces- 
 sary party. In an action to foreclose, brought by the 
 assignee of the mortgage debt without the mortgage, the 
 assignor has been held a necessary defendant.'^ It is now 
 well settled that one who transfers a chose in action 
 warrants impliedly, at least, that there is no legal defense 
 to its collection arising out of his own connection with 
 its origin.*' It has been held that the assignor, under 
 such circumstances, is not a necessary party to the 
 action, for the reason that upon the coming in of the 
 answer setting up usury, fraud, or other defenses, the 
 assignee as plaintiff may give notice of such defense to 
 the assignor and offer to him the future management of 
 the suit, which would make the judgment binding upon 
 
 1 8ee § 109, past, on the liability of an assignor for a judg- 
 ment of deficiency. 
 
 - Ward V. Sharp, 15 Vt. 115 (1843). See §8, ante,- last 
 paragraph. 
 
 '■^ Holdridge v. Sweet, 23 Ind. 118 (1864). 
 
 ^ Denby v. Mell.ffvew, 58 Ala. 147 (1877). 
 
 5 In Bibb V. Havvley, 59 Ala. 403 (1878), the assignor was 
 held a necessary party in case of an unindorsed note where the 
 assignment was by a separate written instrument. See Strong 
 V. Downing, 34 Ind. 300 (1870). See also g§ 13, 18 and 19, ante. 
 
 ^ Delaware Bank v. Jarvis, 20 N. Y. 226 (1859) ; Littauer v. 
 Goldman, 72 id. 506 (1878); Andrews v. Gillespie, 47 id, 487 
 (1872). So held of a bond and mortgage which were usurious and 
 void, and assiirued bv the mortgagee ; Ross v. Terry, 63 N. Y. 
 613 (1875).
 
 REMEDY AGAINST ASSIGNOR WARRANTING MORTGAGE. 175 
 
 him, and place the plaintiff in the best possible position 
 for maintaining- an action against the assignor for a 
 breach of warranty. In such a case it has been held that, 
 "if the assignor was a necessary party to a complete 
 determination of the controversy, she should have been so 
 made under the provisions of § 452, instead of depriv- 
 ing the defendant (mortgagee) of a right to which he was 
 clearly entitled, because of her absence as such party. 
 It was the protection of the interest of the plaintiff 
 (assignee), and not that of the defendant, that made her 
 a necessary party if so at all. By the sale and assignment 
 of the mortgage to the plaintiff's testator, the assignor 
 impliedly warranted that there was no legal defense to 
 its collection arising out of its origin. * * * But 
 it was not necessary to make the assignor a party, to 
 accomplish this object. It is well settled that a pur- 
 chaser of property, with a warranty of title, upon being 
 sued for the recovery thereof by one claiming a paramount 
 title thereto, may give notice to his vendor of the ac- 
 tion, and offer to him the conduct of the defense ; and 
 that upon his so doing, the vendor is bound by the 
 judgment in respect to the title, whether or not the 
 defense is undertaken by him."^ 
 
 § 77. Assignee of a mortgage absolutely assigned, never 
 a necessary defendant. 
 
 As the assignee of a mortgage becomes its absolute 
 owner, he occupies the position of the original mort- 
 gagee in all respects, and of course can sustain no 
 other relation to an action to foreclose than that of plain- 
 
 1 Andrews v. Gillespie, 47 N. Y. 492 (1872), per Grover, J.
 
 176 PARTIES TO MORTGAGE FORECLOSURES. 
 
 tifF.^ He is always, however, a necessary party to the 
 action in some relation, as a perfect title could not be 
 offered at the sale, unless his interest by lien were ex- 
 tinguished. In an action by the mortgagor to redeem, 
 he is, vice versa, a necessary defendant, in place of his 
 assignor, the mortgagee.- 
 
 § 78. Assignor of a mortgage assigned conditionally, or 
 as collateral security, a necessary party. 
 
 A mortgagee who assigns his bond and mortgage 
 conditionally, as a collateral securit}^ or otherwise, 
 retaining to himself at the same time ah equitable 
 interest of any kind, is a necessary party to a foreclosure 
 of the mortgage instituted by the assignee ; if he is not 
 joined as a co-plaintiff he will be a necessary defendant.^ 
 
 ^ Lennon v. Porter, 2 Gray (Mass.), 473 (1854), holding also 
 that a mesne assignee is not a necessary defendant ; Barton v. 
 Baxter, 7 Blackf. (Ind.) 297 (1844). See g§ 7 and 8, ante, and 
 notes. 
 
 2 Whitney v. McKinney, 7 Johns. Ch. (N. Y.) 147 (1823), per 
 Chancellor Kent. 
 
 ' Slee V. Manhattan Co., 1 Paige (N. Y.), 48 (1828) ; Kittle v. 
 Van Dyck, 1 Sandf. Ch. (N. Y.) 76 (1843) ; West. Res. Bank v. 
 Potter, Clarke Ch. (N. Y.) 432 (1841); Johnson v. Hart, 3 Johns. 
 Cas. (N. Y.) 322 (1802) ; Bard v. Poole, 12 N. Y. 495 (1855) ; 
 Bloomer v. Sturges, 58 id. 175 (1874) ; Union College v. Wheeler 
 61 id. 88 (1874) ; Dalton v. Smith, 86 id. 176 (1881). See 
 Hughes V. Johnson, 38 Ark. 285 (1883) ; Brown v. Johnson, 
 53 Me. 246 (1865); Cutts v. Y'ork Manufacturing Co., 14 id. 
 326 (1837); lb., 18 id. 190 (1841); St. John v. Freeman, 1 
 Carter (Ind.), 84 (1848) ; Wright v. Sperry, 21 Wis. 331 (1867) ; 
 Fithian v. Corwin, 17 Ohio St. 119 (1866); Woodruff v. Depue, 1 
 McCarter (14 N. J. Ch.) 168 (1861), authorities stated in the briefs 
 of the counsel; Miller v. Henderson, 2 Stockt. (N.J.) 320 (1855); 
 Ackerson v. Lodi Branch R. R., 28 N. J. Eq. 542 (1877) ; Stevens 
 V. Reeves, 33 N. J. Eq. 427 (1881) ; Chew v. Brumagin, 21 N. J. 
 Eq. 520, 529 (1870), exhaustively collating and reviewing the 
 New York cases; reported also in 19 N. J. Eq. 130 (1868) ; on 
 appeal to the Supreme Court of the United States, the assignor
 
 ASSIGNOR OF MORTGAGE COLLATERALLY, NECESSARY. 177 
 
 The logical reason for this rule is, that a complete decree 
 could not otherwise be made which would protect the 
 mortgagor and the purchaser of the mortgaged premises 
 from any claims which the assignor might subsequently 
 make, as the court would acquire no jurisdiction of him, and 
 an interest in the premises would remain unextinguished. 
 Thus, in an action where it appeared that a mortgagee 
 had assigned his mortgage as a collateral security, 
 and subsequently made a general assignment for the 
 benefit of creditors, it was held that the assignees 
 or trustees for the creditors succeeded to the rights 
 of the mortgagee, and were necessary defendants 
 in an action to foreclose brought by the pledgee of 
 the mortgage.^ Kent has stated as cogent reasons 
 why the assignor should be made a defendant where 
 the assignment is made as a collateral security, that 
 he should have an ppportunity to redeem his bond 
 and mortgage by paying the debt, and also to show, if 
 he could, that he had in fact paid his debt and so was 
 entitled to a re-assignment of the mortgage; and further, 
 that otherwise the mortgaged premises might be sold 
 without his knowledge.'^ In an early case, it was held 
 
 was held not a necessary party ; the assignee was held to be a 
 trustee for him to the extent of the surplus over his own debt for 
 which he held the mortgage as a collateral security ; 18 Wal. (U. 
 S.) 497 (1871). In 8almon v. Allen, 11 Hun (N. Y.), 29 (1877), a 
 complicated case, the first pledgee had re-assigned the bond and 
 mortgage as a collateral security for his own obligations ; on 
 foreclosure both of the assignees and the original mortgagee were 
 held necessary parties. See also Graydon v. Church, 4 Mich. 646 
 (18.57), where the assignor was not made a party and he subse- 
 quently became insolvent ; Fisher, § 348 ; Norrish v. Marshall, 
 5 Madd. (Eiig.) 475 (1821); Hobart v. Abbot, 2 P. Wms. (Eng.) 
 642 (1781). See also §i^ 14 and 15, ante, and the notes. 
 
 1 Bard v. Poole, 12 N. Y. 495 (1855), a case often cited. 
 
 - Johnson v. Hart, 8 Johns. Cas. (N. Y.) 322 (1802) ; Bard v. 
 12
 
 178 PARTIES TO MORTGAGE FORECLOSURES. 
 
 that the " assignor was, therefore, the principal party 
 interested in the mortgage at the time the bill was filed ; 
 and although the legal title to the bond and mortgage 
 was in the plaintiff (assignee) solely, the equitable 
 interest was mainly in the assignor. There is no doubt 
 but that she was a necessary party to the suit."^ This 
 rule holds good, even though the assignment of the 
 mortgage is absolute on its face and expresses a full 
 consideration, when the actual fact is, that only a portion 
 of the consideration was paid, and that such payment 
 was only a loan." Where it appeared in a suit brought 
 by the assignee of a mortgage, assigned as collateral 
 security, to foreclose the same, that it was the intention 
 of the assignor to give such assignee the right to receive 
 the moneys due upon the mortgage and to foreclose the 
 same in his own name, it was held that the assignor 
 was not a necessary party, and that the decree of sale 
 was perfect without him.^ 
 
 § 79. Assignee of a mortgage assigned as collateral security, 
 a necessary defendant -when the foreclosure is 
 commenced by the assignor or mortgagee. 
 
 A mortgagee who has assigned a mortgage as collat- 
 eral security for a less amount than the mortgage may, 
 as assignor, file a bill of foreclosure in' his own name, 
 especially if the purchaser or assignee holding the 
 mortgage as collateral security refuses to foreclose.^ As 
 
 Poole, 12 N. Y. 508 (1855). >See Compton v. Jones, 65 Iiid. 117 
 (1880) ; where the debt had been paid and the assignor was 
 erroneously omitted as a party. 
 
 1 Kittle V. Van Dyck, 1 Handf. Ch. (N. Y.) 78 (1843). 
 
 - Kittle V. Van DjH-k, supra. 
 
 3 Christie v. Herrick, 1 Barb. Ch. (N. V.) 254 (1845). 
 
 '^ yee §§ 14 and 15, ante, and notes.
 
 ASSIGNEE OF MORTGAGE COLLATERALLY, NECESSARY. 179 
 
 has been seen, the purchaser might have commenced the 
 action and made the mortgagee a defendant, if he re- 
 fused to become a co-plaintiff;^ and in that case the 
 assignee would have become a trustee of the surplus.'^ 
 In case the mortgagee, as assignor, commences an action 
 as sole plaintiff, the assignee, if he refuses to become a 
 co-plaintiff, will be a necessary party defendant.^ This 
 rule is based upon the same principle stated in the pre- 
 ceding section, that the entire interest of the mortgagee 
 must be brought under the jurisdiction of the court. If 
 that part of the mortgagee's interest which is assigned 
 as a collateral security is not represented in the fore- 
 closure by the assignee, the decree of sale will, of course, 
 be defective, and the purchaser will not acquire the whole 
 interest of the mortgagee and the mortgagor.* 
 
 If the assignee refuses to become a co-plaintiff, and is 
 made a defendant, the reason why he is made a defend- 
 ant must be alleged in the complaint, or it will be de- 
 murrable f if the objection is not taken by demurrer, 
 it will be considered waived. If the defect does not 
 appear upon the face of the complaint, it may be ob- 
 jected to by any party interested in the action, by 
 
 1 Hoyt V. Martense, 16 N, Y. 231 (1857) ; Brown v. Johnson, 
 53 Me. 246 (1865). See §§ 14 and 15, ante. 
 
 2 Norton v. Warner, 3 Edw. Ch. (N. Y.) 106 (1837). 
 
 ^ Norton v. Warner, supra ; tSimson v. tSatterlee, 6 Hun 
 (N. Y), 305 (1875); aff'd 64 N. Y. 6;)7 (1876); Mc- 
 Millan V. Gordon, 4 Ala. 716 (1843). do a person who 
 has attached a mortgage debt is held a necessary party 
 defendant ; Pine v. Shannon, 30 N. J. Eq. 404 (1879). To 
 the contrary, unless the sheriff has obtained actual possession of 
 the papers, see Anthony v. Wood, 19 Week. Dig. (N. Y.) 177 
 (1884). 
 
 4 New York Code, § 1632. 
 
 5 Carpenter v. O'Dougherty, 2 T. & C. (N. Y.) 427 (1873).
 
 180 PARTIES TO MORTGAGE FORECLOSURES. 
 
 answer. The same is also true where the action to 
 foreclose is commenced by the assignee, as described in 
 the preceding section, and the assignor or mortgagee is 
 omitted as a party .^ 
 
 § 80. Joint or several mortgagees ; action commenced by 
 one, the others necessary defendants. 
 
 Where a joint or several mortgage is foreclosed by one 
 of the mortgagees, and the remaining mortgagees refuse 
 to unite as co-plaintiffs in the action, they are uniformly 
 held necessary defendants,- for the reason that their 
 omission fails to give the court 'complete jurisdiction 
 over the mortgage debt. Thus a mortgage had been 
 executed to several creditors to secure their respect- 
 ive claims ; on foreclosure by some as plaintiffs who 
 omitted others as parties to the action, the court held 
 that the omitted parties might maintain a separate action 
 for foreclosure, but that all should have been originally 
 brought before the court.' In an action by A. to fore- 
 close a mortgage executed to A. and B., to secure a note 
 given to A. alone, B. was held a necessary party;* and 
 where a mortgage is given by one of two joint obligors 
 on a note, it is erroneous to file the bill against the 
 mortgagor alone ; the other joint maker of the note is 
 
 ' See § 15, ante. 
 
 '■^ 'See §i$ 9, 10, 11 and 12, ante, and notes. 8ee also Deiiison v. 
 League, \q Tex. 399,409 (1856); Porter v. Clements, 3 Ark. 
 364, 380 (1842) ; Fisher, § 349 ; Vickers v. Cowell, 1 Beav. (Eug.) 
 529 (1839). In Lovell v. Farrington, 50 Me. 239 (1863), one of 
 two mortgagors refusing to join as a co-plain'tiif in an action to 
 redeem was held a necessary defendant. 
 
 3 Howe V. Dibble, 45 Ind. 120 (1873). See Tyler v. Yreka 
 Water Co., 14 Cal. 212 (1859), on the necessity of making them 
 parties; Railroad Co. v. Orr, 18 Wall. (U.S.) 471 (1873). 
 
 * Chrisman v. Chenoweth, 81 Ind 401 (1882).
 
 WHEN A JOINT OR SEVERAL MORTGAGEE IS NECESSARY. 181 
 
 a necessary defendant.^ The holder of one or more of 
 a number of notes secured by a mortgage is generally a 
 necessary defendant in an action for foreclosure brought 
 by the holder of any other note, providing he does not 
 join as a co-plaintiff ; this is specially true if the holder 
 of the note has any interest in the mortgage.'^ If no 
 interest in the mortgage passes with the transfer of the 
 note, the holder of the note is deemed an unnecessary 
 party in some states/^ 
 
 In the foreclosure of a joint mortgage by the survivor 
 of the mortgagees, the personal representatives of the 
 decedent are not necessary defendants under the doc- 
 trine of survivorship in joint tenancy.^ The rule is 
 otherwise where the mortgage is held by parties in sev- 
 eralty.^ Where a mortgage was executed to a husband 
 and wife, and the husband died and his administrator 
 
 1 Dedrick v. Barber, 44 Mich. 19 (1881). See Fond du Lac 
 Harrow Co. v. Haskins, 51 Wis. 135 (1881). 
 
 - Ill Pettiboiie v. Edwards, 15 Wis. 95 (1862), an action was 
 brought on the last of three notes for the foreclosure of a mort- 
 gage, and the holder of the second note was held a necessary 
 defendant. See also Myers v. Wright, 33 111. 284 (1864) ; Lietze 
 V. Claybaugh, 59 id. 136 (1871) ; Preston v. Hodii-en. 50 id. 56 
 (1869) ; Murdock v. Ford, 17 Ind. 52 (1861) ; Gratton v. Wiggins, 
 23 Cal. 16 (1863). In Rankin v. Major, 9 Iowa, 297, 300 (1859), 
 two notes were made to A. B. & Co. and secured by a mortgage; 
 one was sold to J. W. R. ; A. B. & Co. and J. W. R. united as 
 co-plaintiffs to foreclose. The court held that there was a mis- 
 joinder of plaintiffs, and that one of them should have been made 
 a defendant. Seemingly contra, see Henslay v. Whiffin, 54 Iowa, 
 555 (1880) ; Thayer v. Campbell, 9 Mo. Rep. 277 (1845) ; Harris 
 V. Harlan, 14 Ind. 439 (1860). But see § 13, ante, and notes, cit- 
 ing the cases fully and stating the rule in different states. 
 
 ^ Kemerer v. Bournes, 53 Iowa, 172 (1880) ; Bell v. Shrock, 2 
 B. Mon. (Ky.) 29 (1841) ; Archer v. Jones, 4 C. (26 Miss.) 583 
 (1853); Pugh v. Holt, 5 id. (27 Miss.) 461 (1854). 
 
 * Lanway v. Wilson, 30 Md. 536 (1869). See § 11, ante, and 
 notes, for a full presentation of this question. 
 
 ' See §§ 10 and 12, ante, and notes.
 
 182 PARTIES TO MORTGAGE FORECLOSURES. 
 
 assigned it, without the wife joining in the assignment, 
 she was held a necessary defendant in an action brought 
 by the assignee for foreclosure.^ 
 
 § 81. Contemporary and equal mortgagees ; foreclosure 
 commenced by one, others necessary defendants. 
 
 Where two or more mortgages, held by different par- 
 ties, are contemporary and equal liens upon premises, 
 the commencement of a foreclosure by the owner of any 
 of the mortgages as sole plaintiff will render the remain- 
 ing mortgagees necessary defendants in the action.' 
 This rule is based upon the fact that courts regard the 
 owners of such mortgages the same as they would 
 the owners of a single mortgage given to secure 
 in severalty the respective amounts of the different con- 
 temporary mortgages. 
 
 § 82. O^wnership of mortgage doubtful, or in dispute ; 
 action commenced by one claimant, other claim- 
 ants advisable defendants. 
 
 Whenever the ownership of a mortgage is in dispute, 
 or parties other than those to the instrument claim an 
 interest in it, it is the best practice to bring ail claimants 
 
 1 yaviiiiis Bank v. Freese, 26 N. J. Eq. 453 (1875). See § 11, 
 ante. 
 
 2 Cain V. Hanna, 63 Ind. 408 (1878) ; Cochran v. Goodell, 131 
 Mass. 464(1881); Decker v. Boice, 83 N. Y. 215 (1880.) See 
 Eleventh Ward Savings Bank v. Hay, 55 How. (N. Y.) 444 
 (1878). In Greene v. Waruick, 64 N. Y. 220 (1876), rev^ersing 
 4 Hun, 703, it was also held, that where there was an agreement 
 that two mortgages executed at the same time to diifeient parties 
 should be equal liens, the fact that one was recorded first gave it 
 no priority, even in the hands of a hoimfide assignee who bought it 
 relying upon the record and believing it to be the first lien. For 
 a full list of cases upon the subject of this section, see § 20, ante.
 
 OWNERSHIP IN DISPUTE, ALL CLAIMANTS NECESSARY. 183 
 
 within the jurisdiction of the court, that all interests 
 may be bound by the decree, and the mortgage com- 
 pletely foreclosed,^ It often occurs that the legal title 
 to a mortgage is held by one person and the equitable 
 title by another. Thus, where a defendant answers that 
 no valid assignment was made to the plaintiff, the 
 plaintiff may amend, making his assignor a defendant 
 to determine the question.' Numerous illustrations of 
 the principle of this section will be found in the first 
 part of the work and in the preceding sections of this 
 chapter. 
 
 § 83. Trustees and beneficiaries sometimes necessary 
 
 defendants. 
 
 In the foreclosure of a trust mortgage by the trustee 
 as plaintiff, it may be stated as a general rule that the 
 beneficiaries or cestuis que trust are necessary defendants, 
 unless they are joined as co-plaintiffs in the action.^ 
 Likewise, if the action is commenced by a beneficiary, 
 the trustees and other beneficiaries are necessary 
 defendants, unless joined as co-plaintiffs.* There are 
 some exceptions to these rules, especially in the case of 
 railroad mortgages and where the beneficiaries are very 
 
 1 See Kellogg v. Smith, 26 N. Y. 18 (1862) ; .Hancock v. Han- 
 cock, 22 id. 568(1860); Peck v. Mallaras, 10 id. 509 (1853); 
 Slee V. Manhattan, 1 Paige (N. Y.), 48 (1828) ; Lawrence v. 
 Lawrence, 3 Barb. Ch. (N. Y.) 71 (1848). See Part IV, post. 
 
 2 Barrows v. Stryker, 47 Iowa, 477 (1877). 
 
 3 Large v. Van Doren, 1 McCarter (N. J. Eq.), 208 (1862) ; 
 Davis V. Hemingway, 29 Vt. 438 (1857) ; Fisher, § 375 et seg. ; 
 Barkley v. Lord Reay, 2 Hare (Eng.), 306 (1843). Contra, in 
 Maryland, see Hays v. Dorsey, 5 Md. Rep. 99(1853), under the 
 act of 1833, chap. 181 ; Waring v. Turton, 44 Md. 535 (1876). 
 See §§ 28 and 29, ante, where the cases are cited fully. 
 
 ^ Hays V. Lewis, 21 Wis. 663 (1867) ; Hackensack Water Co. 
 V. De Kay, 36 N. J. Eq. 549 (1883) ; Dorsey v. Thompson, 37 
 Md. 25 (1872). See § 29, ante.
 
 184 PARTIES TO MORTGAGE FORECLOSURES. 
 
 numerous.^ If the action is merely for the purpose of 
 reducing the trust fund to possession, it has been held 
 that the cestuis que trust are not necessary parties.'- In a 
 New York case, where a mortgage was made to a person 
 in trust for the payment of several bonds of the mort- 
 gagor held by different individuals, the bondholders 
 were held necessary parties to an action brought by the 
 trustee as sole plantifif.^ 
 
 ' See §§ 28 and 29, ante; Swift v. Stebbins, 4 Stew. & Port. 
 (Ala.) 447 (1833). 
 
 2 Adams v. Bradley, 12 Mich. 346 (1864), and the cases cited. 
 
 3 King V. The Merchants' Exchange Co., 5 N. Y. 547, 556 
 (1851).
 
 PART III. 
 
 PARTIES PERSONALLY LIABLE FOR THE 
 MORTGAGE DEBT. 
 
 GENERAL PRINCIPLES POINTS IN PRACTICE. 
 
 § 84. Introductory. 
 
 85. General principles — at common-law. 
 
 86. Theory of the English and common-law practice. 
 
 87. General principles — statutory provisions modifying 
 
 the common-law rule. 
 
 88. Points in practice — the complaint. 
 
 89. Points in practice — the decree of foreclosure. 
 
 90. Points in practice — the judgment for deficiency. 
 
 § 84. Introductory. ^ 
 
 In the consideration of parties defendant to an ac- 
 tion to foreclose a mortgage, attention has been given 
 in the foregoing pages to those parties alone who were 
 necessary to enable the plaintiff to exhaust his entire 
 remedy against the land in a perfect manner, — that is, to 
 those parties who were necessary, in order to wipe out 
 the entire interest of the mortgagee and the mortgagor 
 in the premises at the time of the execution of the mort- 
 gage, and to offer a perfect title to a purchaser at the 
 sale, or such a title as the courts would compel a pur- 
 chaser to accept. The examination of questions affect- 
 ing such parties has been completed ; but now, after 
 the plaintiff's remedy against the mortgaged premises
 
 186 PARTIES TO MORTGAGE FORECLOSURES. 
 
 has been entirely exhausted, there remains for investi- 
 gation the interesting question, whether he has any 
 other remedy for the collection of his mortgage debt, 
 and if so, what and against whom. The statutes and 
 decisions affecting these questions are in their growth a 
 splendid historical illustration of the expansive and 
 liberal tendencies of our equity system. There was a 
 time in the law of mortgages when the mortgagee had 
 no remedy for the collection of his debt, excej)t an ac- 
 tion against the land ; even to-day, the general princi- 
 ple underlying that old English law is preserved in 
 part by our courts, in making the land the primary 
 fund for the payment of the debt. 
 
 At present, however, both in England and America, 
 the plaintiff has generally a personal remedy by action 
 at law against all persons who have, in any way, made 
 themselves liable for the payment of the mortgage 
 debt; and most of the states have made provision 
 for the enforcement of that remedy in the action of fore- 
 closure, obtaining as a result, if the premises are insuf- 
 ficient to pay the debt, what is commonly known as a 
 judgment for deficiency. It is proposed in this part of 
 the work to consider those parties who may be made 
 defendants in an action to foreclose a mortgage, for 
 the purpose of obtaining a judgment for deficiency 
 against them; no particular consideration need be given 
 to parties against whom this personal remedy may be 
 enforced in a separate action at law. No person who 
 has merely become liable for the mortgage debt and who 
 has no interest in the mortgaged premises can, in any 
 sense, be said to be a necessary party to a foreclosure, 
 except for the purpose of exhausting in the same action
 
 PERSONAL LIABILITY FOR MORTGAGE GENERALLY. 187 
 
 every remedy for collecting the debt. The useof theword 
 " necesisary," with this meaning, is not common in 
 the reported cases ; the word " proper" is more often used 
 by the courts, as it indicates an option on the part of the 
 plaintiff to make such a person a defendant. In the 
 following pages, then, clearness and accuracy will be 
 better obtained, if parties are considered as liable or 
 not liable for the mortgage debt, instead of being con- 
 sidered as " necessary " or " proper " to the action ; for 
 if it is once determined that a party is liable, the plaintiff 
 may make him a party or not, according to his inten- 
 tion of pursuing his personal remedy against him, due 
 regard being had always to the relation of principal 
 and surety which the defendant may sustain to any 
 other person who is liable. 
 
 § 85. G-eneral principles — at common-lav^. 
 
 The pursuit of a remedy against the land for the 
 collection of a mortgage debt has always been equitable. 
 In early English law the land was the only source from 
 which payment could be enforced. As the law of mort- 
 gages was developed, and it became thoroughly established 
 that a mortgage was only a security, there grew up the 
 use of a bond or note as the instrument of indebtedness 
 which the mortgage accompanied merely as a collateral 
 security ; a covenant of payment of the debt was some- 
 times incorporated into the mortgage and used instead of 
 a bond. With the introduction of the covenant of pay- 
 ment and the use of a bond or note, there grew up a line of 
 cases' in English and American law which sustained an 
 
 1 Diiiikley v. Van Buren, 3 Johns. Ch. (N. Y.) 330 (1818), citing 
 English authorities ; Globe Ins. Co. v. Lansintc, .5 Cow. (N. Y.) 
 380' (1826) ; 3 Powell on Mortgages, ItlOS.
 
 188 PARTIES TO MORTGAGE FORECLOSURES. 
 
 action at law for the recovery of the debt independently 
 of the mortgaged premises and also for the recovery of 
 any balance which might remain unpaid after applying 
 the proceeds of a sale of the land to the payment of 
 the debt. In an early action at law brought on a bond to 
 recover a deficiency arising on a foreclosure and sale, 
 the defense was interposed that the bond and mortgage 
 had been extinguished by the foreclosure. The court 
 said, " The question presented is, whether a foreclosure 
 and sale of the premises mortgaged as a collateral secu- 
 rity, is an extinguishment of the debt due on the bond. 
 It most clearly is not, any further than to the extent 
 of the money produced by the sale of the mortgaged 
 premises."^ 
 
 The practice at law and in equity for the collection 
 of a mortgage debt has been modified and assisted, from 
 time to time, in England and the various states, by 
 statutory provisions. Under the common-law foreclos- 
 ure of a mortgage, the distinguishing characteristic of 
 the practice with reference to persons liable for the 
 mortgage debt was, that they could not be made parties 
 defendant for the purpose of obtaining a judgment for 
 deficiency against them ; a judgment for deficiency could 
 not be demanded ao;ainst the morto;ao;or even where he 
 was the sole defendant to the action."- The universal and 
 
 1 Globe Ins. Co. v. Lansin«T, 5 Cow. (N. Y.) 881 (1826), per 
 Savage, Ch. J. As early as 1779, Lord Thurlow held in Aylet 
 V. Hill, 2 Dick. (Eng.) 551, that " a mortgagee might proceed on 
 his bond, notwithstanding he had obtained a decree of foreclos- 
 ure." See Duiikley v. Van Buren, supra. See also Southworth 
 V. Scofield, 51 N. Y. 513 (1873), where an action was maintained 
 for an unpaid balance. 
 
 2 Dunkley v. Van Buren, supra; Fleming v. Sitton, 1 Deve- 
 reux B. Eq. (N. C.) 623 (1837).
 
 REMEDIES ON THE PERSONAL LIABILITY. 189 
 
 only practice was for the plaintiff to sue at law on the 
 bond or other instrument of indebtedness which made the 
 defendant liable for any deficiency which might remain 
 unpaid.' An action to foreclose under that practice 
 was in no sense in personam, but rather in rem.' In 
 those states where statutory provisions have not been 
 made for obtaining a judgment of deficiency in an action 
 to foreclose a mortgage, this same common-law practice 
 of a separate action at law on the instrument of indebt- 
 edness, remains the only procedure that the plaintiff 
 has. In most states of the Union a statutory provision 
 is now made, however, for joining all persons liable for 
 the debt in the action to foreclose, and for decreeing 
 a personal judgment of deficiency therein against 
 them ; but even in those states the common-law 
 practice is not abolished but remains in force, with 
 the single condition that to exercise it, permission 
 to sue at law must first be obtained of the court in 
 which the mortgage was foreclosed." But if the 
 
 1 Dniikley v. Van Buren, supra ; Globe Ins. Co. v. Lansing, 
 supra ; Hunt v. Lewin, 4 8te\v. & Port. (Ala.) 138 (1833) ; Aniovy 
 V. Fairbanks, 3 Mass. 562 (1793); Taylor v. Townsend, 6 id. 
 264 (1810). 
 
 -' White V. Williams, 2 Green Ch. (N. J.) 376 (1836). The scire 
 facias practice of foreclosure in Illinois gives only a judgment in 
 rem; see Osgood v. Stevens, 25 111. 89 (1860), for an illustration. 
 Statutory foreclosures by advertisement, in New York accomplish 
 only the same result. 
 
 •^ New York Code, § 1628 ; Equitable Life Ins. Co. v. Stevens, 
 63 N. Y. 341 (1875) ; Matter of Collins, 17 Hun (N. Y.), 289 
 (1879) ; see § 88, post. This permission is not required in Ohio ; 
 Avery v. Vansickle, 35 Ohio fSt. 270 (1879) ; nor in Iowa, but an 
 action at law oti the debt and one to foreclose the mortgage can- 
 not be maintained at the same time ; County of Dubuque v. 
 Koch, 17 Iowa, 229(1864) ; Brown v. Cascaden, 43 id. 103 (1876). 
 The New York statute (Code, § 1628) is prohibitory only to par- 
 ties foreclosing, and does not apply to a grantor who sues his
 
 190 PARTIES TO MORTGAGE FORECLOSURES. 
 
 mortgagee commences his action without first obtaining 
 permission of the court, he can afterwards without prej- 
 udice procure an order ex parte, nunc pro tunc, granting 
 permission.^ The court is not absolutely bound to grant 
 the permission ; and it seems that where the mortgagee 
 has voluntarily refrained from' asking a decree for 
 any deficiency, some satisfactory reason must be assigned 
 for permitting him to institute a separate action at law 
 for its recovery.'- 
 
 § 86. Theory of the English and common-law practice. 
 
 When, in 1786, it was first decided that the mort- 
 gagee after a foreclosure sale in chancery could bring 
 an action at law for the balance of the debt unpaid, it 
 was a universal principle of practice, and one which 
 still remains in force in some states, that relief in equity 
 and also at law could not be decreed in the same action.^ 
 It was for this reason that Chancellor Kent decided in 
 an early case, that on a bill to foreclose a mortgage, the 
 mortgagee was confined to his remedy on the mortgaged 
 premises and that the suit could not be extended to the 
 mortgagor's other property nor against his person, in 
 case the property mortgaged was not sufficient to pay the 
 debt for which it was pledged;' and that the mortga- 
 
 grantee on a contract of assumption of payment of the mortgage 
 debt; Scofield V. Doscher, 72 N. Y. 494 (1878), aff^ 10 Hun, 
 582 ; Campbell v. 8mith, 71 id. 26 (1877), affV 8 Hun, H. 
 
 1 McKernau v. Robinson, 84 N. Y. 105 (1881), aff'g 23 Hun, 
 289; a. nunc pro tunc order to bring and continue an actioii was 
 granted and sustained in Earl v. David, 20 Hun (N. Y.), 527 ; aff 'd 
 86 N. Y. 634 (1881). 
 
 - Equitable Life Ins. Co. v. Stevens, 63 N. Y. 341 (1875), per 
 Rapallo, J. 
 
 ■' 2 Hilliard on Mortgages, 293.
 
 COMMON-LAW ACTION FOR DEFICIENCY. 191 
 
 gee's further remedy was at law.^ A court of chancery 
 or equity could not ordinarily decree the payment of 
 the balance remaining unpaid after the foreclosure, unless 
 the debt apart from the mortgage was such as a court of 
 chancery would have jurisdiction of and could enforce. 
 But the courts in some states have departed from 
 this rule so far as to render a judgment for deficiency in 
 an action to foreclose, where the mortgagor is the sole de- 
 fendant,'^ on the ground that an action against him, in 
 which a decree is sought for the foreclosure of the title 
 as well as for a judgment against him for deficiency, would 
 not embrace different causes of action, but different 
 remedies for the same cause.^ 
 
 When, however, a judgment for deficiency is sought 
 against a third person who is liable for the debt, another 
 principle of law interferes and prevents his being made 
 a party to the foreclosure. It has always been a rule 
 of practice in chancery and common-law, as well as 
 under most codes, that though actions arising out of the 
 same transactions or connected with the same subject 
 matter umy be united and different remedies demanded 
 therein, yet the causes of action must be so united and 
 the remedies so demanded as to affect all parties to the 
 action in the same manner, and to bind them all to the 
 
 1 Dunkley v. Van Buien, 8 Johns. Ch. (N. Y.) 380 (1818). 
 See Stevens v. Dufour, 1 Blackf. (Ind.) 387 (1825); see the 
 statute of 1824, and Youse v. M'Creary, 2 id. 243 (1829) ; Mar- 
 kle V. Lapp, 2 id. 268, holding that suit.' should be brought iirst 
 on the bond. 
 
 - In Wightraan v. Gray, 10 Rich. Eq. (S. C.) 518, 581 (1859), 
 Chancellor Wardlaw reviews the history of this question in 
 South Carolina, referring to the act of 1840. Jones, § 1711. 
 
 •■' In point, Fithian v. Monks, 48 Mo. Rep. 502, 515 (18(39), per 
 "Wagner, J., collating and reviewing the authorities at length. 
 Jones, § 1710.
 
 192 PARTIES TO MORTGAGE FORECLOSURES. 
 
 performance of the same judgment.^ This rule is so 
 fundamental and essential that no system of law or 
 practice can do without it ; it can be departed from 
 only with the sanction of statutory provisions in special 
 cases. 
 
 § 87. General principles — statutory provisions modify- 
 ing the comnion-la-sv rule. 
 
 The common-law rule of procedure for the collection 
 of an unpaid balance in a foreclosure, as above explained, 
 has been modified in most of our states, as will be ob- 
 served by reference to their statutory provisions respect- 
 ing foreclosures conducted by equitable actions. The 
 genera] result is, that in an action to foreclose a mort- 
 gage a judgment in personam' against the mortgagor and 
 
 1 Jones, § 1710. 
 
 - Xew York Code, g 1627 ; Hunt v. Lewin, 4 Stew, and Port. 
 (Ala.), 138 (1888) ; R. C, i; 8479 ; Grirainell v. Warner, 21 Iowa, 
 11 (1866) ; Code of Iowa, g 2084 ; Cooley v. Hobart, 8 Iowa, 858 
 (1859), distingnishino- Sands v. Wood, 1 id. 263 (1855), and Wilk- 
 erson v. Daniels. 1 Green (Iowa), 179, 188 (1848); Rollins v. 
 Forbes, 10 Cal. 299 (1858) ; Rowland v. Leiby, 14 id. 156 (1859) ; 
 England v. Lewis, 25 id. :^37 (1864) ; Hunt v. Dohrs, 39 id. 304 
 (1870) ; Cormerais v. Genella, 22 id. 116 (1868), oitinir the statutes 
 of 1860 and 1861 : Freedman S. & T. Co. v. Dodsre,^ 8 Mc Arthur 
 (D. C), 529 (1879) ; Duck v. Wilson, 19 Ind. 190 (1862) ; Stevens 
 V. Campbell, 21 id. 471 (1863) ; Kentuckv Code, i? 376, formerly 
 otherwise, Crutchfield v. Coke, 6 J. J. M. (Ky.) 90 (1881); see 
 also Morscan v. Wilkins, lb. 28 ; Johnson v. Shepard, 85 Mich. 
 115 (1876") ; Kinff v. Safford, 19 Ohio St. 587 (1869) ; see the act of 
 February 19, 1864 ; Conn v. Rhodes, 26 id. 644 (1875) ; Fleming v. 
 Kerkendall, 81 id. 568 (1877); Larimer v. Clemmer, 31 id. 499 
 (1877). In Missouri a personal judgment for a deficiency may be 
 recovered against the mortgagor, but not against third parties who 
 are liable for the mortgage debt, as a foreclosur? in that state 
 is strictly an action at law, and not in equity ; Fithian v. Monks, 43 
 Mo. Rep. 502 (1869), citing the statute. In Wisconsin such a 
 decree was not allowable under the Revised Statutes of 1858 ; 
 Borden v. Gilbert, 18 Wis. 670 (1861) ; Walton v. Gooduow, 13 id. 
 661 (1861). Faesi v. Goetz, 15 id. 231 (1862), stated the ground
 
 STATUTORY PROVISIONS FOR DEFICIENCY. 193 
 
 all pcarties licable for the mortgage debt may be decreed 
 for any residue of the debt remaining unsatisfied after a 
 sale of the mortgaged property, and the application of the 
 proceeds pursuant to the directions, contained in the de- 
 cree. This rule differs from the common-law rule in the 
 two points of allowing a remedy at law and in equity to 
 be pursued in the same action, and of allowing the joinder 
 of parties who are not interested • equally or in the 
 same manner. This innovation was first made in New 
 York by the adoption of the Revised Statutes;^ the 
 original statute was subsequently incorporated into the 
 first Code, and reads as follows, as amended in the Code 
 of 1880 : "Any person who is liable to the plaintiff for 
 the payment of the debt secured by the mortgage, may 
 be made a defendant in the action ; and if he has ap- 
 peared, or has been personally served with the summons, 
 the final judgment may award payment by him of the 
 residue of the debt remaining unsatisfied, after a sale of 
 the mortgaged property, and the application of the j)ro- 
 ceeds, pursuant to the directions contained therein."^ 
 
 of the objection to such a decree as a misjoinder of causes of 
 action. But the Laws of 1862, chap. 243, made provisions for 
 judgments of deficiency similar to those of the New York statute; 
 Burdick v. Burdick, 20 Wis. 348 (1866) ; Baird v. McConkev, 20 
 id. 297 (1866) ; Bishop v. Douglass, 25 id. 696 (1870). In New 
 Jersey the rule was for many years the same as it now is in New 
 York ; Jarman v. Wiswall, 24 N. J. Eq. 267 (1873), a leading 
 case ; but by the act of 1880, chap. 255, it was provided that a 
 decree for a deficiency should not be entered in a foreclosure 
 against parties who were personally liable for the mortgage 
 debt. The common-law practice of a separate action at law is 
 now the only procedure in that state ; Naar v. Union and Essex 
 Land Co., 34 N.J. Eq. Ill (1881); Newark Savings Inst. v. 
 Forman, 33 id. 436 (1881) ; Allen v. Allen, 34 id. 493 (1881). 
 
 1 2N. Y. R. S. 191. 
 
 2 New York Code, § 1627. See McCarthy v. Graham, 8 Paige 
 
 13
 
 194 PARTIES TO MORTGAGE FORECLOSURES. 
 
 The statutory provisions of Wisconsin, Nebraska, North 
 Carolina, South Carolina,^ Florida, and many other 
 states, are substantially the same. 
 
 The Supreme Court of the United States in 1864, in 
 order to assimilate the practice in the Circuit Courts to 
 the general practice in the state courts, adopted the 
 rule that in all suits in equity for the foreclosure of 
 mortgages in the Circuit Courts, or in any of the courts 
 of the territories, a judgment may be rendered for any 
 deficiency found due after applying the proceeds of the 
 sale to the satisfaction of the mortgage debt. This rule 
 applies also to the courts of the District of Columbia.^ 
 
 § 88. Points in practice — the complaint. 
 
 When statutory provisions first allowed a judgment 
 for deficiency to be rendered against all persons liable 
 for the mortgage debt in an action to foreclose, the 
 courts, to protect persons so liable, adopted a rule requir- 
 ing the plaintiif to state his cause of action fully in his 
 complaint, and also to make a specific demand that the 
 decree of foreclosure adjudge that the persons so liable 
 pay any deficiency which might arise,^ and the order in 
 
 (N. Y.), 480 (1840); Bank of Rochester v. Emerson, 10 id. 359 
 (1843) : Schwinger v. Hickok, 53 N. Y. 283 (1873). 
 
 1 Gray v. Tooraer, 5 Rich. Law (S. C), 261, 266 (1852). 
 
 2 Cross V. De Valle, 1 Wall. (U. S.) 5 (1863) ; 7 Wash.Law Re- 
 porter, 2 ; Jones, § 17U9. 
 
 3 Equitable Life Ins. Co. v. Stevens, 1 N. Y. Wk. Di^. 8 (1875); 
 Luce V. Hinds, Clarke Ch. (N. Y.) 453, 457 (1841); Leonard v. 
 Morris, 9 Paige (N. Y.), 90 (1841). In point, Simonson v. Blake, 
 20 How. (N. Y.) 484 (1861) ; S. C, 12 Abb. (N.Y.) 33], citing- the 
 old Code, § 275 ; Manhattan Life Ins. Co. v. Glover, 14 Hun 
 (N. Y.), 153 (1878); Tucker v. Leland, 75 N.Y. 186 (1878); 
 Foote V. Sprague, 13 Kas. 155 (1874) ; Giddings v. Barney, 31 
 Ohio St. 80 (1876). Whenever a judgment for a deficiency is 
 demanded against a married woman, facts must be alleged
 
 DEMAND FOR DEFICIENCY IN THE COMPLAINT. 195 
 
 which they should be severally liable. It often occurs 
 among practicing attorneys that the demand for a judg- 
 ment of deficiency is made in the most general way, 
 against the parties personally liable, but this practice is 
 not commendable ; it is much better and safer to make 
 the demand specifically, according to the order of lia- 
 bility of the several persons who are holden for the 
 mortgage debt. 
 
 If no demand^ is made against a person who is liable 
 for the unpaid balance, judgment cannot be taken against 
 him ; but the plaintiff may still have a separate action 
 at law, not, however, without leave of the court in which 
 the action to foreclose was brought. If the plaintiff 
 intends to exercise his right of action against any per- 
 son so liable, it is best to do so in the action to fore- 
 close, — for, when application is made for leave to 
 bring a separate action at law, the tendency of the 
 courts is to require a good cause for the same to be 
 shown.-^ An action at law can also be maintained on 
 the note or bond, or the covenant in the mortgage, 
 without resorting to an equitable foreclosure, in order 
 to obtain a personal judgment against those liable for the 
 payment of the mortgage debt.^ In some states actions 
 
 showing the liability of her separate estate ; McGlanghlin v. 
 O'Rourke, 12 Iowa, 459 (1861). 
 
 1 Giddiiigs V. Barney, 81 Ohio St. 80 (1876). 
 
 2 See § 85, mite, and the cases cited on this point ; Scofield v. 
 Doscher, 72 N. Y. 491 (1878), citing Suydam v. Bartle, 9 Paige 
 (N. Y.), 294 (1841); McKenan v. Robinson, 84 N. Y. 105 (1881). 
 
 3 Burr V. Beers, 24 N. Y. 178 (1861) ; Ober v. Gallagher, 93 
 U. S. (8 Otto) 199 (1876) ; Rosevelt v. Carpenter, 28 Barb. (N. Y.) 
 426 (1858); Brown v. Cascaden, 43 Iowa, 103 (187H) ; Banta v. 
 Wood, 32 id. 469, 474 (1871); Stephens v. Greene Co. Iron Co., 
 11 Ileiskell (Tenn.), 71 (1872). The action can also be maintained 
 against any person who has guaranteed the payment of the bond 
 and mortgage; Hand v. Kennedy, 45 Supr. Ct. (N. Y.) 385 (1879).
 
 196 PARTIES TO MORTGAGE FORECLOSURES. 
 
 at law on the bond, and for foreclosure in equity, can 
 be maintained at the same time.^ 
 
 § 89. Points in practice — the decree of foreclosure. 
 
 The judgment of foreclosure should provide in the 
 first place, if the proceeds of the sale are insufficient to 
 pay the amount reported due to the plaintiff, with the 
 interest and expenses of the sale and the costs of the 
 action, that the referee specify the amount of such de- 
 ficiency in his report of sale, and that the defendants 
 personally liable for the mortgage debt pay the same to 
 the plaintiff.- Under the New York Code direction is 
 also made for the payment of taxes, assessments and 
 water rates, which are liens upon the property sold f 
 and in ascertaining the amount of the deficiency the 
 taxes, assessments, etc., are to be deducted as though 
 they were a part of the original debt.* 
 
 The judgment should provide in the second place, 
 when it is rendered against several persons, some of 
 whom are primarily liable as principals, and others 
 are liable only secondarily as sureties, that it be 
 enforced first against the principal debtors, and 
 then, so far as it remains unsatisfied only, against 
 
 1 Ely V. Ely, 6 Gray (Mass.), 439 (1856) ; Fairman v. Farmer, 4 
 Port. (lud.) 436 (1853), based upon the statute of 1831 ; Very v. 
 Watkins, 18 Ark. 546(1857); Brown v. Stewart, 1 Md. Ch. Dec. 
 87 (1855) ; Wilhelm v. Lee, 2 id. 322 (1856). See Mayer v. 
 Farmers' Bk., 44 Iowa, 212, 214 (1876), and Code, §§ 3163, 8164 
 (1876), holding that a personal judgment recovered on the bond 
 will be a lien on the mortgaged premises from the date of the 
 recording of the mortgage, and that the premises can be sold 
 under execution on the judgment. 
 
 2 New York Code, §§ 1626, 1627 ; Supreme Court Rule 61 ; 
 Thomas on Mortgages, p. 282. 
 
 3 New York Code, § 1676. 
 * See the following section.
 
 JUDGMENT OF DEFICIENCY DIRECTED IN DECREE OF SALE. 197 
 
 the sureties in the order of their liability, which should 
 also be fixed ;^ upon the judgment of foreclosure, as it 
 fixes the order of the liability of the sureties, will be 
 based the judgment for deficiency. In a case where 
 a mortgagee had assigned a bond and mortgage, guar- 
 anteeing their payment, and an action was brought 
 against the mortgagor and guarantor, and the usual 
 decree of foreclosure and sale was demanded with a 
 judgment for deficiency against both. Chancellor Wal- 
 worth held as to the proper form of decree, that " the 
 proper decree, where the mortgagor is himself a party 
 to the suit, and is primarily liable for the payment of 
 the deficiency, and a third person is made a party de- 
 fendant who is only secondarily liable, is to decree the 
 payment of the deficiency by the principal debtor in 
 the first instance ; and to decree payment of the amount 
 of such deficiency against his co-defendant who stands 
 in the situation of his surety merely, only in case it 
 cannot be collected of the principal debtor, after the re- 
 turn of an execution against such principal debtor un- 
 satisfied. The decree in such cases should also direct 
 that, in case the amount of the deficiency is paid by 
 the defendant who is only secondarily liable for such 
 deficiency, he shall have the benefit of the decree, for 
 the purpose of obtaining satisfaction for the same 
 amount, with the interest thereon, from the defendant 
 who is primarily liable. * ^ -^ After the usual de- 
 cree for the foreclosure and sale of the mortgaged 
 premises and the payment of the debt and costs out of 
 the proceeds of such sale, and a decree over against the 
 
 1 In point, Hand v. Kennedy, 45 Supr. Ct. (N. Y.) 385 (1879); 
 Youngs V. Trustees, 31 N. J. Eq. 290 (1879).
 
 198 PARTIES TO MORTGAGE FORECLOSURES. 
 
 mortgagor personally for the deficiency, if any, the 
 decree must farther direct, that if the complainant is 
 not able to collect the amount of such deficiency out of 
 the estate of the mortgagor, upon the issuing of an ex- 
 ecution, against his property, to the sheriff of the county 
 in which he resides, or of the county where he last resided 
 in this state, the defendants (mortgagors), upon the re- 
 turn of such execution unsatisfied, pay so much of such 
 deficiency as remains unpaid. * * * The decree 
 must further direct that, if they pay the amount thus 
 decreed against them personally, or if the same is col- 
 lected out of their property, they shall have the benefit 
 of the decree against the mortgagor, for the purpose of 
 enabling them to obtain remuneration from him, to the 
 same extent."^ 
 
 And the judgment for foreclosure, in fixkig the order 
 of liability, must follow the demand in the complaint, 
 if judgment is taken by default or upon the report of a 
 referee. This judgment is not a personal one in any 
 sense, 'but is more of the nature of a judgment in rem ; 
 the plaintifi" ciinnot, therefore, have a contingent per- 
 sonal judgment in the decree of foreclosure against any 
 of the defendants.- Judgments of foreclosure are too 
 
 1 Jones V. Steinberg, 1 Barb. Ch. (X. Y.) 252 (1845). In 
 Luce V. Hinds, Clarke Ch. (N. Y.) 456 (1841), a case similar in 
 all respects to Jones v. Steinberg, Vice-Chancellor Whittlesey 
 says, " I shall be, therefore, compelled to decree against the de- 
 fendant, according to the prayer of the complainant's bill. The 
 order must be a reference to a master to compute the amount 
 due, — the final order will be for the sale of the raortgaared prem- 
 ises, and a personal decree against the obligor, Hinds, for the 
 deficiency, and in case an execution against Hinds does not 
 realize the money, an execution must afterwards go against Stow 
 (guarantor) for any balance due after sale of the premises, and 
 execution unsatisfied against the obligor Hinds." 
 
 2 Cobb V. Thornton, 8 How. (N. Y." 66 (1852); See Welp v. 
 Gunther, 48 Wis. 543, (1881)
 
 JURISDICTION OVER THE PERSON NECESSARY. 199 
 
 often entered without decreeing the respective liabil- 
 ities of the different parties to the action. This may 
 not render the judgment itself defective in any way, 
 but it often causes litigation among the defendants in 
 order to determine their respective liabilities. 
 
 A judgment for deficiency cannot be rendered against 
 a person liable for the debt, " unless he has appeared or 
 has been personally served with the summons " or has 
 submitted himself to the jurisdiction of the court.^ 
 Jurisdiction over the person is a prior requisite in New 
 York practice, and doubtless is in the practice of other 
 states. Consequently a personal judgment for deficiency 
 cannot be obtained against anon-resident, unless he ap- 
 pears in the action; and though such a judgment be 
 docketed against a non-resident after service by publica- 
 tion or otherwise, it will be irregular and void.'"^ 
 
 § 90. Points in practice — the judgment for deficiency. 
 
 The judgment for deficiency which courts are now 
 generally authorized to decree against parties personally 
 liable for the mortgage debt is a judgment for the bal- 
 ance of the debt remaining unsatisfied after a sale of 
 the mortgaged premises, and the application of the pro- 
 ceeds of the sale to its payment." If part of the debt 
 is due and part not due, the judgment for deficiency can 
 be rendered only for what is due; a personal judgment 
 
 1 New York Codje, § 1627 ; the same rule prevails in Ohio ; 
 publication of the snniraons does not give jurisdiction for a personal 
 judgment against a defendant ; Wood v. Stanberry, 21 Ohio St. 
 "142(1871). 
 
 2 ISchwinger v. Hickok, 53 N. Y. 280 (1873) ; Gibbs v. Queen 
 Ins. Co., 63 id. 131 (1875). 
 
 3 See Mutual Life Ins Co. v. Southard, 25 N. J. Eq. 337 (1874), 
 for the practice in New Jersey, which is very similar to that in 
 New York. See the cases cited below.
 
 200 PARTIES TO MORTGAGE FORECLOSURES. 
 
 cannot be legally rendered for a debt which has not 
 matured.^ The first step is to ascertain the amount of 
 the unpaid balance. The judgment consequently cannot 
 be rendered even contingently, until after the master in 
 chancery or the referee appointed to sell has made and 
 filed his report.'^ It is the usual practice for the referee 
 to state the amount of deficiency in his report of sale, 
 and upon the confirmation of the report to docket judg- 
 ment for the deficiency;^ It seems, however, from recent 
 decisions that a confirmation of the referee's report of 
 sale is not necessary prior to issuing execution.* 
 
 The sum paid for the premises at the foreclosure sale 
 must be taken as a conclusive determination of their value 
 
 1 Skelton v. Ward, 51 Ind. 46 (1875); Smith v. Osborn, 33 Mich. 
 410 (1876). 
 
 2 Cobb V. Thornton, 8 How. (N. Y.) 66 (1852). See Lipperd v. 
 Edwards, 39 Ind. 165 (1872). 
 
 3 Bank of Rochester v. Emerson, 10 Paige (N. Y.), 359 (1843) ; 
 McCarthy v. Graham, 8 id. 480 (1840) ; Bache v. Doscher, 41 Supr. 
 Ct. (N. Y.) 150 (1876) ; aff' d 67 N. Y. 429. In California there 
 can be no judgment for a deficiency till the referee has made his 
 return that a balance remains unpaid after the sale. Hunt v. 
 Dohrs, 39 Cal. 304 (1870), citing the Practice Act, § 246. See 
 also Rowland v. Leiby, 14 Cal. 156 (1859); Englund v. Lewis, 
 25 id. 337 (1864) ; Culver v. Rogers, 28 id. 520 (1865) ; Cormerais 
 V. Genella, 22 id. 116 (1863). 
 
 4 Springsteen v. Gillett, 30 Hun (N. Y.), 260 (1883) ; Moore v. 
 Shaw, 15 id. 428 (1878); atf'd 77 N. Y. 513 (1879); Cobb v. 
 Thornton, 8 How. (N. Y.) 66 (1852) ; Bache v. Doscher, 41 Supr. 
 Ct. (N. Y.) 150 (1876) ; aff'd 67 N. Y. 429 ; Bicknell v. Byrne, 23 
 How. (N. Y.) 486 (1862). In Wisconsin a prior order of confirma- 
 tion is necessary; Laws of 1862, chap. 243; Tormey v, Gerhart, 
 
 41 Wis. 54 (1876) ; also in Nebraska, Clapp v. Maxwell, 13 Neb. 
 542 (1883). See White v. Zust, 28 N. J. Eq. 107 (1877). In 
 Michigan a special application must be made to the court, before 
 execution can issue on a judgment of deficiency; Gies v. Green, 
 
 42 Mich. 107 (1881) ; McCricket v. Wilson, 50 id. 513 (1883). In 
 Leviston v. Swan, 33 Cal. 480 (1867), it was held that the clerk 
 should enter up judgment for the deficiency on the filing of the 
 referee's report of sale without the further order of the court.
 
 HOW AMOUNT OF DEFICIENCY ASCERTAINED. 201 
 
 as between the parties to the suit.^ In determining the 
 amount of the judgment for deficiency, there must be 
 deducted from the proceeds of the sale the costs and 
 expenses of the plaintiff's attorney in conducting the 
 action, the expenses and fees of the referee making the 
 sale, and all taxes,'- assessments and water rates'^ which 
 are liens upon the property sold ; the amount of the 
 proceeds then remaining is to be deducted from the 
 amount of the debt and interest as stated in the decree 
 of foreclosure, and the balance will furnish the amount 
 for the judgment of deficiency. It has been held erro- 
 neous to enter a judgment of deficiency for a portion of 
 the mortgage debt which had not become due, although, 
 because the premises were so situated that they could 
 not be sold in parcels, the entire proceeds of the fore- 
 closure sale were applied to pay the debt due and to 
 become due.* 
 
 1 In point, Snyder v. Blair, 33 N. J. Eq. 208 (1880), collating 
 and reviewing the cases. 
 
 2 New York Code, § 1676; Cornell v. Woodruff, 77 N. Y. 203 
 (1879) ; Fleishaner v. Doellner, 60 How. (N. Y.) 438 (1881). 
 
 3 Marshall v. Davies, 78 N. Y. 414, 422 (1879), reversing 16 
 Hun, 606 ; Argald v. Pitts, 78 N. Y. 239 (1879) ; Cornell v. Wood- 
 ruff, 77 id. 205 (1879). 
 
 4 Danforth v. Coleman, 23 Wis. 528 (1868) ; Taggert v. San 
 Antonio, etc., 18 Cal. 460 (1861) ; Skelton v. Ward, 51 Ind. 46 
 (1875); Darrow v. ScuUin, 19 Kans. 57 (1880); Smith v. Osborn, 
 33 Mich. 410 (1875).
 
 CHAPTER I. 
 
 PARTIES ORIGINALLY LIABLE. 
 
 § 91. Introductory. 
 
 92. Mortgagor signing the bond or note, or covenanting in 
 
 the mortgage payment of the debt, liable. 
 
 93. All persons signing the bond or note which the 
 
 mortgage accompanies, liable. 
 
 94. All persons guaranteeing the bond and mortgage at 
 
 its inception, liable. 
 
 95. A married woman, signing the bond or other obliga- 
 
 tion, liable — general principles. 
 
 96. A married woman signing the bond or other obligation, 
 
 liable — act of 1884 in New York. 
 
 97. A married woman signing the bond or other obligation, 
 
 liable — rule in New York prior to 1884, and in most 
 states at present. 
 
 98. Persons originally liable, deceased, their estates 
 
 liable ; personal representatives proper parties. 
 
 99. Persons originally liable, deceased, their heirs and 
 
 devisees not proper parties. 
 100. A person originally liable making an assignment in 
 bankruptcy or voluntarily, assignee proper. 
 
 § 91. Introductory. 
 
 For the purpose of a logical analysis, this part of the 
 work will be considered under the sub-divisions, Parties 
 Originally Liable and Parties Suhseqiiently Liable. Some 
 writers have considered the following subject-matter 
 under the headings, Parties Primarily Liable and Parties 
 Secondarily Liable ; but this division is not logical ex- 
 cept as primary means original, and secondary means 
 subsequent; furthermore, the words " primary" and
 
 INTRODUCTORY. 203 
 
 " secondary " are too suggestive of the relation of prin- 
 cipal and surety, which would certainly not be a logical 
 division of this subject, as the relation is so variable 
 and subject to change whenever a new party becomes 
 related to a bond and mortgage in such a way as to 
 make himself personally liable for the debt. 
 
 The logical division. Original and Subsequent, also 
 furnishes an opportunity to consider the parties liable 
 in chronological order. In this chapter, then, attention 
 is to be given to parties who originally became liable 
 for the mortgage debt, — that is, to those who became 
 liable at the inception of the bond and mortgage. It 
 is to be remarked again, that parties are not considered 
 with reference to their being " necessary " or " proper," 
 but with reference to their liability, it remaining at 
 the option of the plaintiff whether he will make them 
 parties or not, due regard being always had to the rela- 
 tion of principal and surety. 
 
 § 92. Mortgagor signing the bond or note, or covenanting 
 in the mortgage payment of the debt, liable. 
 
 The fact that a mortgagor who signs a bond or note, 
 which is accompanied by a mortgage, for the payment 
 of a sum of money, or who covenants in the mortgage 
 without a bond or note to pay the same, is liable for the 
 payment of that sum, rests upon the fundamental prin- 
 ciple of law, that every man must perform his contracts 
 and is liable for any breach of them.^ There is scarcely 
 
 1 Leonard v. Morris, 9 Paige (N. Y.), 90 (1841) ; Bank of Roch- 
 ester V. Emerson, 10 id. 859 (1848) ; Marsh v. Pike, 10 id. 595 
 (1844); Cartiss v. Tripp, Clarke Ch. (N. Y.) 817(1840); >Schwinger 
 V. Hickok, 53 N. Y. 280 (1878); Hunt v. Chapman, 51 id 555 
 (1878). See National Fire Ins. Co. v. McKay, 21 id. 191, 193 
 (1860), where Comstock, Cir. J., says ohUer • " H. was the mort-
 
 204 PARTIES TO MORTGAGE FORECLOSURES. 
 
 a case in which the question of deficiency is considered 
 that does not give an obiter dictum, that the mort- 
 gagor is the first person to become liable for the pay- 
 ment of the debt.^ That his relation as principal may 
 be changed to that of surety, will be seen hereafter ; 
 but his name once subscribed to the contract of indebt- 
 edness, he will always remain liable. 
 
 If no note, bond or other legal obligation was given 
 with the mortgage, the plaintiff will be confined to the 
 mortgaged premises for his remedy,'- unless the claim on 
 which the mortgage is founded was an equitable one,^ or 
 there was a debt existing independent of the mortgage.^ 
 The same is true where the debt is barred by the stat- 
 ute of limitations, or the obligor has been discharged in 
 bankruptcy proceedings.'^ 
 
 gagor and was personally bound for the payment of the debt." 
 See Wadsworth v. Lyon, 93 N. Y. 201 (1888); Siiell v. Stanley, 
 58 111. 31 (1871) ; Stevens v. Campbell, 21 Ind. 471 (1863); Price 
 V. State Bank, 14 Ark. 50 (1853) ; Foote v. Spragiie, 13 Kas. 155 
 (1874) ; Darrow v. ScuUiii, 19 id. 57 (1877), where the notes were 
 all due by the terms of an interest clause and judgment for the 
 whole amount was held proper ; Conn. Mut. Life Ins. Co. v. Tyler, 
 8 Biss. C. Ct. (U. S.) 369 (1878), holding that the fact that a mort- 
 gagor has conveyed his equity of redemption in the premises 
 does not release him from his personal liability on the bond. See 
 contra in New Jersey since the act of 1880, which provides that a 
 judiJ-ment for deficiency shall not be decreed in a foreclosure; 
 Naar v. Union & E. L. Co., 34 N. J. Eq. Ill (1882); Allen v. 
 Allen, lb. 493 (1882). 
 
 1 Calvo V. Davies, 73 N. Y. 211, 215 (1878); Birnie v. Main, 
 29 Ark. 591 (1874). 
 
 2 Coleman v. Van Rensselaer, 44 How. (N. Y.) 368 (1873); 
 Fletcher v. Holmes, 25 Ind. 458 (1865) ; Van Brunt v. Mismer, 8 
 Minn. 232 (1863); Hunt v. Lewin, 4 Stew. & Port. (Ala.) 138 
 (1833). 
 
 3 Jones, § 1711. 
 
 4 Gaylord v. Knapp, 15 Hun (N. Y.), 87 (1878). " Every mort- 
 gage implies a loan and every loan a debt ;" Critcher v. Walker, 
 1 Murphy (N. C), 488 (1810) ; Jones, § 1715. 
 
 5 Kinlock v. Mordecai, 1 Speex's Eq. (S. C.) 464 (1844).
 
 ALL PERSONS SIGNING THE BOND LIABLE. 205 
 
 § 93. All persons signing the bond or note ■which the 
 mortgage accompanies, liable. 
 
 In an action to foreclose a bond and mortgage, 
 where the bond has been executed b}^ persons other 
 than the mortgagors, as well as bj the mortgagors, 
 it is proper to make such obligors parties to the 
 action and to demand against any or all of them 
 a judgment for deficiency, as they are all liable 
 upon the bond for the debt.^ This is also true if 
 the instrument of indebtedness is a note'' or other form 
 of obligation.^ The authority to join such obligors in 
 an action to foreclose a mortgage and to demand a per- 
 sonal judgment for deficiency against them is derived 
 from the codes and statutes of the several states.^ In 
 a recent foreclosure in New York, where the bond had 
 been signed by others than the mortgagors, the court 
 held : " The Revised Statutes provide that if the mort- 
 gage debt be secured by the obligation or other evidence 
 of debt, of any other person besides the mortgagor, the 
 complainant may make such person a party to the bill, 
 and the court may decree payment of the balance of such 
 debt remaining unsatisfied after a sale of the mortgaged 
 premises, as well against such other person as the mort- 
 gagor, and may enforce such decree as in other cases. 
 The same provision is, in substance, continued in the 
 Code. These authorities justify the plaintiff in joining 
 in this action all the parties to the bond, the payment 
 
 1 Thoriie v. Newby, 59 How. (N. Y.) 120 (1880) ; Scofield v. 
 Dosc'her, 72 N. Y. 491 (1878) ; in point, »uydam v. Bartle, 9 
 Paige (N. Y.), 294, 295 (1841) ; Bathgate v. Haskin, 59 N. Y. 
 £33 (1875). 
 
 2 Davenport Plow Co. v. Mewis, 10 Neb. 317 (1880). 
 
 3 Fond du Lac Harrow Co. v. Haskins, 51 Wis. 135 (1881). 
 * New York Code, § 1027. ^
 
 206 PARTIES TO MORTGAGE FORECLOSURES. 
 
 of which is secured by the mortgage sought to be fore- 
 closed, and in demanding a judgment against all the 
 obligors for any deficiency which may arise."^ If a 
 husband executes with his wife a bond, to secure which 
 a mortgage is given on her separate real estate, he will 
 be liable for a personal judgment in a foreclosure.^ A 
 person who has signed the bond or note, but not the 
 mortgage, is not an indispensable party to maintain the 
 action or to perfect the title, as he has no interest in 
 the premises.^ 
 
 Where statutory provision has not been made for 
 judgments of deficiency, the obligation upon the bond 
 can be enforced only by a separate action at law. 
 Folger, J., has said, in considering this question, that 
 the statute " was enacted to give the court in which the 
 foreclosure of the mortgage was had full jurisdiction 
 over the whole subject, and to save the necessity of 
 actions at law, and to allow one court to dispose of the 
 whole subject, instead of compelling parties to resort to 
 other tribunals -^ * * ^ and is applicable to every 
 case where the owner of the mortgage has any personal 
 security for the mortgage debt, whether it be the bond 
 of the mortgagor or the covenant of another person." * 
 
 1 Thorne v. Newby, supra, per Van Vorst, J.; Sprague v. Jones, 
 9 Paig-e (N. Y.), 895 (1842), was very similar, in that the bond 
 was signed by two persons and the mortgage by only one ; both 
 obligors on the bond were held liable for a iudgmentof deficiency. 
 
 2 Conde V. Hhepard, 4 How. (N. Y.) 75 '(1849). 
 
 3 Deland v. MRrshon, 7 Clark (Iowa), 70 (1858). In Milroy v. 
 Stockwell, 1 Carter (Ind.), 35 (1848), it was held that such an 
 obligor was a necessary party, and that npon his death the action 
 should be revived against his personal representatives. 
 
 * Scofield V. Doscher, 72 N. Y. 491, 493 (1878).
 
 GUARANTORS OF BOND AND MORTGAGE LIABLE. 207 
 
 § 94. All persons guaranteeing the bond and mortgage at 
 its inception, liable. 
 
 All persons who guarantee the payment or collection 
 of a bond and mortgage by a separate instrument, at 
 the time of their execution or before their transfer, 
 are liable for the mortgage debt and may be made 
 parties to an action to foreclose for the purpose of 
 recovering a judgment for deficiency against them as 
 stated in the foregoing section,^ 
 
 There are almost no cases ruling directly upon this 
 question, but from analogous cases' and the general 
 principles of law applicable to guarantors and sureties, 
 the proposition of this section is unquestionably true. 
 In an action where it appeared that the mortgagee had 
 assigned his mortgage, guaranteeing its payment, and 
 subsequently taken the bond of a third person as a further 
 security for the payment of such mortgage, Chancellor 
 Walworth held that the third person was liable for a 
 judgment of deficiency in the foreclosure, saying, "It 
 is well settled, however, that where a surety, or a 
 person standing in the situation of a surety, for the 
 payment of a debt, receives a security for his indemnity 
 and to discharge such indebtedness, the principal 
 creditor is, in equity, entitled to the full benefit of that 
 security." ^ 
 
 1 Giiion V. Knapp, 6 Paige (N. Y.), 48 (1836) ; Curtis v. Tyler, 
 9 id. 485 (1842) ; Mathews v. Aikin, I N. Y. 595 (1848) ; Burdick 
 V. Burdick, 20 Wis. 348 (1866). See Hunt v. Purdy, 82 N. Y. 
 486 (1880) ; Grant v. Griswold, 82 id. 569 (1880). 
 
 2 Curtis V. Tyler, supra ; Luce v. Hinds, Clarke Ch. (N. Y.) 453 
 (1841); Jones v. Steinbergh, 1 Barb. Ch. (N. Y.) 250 (1845); 
 Bristol V. Morgan, 3 Edw. Ch. (N. Y.) 142 (1837). 
 
 ^ Curtis V. Tyler, supra, giving citations in point. In Maure 
 V. Harrison, 1 Eq. Ca. Abr. (Eng.) 98 (1692), it was held that in 
 equity a bond creditor was entitled to the benefit of all counter-
 
 208 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 95. A married w^oman signing the bond or other obliga- 
 tion, liable — general principles. 
 
 With the general growth during the past century in 
 England and America of legislation and decisions, en- 
 larging the powers of married women over the dispo- 
 sition of their property, there has been developed a cor- 
 responding or correlative line of decisions in the courts, 
 holding them and their separate estates responsible for 
 any breach of their contracts. It is not within the 
 scope of this w^ork to discuss the history or principles 
 of this very interesting branch of the law.^ Our at- 
 tention must be confined simply to a general statement 
 of the latest rulings of the courts upon the question of 
 a married woman's liability for the payment of a mort- 
 gage debt, and to showing that she is a proper party to 
 a foreclosure, if a judgment for deficiency is desired 
 against her. The common -law doctrine, which ren- 
 dered a married woman totally incapable of making 
 contracts, practically remains in force in no state, but 
 has been modified by legislation or innovations of the 
 courts, until, at present, it is a universal rule that a mar- 
 ried woman can biiid her separate estate for all pur- 
 poses that may be necessary to enable her to hold and 
 enjoy the same. 
 
 bonds or collateral securities given by the principal debtor to his 
 surety, 
 
 ^ The history of the law affecting married women's contracts 
 and their control of their separate property is ably discussed by 
 Leonard A. Jones in his Treatise on Mortgages, §§ 106-218. 
 The history and principles of the same law in the state of New 
 York are given in greater detail by Abner C. Thomas in his 
 Treatise on the Law of Mortgages, p. 195. To the student of 
 equity jurisprudence, the development of this branch of the law in 
 England and America is very interesting, as its different stages 
 can be so accurately traced in the legislation and decisions of 
 the two countries.
 
 MARRIED woman's ACT OF 1884 IN NEW YORK. 209 
 
 § 96. A married woman signing the bond or other ob- 
 ligation, liable — act of 1884 in New York. 
 
 The New York act of 1884 in relation to the rights 
 and liabilities of married women has rendered obsolete a 
 great majority of the decisions adjudicating the liabil- 
 ities of married women and their separate estates for 
 the performance of their contracts under the acts of 
 1848-49 and 1860-62. That act provides that "A 
 married woman may contract to the same extent, with 
 like effect and in the same form as if unmarried, and 
 she and her separate estate shall be liable thereon, 
 whether such contract relates to her separate business 
 or estate or otherwise, and in no case shall a charge 
 upon her separate estate be necessary."^ 
 
 1 Laws of 1884, chap. 381. This act was passed May 28, 
 1884, and by its provisions took effect immediately, so that all 
 contracts made prior to May 28, 1884, are to be adjudicated ac- 
 cording f,o the statutes and decisions in force prior to that date. 
 It is also provided, " that this act shall not affect nor apply to any 
 contract that shall be made between husband and wife." 
 
 The position of Sanpord E. Church, Chief Judge of the New 
 York Court of Appeals, in relation to questions affecting a married 
 woman's liability for her contracts, must be recognized here ; his 
 opinions have, undoubtedly, had a strong influence in effecting 
 the passage of this act. His decisions have, at least, been almost 
 prophetic. In the leading case of the Manhattan B. & M. Co. 
 V. Thompson, 58 N. Y. 84 (1874), he said: "If, when the legis- 
 lature changed the common law in essential particulars in re- 
 garding the interest in property of the husband and wife to a 
 considerable extent as distinct and independent, and in recog- 
 nizing the capacity of the wife to judge and provide for what her 
 own welfare requires in acquiring and holding the legal title to 
 property, and managing and disposing of the same as if unmar- 
 ried and without subjection to the control of her husband, the 
 courts had adopted as a reasonable and legitimate sequence, the 
 correlative rule of capacity to contract debts as if unmarried, 
 restricted only to their collection from separate property, it might 
 well be claimed that the rights of married women would have 
 been as well if not better protected practically, sound public 
 
 14
 
 210 PARTIES TO MORTGAGE FORECLOSURES. 
 
 This law can, of course, have no ex post facto applica- 
 tion and for a decade, at least, the decisions under the 
 old statutes will be of importance, and must be ap- 
 plied to cases arising on contracts made prior to 1884. 
 All decisions which have been rendered in New York 
 upon the liability of a person obligated for a mort- 
 gage debt to have a judgment for deficiency rendered 
 against him will, hereafter, apply with equal force to a 
 married woman. In Massachusetts^ and some other 
 states, substantially the same law is in force, while in 
 England the courts of equity have never held otherwise 
 than that a married woman's separate estate was liable 
 for every debt she might contract in any way. Regard- 
 ing her separate estate she can contract as freely as a 
 man; and her estate is equally liable for all her obliga- 
 tions, whatever their form or nature." At law, how- 
 ever, she and her separate estate are not liable. 
 
 § 97. A married -woman signing the bond or other obliga- 
 tion, liable — rule in New^ York prior to 1884, and 
 in most states at present. 
 
 The decisions which make a married woman who has 
 signed a bond or other obligation, to which a mortgage 
 
 policy, and business morality more promoted, and a flood of ex- 
 pensive and vexatious litigation prevented. 
 
 " Courts of equity in England have uniformly exercised a power 
 of enforcing contracts of married women against their separate 
 estates, which has practically produced this result (2 P. Wms. 
 144; 1 Cr. & Ph. 48). But our courts have adopted more con- 
 servative principles, and it is better to adhere to them until the 
 legislature in its wisdom and poioer shall see fit to change them." 
 To the same effect is his opinion in Yale v. Dederer (68 N. Y. 
 334 (1877). This case was three times before the Court of Ap- 
 peals (18 N. Y. 265 ; 22 id. 450 ; 68 id. 334). 
 
 1 Jones, § 112. 
 
 2 Manhattan B. & M. Co. v. Thompson, 58 N. Y. 85 (1874); 
 Yale v. Dederer, 22 id. 450 (1860) ; Jones, § 112.
 
 LIABILITY OF MARRIED WOMAN ON BOND. 211 
 
 is collateral, liable fora judgment of deficiency in an action 
 to foreclose a mortgage, are, under the same state of 
 facts, precisely the same in their reasoning and conclu- 
 sions as those which establish her liability for the per- 
 formance of her other contracts. The cases are numerous 
 in fixing her liability upon ordinary contracts, and by 
 analogy are applicable to her liability in mortgage fore- 
 closures where a judgment for deficiency is sought 
 against her.^ Church, Ch. J., who made a careful study 
 of the liability of the separate estate of a married 
 woman for her contracts, concluded that such lia- 
 bility may be enforced, — 1. When created in or about 
 carrying on a separate trade or business of the wife (35 
 Barb. 78; 58N.Y. 422); 2. When the contract relates to, 
 or is made for the benefit of, her separate estate (36 N. Y. 
 600; 37 id. 35); 3. When the intention to charge her 
 separate estate is expressed in the instrument or contract 
 by which the liability is created' (18 N. Y. 265 ; 22 id. 
 450). These three propositions substantially embody the 
 
 1 If the wife has signed the mortgage alone and not the bond, 
 it will be erroneous to demand a personal ind£;-ment ag^ainst her; 
 Gebhart v. Hadley, 19 Ind. 270 (1862) ; in Buell v. Shuman, 28 id. 
 464 (1867), she had siijned the note also, but was held not personally 
 liable. Rogers v. Weil, 12 Wis. 664 (1860). In Brick v. Scott, 47 
 lud. 299(1874), the court went so far as to hold void a mortgage 
 given on her separate estate, the proceeds of which Avent to the 
 husband ; apparently overruled, however, in Herron v. Herron, 91 
 Ind. 278 (1883). See also Martin v. Cauble, 72 id. 67 (1880); 
 Moffitt v. Roche, 77 id. 48 (1881) ; McCarty v. Tarr, 88 id. 444 
 (1882). In Sperry v. Dickinson, 82 id. 132 (1882), the wife 
 covenanted in the mortgage to pay a note, and she was held liable. 
 See Merchants' Nat. Bk. v. Raymond, 27 Wis. 567 (1871), where 
 no question seems raised but that a feme covert is bound as much 
 by her contracts as a feme sole. 
 
 2 Mack v. Austin, 29 Hun (N. Y.), 534 (1883). See Penn. 
 Coal Co. V. Blake, 85 N. Y. 226 (1881) ; McGlaughlin v. O'Rourke, 
 12 Iowa, 459 (1861) ; Brick v. Scott, 47 Ind. 299 (1874) ; Layman 
 V. Shultz, 60 id. 541 (1878).
 
 212 PARTIES TO MORTGAGE FORECLOSURES. 
 
 law as it exists in most of the states; some states follow 
 the rule of the English courts of equity as stated in the 
 preceding section, and a few have gone as far as New York 
 in the act of 1884. "The general principles applicable 
 to this subject have been too firmly settled by repeated 
 adjudications, to justify a reconsideration of the grounds 
 upon which they were arrived at. The most import- 
 ant of these principles is, that the statutes of 1848-49 
 and 1860-62, did not operate to remove the general disa- 
 bility of married women to bind themselves by their 
 contracts, not even to the extent of their separate estates. 
 This made it necessary to define specifically, in what 
 cases and under what circumstances such contracts 
 could or ought to be enforced against their separate 
 property, and the difficulty of accomplishing this pur- 
 pose, has led to most of the litigation on the subject."^ 
 To the above must be added a fourth proposition, 
 that a mortgage given by a married woman on her sep- 
 arate estate is always valid against her to the extent 
 of the value of the mortgaged lands, the reason for this 
 being that the mortgage is a specific charge upon a specific 
 part of her separate estate ; — " an appropriation only of 
 so much of her estate as the mortgage covers."'-^ This 
 
 1 Manhattan B. & M. Co. v. Thompson, 58 N. Y. 82 (1874), 
 per Church, Ch. J., citing Yale v, Dederer, 18 id. 282 (1858); 
 22 id. 460 (1860) ; 68 id. 329 (1877) ; Owens v. Cawley, 36 id. 
 600 (1867) ; Ballin v. Dillaye, 37 id. 35 (1867) ; Corn E. Ins. Co. v. 
 Babcock, 42 id. 613 (1870) ; S. C, 35 How. (N. Y.) 216 ; Vroo- 
 man v. Turner, 8 Hun (N. Y.), 78 (1876) ; reversed in part, 69 
 N. Y. 280 ; contra, Brown v. Herman, 14 Abb. (N. Y.) 394 (1862). 
 
 2 Man. L. Ins. Co. v. Glover, 14 Hun (N. Y.), 154 (1878); 
 Payne v. Burnham, 62 N. Y. 74 (1875) ; Corn E. Ins. Co. v. Bab- 
 cock, 42 id. 613 (1870); Kidd v. Conway, 65 Barb. (N. Y.) 158 
 (1873); See Spear v. Ward, 20 Cal. 660 (1862); Eaton v. Nason, 
 47 Me. 132 (1860) ; HoUis v. Francois, 5 Texas, 195 (1849) ; Voor- 
 hies V. Granberry, 5 Baxter (Tenn.), 704 (1875) ; Black v. Gal- 
 way, 24 Penn. St. 18 (1854). See Penn. act of 1848.
 
 LIABILITY OF MARRIED WOMAN ON BOND. 213 
 
 proposition is universally sustained in the English and 
 American courts, and for its reason relates back to the 
 broad principle that a married woman can mortgage 
 her real estate.^ 
 
 Payne v. Burnham'^- in which also the opinion is 
 written by Church, Ch. J., is a leading case upon the 
 question of a married woman's liability for a judgment 
 of deficiency in the foreclosure of a bond and mortgage 
 which she executed jointly with her husband. The mort- 
 gage in that case was executed on her separate estate, 
 but she received no part of the loan, the entire amount 
 going to her husband ; she was held not liable for a judg- 
 ment of deficiency. If, however, she had received a part 
 only of the consideration for which the bond signed by 
 her was given, she would have been held liable for the 
 deficiency.'^ In a case where a married woman re- 
 ceived the consideration of a mortgage upon her prom- 
 ise to repay it, it was held that it was borrowed for the 
 benefit of her separate estate. She answered that she 
 was a married woman not carrying on any separate 
 business ; a demurrer to the answer by the complainant 
 was sustained.^ The complaint must state specifically 
 the grounds on which a judgment for deficiency is de- 
 manded against a married woman ; otherwise a personal 
 judgment taken upon default will be held void.^ A bond 
 
 1 See § 43, ante. 
 
 - 62 N. Y. 69 (1875), reversiiio- 2 Hun, 143 ; 4 T. & C. 678 ; 
 McKeon v. Hatraii, 18 Hun (N" Y.), 65 (1879) ; Williamson v. 
 Duffy, 19 id. 312 (1879); Manhattan Life Ins. Co. v. Glover, 14 
 id. 153 (1878). In Rourk v. Murphy, 12 Abb. N. C. (N. Y.) 402 
 (1883), she bound her separate estate expressly. 
 
 3 Jones V. Merritt, 23 Hun (N. Y.), 184 (1880). 
 
 4 Williamson v. Duffy, 19 Hun (N. Y.), 312 (1879). 
 
 •' Manhattan Life Ins. Co. v. Glover, 14 Hun (N. Y.)-, 153 (1878).
 
 214 PARTIES TO MORTGAGE FORECLOSURES. 
 
 and mortgage executed by a married woman to secure 
 part of the purchase-money for premises conveyed to 
 her, will render her liable for a judgment of deficiency in 
 an action to foreclose, on the theory that the trans- 
 action was for the benefit of her separate estate.^ In 
 an action to foreclose a purchase- money mortgage. Park, 
 J., said, " I do not understand how it can be said that 
 a debt, contracted on the purchase of property which 
 the purchaser takes into possession and enjoys, is not 
 a debt contracted for the benefit of the purchaser's 
 estate."'^ 
 
 § 98. Persons originally liable, deceased, their estates 
 liable — personal representatives proper parties. 
 
 Where a mortgagor or other person who was person- 
 ally liable for a deficiency on the foreclosure of a mortgage 
 is dead, his personal representatives may be made parties 
 to an action to foreclose the mortgage, and a decree may 
 be rendered therein that the deficiency be paid out of 
 the estate in their hands in the due course of its ad- 
 ministration.^ This proposition was first advanced by 
 
 1 Ballin V. Dillaye, 37 N. Y. 35 (1867) ; S. C, 35 How. (N. Y.) 
 216 ; Flirm v. Powers, 36 N. Y. 289 (1868) ; Vrooman v. Turner, 
 8 Hun (N. Y.), 78 (1876) ; -reversed in part, 69 N. Y. 280 ; Brun- 
 ner's Appeal, 47 Perm. 67 (1864) ; Snyder v. Noble, 94 id. 286 
 (1880) ; Chase v. Hubbard, 99 id. 226 (1881). 
 
 2 Ballin v. Dillaye, supra, citing Ames v. Foster, 3 Allen 
 (Mass.), 541 (1862) ; Stewart v. Jenkins, 6 id. 300 (1863) ; Basford 
 V. Pearson, 7 id. 505 (1863); Rogers v. Ward, 8 id. 387^(1864). 
 But in Pemberton v. Johnson, 64 Mo. Rep. 342 (1870), she was 
 held not personally liable. 
 
 3 Glacius V. Fogel, 88 N. Y. 439 (1882) ; Scofield v. Doscher, 10 
 Hun (N.Y.), 582(1877); aff'd72N. Y.491; Fliess v. Buckley, 90 N. 
 Y. 286 (1882); Lockwood v. Fawcett, 17 Hun (N. Y.), 147(1879). 
 For the practice in South Carolina, see Gray v. Toomer, 5 Rich. 
 Law (S. C), 261 (1852). In Drayton v. Marshall, Rice's Eq. (S. C.) 
 373 (1839), personal representatives were held proper parties ;
 
 decedent's estate liable for deficiency. 215 
 
 Chancellor Walworth in Leonard v. Morris, and has never 
 been seriously questioned. He held, " Where the person 
 who is thus secondarily liable for such deficiency is dead, 
 I can at present see no legal objection to making his 
 personal representatives parties to the suit for the pur- 
 pose of obtaining a decree against them for the payment 
 of such deficiency out of the estate of the decedent in 
 their hands, to be paid in a due course of adminis- 
 tration. * * ^ No decree can be made for the 
 payment of the deficiency out of the estate of the 
 decedent, so as to entitle the complainant to an execution 
 thereof in this court, until a full account of the adminis- 
 tration of the estate has been taken ; except in those 
 cases where the executors and administrators admit 
 assets sufficient to pay the complainant's debt, and all 
 other debts of an equal and of a higher class which 
 were due by the decedent." ^ Judge Miller of the New 
 York Cdurt of Appeals cited this case with approval in 
 
 aud it was further held that the balance of a mortgage debt was 
 entitled to priority of payment out of the general estate over 
 simple contract debts. See Edwards v. Sanders, 6 Rich. (S. C.) 
 316 (1874). See Rodman v. Rodman, 64 Ind. 65 (1878), support- 
 ing the text and holding that there can be no decree over for a 
 deficiency unless the personal representatives are made parties. 
 See the earlier case of Newkirk v. Burson, 21 id. 129 (1863), to 
 the contrary. In Prieto v. Duncan, 22 111. 26 (1859), a decree 
 for deficiency was taken against the estate of a deceased mort- 
 gagor, none of his personal representatives having been made 
 parties ; on appeal it was held error, and the court followed the 
 New York rule in Leonard v. Morris, 9 Paige (N. Y.), 90 (1841). 
 In Bennett v. Spillars, 7 Texas, 600 (1852), the New York rule 
 was established for Texas, though no authorities are cited iu the 
 opinion per Hemphill, Ch. J. Contra to the text is Pechand v. 
 Rinquet, 21 Cal. 76 (1862), and Fallon v. Butler, 21 id. 24 (1862), 
 holding that a judgment for deficiency cannot be rendered 
 against personal representatives, but that the actual deficiency 
 can be presented to them for payment in the due course of 
 administration. 
 
 1 Leonard v. Morris, 9 Paige (N. Y.), 90, 92 (1841).
 
 216 PARTIES TO MORTGAGE FORECLOSURES. 
 
 1882, saying, " If the mortgaged premises were inadequate 
 and the security thus failed, the debt was still existing 
 for what was unpaid, and the remedy was perfect against 
 the mortgagor, under the statute which was evidently 
 designed for the purpose of avoiding the necessity of 
 two separate actions. If the mortgagor was alive, 
 the judgment would have been against him personally, 
 and upon his decease his estate would have been liable 
 to pay the same, and his executors or administrators 
 could have been compelled to apply funds in their hands 
 in liquidation of the judgment. That the action was 
 brought after the mortgagor's death, and against the 
 executors, can make no difference, and does not relieve 
 them from the liability which the testator had incurred, 
 and which they would be obliged to meet, had the judg- 
 ment preceded his death. The foreclosure of the mort- 
 gage was in fact against the executors, who were standing 
 in the place of the mortgagor, and the judgment was 
 against his representatives, who were liable to satisfy the 
 same out of any assets of the mortgagor in their hands. 
 It is very clear upon principle that the representatives are 
 liable to pay the debt of a deceased party in any event. 
 But if any doubt can properly arise, it is settled by the 
 statute which authorizes actions to be maintained by 
 and against executors in all cases in which the same 
 might have been maintained by or against their respect- 
 ive testators. The case of Leonard v. Morris holds 
 distinctly that when the mortgagor or other party 
 personally liable for the deficiency in a foreclosure case 
 is dead, his personal representatives may be parties to 
 the suit, to enable the complainant to obtain a decree 
 that the deficiency be paid out of the estate in their
 
 PERSONAL REPRESENTATIVES MADE PARTIES. 217 
 
 hands in a due course of administration. The rule stated 
 is well settled, and if any different one was adopted, the 
 execution of a bond would be an idle ceremony in case 
 of the maker's death." ^ 
 
 In an action to foreclose, where judgment was de- 
 manded against the survivor of two obligors, and 
 further that on the return of an execution against 
 him unsatisfied the balance be adjudged to be a debt 
 against the estate of the deceased obligor, to be paid by 
 his administrator in the due course of administration, 
 the court held that a decree could not be made against 
 the estate of the decedent in the same action.^ But it 
 
 1 Glacius V. Fogel, 88 N'. Y. 439 (1882). 
 
 2 Vice-Chancellor Whittlksey, in writing the opinion in 
 Rhodes v. Evans, Clarke Ch. (N. Y.) 170 (1840), says : " These 
 provisions would authorize a personal decree against Evans, and 
 against Rochester if he was living, for any such balance ; but wdll 
 it authorize such decree against Rochester's administrator, he be- 
 ing dead ? iSuch decree is authorized only when such balance is re- 
 coverable at km. This bill is filed against Evans and the adminis- 
 trator, widow and heirs of Rochester. For the purpose of obtain- 
 ing a sale of the land, all these are rightly made parties ; but 
 can they be joined for the purpose of a personal decree against 
 them jointly ? This question is answered by an answer to the 
 question whether they could be jointly sued upon the bond at 
 law. The decisions and well settled principles of our courts 
 clearly and decidedly answer this question in the negative. 
 Evans and the administrator of Rochester could not be joined as 
 defendants in a suit at law upon the bond. Evans must be 
 sued as survivor. Then this is not a debt which is recoverable 
 at law, in the mode which the complainant has sought to recover 
 it in this court ; and, consequently, there can be no decree against 
 the administrator of Rochester in this court. But the complain- 
 ant asks this court to determine the amount due from Rochester's 
 estate upon this demand, after the premises are sold, and after 
 an execution has been returned unsatisfied against Evans. It 
 seems to me that this is a matter which does not belong to the 
 jurisdiction of this court, at least in the present shape of the 
 cause. The surrogate has jurisdiction to marshal Rochester's 
 assets, and direct how they shall be paid. Other creditors have 
 an interest in the amount of this debt, and in settling this
 
 218 PARTIES TO MORTGAGE FORECLOSURES. 
 
 is doubtful whether this is good law under the more 
 recent decisions.^ If the plaintiff fails to make the 
 representatives of a deceased person who was liable for 
 the mortgage debt parties to the action or does not 
 demand a judgment of deficiency against them, he can 
 present his claim for an unpaid balance to the personal 
 representatives, and if payment is refused, an action 
 can be maintained against them to recover the defi- 
 ciency, — only, however, by leave of the court in which 
 the mortgage was foreclosed.^ 
 
 § 99. Persons originally liable, deceased, their heirs and 
 devisees not proper parties. 
 
 As has been seen from the decisions cited in the 
 preceding section, the personal representatives of a de- 
 ceased obligor are proper parties to an action to fore- 
 close a mortgage, for the purpose of determining the 
 amount of any deficiency that may arise, and of estab- 
 lishing a claim to be presented and paid in the due 
 
 amount, and they are not before the court to contest this claim ; and 
 1 doubt whether a decision of this court would be binding upon 
 them in any manner whatever. If they had notice of this pro- 
 ceeding, they might possibly contest this claim, or they mi^ht 
 see that the mortgaged premises produced enough to pay the 
 mortgage debt, so as to relieve the personal fund ; but they are 
 not here, and I cannot make a decree which shall bind them in 
 any manner." This case is cited in no decision, and it is plainly 
 overruled in substance by Leonard v. Morris, supra; Glacius v. 
 Fogel, i^upra ; Lockwood v. Fawcett, supra. 
 
 ' See the cases, supra. In Trimmer v. Thomson, 10 Rich. N. S. 
 (8. C.) 164, 178 (1877), an exhaustive opinion was wu-itten by 
 Haskell, A. J., who held, in an action upon a joint and several 
 bond, where one of the obligors had died and the verdict was 
 generally for money, that separate judgments could be rendered 
 against the survivor and the executors of the deceased obligor. 
 See Daniels v. Moses, 12 S. C. 130 (1880). 
 
 2 Scotield V. Doscher, 72 N. Y. 491 (1877) ; Glacius v. Fogel, 
 88 id. 440 (1882). See § 85, ante, and the notes.
 
 HEIR OF PERSON LIABLE, NOT PROPER PARTY. 219 
 
 course of the administration of the estate of the dece- 
 dent. Another line of decisions holds distinctly that the 
 heirs of a deceased person who was liable for the mort- 
 gage debt are not proper parties to an action to foreclose 
 a mortgage, where a judgment for deficiency is sought 
 against his estate.^ If the decedent owned the equity 
 of redemption and was at the time liable for the pay- 
 ment of the mortgage debt, his heirs and devisees are, 
 of course, necessary parties for cutting off the equity 
 of redemption whicli descended to them ; but a judg- 
 ment for deficiency can, in no event, be demanded 
 against them in the same action.- The remedy against 
 the heirs and devisees must be exhausted in a separate 
 and subsequent action to charge lands which have de- 
 scended to them with the payment of the decedent's 
 debts.'^ In Leonard v. Morris, quoted in the preceding 
 section, this proposition was pointedly presented to 
 Chancellor Walworth, who said : "Admitting that it 
 may be proper to make the personal representatives of 
 a deceased mortgagor or guarantor parties to a bill of 
 foreclosure, where it is probable there may be a de- 
 ficiency, there is no case in which it is allowable to 
 make heirs or devisees who have no interest in the 
 mortgaged premises parties to a bill of foreclosure, 
 with a view to reach the estate descended or devised 
 to them, to satisfy an anticipated deficiency upon the 
 sale of the mortgaged premises. To authorize the 
 filing of a bill against heirs or devisees, to obtain satis- 
 faction of a debt which is not a specific lien upon the 
 
 1 See Alexander v. Fray, 9 Ind. 481 (1857). 
 
 2 Cundiff V. Brokaw, 7 111. App. 147 (1881). 
 
 3 Merchants' Ins. Co. v. Hinman, 15 How. (N. Y.) 182 (1857). 
 See Sutherland v. Rose, 47 Barb. (N. Y.) 144 (1866).
 
 220 PARTIES TO MORTGAGE FORECLOSURES. 
 
 estate descended or devised to them, the complainant 
 must show by his bill that the personal estate of the 
 decedent was not sufficient to pay the debt, or that the 
 complainant has actually exhausted his remedy against 
 the personal estate and the personal representatives 
 and next of kin, etc. And it is impossible to do this as 
 to the deficiency in a mortgage case where, at the time 
 of filing the bill to foreclose the mortgage, it cannot 
 be known that there will be any deficiency whatever. 
 In proceedings against heirs or devisees, the statute 
 also requires the complainant to state in his bill, with 
 convenient certainty, the real estate descended or de- 
 vised. Again, the Revised Statutes have prohibited 
 the bringing of any suit against heirs or devisees of any 
 real estate, in order to charge them with a debt of the 
 testator or intestate, within three years from the time 
 of granting letters testamentary or of administration 
 upon his estate, ^ ^ ^ The guardian ad litem of 
 the infant defendant, therefore, instead of putting in 
 a general answer, and consenting to a decree against 
 such infant, should have raised objection, either in his 
 answer or by demurrer, that the bill was improperly 
 filed against the heirs and devisees. The bill must be 
 dismissed as to the heirs and devisees of the obligor, 
 but without prejudice to the complainant's right to 
 proceed against them by a new suit to charge them 
 with the payment of any deficienc}^ which may exist 
 after the sale of the mortgaged premises, and which 
 cannot be collected from the estate of the mortgagor, 
 nor from the personal estate of the obligor, after due 
 proceedings had before the surrogate."^ 
 
 1 9 Paige (N. Y.), 90, 92 (1841); Fliess v. Buckley, 22 Htm
 
 ASSIGNEE OF PERSON LIABLE, PROPER PARTY. 221 
 
 § 100. A person originally liable, making an assignment 
 in bankruptcy or voluntarily, assignee proper. 
 
 It is advanced here as an original proposition that 
 an assignee in bankruptcy, or by general assignment 
 of a person who was, at the time of the assignment, 
 liable for the mortgage debt, is a proper party to an 
 action to foreclose a mortgage, and one against whom a 
 judgment for deficiency can be demanded and decreed, 
 to be paid in the due course of his administration upon 
 the estate of the bankrupt. This proposition has been 
 presented to no court, as far as can be ascertained, but 
 it is believed that it would be sustained, as the cases 
 cited in the two preceding sections strongly support it 
 by analogy. An assignee is only a representative of 
 the bankrupt, and a creature of the law, the same as a 
 personal representative of a decedent. The distinction 
 should be made, however, that the demand against an 
 assignee must be made before the final settlement of 
 his accounts and his discharge, for after his trust is 
 performed his relations to and duties with the property 
 of the bankrupt are completely ended. 
 
 (N. Y.), 551 (1880). In Fliess v. Buckley, 24 Hun (N. Y.), 515 
 (1881), aff'd 90 N. Y. 2.s6 (1882), Dykman, J., said: "The 
 plaintiffs must first resort to the decedent's personal estate ; 
 that failing, they have their remedy against the heirs and dev- 
 isees."
 
 CHAPTER II. 
 
 PARTIES SUBSEQUENTLY LIABLE. 
 
 § 101. Introductory. 
 
 102. Purchaser of a mortgagor, conveyance made subject to 
 
 the mortgage, not liable. 
 
 103. Purchaser of a mortgagor, assuming payment of the 
 
 mortgage, liable — general principles. 
 
 104. Theories of law upon which a mortgagee is allowed 
 
 the benefit of the contract of assumption. 
 
 105. Purchaser not personally liable when his grantor is 
 
 not personally liable, though he assumes payment 
 of the mortgage. 
 
 106. The assumption of a mortgage by a subsequent mort- 
 
 gagee does not make him personally liable to the 
 prior mortgagee. 
 
 107. Can a grantor release his purchaser, assuming a mort- 
 
 gage, from his liability to the mortgagee ? 
 
 108. Intermediate purchasers, having assumed payment of 
 
 the mortgage, liable. 
 
 109. Assignor of a mortgage, guaranteeing payment or col- 
 
 lection, liable. 
 
 110. Intermediate assignors of a mortgage, guaranteeing 
 
 payment, liable. 
 
 111. Assignor of a mortgage, covenanting as to title and 
 
 against defenses, liable. 
 
 112. All persons guaranteeing payment or collection of a 
 
 bond and mortgage by a separate instrument, liable. 
 
 113. Married women, obligating themselves in any of the 
 
 preceding ways, generally liable. 
 
 114. Persons subsequently liable in any of the preceding 
 
 ways, deceased, their estates liable — personal rep- 
 resentatives proper parties ; heirs and devisees not 
 proper parties.
 
 HOW LIABILITY FOR MORTGAGE DEBT IS CREATED. 223 
 
 § 101. Introductory. 
 
 Subsequent to the execution of a bond and mortgage, 
 and consequent upon the establishment of the relation of 
 mortgagor and mortgagee, with their respective benefits 
 and liabilities, the title of the mortgagor to his lands, 
 and of the mortgagee to his bond and mortgage, may 
 be so transferred as to change their respective relations ; 
 and to bring persons who were strangers to the execu- 
 tion of the mortgage into such a relation to it, or to the 
 equity of redemption, as to make them liable for the 
 mortgage debt. In this chapter consideration will be 
 given to such parties as were strangers to the original 
 transaction between the mortgagee and the mortgagor, 
 but who have subsequently become liable for the pay- 
 ment of the indebtedness secured. The subject-matter 
 of this chapter has been of constantly increasing import- 
 ance in the law, owing to the increased number of con- 
 veyances in the Eastern states, and to the facility with 
 which mortsrao-es and feal estate titles are now trans- 
 ferred. The whole general subject is intimately con- 
 nected with the law of Principal and Surety ; but it is 
 without the province of this work to give any attention 
 to that branch of the law, except indirectly, and refer- 
 ence must be had to special treatises on that subject. 
 
 There are two principal ways in which this subse- 
 quent liability for a mortgage debt may be created. 
 The mortgagor may create it by conveying his equity of 
 redemption in the mortgaged premises, and binding his 
 grantee to assume the payment of the mortgage ; or the 
 mortgagee may create it in an assignment by guaranteeing 
 the payment or collection of the mortgage, or by making 
 other covenants in respect to it. Questions affecting
 
 224 PARTIES TO MORTGAGE FORECLOSURES. 
 
 the contract of assumption of the payment of a mort- 
 gage have grown into such importance from their fre- 
 quency and variety, that they might well be made the 
 subject of a legal monograph ; but for the purposes of 
 this work, only the general and well established princi- 
 ples of law affecting the subject need be stated. In the 
 foot notes, however, a full list of cases, with catch words, 
 will be given; and reference is had to the excellent 
 work of Leonard A. Jones, ^ who treats this subject in 
 thirty-two octavo pages. The decisions in New York, 
 however, are fully given in the following pages. 
 
 § 102. Purchaser of a mortgagor, conveyance made sub- 
 ject to the mortgage, not liable. 
 
 It is now well settled in all courts, v.here a mort- 
 gagor conveys his equity of redemption to a purchaser 
 without mentioning the mortgage in the instrument of 
 conveyance, or by stating therein that the deed is 
 made subject'- to the mortgage*, or by merely reciting 
 the mortgage, that the grantee is not thereby made 
 liable for the mortgage debt ; and a judgment for 
 deficiency cannot be demanded against him in an 
 
 1 Jones on the Law of Morts:ages, §§ 748, 770. 
 
 2 Binsse v. Paige, 1 Keyes (N. Y.), 87 (1863) ; Stebbins v. Hall, 
 29 Barb. (N. Y.) 524 (1859), collating and reviewing the cases: 
 Collins V. Rowe, 1 Abb. N. C. (N. Y.) 97 (1876), and the note to 
 the case, in which are collated and analyzed the cases interpreting 
 and fixing the meaning of the language employed in various 
 deeds to express and to refer to the existence of a mort- 
 gage on the premises. See Carter v. Holahan, 92 N. Y. 498 
 (1883); Wadsworth v. Lyon, 93 id. 201 (1883); Post v. Trades- 
 men's Bank, 28 Conn. 430, 432 (1859) ; Rapp v. Stoner, 104 111. 
 618 (1882); Lewis v. Day, 53 Iowa, 575, 579 (1880), collating and 
 reviewing the cases; Slater v. Breese, 36 Mich. 77 (1877); Stro- 
 haner v. Voltz, 42 id. 444 (1881); Camfield v. Shear, 49 id. 313 
 (1882) ; Woodbury v. Swan, 58 N. H. 380 (1883) ; Moore's Es-
 
 PURCHASER SUBJECT TO MORTGAGE NOT LIABLE. 225 
 
 action to foreclose the mortgage.^ A grantee who 
 takes " subject " to a mortgage simply contracts that 
 the debt shall be paid out of the mortgaged land.^ The 
 clause "under and subject" is binding between the 
 parties as a covenant of indemnity, but it gives the mort- 
 gagee no rights against the purchaser. A purchaser at 
 a judicial sale, which is made subject to a mortgage,^ does 
 not become personally obligated for the mortgage debt.* 
 There is no implied promise or covenant of a personal 
 obligation ; the premises are a primary fund for the 
 payment of the debt ; but beyond their value, the pur- 
 chaser is in no way liable. Even where the deed 
 recited that the mortgage had been estimated as a part 
 of the consideration money, and had been deducted 
 therefrom, it has been decided that the grantee assumed 
 no personal liability for its payment. ^ Where the 
 
 tate, 12 Phila. (Pa.) 104 (1882); Ins. Co. v. Addicks, lb. 490; 
 Girard Trust Co. v. Stewart, S6 Penii. 89 (1878) ; Moore's Appeal, 
 88 id. 450 (1879); Samuel v. Peyton, 88 id. 465; Merriraan v. 
 Moore, 90 id. 78 (1879); Cleveland v. Southard, 25 Wis. 479 
 (1870) ; Weber v. Zeiment, 30 id. 283 (1872) ; Tanguay v. Felt- 
 housen, 45 id. 30 (1878). 
 
 1 Belmont v. Coman, 22 N. Y. 438 (1860), a leading case ; Mc- 
 Lenahan v. McLenalian. 3 C. E. Green (18 N. J. Eq.), 101 (1866), 
 collating the English authorities ; Carleton v. Byington, 24 Iowa, 
 173 (1867); Hull v. Alexander, 26 id. 569, 572 (1869). See 
 Jones, §§ 735-740, for a fuller discussion of the sulDJect of this 
 section. 
 
 2 Ludington v. Harris, 21 Wis. 239 (1866). 
 
 3 Taylor v. Mayer, 93 Penn. 42 (1880). 
 
 * Wagner v. Chew, 15 Penn. St. 323 (1850); Lening's Estate, 
 52 Penn. 135 (1866); Price v. Cole, 35 Texas, 461 (1871). In 
 Porter v. Parmley, 52 N. Y. 185 (1873), no mention was made of 
 a mortgage. 
 
 5 Belmont v. Coman, 22 N. Y. 438 (1860). See Dingeldein v. 
 Third Ave. R. R. Co., 37 id. 575 (1868), distinguishing Belmont 
 V. Coman. In point, Fiske v. Tolman, 124 Mass. 254 (1879), 
 where the language was, " subject to a mortgage * * * which 
 is part of the above-named consideration." 
 
 15
 
 226 PARTIES TO MORTGAGE FORECLOSURES. 
 
 language was, " subject * '^ * to a mortgage 
 # # * -^vhich forms the consideration money of this 
 deed," the grantee was held not liable.^ In New Jersey 
 the rule is quite different, and the courts have held that 
 equity raises upon the conscience of the purchaser an 
 obligation to indemnify the mortgagor against the mort- 
 gage debt.- Vice-Chancellor Yan Fleef' very clearly dis- 
 tinguishes the rules in New York and in New Jersey in 
 reviewing Belmont v. Coman. " It was there held," 
 he says, " that where lands are conveyed subject to a 
 mortgage, and the amount of the mortgage is deducted 
 from the purchase-money agreed upon, no personal lia- 
 bility is thereby created against the purchaser, but that 
 the true exposition of the intent of the parties under 
 such an arrangement is, that so much of the purchase- 
 money as is represented by the mortgage is not to be 
 paid by the purchaser to anybody, but shall be paid out 
 of the land, and in that manner only. Such interpre- 
 tation would undoubtedly carry into effect the intention 
 of the parties where the interest sold is merely the 
 equity of redemption, and the purchase-money agreed 
 upon represents simply the value of the mortgagor's 
 interest in the mortgaged premises over the mortgage 
 debt ; but where the purchase-money agreed upon rep- 
 resents the whole value of the premises free from the 
 mortgage, and one of the mortgagor's objects in selling 
 is to relieve himself from the mortgage debt, the vendor 
 would seem, according to the plain meaning of the ar- 
 
 1 Trotter v. Hughes, 12 N. Y. 74. 78 (1854). 
 
 2 Tichenor v. Dodd, 3 Green Ch. (N. J.) 454, 455 (1844); Twich- 
 ell V. Mears, 8 Biss. C. Ct. (U. S.) 214 (1882). 
 
 3 Held V. Vreeland, 30 N. J. Eq. 591, 593 (1879); Belmont v. 
 Coman, 22 N. Y. 438 (1860).
 
 LIABILITY, MORTGAGE DEDUCTED FROM CONSIDERATION. 227 
 
 rangement, to have a clear right to the whole sum 
 agreed to be paid, or, if part is kept back to pay the 
 mortgage, that the purchaser shall be required either so 
 to apply it, or to indemnify the mortgagor against the 
 mortgage debt ; such I understand to be the principle es- 
 tablished by the adjudications of this state, and in my 
 view there can be no doubt it is founded on justice and 
 reason." In the recent case of Smith v. Truslow^ the 
 court cited Belmont v. Coman with approval, but seemed to 
 limit it by saying, " It would be otherwise, and the con- 
 tention of the appellant should prevail if, as he assumes, 
 the mortgage debt formed part of the consideration of 
 the purchase and was to be paid by the purchasers, or if 
 he retained its amount." This would seem to indicate 
 that the New York courts incline toward the New Jersey 
 rule as more equitable and just. Much depends in 
 each case upon the real intention of the parties. If it 
 could be proven that it was the intention of the grantee 
 to assume payment, then such language as has been 
 given above would be construed to bind him person- 
 ally.^ Again, although a deed may expressly bind a 
 purchaser with the assumption and payment of prior 
 mortgages, he would not be holden if it could be shown 
 that such contract of assumption was inserted without 
 his knowledge, and that he had no intention of binding 
 himself personally.^ 
 
 1 84 N. Y. 660, 661 (1881), per Danforth, J. But see Bennett 
 V. Bates, 94 id. 354 (1884), per Ruger, Ch. J., in point. 
 
 - Andrews v. Wolcott, 16 Barb. (N. Y.) 21 (1852). «ee Jones, 
 § 751. 
 
 '* Hraith V. Trnslow, 84 N. Y. 660 (1881) ; Kilmer v. Smith, 77 
 id. 226 (1879). See the next section and notes.
 
 228 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 103. Purchaser of a mortgagor assuming payment of the 
 mortgage, liable — general principles. 
 
 If the purchaser of an equity of redemption assumes 
 the payment of an existing mortgage on the premises, 
 he thereby becomes personally liable for its payment, 
 and may be made a defendant for the purpose of obtain- 
 ing a judgment for deficiency against him.^ If a pur- 
 
 1 Russell V. Pistor. 7 N. Y. 171, 174(1852) ; Trotter v. Hughes, 
 12 id. 74 (1854) ; Calvo v. Davies, 73 id. 212 (1878) ; Druiy v. 
 Clark, 16 How. (N. Y.) 424 (1857) ; Miller v. Watson, 1 Sweeney 
 (N. Y.), 874 (1869); Wales v. Sherwood, 52 How. (N. Y.) 413 
 (1876); Mutual Life Ins. Co. v. Davies, 44 Supr. Ct. (N. Y.) 
 172 (1878), and the cases cited. See Bache v. Doscher, 67 N. Y. 
 429 (1876) ; Price v. Pollock, 47 Ind. 362 (1874) ; Scorry v. El- 
 drido-e, 63 id:' 44 (1878) ; Thompson v, Bertram, 14 Iowa, 476 
 (1863), citing Burr v. Beers, 24 N. Y. 178 (1861), and relying 
 upon Corbett v. Waterman, 11 Iowa, 87 (1860), and Moses v. The 
 Clerk, 12 id. 140 (1861); Ross v. Kennison, 38 id. 396 (1874): 
 Rogers v. Herron, 92 111. 583 (1879) ; Rapp v. Stoner, 104 111. 
 618(1882); Shumaker v Sibert, 18 Kas. 104 (1877); Miller v. 
 Thompson, 34 Mich. 10 (1876) ; Booth v. Conn. Mut. Life Ins. 
 Co., 43 id. 299 (1880) ; Unger v. Smith, 44 id. 22 (1881) ; Follans- 
 bee V. Johnson, 28 Minn. 311 (1882) ; Vreeland v. Van Blarcom, 
 85 N. J. Eq. 530 (1882) ; Brewer v. Maurer, 38 Ohio St. 543 
 (1883), an important case ; Bishop v. Douglass, 25 Wis. 696 (1870). 
 In the early cases of Missouri a purchaser assuming payment 
 was held not liable under a statute ; Code of 1855, ch. 
 113, § 11 ; Fithian v. Monks, 43 Mo. Rep. 502, 515 (1869) ; but 
 under a later statute a purchaser has been held liable ; Heim v. 
 Vogel, 69 Mo. Rep. 529 (1879). The liability must, however, be 
 enforced in an action apart from the foreclosure ; Fitza^erald v. 
 Barker, 70 id. 685 (1879). In Hand v. Kennedy, 83 N. Y. 149 
 (1880). W. purchased certain premises in his own name, but in 
 fact for himself, K. and H. jointly, giving a purchase-money 
 mortgage signed by himself alone as part payment ; subsequently 
 W. conveyed to K. and H. undivided interests in the prop- 
 erty, they assuming to pay specified proportional parts of 
 the mortgage ; in an action to recover a judgment for deficiency, 
 Earl, J., held K. and H. liable to the mortgagee, and that there 
 was a sufficient consideration to sustain their contract of assump- 
 tion. See Williams v. Gillier, 28 Hun (N. Y.), 175 (1882), where
 
 PURCHASER ASSUMING PAYMENT LIABLE. 229 
 
 chaser assumes only a portion of the mortgage debt, he 
 will be obligated for the payment of no more than he 
 assumes.^ And where the conveyance is to two or more 
 tenants in common, they will be held jointly and not 
 severally liable, though their interests in the property 
 may not be proportionally the same.'^ With the contract 
 of assumption the grantor becomes a mere surety for the 
 debt. It is queried whether he can require the mort- 
 gagee to foreclose when the mortgage becomes due, and 
 whether he has any remedy by which he can protect 
 himself except that of paying his bond and mortgage, and 
 becoming thereby subrogated to the rights of the mort- 
 gagee.^ The bargain to assume payment being made 
 between the mortgagor and his grantee, the mortgagee 
 is a stranger to it ; he is at first in privity with neither 
 of the parties to the contract ; yet he was, at an early 
 day, held to be entitled to seize its benefits and to com- 
 pel the grantee to perform his covenant. The debt 
 becomes the grantee's own debtjand-constitutes a portion 
 of the consideration for the conveyance ; and the right 
 to enforce the obligation is not changed by the fact that 
 payment is to be made to the mortgagee, instead of to the 
 vendor of the property. The theories of law, on which 
 this proposition has at different times rested, will be 
 mentioned in the next section. 
 
 the agreement to assume a part was oral, and the court exchided 
 evidence of the oral agreement. 
 
 ^ >Snyder v. Robinson, 35 Ind. 311 (1871); Logan v. Smith, f',2 
 Mo. Rep. 455 (1876) ; Harlem Savings Bk. v. Mickelsburgh, 57 
 How. (N. Y.) 106 (1878). See Bowne v. Lynde, 91 N. Y. 92 
 (1883). 
 
 ^ Fenton v. Lord, 128 Mass. 466 (1880). 
 
 ^ Marshall v. Davies, 78 N. Y. 415 (1879), per Rapallo, J. ; 
 Mills V. Watson, 1 Sweeney (N. Y.), 374 (1869).
 
 230 PARTIES TO MORTGAGE FORECLOSURES. 
 
 The form of remedy in New York, New Jersey^ and 
 most other states, is that the grantee is Hable upon his 
 covenant; while in Connecticut,' Massachusetts,^ and 
 Rhode Island,^ assumpsit is held to be the proper remedy. 
 In an action by the grantor against the grantee, on a con- 
 tract of assumption, the measure of damages is the un- 
 paid amount of the mortgage.^ As between the mort- 
 gagor and his grantee who assumes payment, the 
 grantee becomes the primary debtor, while the mort- 
 gagor occupies the new relation of a surety responsible 
 to the mortgagee alone.*' The land stands as the 
 primary fund out of which the debt must be satisfied 
 in the first instance ; if that is insufficient, it will 
 rest upon the purchaser to redeem his promise made to 
 the mortgagor to pay the obligation. Both the pur- 
 chaser and the mortgagor are, of course, proper parties 
 
 1 Klapworth v. Dressier, 2 Beas. Ch. (N. J.) 62 (1860), per 
 Green, Chancellor, relying upon New York cases, and citing 
 Green v. Crockett, 2 Dev. and Bat. Eq. Cas. (N. C.) 390 (1839). 
 See Stiger v. Mahone, 24 N. J. Eq. 426 (1874), per Runyon, Chan- 
 cellor ; limited in Crowell v. Currier, 27 id. 152 (1876). See 
 Crowell V. Hospital, 27 id. 650 (1876). The above cases were 
 superseded in part by chap. 255 of the laws of 1880, providing 
 that a j udgment for deficiency cannot be recovered in an action 
 to foreclose. The contract of assumption remains valid to the 
 mortgagee, but it can be enforced only in a separate action at 
 law ; Naar v. E. L. Co., 34 N. J. Eq. Ill (1881) ; Allen v. Allen, 
 lb. 493 (1882) ; Newark Savings Inst. v. Forman, 33 id. 436 
 (1881). See the next section and notes. 
 
 2 Chapman v. Beardsley, 31 Conn. 116 (1862). 
 
 3 Fenton v. Lord, 128 Mass. 466 (1881) ; Lappen v. Gill, 129 
 id. 349 (1881) ; Williams v. Fowler, 132 id. 385 (1882) ; See Bra- 
 man v. Dowse, 12 Cush. (Mass.) 227 (1853) ; Drury v. Tremont 
 Imp. Co., 13 Allen (Mass.), 168 (1866). 
 
 4 Urquhart v. Brayton, 12 R. I. 169 (1880). 
 
 5 Furnas v. Drugin, 119 Mass. 500 (1876); Locke v. Homer, 
 131 id. 93 (1881) ; Reed v. Paul, 131 id. 129. 
 
 6 Drury v. Clark, 16 How. (N. Y.) 424 (1857) ; Mills v. Watson, 
 1 Sweeney (N. Y.), 374 (1869).
 
 GRANTOR LIABLE ONLY AS A SURETY. 231 
 
 to the action to foreclose, as both are liable debtors 
 to the plaintiff, although they sustain to each other the 
 relation of principal and surety.^ As a general rule the 
 grantor as a surety will be discharged from his liability 
 by any variation of the obligation under which he is 
 holden, according to the principles of law which govern 
 the relation of principal and surety. Thus, a change 
 of the terms of a bond and mortgage, by agreement 
 between the grantee assuming payment and the mort- 
 gagee, made without the knowledge or consent of the 
 mortgagor, canceling a stipulation in the original mort- 
 gage providing for releases of part of the mortgaged 
 premises when required, will discharge the mortgagor 
 of all liability for a judgment of deficiency."^ " That an 
 agreement by the creditor with the principal debtor, 
 extending the time for the payment of the debt, with- 
 out the consent of the surety, discharges the latter, is 
 established by numerous authorities."^ 
 
 1 Fiagg V. Thurber, 14 Barb. (N. Y.) 196 (18.51) ; modified in 
 9 N. Y. 483 (1854) ; Crawford v. Edwards, 33 Mich. 354 (1876) ; 
 Huyler v. Atwood, 26 N. J. Eq. 504 (1875); Wadsworth v. 
 Lyon, 93 N. Y. 201 (1883). 
 
 - Paine v. Jones, 76 N. Y. 274 (1879), aff'g 14 Hun, 577 
 (1878), relying upon Calvo v. Davies, 73 N. Y. 211 (1878). See 
 Marshall v. Davies, 78 id. 414 (1879), reversing 16 Hun, 606 (1879). 
 But in Woodruff v. Stickle, 28 N. J. Eq. 549 (1877), it was 
 stipulated in the mortgage that the mortgagee should release 
 lands at the mortgagor's request when at least $300 per acre was 
 paid : the fact that the mortgagor's grantee released at a less 
 price, was held not to discharge or relieve the mortgagor from 
 his personal liability on the bond. 
 
 3 Murray v. Marshall, 94 N. Y. 611 (1884) ; Spencer v. Spen- 
 cer, 95 id. 353 (1884); Calvo v. Davies, 73 id. 211, 216 (1878), 
 aff'g 8 Hun, 222, per Andrews, J. ; Jester v. Sterling, 25 Hun (N. 
 Y.), 344 (1881). See Meyer v. Lathrop, 10 Hun (N. Y.), m (1877), 
 to the contrary, but overruled in Paine v. Jones, 14 Hun (N. Y.), 
 577, 580 (1878). See Penfield v. Goodrich, 10 Hun (N. Y.), 41 
 (1877), where there was no contract of assumption and the mort-
 
 232 PARTIES TO MORTGAGE FORECLOSURES. 
 
 Specific words are not necessary to bind the pur- 
 chaser, but the intent to' assume the mortgage must be 
 clear and certain. The expression " subject to the 
 payment " of a mortgage has been repeatedly held to 
 bind the purchaser ;^ so also, " subject, however, to the 
 assumption as part of the consideration " of a mort- 
 gage, bound the grantee personally.'^ And the expres- 
 sion " which the grantee assumes and agrees to hold 
 the grantor harmless from," was held to render the 
 grantee liable to the mortgagee."' In a mortgage where 
 the assumption clause read, " which the party of the 
 first part hereby agrees to pay," it was construed to 
 mean the party of the second part.* An agreement to 
 
 gagor was held not discharged of his liability on the bond by an 
 extension of time by the mortgagee to the purchaser. See Cor- 
 bett V. Waterman, 11 Iowa, 86 '(I860), holding the mortgagor not 
 discharged by an extension of time. 
 
 1 Woodward's Appeal, 88 Penn. 322 (1861) ; Burke v. Gunney, 
 49 id. 518 (1865) ; Samuel v. Peyton, 88 id. 465 (1879) ; Carley 
 V. Fox, 38 Mich. 387 (1878). See Davis Appeal, 89 Penn. 272 
 (1879), which seems to overrule Burke v. Gunney, supra, on this 
 language. See Merriman v. Moore, 90 Peun. 78 (1881) ; in point, 
 Dingeldein v. Third Ave. R. R. Co., 37 N. Y. 575, 578 (1868), 
 per Hunt, Ch. J., considering the question at length ; Collins v. 
 Rowe, 1 Abb. N. C. (N. Y.) 97(1876), and the note, exhaustively 
 collating the cases on this point and distinguishing them. See 
 Bennett v. Bates, 94 N. Y. 354 (1884). 
 
 2 Douglass V. Cross, 56 How. (N. Y.) 330 (1878), per Van Vorst, 
 J., distinguishing Collins v. Rowe, 1 Abb. N. C. (N. Y.) \>7 (1876), 
 where the language was, " subject, nevertheless, to the payment of 
 one-eighth of a certain mortgage now on the premises," which was 
 held not to bind the grantee. And in Hoy v. Bramhall, 19 N. 
 J. Eq. 74, 78, 563, 568 (1868), Chancellor Zabriskie says, " The 
 clause in the deed ' subject to the payment of all liens now on 
 said premises ' cannot be construed into a covenant to pay the 
 liens. It is only a limitation of the covenants of warranty and 
 against incumbrances." 
 
 3 Locke V. Homer, 131 Mass. 93 (1881) ; Muhlig v. Fiske, 131 
 id. 110 (1882). 
 
 4 Fairchild v. Lynch, 42 Supr. Ct. (N. Y.) 265 (1877).
 
 INTENTION TO ASSUME PAYMENT NECESSARY. 233 
 
 assume payment of the interest cannot be construed so 
 as to impose a liability for the principal sum.^ Even 
 a parol promise by the purchaser to assume a mortgage 
 may be enforced, as the contract of assumption is held 
 to exist independent of and apart from the deed, though 
 nearly always engrossed upon it.'-^ It is not necessary 
 for the grantee to sign the deed in order to bind him- 
 self with the payment of the mortgage debt which he 
 assumes ; his acceptance of the deed, with knowledge 
 of its terms, imposes the obligation upon him as effec- 
 tually as though he signed it f if, however, there is no 
 actual acceptance or intention to assume the mortgage, 
 the grantee will not be holden for the debt, for the reason 
 that there has been no meeting of minds, and consequently 
 no contract. Thus, if an assumption clause is inserted 
 in an unusual place in the deed, so that it escapes the 
 
 1 Manhattan Life Ins. Co. v. Crawford, 9 Abb. N. C. (N. Y.) 
 365 (1879). 
 
 2 Taintor v. Hemingway, 18 Hun (N. Y.), 458 (1879); aff'd 
 83 N. Y. 610 (1880), where the deed was made subject to the 
 mortgage, and an oral agreement to pay it was held to be valid. 
 See 7 How. (N. Y.) 106 (1878). In point, Ely v. McNight, 80 id. 
 97 (1864), where the question of parol assumption is considered at 
 length. Slauson v. Watkins, 44 Supr. Ct. (N. Y.) 73 (1878). In 
 Pike V. Seiter, 15 Hun (N. Y.), 402 (1878), a husband in a land con- 
 tract and subsequently orally assumed the payment of a mort- 
 gage, but he caused the deed to be made in his wife's name ; he 
 instead of his wife was held personally liable. See Merriman v. 
 Moore, 90 Penn. 78 (1881) ; Bowen v. Kurtz, 37 Iowa, 239 (1873), 
 pe") Beck, Ch. J.; Ream v. Jack, 44 id. 325 (1876) ; Lamb v. 
 Tucker, 42 id. 118 (1875) ; McDill v. Gunn, 43 Ind. 315 (1873); 
 Miller v. Thompson, 34 Mich. 10 (1876) ; Ketcham v. Brooks, 27 
 N. J. Eq. 347 (1876) ; Crowell v. Hospital, 27 id. 650 (1876). See 
 Wilson V. King, 27 id. 374 (1876), where the proof was held in- 
 sufficient, and the case failed for that reason. 
 
 3 Ricard v. Sanderson, 41 N. Y. 179, 181 (1869) ; Waler v. 
 Sherwood, 52 How. (N. Y.) 413 (1876), and the cases cited; 
 Bowen v. Beck, 94 N. Y. 86 (1884).
 
 234 PARTIES TO MORTGAGE FORECLOSURES. 
 
 notice of the grantee, and he had no intention to as- 
 sume payment, he will not be held responsible to the 
 mortgagee ;^ so also if the scrivener inserts an assump- 
 tion clause without the knowledge of either party, or 
 if it be fraudulently inserted.- In a case where a 
 deed, containing an assumption clause, was executed 
 merely for the purpose of transferring the title, the 
 grantee was held not liable.^ But as against a bona 
 fide purchaser of a mortgage and notes before maturity, 
 who relied in part upon the contract of assumption, such 
 mistakes and frauds could not be pleaded in defense, and 
 the grantee would be held personally liable.^ It is not 
 necessary for the mortgagee to be notified of the con- 
 veyance ; the purchaser becomes, at once, liable to him 
 for the debt. 
 
 It is necessary that the conveyance be absolute in 
 its terms,^ and that it transfer the whole, or an undi- 
 
 '- Bull V. Titsworth, 29 N. J. Eq. 73 (1878); Culver v. Badger, 
 29 id. 74 (1874); Parker v. Jenks, 36 id. 398 (1883); Kilmer v. 
 Smith, 77 N. Y. 226(1879); Deyermand v. Chamberlain, 88 id. 
 658 (1882) ; Trustees of Dispensary of N. Y. v. Merriman, 59 
 How. (N. Y.) 226 (1880). In Van Horn v. Powers, 26 N. J. Eq. 
 257 (1875), a husband caused a deed containinir an assumption 
 clause to be executed to his wife without her knowledge ; she was 
 held not personally liable. Precisely the same facts and ruling 
 appear in Mnnson v. Dyii:ett, 56 How. (N. Y.) 333 (1878). See 
 Albany City S. Inst. v. Burdick, 87 N. Y. 40 (1881). In Best v. 
 Brown, 25 Hun (N. Y.), 223 (1881), the grantee refused acceptance 
 of a deed containing an assumption clause, yet the grantor 
 recorded the deed ; the grantee was held not personally liable. 
 
 2 Fuller V. Lamar, 53' Iowa, 477 (1880). See Albany City S. 
 Inst. V. Burdick, 87 N. Y. 40 (1881), reversing 20 Hun, 104, 
 S. C, 56 How. (N. Y.) 500 (1878), as to the amount of evidence 
 of fraud that is necessary. 
 
 3 Deyermand v. Chamberlain, 22 Hun (N. Y.), 110 (1881); 
 aff'd 88 N. Y. 658 (1882) ; see Best v. Brown, 25 Hun (N. Y.), 
 223 (1881). 
 
 4 Hayden v. Snow, 9 Biss. C. Ct. (U. S.) 511 (1882). 
 
 5 G-arnsey v. Rogers, 47 N. Y. 233 (1872) ; see Flagg v. Mun-
 
 FAILURE OF TITLE A DEFENSE TO ASSUMPTION CLAUSE. 235 
 
 vided part of the premises. A failure of title is held to be 
 a good defense for a purchaser, who assumed the payment 
 of a mortgage, against his personal liability, for the reason 
 that there is a failure of the consideration upon which 
 the contract of assumption was based.^ Judge Miller, 
 of the New York Court of Appeals, limited this rule, 
 in 1878, by saying : " It is held that where a grantee 
 of mortgaged premises takes a deed of the same sub- 
 ject to the mortgage, and thereby assumes to pay the 
 mortgage, he is estopped from contesting the considera- 
 tion and validity of the mortgage. ^ ^ ^ "Pl-^e 
 general rule is, that there must be an eviction before any 
 relief can be granted, on the ground of a failure of 
 title or consideration. So long as he remains in the 
 peaceful and quiet possession of the premises, or until 
 he surrenders possession of the same to a paramount 
 title, the mortgagor or the purchaser who assumes the pay- 
 ment of the mortgage, has no defense to the same."" 
 After the contract of assumption has been made the 
 
 ger, 9 N. Y. 483-499 (1854), where there was an acceptance of 
 the deed conditionally at first, but subsequently made absolute 
 on the givin^^ by the vendor of a conditional bond ; a breach 
 of this was held to discharge the purchaser from any personal 
 liability on the contract of assumption, per Denio and Ed- 
 wards, J J. 
 
 1 Dunning v. Leavitt, 85 N. Y. 30 (1881), reversing 20 Hun, 
 178 ; Thorp v. Keokuk Coal Co,. 48 N. Y. 253 (1872) ; S. C, 47 
 Barb. (N. Y.) 439 (1866); Garnsev v. Rogers, 47 N. Y. 233 
 (1872) ; Curtiss v. Bush. 39 Barb. (N. Y.) 661 (1863). In point, 
 Benedict v. Hunt, 32 Iowa, 27, 30 (1871) ; Hile v. Davidson, 20 
 N. J. Eq. (5 C. E. Green) 228 (1869) ; Hulfish v. O'Brien, 20 id. 
 230 (1869) 
 
 - Parkinson v. Sherman, 74 N. Y. 88, 92 (1878), citing Freeman 
 V. Auld, 44 id. 50 (1870) ; Thorp v. Keokuk Coal Co., 48 id. 253 
 (1872) ; Ritter v. Phillips, 53 id. 586 (1873) ; Shadbolt v. Bassett, 
 1 Lans. (N. Y.) 121 (1869). On the question of eviction, see Dun- 
 ning V. Leavitt, 85 N. Y. 30 (1881).
 
 236 PARTIES TO MORTGAGE FORECLOSURES. 
 
 grantee cannot plead the defense of usury ;^ nor can he 
 ordinarily question the consideration or validity of the 
 mortgage.^ 
 
 § 104. Theories of lavr upon -which a mortgagee is allo^wed 
 the benefit of the contract of assumption. 
 
 There are two theories of law upon which a mort- 
 gagee may base his right to hold a purchaser, who has 
 assumed the payment of his mortgage, personally liable 
 for the mortgage debt ; first, the theory of equitable 
 subrogation, by which a creditor is entitled to all the 
 collateral securities which his debtor has obtained to 
 reenforce the primary obligation ;•' and second, the thaory 
 that if one person makes a promise to another for the 
 benefit of a third person, th.it third person may main- 
 tain an action on the promise.^ The first of these is as 
 old as English law itself, and was the earliest of the two 
 theories to be applied to mortgage foreclosures when 
 the statute was passed authorizing the recovery of a per- 
 sonal judgment for deficiency in an action to foreclose 
 a mortgage.'^ The doctrine of subrogation is still, in 
 many states, the only one upon which the mortgagee's 
 right to hold the purchaser responsible for the debt 
 
 1 Hartley v. Harrison, 24 N. Y. 170 (1861). 
 
 - Freeman V. Auld, 44 N.Y. 50(1870); see Hartley v. Tatham, 
 1 Robt. (N. Y.) 246 (1863), on estoppel. 
 
 ■'' Trotter v. Hughes, 12 N. Y. 74, 79 (1854). See §^107, post. 
 
 ^ Ross V. Keunison, 38 Iowa, 396 (1874) ; Jones, g§ 758, 759, 
 761. For an exhaustive collection and explanation of cases in all 
 the English and American courts, applying this principle, see 
 the note to Cocker's Case, 17 Eng". Rep. 768 (1876), Moak's notes. 
 
 •^ Curtis V. Tyler, 9 Paige (N. Y.), 432 (1842); Dias v. Bou- 
 chard, 10 id. 446 (1843) ; Marsh v. Pike, 10 id. 495 (1844) ; Trot- 
 ter V. Hughes, 12 N. Y\ 74 (1854) ; Garnsey v. Rogers, 47 id. 233 
 (1872).
 
 THEORIES OF LAW FOR RIGHTS OF MORTGAGEE. 237 
 
 rests/ But in New York Judge Denio of the Court of 
 Appeals about 1861'^ advanced the second theory in 
 application to mortgage foreclosures, in a case where 
 the doctrine of subrogation would not sustain the con- 
 clusions which he desired to reach. This second theory 
 has grown in strong favor with New York courts where- 
 ever it has been possible to apply it; and there are 
 only two cases (presented in the next two sections) in 
 which the doctrine of the right of a third party to en- 
 force such a promise made for his benefit, cannot be 
 applied to mortgage foreclosures.^ In Vrooman v. Tur- 
 ner^ Judge Allen distinguished and harmonized the cases 
 based upon these two theories, and showed that both 
 were still in force and applied by New York courts to 
 mortgage cases. The second theory, however, seems to 
 be the favorite. 
 
 Under the theory of subrogation a mortgagee could 
 enforce his rights against a purchaser only in the equi- 
 table action of foreclosure and not in a separate action 
 at law ;•'' but with the adoption of the second theory, it 
 was held that a mortgagee could exercise his rights 
 against a purchaser in an action at law, and without 
 foreclosure ;'' the practice of enforcing this right in an 
 action at law is not, however, encouraged by the courts. 
 
 J See Crowell v. Hospital, 27 N. J. Eq. 650, 657 (1876), where 
 the question is fully discussed. 
 
 - Burr V. Beers, 24 N. Y. 178 (1861) ; Lawrence v. Fox, 20 id. 
 268 (1859). The courts of Iowa have adopted the second theory; 
 Ross V. Kennison, 38 Iowa, 396 (1874). 
 
 3 Dunning v. Leavitt, 85 N. Y. 39 (1881) ; Pardee v. Treat ; 
 82 id. 385 (1880); Hand v. Kennedy, 83 id. 149, 154 (1880); 
 Thorp V. Keokuk Coal Co., 48 id. 253 (1872). 
 
 * 69 N. Y. 282 (1877). 
 
 5 King V. Whitely, 10 Paige (N. Y.), 465 (1843) ; Jones, § 755 ; 
 Thomas on Mortgages, p. 191. 
 
 " Burr V. Beers, 24 N. Y. 178 (1861) ; Thorp v. Keokuk Coal
 
 238 PARTIES TO MORTGAGE FORECLOSURES. 
 
 § 105. Purchaser not personally liable when his grantor is 
 not personally liable, though he assumes payment 
 of the mortgage. 
 
 A grantee of mortgaged premises, who purchases 
 subject to a mortgage, which he assumes and agrees to 
 pay, will not be held liable for a deficiency arising on 
 a foreclosure and sale, unless his grantor was also 
 personally liable legally or equitably for the payment of 
 the mortgage.^ "It is well settled that to make a 
 promise of this nature effective, it must be made to a 
 person personally liable, legally or equitably, for the 
 mortgage debt, and if there is a break anywhere in the 
 chain of liability, all the subsequent promises are with- 
 out obligation." - This proposition has been three times 
 squarely before the court of last resort in the state of 
 New York,'' and the result has always been a judgment 
 
 Co., 48 id. 253 (1872) ; Mechanics' Savings Bank v. Goff, 13 R. I. 
 516 (1882). In point, Fitzsrerald v. Barker, 70 Mo. Rep. 685 
 (1881) ; Sparkman v. Gove,"44 N. J. L. 252 (1883) ; the grantor 
 may also sue the purchaser, Figart v. Halderman, 75 Ind. 564 
 (1881). See also Meech v. Ensign, 49 Conn. 191 (1883). In New 
 Jersey, since the passage of chap. 255. laws of 1880, this right 
 can be exercised onlv in an action at law; Naar v. E. L. Co., 
 34 N. J. Eq. Ill (1882) ; Allen v. Allen, lb. 493 (1882). 
 
 1 Vroonian v. Turner, 69 N. Y. 280 (1877); Thorp v. Keokuk 
 Coal Co., 48 id. 253 (1872) ; Cashman v. Henry, 75 id. 103 (1S78) ; 
 S. C, 55 How. (N. Y.) 234 ; S: C, 44 Supr. Ct. (N. Y.) 93 (1878) ; 
 Dunning v. Leavitt, 85 N. Y. 30 (1881); Trotter v. Hughes, 12 
 id. 74 (1854) ; King v. Whitely, 10 Paige (N. Y.), 465 (1843) ; 
 Munsou V. Dyett, 56 How. (N. Y.) 333 (1878). In point. Brewer 
 V. Maurer, 38 Ohio St. 543, 550 (1883), citing the leading cases 
 in New Y'ork and other states. 
 
 - Wise V. Fuller, 29 N. J. Eq. 257, 266 (1878), in which the 
 Chancellor relies upon the New York cases. See Crowell v. 
 Currier, 27 id. 1 52, 155 (1876) ; reviewed on appeal, lb. 650 (1876) ; 
 Norwood V. De Hart, 30 id. 412 (1879) ; Arnaud v. Grigg, 29 id. 
 482 (1878). 
 
 3 King V. Whitely, 10 Paige (N. Y.), 465 (1843) ; Trotter v. 
 Hughes, 12 N. Y. 74 (1854) ; Vrooman v. Turner, 69 id. 280 (1877).
 
 PURCHASER NOT LIABLE IF HIS GRANTOR NOT LIABLE. 239 
 
 of affirmance. The rule was first based, by Chancellor 
 Walworth,^ in 1843, upon the doctrine of subrogation. 
 Judge Denio applied the same doctrine in 1854 ; but 
 in 1861 in the leading case of Burr v. Beers- he preferred 
 the second doctrine, that if one person makes a promise 
 to another for the benefit of a third person, that third 
 person may maintain an action on the promise. In 1872^ 
 and in 1881* he sustained and a23plied the same doctrine. 
 But Vrooman v. Turner^' is the leading case upon the 
 proposition of this section and harmonizes the two 
 doctrines, showing that the proposition can be based on 
 either, and stating as the fundamental reason of the rule, 
 that there is no consideration to support the contract of 
 assumption. If the promise of the grantee to the 
 grantor is void for want of consideration, a third party 
 can, of course, claim no advantage from it. "To give 
 a third party who may derive a benefit from the per- 
 formance of the promise, an action, there must be first, 
 an intent by the promisee (purchaser) to secure some 
 benefit to the third party, and second, some privity be- 
 tween the two, the promisee (purchaser) and the party to 
 be benefited, and some obligation or duty owing from 
 the former to the latter, which would give him a legal 
 or equitable claim to the benefit of the promise, or 
 an equivalent from him personally." ^ 
 
 In Pennsylvania it has been held that the purchaser is 
 liable upon his assumption of a mortgage, although the 
 
 1 King V. Whitely, 10 Paige (N. Y.), 465 (1843). 
 
 2 24 N. Y. 179 (1861). 
 
 3 Thorp V. Keokuk Coal Co., 48 N. Y. 2.53 (1872). 
 * Dunning v. Leavitt, 85 N. Y. 37 (1881). 
 
 5 69 N. Y. 283 (1877), per Allen, J., reversing 8 Hun, 78. 
 ^ Vrooman v. Turner, supra, p. 283.
 
 240 PARTIES TO MORTGAGE FORECLOSURES. 
 
 agreement to assume be contained in a deed from a 
 grantor who was under no personal liability to pay the 
 mortgage; and contrary to the New York cases it has 
 been held that the agreement could not be said to be 
 without consideration inasmuch as the price of the 
 land was a consideration.^ 
 
 § 106. The assumption of a mortgage by a subsequent 
 mortgagee does not make him personally liable 
 to the prior mortgagee. 
 
 A stipulation in a mortgage, whereby the mortgagee 
 assumes and agrees to pay a prior mortgage on the 
 premises, does not impose upon him such a personal 
 liability for the prior mortgage debt, as can be en- 
 forced against him by the prior mortgagee.^ The 
 stipulation in such cases is not a promise made by the 
 mortgagee to the mortgagor for the benefit of the prior 
 mortgagee, but is a promise for the benefit of the mort- 
 gagor alone ; it is to protect his property by advancing 
 money to pay his debt.^ But where a senior mortgagee 
 in consideration of the conveyance to him of the equity 
 of redemption assumes the payment of a junior mort- 
 gage, he is personally bound to pay it and to relieve the 
 
 1 Merriman v. Moore, 90 Pemi. 78, 81 (1879), distinguishing 
 Samuel v. Peyton, 88 id. 465 (1879), which is seemingly contrary 
 to the text. See Jones, § 760. 
 
 2 Campbell v. Smith, 71 N. Y. 26 (1877); aff'd 8 Hun, 6 
 (1876) ; Pardee v. Treat, 82 N. Y. 385 (1880), reversing 8 Hun, 
 298 ; in point. Root v. Wright, 84 N. Y. 72 (1881); but see Bab- 
 cock V. Jordan, 24 Ind. 14 (1865), and Racouillat v. San Sevain, 
 32 Cal. 376 (1867), where the opposite view seems to be held. 
 
 3 In point, Arnaud v. Grigg, 29 N. J. Eq. 482, 486 (1878), per 
 Chancellor Runyon, distinguishing Campbell v. Smith, 71 N. 
 Y. 26 (1877), and relying upon Garnsey v. Rogers, 47 id. 233 
 (1872), saying that the contract of assumption is not for the bene- 
 fit of the mortgagee.
 
 A MORTGAGEE ASSUMING PRIOR MORTGAGE NOT LIABLE. 241 
 
 grantor and mortgagor of his liability/ The question 
 presented in this section first came before the Court of 
 Appeals of New York in 1869 in Ricard v. Sanderson^ 
 when the reverse of the above proposition was sus- 
 tained, and a person, who had taken a deed as a security 
 merely and assumed payment of the prior mortgage, 
 was held personally liable. The proposition of the sec- 
 tion was, however, pointedly sustained by Judge Rapallo, 
 in 1872, in the leading case of Garnsey v. Rogers^' where 
 a subsequent mortgagee, who had assumed the payment 
 of a prior mortgage, was held not liable to the prior mort- 
 gagee, but to the mortgagor alone. Judge Rapallo ex- 
 plains this conflict of opinion by the fact that in Garn- 
 sey V. Rogers the subsequent mortgage, containing the ^ 
 stipulation, was canceled and the mortgaged premises 
 were restored to the mortgagor, the stipulation becom- 
 ing, as to the parties to it, extinguished, while in Ricard 
 V. Sanderson it does not appear that the debt for which the 
 deed was given as a security had been extinguished at 
 the time of the foreclosure or that the premises had been 
 reconveyed in pursuance of any condition or defeasance 
 on which the deed was given.* But Judge Andrews, 
 who has written a majority of the opinions in the Court 
 of Appeals concerning questions affecting the assumption 
 of a mortgage, pointedly overruled Ricard v. Sanderson, 
 in 1881, in Pardee v. Treat^' although he did not refer 
 
 1 Huebsch v. Scheel, 81 111. 281 (1876). 
 
 2 41 N. Y. 179 (1869). 
 
 3 47 N. Y. 233 (1872). 
 
 •* See Campbell v. Smith, 71 N. Y. 26, 28 (1877), aff' g 8 Hnn, 
 6, per Church, Ch. J., distinguishing Grarnsey v. Rogers on the 
 questio.i of the deeds being merely a creditor's security. 
 
 5 82 N. Y. 885 (1880). 
 
 16
 
 242 PARTIES TO MORTGAGE FORECLOSURES. 
 
 to the case in his opinion, but reviewed and supported 
 Garnsey v. Rogers. He says, " Tlie distinguishing ques- 
 tion as to whether a person, who assumes the payment 
 of a mortgage in a subsequent deed or mortgage, is per- 
 sonally liable to a prior mortgagee, is, was the contract 
 of assumption in aid of the grantor alone ; or was it 
 also for the benefit of the mortgagee ? We think the 
 true result of the decisions upon the effect of an as- 
 sumption clause in a deed is, that it can only be enforced 
 by a lienor, where in equity the debt of the grantor 
 secured by the lien becomes, by the agreement between 
 him and his grantee, who assumes the payment, the 
 debt of the latter. On the other hand, if the assump- 
 tion is in aid of the grantor, upon the security of the 
 land, and not as between them, a substitution of the lia- 
 bility of the grantee for that of the grantor, or in other 
 words, if, in equity as at law, the grantor remains the 
 principal debtor, then the assumption clause is a con- 
 tract between the parties to the deed alone, and the lia- 
 bility of the grantee for any breach of his obligation, is 
 to the grantor only."^ 
 
 1 In farther reviewing and distinguishing G-arusey v. Rogers, 
 JuDUE Andrews says, at page 388, " In that case the covenant 
 was contained in a deed from Hermance to the defendant, Rogers, 
 absohite in form, which was in equity a mortgage, the deed hav- 
 ing been given to secure a debt owing by the grantor to Rogers, 
 upon a parol defeasance, that upon payment of the debt Rogers 
 should reconvey the premises. The plaintiff was the owner of 
 mortgages which were liens on the premises when the conveyance 
 to Rogers was made. The question decided in King v. Whiteley, 
 10 Paige (N. Y.), 465 (1848), did not arise. The gi-antor of 
 Rogers was himself liable to pay the mortgage, and if Rogers 
 had stood in the position of an absolute purchaser of the land, 
 his liability to the plaintiff, either in an equitable or legal action, 
 could not, upon the authorities, have been questioned. But the 
 court held that the deed being in equity a mortgage, the cove-
 
 GRANTOR CANNOT RELEASE GRANTEE FROM ASSUMPTION. 243 
 
 § 107. Can a grantor release his purchaser, assuming a 
 mortgage, from his liability to the mortgagee ? 
 
 It is now settled in New York, that where a grantee in 
 an absolute conveyance of lands assumes and agrees to 
 pay a mortgage thereon, an absolute and irrevocable obli- 
 gation is created in favor of the mortgagee, which cannot 
 be released or affected by any act or agreement of the 
 grantor to which the mortgagee does not assent,^ The 
 contrary of this proposition was held in Stevens v. Cas- 
 backer^- in the Supreme Court. But Justice Bockes, in the 
 later case of Douglas v. Wells,^ squarely overrules Stevens v. 
 Cashacker, and after an exhaustive review of all the cases 
 upon the question, concludes with an affirmance of the 
 proposition of this section, attaching great importance 
 to the opinion of Rapallo, J., in Garnsey v. Rogers:^ "It 
 
 nant by Rogers to pay the incumbrances was, in legal effect, a 
 covenant to make advances for the benefit of his grantor upon 
 the security of the land. The promise was not, therefore, a prom- 
 ise made for the benefit of the plaintiff, although he might be 
 benefited by its performance. It was not a case for equitable 
 subrogation, because the mortgage debts remained the debts of 
 the grantor who continued, in equity at least, the owner of the 
 land. The refusal to enforce the covenant did not proceed upon 
 the ground of want of consideration." 
 
 1 Douglas V. Wells, 18 Hun (N. Y.), 88 (1879). In point, Ran- 
 ney v. McMullen, 5 Abb. N. C. (N. Y.) 246 (1878). See the 
 opinion of the referee in Ranney v. Peyser, given in a note at 
 page 259, collating and reviewing the authorities. In Fairchilds 
 V. Lynch, 46 8upr. Ct. (N. Y.) 1 (1880), the grantor (mortgagor) 
 by mesne assignments became the owner of the bond and mort- 
 gage ; on the doctrine of merger this was held to release the 
 grantee from his personal covenant, though the mortg'age had 
 been assigned to a third person. See also Talburt v. Berkshire, 
 80 Ind. 484 (1881). 
 
 2 8 Hun (N. Y.), 116 (1876). See Hartley v. Harrison, 24 N. 
 Y. 170(1861). 
 
 •' 57 How. (N. Y.) 878 (1879) ; Devlin v. Murphy, 56 id. 326 
 <1878) ; Fleischauer v. Doellner, 58 id. 190 (1879) ; Ranney v. 
 McMullen, 5 Abb. N. C. (N. Y.) 246 (1878). 
 
 4 47 N. Y. 242 (1872). See Judson v. Dada, 79 id. 379 (1880).
 
 244 PARTIES TO MORTGAGE FORECLOSURES. 
 
 must be considered that when such an assumption is 
 made on an absolute conveyance of land, it is unconditional 
 and irrevocable. The grantor cannot retract his con- 
 veyance, nor the grantee his promise nor undertak- 
 ing ; but where contained in a mortgage, a conveyance 
 is defeasible." This ruling is, of course, limited to those 
 cases where the grant is absolute and the promise 
 unconditional. If conditions are connected with the 
 contract of assumption, the grantor may, sometimes, 
 release his grantee. Thus where an oral agreement 
 was made contemporaneous with the deed and contract 
 of assumption, that the grantor would take the land 
 back at any time, should the grantee become dissatisfied 
 with the purchase, and release the grantee from his cov- 
 enant in the original deed, a release by the grantor was 
 held to discharge the grantee from all liability to the 
 mortgagee for a judgment of deficiency.^ It has been 
 intimated that, if the mortgagee had received no knowl- 
 edge of the contract of assumption, the grantor might 
 then release his grantee.- But Bockes, J., has set aside that 
 intimation as being without authority.^ A grantor can- 
 not release his grantee from his contract of assumption 
 
 I ^1 Devlin V. Murphy, 56 How. (N. Y.) 326 (1878); S. C, 5 Abb. 
 N. C. (N. Y.)242 (1878), per Van Vorst, J., reviewing Stephens 
 V. Casbacher, 8 Hun (N. Y.), 116 (1876). See Fleischauer v. 
 DoeHner, 58 How. (N. Y.) 190 (1879), per Van Vorst, J., distin- 
 guishing Devlin v. Murphy, supra, under nearly the same state 
 of facts. In Laing v. Byrne, 34 N. J. Eq. 52 (1882), the grantor 
 took a reconveyance of the land, re-assuming the mortgage, and 
 the grantee was held thereby discharged from any liability. 
 
 2 Whiting V. Geary, 14 Hun (N. Y.), 498, 500 (1878); Paine v. 
 Jones, lb. 577 (1878) ; aff 'd 76 N. Y. 274 (1879). In point, 
 Brewer v. Maurer, 38 Ohio St. 543 (1883) ; Gilbert v. Sanderson, 
 56 Iowa, 349 (1882). 
 
 3 Douglass V. Wells, 18 Hun (N. Y.), 88 (1879).
 
 GRANTOR CAN RELEASE GRANTEE IN NEW JERSEY. 245 
 
 as against a purchaser of the mortgage, who has 
 reUed upon the contract of assumption as it aj)peared 
 on record.^ The proposition of this section is best sus- 
 tained upon the second of the foregoing theories, that 
 if one person makes a promise to another, upon a valu- 
 able consideration for the benefit of a third person, that 
 third person can maintain an action on the promise.'^ 
 
 In New Jersey, however, the right of a mortgagee to 
 take advantage of the contract of assumption against a 
 purchaser is based upon the doctrine of subrogation ; 
 and contrary to the New York decisions, it is held that 
 the grantor may release his purchaser from his personal 
 liability to the mortgagee, even after the commence- 
 ment of a foreclosure, and though the contract be ab- 
 solute and unconditional. Thus where a release of an 
 assumption was orally agreed upon before suit was 
 brought to foreclose the mortgage, but was not exe- 
 cuted in writing till after suit was brought, but was 
 for a valuable consideration and without the grantor's 
 knowledge of the suit, it was held to relieve the grantee 
 from all liability to the mortgagee.'^ But where the 
 release was executed by an insolvent grantor without 
 consideration and after notice of foreclosure, for the sole 
 and admitted purpose of defeating the mortgagee's 
 claim in equity for a deficiency, it was held void. 
 " This act of release or discharge, to be effectual, must be 
 done bona fide, and not merely for the purpose of thwart- 
 ing the mortgagee and depriving him of an equity to 
 
 1 3 Fed. Rep. 782, 789 ; Jones, § 264. 
 
 2 Douglas V. Wells, 18 Hun (N. Y.), 88, 92 (1879). See § 104, 
 
 CtYltB 
 
 ■^ O'Neill V. Clarke, 33 N. J. Eq. 444 (1881).
 
 246 PARTIES TO MORTGAGE FORECLOSURES. 
 
 which he is entitled. Where a person in consideration 
 of a debt due from him agrees with his creditor that he 
 will, in discharge of it, pay the amount to the creditor 
 of the latter, in discharge or on account of a debt due 
 from the latter to him, though the agreement may be 
 bona fide rescinded by the parties to it for consideration 
 or reasons satisfactory to themselves and without account 
 or liability to the creditor, who is not a party to it, yet 
 if the promisee be insolvent, and the rescission be merely 
 a forgiving of the debt for the mere purpose of defraud- 
 ing the creditor of the promisee, or protecting the prom- 
 i^er against his liability, the rescission will not avail in 
 equity."^ In another case, where a mortgagor repur- 
 chased of his grantee, who had assumed payment, he 
 in turn assuming payment, the grantee of the mort- 
 gagor was held discharged from all liability for the 
 reason that the mortgage had not become due and that 
 the mortgagee had suffered no injury.^ 
 
 It is thus seen what an important part these two doc- 
 trines of subrogation and of a contract for the benefit of 
 a third person have played in the development of the 
 law adjudging the rights of parties interested in the 
 contract of assumption of a mortgage. Even to-day 
 there is a lack of agreement among the courts as to 
 
 1 Trustees for Public Schools v. Anderson, 30 N. J. Eq. 366, 
 368 (1879). See also the same case reported on appeal as Young v. 
 Trustees, 31 id. 290, 297 (1879), per Depue, J., collating and re- 
 viewing the cases in a long opinion, and holding that a bona fide 
 release by the grantor will discharge the grantee from all liability 
 to the mortgagee. 
 
 2 Crowell V. Currier, 27 N. J. Eq. 152 (1876). See Laing v. 
 Byrne, 34 id. 52 (1881), where nearly the same facts are stated. 
 See also Crowell v. Hospital, etc., 27 id. 650 (1876), per Depue, 
 J., who at page 657 quotes the language of Rapallo, J., as given 
 above, calls it an obiter dictum, and rules contrary to it.
 
 INTERMEDIATE PURCHASERS ASSUMING PAYMENT LIABLE. 247 
 
 wJiich doctrine should prevail in the interpretation of 
 the contract. But the theory of a benefit for a third 
 person is the broadest, most equitable, and most sus- 
 ceptible of application to the various cases that have 
 arisen, and it is in growing favor with the courts. 
 
 § 108. Intermediate purchaser, having assumed payment 
 of the mortgage, liable. 
 
 It may be stated as a general rule, that all interme- 
 diate purchasers who have in succession from the original 
 obligor, through mesne conveyances, assumed the pay- 
 ment of a bond and mortgage, are personally liable as 
 sureties for a judgment of deficiency in an action to 
 foreclose the mortgage brought by the mortgagee or 
 his assignee.' No reason presents itself why, if the 
 first purchaser from the mortgagor is liable, the suc- 
 ceeding purchasers from the mortgagor's grantee should 
 not also be held personally liable for the mortgage debt, 
 either on the doctrine of subrogation or of liability for 
 a contract made for the benefit of a third person. This 
 proposition has been but once squarely before a court 
 in New York, when Vice Chancellor McCoon,^ in 1841, 
 held the contrary, that intermediate purchasers were 
 not liable; but this case is nowhere referred to or cited, 
 
 1 Cashman v. Henry, 75 N. Y. 103 (1878) ; Flagg v. Gelt- 
 macher, 98 111. 293 (1882); Scarry v. Eldridge, 63 lud. 44 (1878). 
 In point, Smith v. Ostermeyer, 68 id. 432 (1879) ; Brewer v. 
 Maurer, 38 Ohio St. 543 (1883). In point, Pruden v. Williams, 
 26 N. J. Eq. 210 (1875) ; Youngs v. Trustees Pub. Schools, 31 id. 
 290 (1879) ; Jarman v. Wiswall, 24 id. 267 (1873), per Chan- 
 cellor RuNYON, collating the cases and discussing the legal 
 reasons upon which the practice rests, and stating that the 
 decree should be the same as that directed in Luce v. Hinds, 
 Clarke Ch. (N. Y.) 453 (1841), per Vice-Chancellor Whittlesey; 
 see the next section. 
 
 ^ Lockwood V. Benedict, 3 Edw. Ch. (N. Y.) 472 (1841).
 
 248 PARTIES TO MORTGAGE FORECLOSURES. 
 
 and from the obiter dicta} in later cases it is believed 
 that it is not good law, and will be overruled. Fur- 
 thermore, it is not consonant with the general princi- 
 ples of the law of principal and surety. It is well set- 
 tled that the successive assignors of a mortgage, all of 
 whom have guaranteed its payment, are personally 
 liable for the mortgage debt to the plaintiff foreclosing. 
 By analogy the same cases support the proposition of 
 this section." 
 
 Intermediate purchasers, who have not assumed the 
 payment of the mortgage, are, of course, not liable ; 
 neither are intermediate purchasers liable, though they 
 may have assumed the payment of the mortgage, if 
 there is, prior to their jDurchase, a break in the line of 
 the several contracts of assumption in the successive 
 mesne conveyances.^ 
 
 § 109. Assignor of a mortgage guaranteeing payment or 
 collection, liable. 
 
 An assignor of a mortgage, wdio, in the assignment 
 or by a separate instrument, guarantees the payment or 
 collection of the mortgage, is personally liable to his 
 assignee, and may be made a defendant to an action for 
 foreclosure, for the purpose of recovering against him a 
 judgment of deficiency.^ In those states where no pro- 
 
 1 In Dimiiing v. Leavitt, 85 N. Y. 30 (1881), interniediate 
 purchasers who had assumed the payment of a mortgage were 
 made parties in an action to foreclose, and a personal judgment 
 for deficiency demanded against them. No objection was raised 
 by tliem, and Andrews, J., throughout his opinion, speaks of 
 them as though they were personally liable. 
 
 2 See the next section. 
 
 3 Vrooman v. Turner, 69 N. Y. 280 (1877). 
 
 4 Leonard v. Morris, 9 Paige (N. Y.), 90 (1841) ; Curtis v. Ty- 
 ler, lb. 432 (1842) ; Luce v. Hinds, Clarke Ch. (N. Y.) 453 (1841) ;
 
 ASSIGNOR OF MORTGAGE GUARANTEEING PAYMENT LIABLE. 249 
 
 vision is made for the recovery of a personal judgment 
 in an action to foreclose a mortgage, such a guarantor 
 cannot, of course, be made a party to the action; the 
 only remedy against him is a separate action at law. 
 In New York an action at law can also be subsequently 
 maintained, but only by consent of the court in which 
 the mortgage was foreclosed. In actions at law, a dis- 
 tinction is made between a guaranty of payment and of 
 collection ; ^ but in the equitable action of foreclosure, if 
 a party is in any way liable for the debt, he can be made 
 a defendant.'- 
 
 Bristol V. Morgan, 3 Edw. Ch. (N. Y.) 142 (1837); Jones v. 
 Steiiibergli, 1 Barb. Ch. (N: Y.) 250 (1845) ; N. Amer. Fire Ins. 
 Co. V. Handy, 2 Sandf. Ch. (N. Y.)492 (1845) ; Officer v. Burchell, 
 44 N. T. Sum-. Ct. 575 (1879); Craig v. Parkis, 40 N. Y. 181 
 (1869) ; Hunt v. Piirdy, 82 id. 486 (1880) ; New York Code, 
 § 1627. In Harlem Savings Bk. v. Mickelsbiu-gh, 57 How. (N. 
 Y.) 106 (1878), the order of liability between guarantors and 
 grantors assuming payment is considered. In point, Claflin v. 
 Reese, 54 Iowa, 544 (1880), also Jarman v. Wiswall, 24 N. J. Eq. 
 267 (1873). In Robertson v. Cauble, 57 Ind. 420 (1877), the 
 indorser of a note secured by a mortgage was made a defendant. 
 See Stark v. Fuller, 42 Penn. 320 (1862). In Fluck v. Hager, 51 
 id. 459 (1866), the mortgage came back into the hands of the 
 first guarantor, who foreclosed ; he was not allowed to enforce the 
 guaranty against the intermediate guarantors. Under the statute 
 of 1858, in Wisconsin a guarantor could not be made a defendant 
 for the purpose of recovering a personal judgment against him; 
 Borden v. Gilbert, 13 Wis. 670 (1861) But by chap. 243 of the 
 laws of 1862, the law was changed so that a {jersonal judgment 
 can now bT? recovered ; Burdick v. Bardick, 20 Wis. 348 (1866). 
 
 1 In Johnson v. Shepard, 35 Mich. 115 (1876), it was held that 
 a guarantor of collection ought not to be made a party defendant 
 to a foreclosure suit for the reason that no liability attaches to the 
 guarantor till every remedy against the principal has been ex- 
 hausted. Such a guarantor may be made a [)arty under the 
 New Y'ork rule ; the fact of a primary and a secondary liability 
 must, however, be recognized and provided for in the decree ; 
 Cady V. Sheldon, 38 Barb (N. Y.) 103 (1862). 
 
 - New York Code, S 1627. See Vanderbilt v. Schreyer, 91 N. Y. 
 392, 396 (1883), and the able opinion per Ruger, Ch. J., reversing 
 21 Hun, 537.
 
 250 PARTIES TO MORTGAGE FORECLOSURES. 
 
 The decree of foreclosure and judgment for deficiency 
 should specify in order the respective liabiHties of the 
 parties who have guaranteed the payment or collection 
 of the debt, or who are otherwise obligated for it ; ^ the 
 decree must always contain conclusions and directions 
 in harmony with the general law of principal and surety. 
 Thus Vice-Chancellor Whittlesey in Luce v. Hinds'^ made 
 the judgment of foreclosure " for the sale of the mort- 
 gaged premises and a personal decree against the obligor 
 (mortgagor) for the deficiency, and in case an execution 
 against him does not realize the money, an execution 
 must afterwards' go against the guarantor (assignor) of 
 the mortgage, for any balance due after sale of the 
 premises, and execution unsatisfied against the obligor." ^ 
 The execution must not issue against the guarantor in 
 any case until an execution against the person primarily 
 liable has been returned unsatisfied. 
 
 § 110, Intermediate assignors of a mortgage guaranteeing 
 payment, liable. 
 
 It is generally well established that the transfer of a 
 debt or obligation carries with it as an incident all se- 
 curities for its payment. Thus the assignment of a 
 bond and mortgage gives to the assignee the benefit of 
 and the right to sue upon a guaranty by a previous 
 assignor for their collection ; and this proposition is sus- 
 tained, although such guaranty may not be in terms trans- 
 
 1 Leonard v. Morris, 9 Paige (N. Y.), 90 (1841); Luce v. Hinds, 
 Clarke Ch. (N. Y.) 453, 456 (1841) ; Jones v. Steinbergh, 1 Barb. 
 Ch. (N. Y.) 253 (1845). 
 
 2 Clarke Ch. (N. Y.) 457 (1841). 
 
 ^ See also the quotation from the opinion of Chancellor Wal- 
 worth in Curtis v. Tyler, 9 Paige (N. Y.), 435 (1842), in the note 
 to § 94, ante : Jones v. Steinbergh, 1 Barb. Ch. (N. Y.) 253 (1845), 
 and the note in § 89, ante.
 
 INTERMEDIATE ASSIGNORS GUARANTEEING IT LIABLE. 251 
 
 ferred with the bond and mortgage.^ This principle is 
 in harmony with the proposition stated in the second 
 preceding section, that an intermediate purchaser who 
 has assumed the payment of a mortgage is personally 
 liable for the mortgage debt, providing his inter- 
 mediate grantors were liable. It is suggested as a query, 
 whether the same principles of law that are applicable 
 to intermediate purchasers assuming the payment of a 
 mortgage, are not also applicable to intermediate assign- 
 ors guaranteeing payment ; but in the latter case it is 
 not believed that an unbroken line of guaranties is re- 
 quired in order to hold liable those who have guaranteed 
 payment. 
 
 § 111. Assignors of a. mortgage, covenanting as to title 
 and against defenses, liable. 
 
 The query is raised here as to whether a person, who 
 guarantees that the title to a mortgage is perfect or that 
 there are no defenses against it, can be made a defend- 
 ant to an action to foreclose the mortgage for the purpose 
 of recovering a personal judgment against him for a 
 breach of such covenant. He might be made a party, on 
 the theory that he is interested in the action and that 
 a complete adjudication can be made only by bring- 
 ing him before the court. On the other hand, it can 
 scarcely be claimed that he " is liable to the plaintiff 
 for the payment of the debt secured by the mortgage."- 
 
 1 Craig V. Parkis, 40 N. Y. 181 (1869); Ketchell v. Burns, 24 
 Wend. (N. Y.) 456 (1840) ; First Nat. Bk. of Dubuque v. Carpen- 
 ter, 41 Iowa, 518 (1875). See Fluck v. Hager, 51 Perm. '459 
 (1866), where the mortgage came back into the hands of the first 
 guarantor, who foreclosed ; he was not allowed to enforce their 
 guaranties against the intermediate guarantors. 
 
 2 New York Code, § 1623. See Knickerbocker Ice Co. v. Nel- 
 son, 8 Hun (N. Y.), 21 (1876).
 
 252 PARTIES TO MORTGAGE FORECLOSURES. 
 
 In case of such a guaranty it would certainly be safe for 
 the plaintiff to omit the guarantor as a party to the 
 foreclosure, and subsequently, by leave of the court, 
 to commence an action at law against him for a breach 
 of his covenant. 
 
 § 112. All persons guaranteeing payment or collection of a 
 bond and mortgage by a separate instrument, liable. 
 
 In the preceding section it has been seen that the 
 assignor of a bond and mortgage, who guarantees its 
 payment in the same instrument, is personally liable to 
 the assignee of the mortgage foreclosing, for a judg- 
 ment of deficiency. The same rule and cases also apply 
 if the guaranty is made by a separate instrument, exe- 
 cuted by persons in no way interested in the mortgage.^ 
 This is based upon the principle that a creditor is 
 entitled to the benefit of all pledges and securities given 
 to, or in the hands of, a surety of the debtor for his in- 
 demnity, and the rule is true whether the surety has 
 been injured or not, as it is a trust created for the bene- 
 fit of the surety of the debt and attaches to it."- 
 
 § 113. Married women obligating themselves in any of the 
 preceding -ways, generally liable. 
 
 A married woman who purchases the equity of re- 
 demption in mortgaged premises, and assumes the pay- 
 ment of the mortgage in the deed of conveyance, is 
 personally liable to the mortgagee for a judgment of 
 deficiency, if her grantor was also personally liable, 
 although she may not charge her separate estate with 
 
 1 Grant v. Griswold, 82 N. Y. .569 (1880) ; Hunt v. Purdy, 82 
 id. 486 (1880). 
 
 2 Crow, McCreary & Co. v. Vance, 4 Clarke (Iowa), 442 (1857), 
 citing Curtis v. Tyler, 9 Paige (N. Y.j, 431 (1842).
 
 MARRIED WOMEN ASSUMING PAYMENT LIABLE. 253 
 
 the payment of the mortgage debt.^ This proposition 
 was squarely before Andrews, J., in Cashman v. Henry^ 
 in 1878, and after referring to the Massachusetts and New 
 Jersey statutes, which are similar to those of New York, 
 he based his decision upon the fact that a " married 
 woman as incident to her right to acquire real and per- 
 sonal property by purchase, and hold it to her sole and sep- 
 arate use, may purchase property upon credit, and bind 
 herself by an executory contract to pay the consideration 
 money, and that her bond, note, or other engagement 
 given and entered into to secure the payment of the 
 purchase price of property acquired and held for her 
 separate use, may be enforced against her in the same 
 manner, and to the same extent as if she were a feme 
 sole.'"-^ If her grantor was not liable, she, of course, 
 would not be liable. 
 
 1 Cashman v. Henry, 75 N. Y. 103 (1878) ; Vrooman v. Tnnier, 
 69 id. 280 (1877), reversing 8 Hun, 78 (1876).; Ballin v. Dyllaye, 
 37 N. Y. 35 (1867); Scott v. Otis, 25 Hun (N. Y.), 35 (1881); 
 Bush V. Babbitt, 25 id. 214 (1881); Flynn v. Powers, 35 How. 
 (N. Y.) 279 (1868) ; aff' d36id. 289 (1868) ; S. C, 54 Barb. (N. Y.) 
 550 (1868). See Munson v. Dyett, 56 How. (N. Y.) 333 (1878). 
 In point, Coolidge v. Smith, 129 Mass. 554 (1880), also Brewer v. 
 Maurer, 38 Ohio St. 543 (1883), citing the leading cases in other 
 states and holding with the New York decisions. See Culver v. 
 Badger, 29 N. J. Eq. 74 (1878), whereamarried woman, to whom 
 a deed was executed with an assum})tion clause, was held not 
 liable on its being shown that she did not intend to assume the 
 mortgage by accepting the deed. 
 
 2 75 N. Y. 103, 115 (1878) ; S. C, 55 How. (N. Y.) 234. 
 
 3 In Huyler v. Atwood, 26 N. J. Eci. 504 (1875), per Vice- 
 Chancellor Van Fleet, the same question was pointedly before 
 the court, and the ruling was the same as in Cashman v. Henry, 
 supra. At page 506 the Vice-Chancellor says : " The law, in 
 giving married women the right to acquire and hold land, did 
 not intend that their capacity to make contracts to secure the 
 purchase-money should be so limited and restricted that they 
 could get the land without paying for it. Whether they secured
 
 254 PARTIES TO MORTGAGE FORECLOSURES. 
 
 When a married woman assigns a mortgage owned by 
 her, guaranteeing its payment or collection, her liability 
 will be governed by the general rules affecting married 
 women's contracts,^ stated in section 97. Under the act 
 of 1884 in New York, she is now, of course, personally 
 liable upon all of her contracts, whatever their form or 
 nature.'- 
 
 § 114. Persons subsequently liable in any of preceding 
 ■ways, deceased, their estates liable — personal 
 representatives proper parties, heirs and devisees 
 not proper parties. 
 
 In a preceding section it has been seen that the 
 personal representatives, and not the heirs and devisees 
 of a deceased obligor, are proper parties defendant to 
 an action brought to foreclose a mortgage for the purpose 
 of obtaining a decree, determining the amouat of any 
 deficiency, and directing the same to be paid by the 
 personal representatives in the due administration of the 
 decedent's estate.'^ When the liability is incurred sub- 
 sequently to the inception of the bond and mortgage, by 
 a contract of assumption* or by guaranteeing payment 
 or collection, the rule is the same.'' 
 
 the payment of the ]iiirchase-nioney by bond and mortgage, note, 
 or contract to assume the payment of a mortgage, it is a contract 
 they have a capacity to make, and must be enforced." 
 
 1 See Penn. Coal Co. v. Blake, 85 N. Y. 226 (1881), where a mar- 
 ried woman expressly charged her separate estate. 
 
 - See §§ 96 and 97, ante, and notes. 
 
 3 See g§ 98 and 99, ante. 
 
 ■t Leonard v. Morris, 9 Paige (N. Y.), 90 (1841). See §§ 98 
 and 99, ante. 
 
 5 Scofield V. Doscher, 72 N. Y. 491 (1878) ; Bache v. Doscher, 
 67 id. 429 (1876). See Mutual Benefit Life Ins. Co. v. Howell, 
 32 N. J. Eq. 146 (1880).
 
 PART IV. 
 
 PRIOR MORTGAGEES AND ADVERSE CLAIM- 
 ANTS AS PARTIES DEFENDANT. 
 
 § 115. Introductory. 
 
 116. When prior mortgagees and lienors cannot be made 
 
 defendants. 
 
 117. When they can properly be made defendants. 
 
 118. Parties having a title paramount to the mortgage 
 
 neither proper nor necessary defendants. 
 
 119. Adverse claimants neither necessary nor proper parties. 
 
 120. Subsequent mortgagees or incumbrancers claimirfg pri- 
 
 ority of lien, proper defendants for litigating that issue. 
 
 § 115. Introductory. . 
 
 It has been repeatedly stated in this work upon the 
 authority of numerous cases that the only proper or 
 necessary parties to the foreclosure of a mortgage are 
 the mortgagor and the mortgagee and those persons 
 who have acquired rights under them subsequent to the 
 mortgage. But aside from this general rule there are 
 cases in which it is proper to make others than such 
 parties defendants to the foreclosure for the purpose of 
 fully determining the issues involved or for other pur- 
 poses which the plaintiff may desire to accomplish. It 
 sometimes happens that it is material to the interests 
 of the mortgagee to make a prior mortgagee or lienor 
 a defendant to the action for the purpose of ascertaining
 
 256 PARTIES TO MORTGAGE FORECLOSURES. 
 
 the exact amount of his incumbrance and of having it 
 paid from the proceeds of the sale ; contests as to 
 priority between mortgages upon the same premises 
 can be litigated most directly in an action to foreclose 
 if all the mortgagees are brought within the jurisdic- 
 tion of the court ; and at one time there was a great 
 deal of doubt as to whether adverse claimants should not 
 be made defendants to a foreclosure for the purpose of 
 settling their claims. These and other questions as to 
 who can rightly be made parties to a foreclosure for a 
 full determination of all the issues involved are pre- 
 sented to every practicing attorney. It is the design 
 of this chapter to notice briefly these ^miscellaneous 
 matters. 
 
 § 116. When prior mortgagees and lienors cannot be 
 made defendants. 
 
 It may be stated as a general rule that persons hold- 
 ing mortgages or liens prior to the mortgage under 
 foreclosure are neither necessary nor proper parties to 
 the action.^ A foreclosure is an equitable action in rem 
 
 1 Adams V. McPartlin, 11 Abb. N. C. (N. Y.) 369 (1882); 
 Hamlin v. McCahiU, Clarke Ch. (N. Y.) 249 (1840) ; see the 
 note to this case, citing numerous authorities. Western Ins. Co. 
 V. Eagle Fire Ins. Co., 1 Paii^^e (N. Y.), 284 (1828); Emigrant 
 Industrial Savings Bk. v. Goldman, 75 i^. Y. 127, 131 (1878); 
 Smith V. Roberts, 62 How. (N. Y.) 196, 200 (1881) ; aff'd 91 N. 
 Y. 470, 477 (1883) ; Vanderkemp v. Shelton, 11 Paige (N. Y.), 
 28 (1844); Holcomb v. Holcomb, 2 Barb. (N. \.) 20 (1847); 
 
 (1851) ; Bank of Orleans v. Flagg, 3 Barb. Ch. (N. Y.) 316 (1848). 
 See Chapman v. West, 17 N. Y. 125 (1858), where the action 
 was to establish a land contract. Frost v. Koon, 30 id. 428, 
 444 (1864). See Koch v. Parcell, 45 Supr. Ct. (N. Y.) 162, 173
 
 PRIOR MORTGAGEES AND LIENORS NOT PROPER PARTIES. 257 
 
 designed to extinguish the mortgage and to cut off all 
 liens which are subsequent to it upon the premises, and 
 not to affect in any way the title to the premises or the 
 liens upon it prior to the execution of the mortgage. 
 It is the general practice, where persons holding prior 
 mortgages are not made parties and no provision as to 
 their rights is made in the judgment, to sell the premises 
 subject to such mortgages ; no portion of the pro- 
 ceeds of the sale can be applied to their payment.-^ 
 A decree of sale can generally have no effect upon the 
 rights of prior lienors, whether they are made parties to 
 the action or not."^ In a recent case it appeared that after 
 a junior mortgagee had commenced an action to fore- 
 close, the prior mortgagee also commenced a fore- 
 closure, making a defendant the junior mortgagee, who 
 answered that an action was pending for the fore- 
 closure of the junior mortgage to which the prior mort- 
 gagee had been made a defendant, and asked the fore- 
 closure of the prior mortgage as well as the foreclosure 
 of his own ; the court held after reviewing the authorities 
 
 (1879) ; also Hotchkiss v. Clifton Air Cure, 4 Keyes (N. Y.), 
 170 (1868), explaining the remedy of a bidder at the sale, 
 when the referee varie.-< the terms of sale from the directions of 
 the judgment. In point, Jerome v. McCarter, 94 U. H. 7o4, 736 
 (1876) ; Hagan v. Walker, 14 How. (U. S.) 29, 37 (1852) ; Patti- 
 son V. Shaw, 6 Ind. 377 (1855) ; Farrer v. Kloke, 10 Neb. 373, 
 377 (1880); Tome v. Mer. Loan Co., 34 Md. 12 (1870); Weed 
 V. Beebe, 21 Vt. 495, 502 (1849) ; Warren v. Burton, 9 S. C. 197 
 (1877) ; Hudnit v. Nash, 16 N. J. Eq. 550 (1862) ; Williamson v. 
 Probasco, 4 Halst. (N. J. Ch.) 571 (1851) ; Dawson v. Danbury 
 Bank, 15 Mich. 489 (1867) ; Boward v. Hoeg, 15 Fla. 370 (1875) ; 
 White V. Holman, 32 Ark. 753 (1878). See Fisher, §§ 350-353, 
 and the English cases cited. Contra, see Case v. Bartholow, 21 
 Kan. 300 (1878). 
 
 1 Bache v. Doscher, 67 N. Y. 429 (1876). 
 
 2 See the cases supra; Smith v. Roberts, 91 N. Y. 470, 477 
 (1883). 
 
 17
 
 258 PARTIES TO MORTGAGE FORECLOSURES. 
 
 at length that the fact that the prior mortgagee was made 
 a defendant to the foreclosure of a junior mortgage did 
 not affect his rights at all, and that he might disregard 
 the foreclosure of the junior mortgage and prosecute 
 his own foreclosure to a sale/ If a prior mortgagee 
 who has been made a defendant to the foreclosure of a 
 junior mortgage dies or his interest devolves on another 
 pending the action, the proceedings may go on without 
 reviving or continuing it against his personal repre- 
 sentative or successor, as he was not a necessary party 
 to the foreclosure.- The proposition of this section 
 also applies where the prior lien is a judgment^ or A 
 mechanic's lien.^ A prior lienor cannot properly be 
 made a defendant to an action to foreclose or enforce a 
 mechanic's lien;^ 
 
 Where in an action to foreclose a mortgage one hav- 
 ing a subsequent mortgage is made a party defendant, 
 and such party is also the owner of mortgages prior to 
 that of the plaintiff, he may answer in the action and 
 ask to have such prior mortgages paid out of the pro- 
 ceeds of the sale before applying any portion thereof to 
 the satisfaction of the plaintiff's mortgage.^ In New 
 York it is the usual practice, where prior incumbrancers 
 
 1 Adams v. McPartlin, 11 Abb. N.C. (N. Y.) 369 (1882). See 
 Strobe v. Downer, 13 Wis. 10 (1860); Straight v. Harris, 14 id. 
 509 (1861). 
 
 - Hancock v. Hancock, 22 N. Y. 518 (1860). 
 
 3 Frost V. Koon, 30 N. J. 428, 444 (1864). 
 
 * Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 
 127, 132 (1878). 
 
 ^ Emia^rant Industrial Savin^-s Bank v. Goldman, 75 N. Y. 
 127, 132" (1878) ; Holcomb v. "Holcomb, 2 Barb. (N. Y.) 20 
 (1847); Vanderkemp v. Shelton, 11 Paige (N. Y.), 28 (1844); 
 Smith V. Schaffer, 46 Md. 573 (1877). 
 
 « Doctor V. Smith, 16 Hun (N. Y.), 245 (1878).
 
 WHEN PRIOR LIENORS ARE PROPER DEFENDANTS. 259 
 
 are improperly made parties to a foreclosure, to order 
 the action to be dismissed as to such defendants upon 
 their application, without prejudice to their or the 
 plaintiff's rights in any other proceeding.^ If the 
 action is not dismissed as to them, their rights may be 
 expressly reserved in the decree;- or they may disre- 
 gard the action, as the decree can have no effect what- 
 ever upon their rights.^ 
 
 § 117. When they can properly be made defendants. 
 
 As an exception to the jDroposition of the preceding 
 section a prior incumbrancer by mortgage, judgment 
 or otherwise, may be made a defendant to the fore- 
 closure of a junior mortgage for the purpose of having 
 the amount of his claim ascertained and paid out of 
 the proceeds of the sale, but such a purpose must be 
 specifically indicated and the prior claim set forth in 
 full in the complaint ;^ even in such a case it will be 
 impossible to compel the prior lienor to accept pay- 
 ment from the proceeds of the sale unless his lien has 
 matured and is due and payable,'^ and it is doubtful 
 whether a court will then decree the payment of a 
 prior lien from the proceeds of the sale unless the prior 
 
 1 Corning v. Smith, 6 N. Y. 82 (1851). 
 
 2 San Francisco V. Lawtou, 18 Cal. 465 (1861). See Wilkerson 
 V. Daniels, 1 Greene (Iowa), 179 (1848). 
 
 •* See the cases cited in the first note to this section. 
 
 * Emi4(rant Industrial Savings Bank v. Goldman, 75 N. Y. 
 127,182^(1878); Smith v. Roberts, 91 id. 470 (1888); Holcorab 
 V. Holcomb, 2 Barb. (N. Y.) 20 (1847); Vanderkemp v. Shelton, 
 11 Paige (N. Y.), 28 (1844); Fisher, §§ 350-353. 
 
 ■' Western Iiis. Co. v. Eagle Fire Ins. Co., 1 Paiii-e (N. Y.), 
 284 (1828) ; Western Reserve Bank v. Potter, Clarke Ch. (N. Y.) 
 439 (1841); Frost v. Yonkers Savings Bank, 70 N. Y. 553, 557 
 (1877). See Hamlin v. McCahill, Clarke Ch. (N. Y.) 249 (1840).
 
 260 PARTIES TO MORTGAGE FORECLOSURES. 
 
 lienor has appeared and consented to the decree.^ It 
 is not advisable to make a prior mortgagee a party to 
 the suit unless he previously indicates a willingness to 
 have the whole title sold under the foreclosure and 
 to have all incumbrances paid out of the proceeds in 
 the order of their priority.'-^ It is believed that in a 
 proper case the English rule concerning prior mort- 
 gages will be followed in our courts. Under this rule, 
 if a subsequent mortgagee desires to sell the whole 
 estate, he can make the prior mortgagee or lienor a 
 party to the suit and require him to consent to 
 such a sale or to refuse it at once. If he concurs, a 
 sale of the whole estate will be decreed ; otherwise the 
 decree will be for a sale subject to his prior lien, the 
 exact amount, terms and conditions of which can be 
 ascertained in the suit and made known at the sale, 
 
 1 Jerome v. McCarter, 94 U. S. 734 (1876) ; Roll v. Smalley, 2 
 Halst. (N. J. Ch.) 464 (1847) ; Norton v. Joy, 6 Bradw. (111.) 406 
 (1880); Warner v. Dewitt Co. Bank, 4 id. 305 (1878) ; Hagan v. 
 Walker, 14 How. (U. S.) 29, 37 (1852) ; Finlev v. Bank of United 
 States, 11 Wheat. (U. S.) 304 (1826); White v. Holman, 32 Ark. 
 753 (1878) ; Raymond v. Holbron, 23 Wis. 57 (1868) ; Champlin 
 V. Foster, 7 B. Mon. (Ky.) 104 (1846); Clarke v. Prentice, 3 
 Dana (Ky.), 469 (1835); Persons v. Alsip, 2 Ind. 67 (1850); 
 Troth V. Hunt, 8 Blackf. (Ind.) 580 (1847); Evans v. McLucas, 
 12 H. C. 56 (1880); Waters v. Bossel, 58 Miss. 602 (1880); Hud- 
 nit V. Nash, 16 N. J. Eq. 550 (1862). See Dunn v. Raley, 58 
 Mo. Rep. 134 (1874), as to what allegations must be made in 
 the complaint. See Gargan v. Grimes, 47 Iowa, 180 (1877); 
 Anonymous, 4 Halst. (N. J. Ch.) 174 (1849). See Tootle v. 
 White, 4 Neb. 401 (1876), in point. If the prior mortgagee 
 consents to a sale he cannot afterward commence a foreclosure of 
 his own mortgage ; Rowley v. Williams, 5*Wis. 151 (1856). 
 
 2 Vanderkemp v. Shelton, 11 Paige (N. Y.), 28 (1844); Ducker 
 V. Belt, 3 Md. Ch. 13; Rucks v. Taylor, 49 Mi^s. 552 (1873); 
 Miller v. Finn, 1 Neb. 254 (1871) ; Champlin v. Foster, 7 B. 
 Mon. (Ky.) 104 (1846); Clarke v. Prentice, 3 Dana (Ky.), 469 
 (1835).
 
 OWNER OF PARAMOUNT TITLE NOT PROPER DEFENDANT. 261 
 
 SO that a purchaser can know accurately the incum- 
 brances subject to which he is buying the title. ^ In 
 Indiana, contrary to the practice in nearly all other 
 states, a prior incumbrancer is held a proper party to 
 the foreclosure of a senior mortgage, and when made a 
 party will be bound by the decree. - 
 
 § 118. Parties having a title paramount to the mortgage 
 neither proper nor necessary defendants. 
 
 Persons who own an interest in mortgaged premises 
 paramount to the mortgage are neither necessary nor 
 proper parties to its foreclosure, for the reason that they 
 did not acquire their rights under the mortgagor or the 
 mortgagee subsequent to the execution of the mortgage.^ 
 Whether they are made parties or not, no decree in the 
 
 1 Langtoii V. Langtoii, 7 De G., M. & G. (Eng.) 30 (1855); 
 Wickenden v. Raysoii, 6 id. 210 (1854). jSee also Delabere v. 
 Norwood, 3 Swans. (Eng.) 144 n. (1818) ; Parker v. Fuller, 1 
 Rnss. cS: M. (Eiia-.) 656 (1830) ; Bigelow v. Cassedy, 26 N. J. Eq. 
 557 (1875) ; Potts v. N. J. Arms Co., 17 id. 518 (1865) ; Gihon v. 
 Belleville Co., 7 id. (3 Halst.) 531 (1849). 8ee Jerome v. Mc- 
 Carter, 94 U . 8. 734, 736 (1876), and the cases cited in the opinion. 
 See Perdicaris v. Wheeler, 4 Halst. (N. J. Eq.) 68 (1849); Per- 
 sons V. Merrick, 5 Wis. 231 (1856). 
 
 2 Masters v. Templeton, 92 Ind. 447 (1883), citing numerous 
 Indiana cases, also holds that claims adverse to the title may be 
 litigated in a foreclosure; Merritt v. Wells, 18 id. 171 (1862). 
 
 -^ Lewis V. Smith, 9 N. Y. 502, 514 (1854), aft'g 11 Barb. (N. 
 Y.) 153 (1851) ; Merchants' Bank v. Thompson, 55 id. 711 (1873) ; 
 Rathbone v. Hooney, 58 id. 463, 467 (1874) ; Hamlin v. McCahill, 
 Clarke Ch. (N. Y.) 249 (1840), and the note ; Lee v. Parker, 43 Barb. 
 (N. Y.) 611, 614 (1865); Walsh v. Rutgers, 13 Abb. (N. Y.) 33 
 (1861); Wincherer v. Hewett, 10 Mich. 453 (1862) ; Comstock v. 
 Comstock, 24 id. 39 (1871) ; Horton v. Ingersoll, 13 id. 409 (1865) ; 
 Wilkinson v. Green, 34 id. 221 (1876): McClure v. Holbrook, 39 
 id. 42 (1878); Gage v. Perry, 93 111. 176 (1879) ; Price's Ex'rs v. 
 Lawton, 27 N. J. Eq. 325 (1876), citing numerous cases; Pelton 
 V. Farmin, 18 Wis. 222 (1864) ; Palmer v. Ya^^er, 20 id. 91 (1865) ; 
 Hekia Fire Ins. (Jo. v. Morrison, 5(5 id. 133 (1882), citing numer- 
 ous cases. See the cases cited in the following section.
 
 262 PARTIES TO MORTGAGE FORECLOSURES. 
 
 action will in any way affect their rights. Thus a widow 
 who did not sign a mortgage executed by her husband 
 should not be made a defendant to its foreclosure ; and 
 even if she is made a defendant, her rights will 
 not be affected in any way by the decree.^ This is 
 specially true if the complaint does not contain allega- 
 tions setting forth her real rights in the property and 
 asking to have them foreclosed ; and even with such 
 allegations in the complaint, it was held in one case 
 that the judgment passing upon her rights and fore- 
 closing them was erroneous and void.' A person 
 claiming dower by title paramount to the mortgage can- 
 not be brought into court in a foreclosure and made to 
 contest the validity of her dower. Whether she is 
 made a party or not, her rights will remain unaffected 
 by the action ; the sale should be made subject to her 
 dower. This rule also applies to persons holding an 
 estate in remainder or reversion, where the life estate 
 or the intermediate interests of the beneficiary have 
 been mortgaged.'^ 
 
 § 119. Adverse claimants neither necessary nor proper 
 
 parties. 
 
 It is now an established rule in practice that a fore- 
 closure suit is not an appropriate proceeding in which 
 to litigate the rights of persons who claim title to mort- 
 
 1 Lewis V. Smith, 9 N. Y. 502, 514 (1854), aff'g 11 Barb. (N. 
 Y.) 153 (1851) ; Merchants' Bank v. Thomson, 55 id. 7, 11 (1878). 
 
 2 Merchants' Bank v. Thomson, supra: Payne v. Grant, 23 
 Hun (N. Y.), 134 (1880) ; Bradley v. Parkhurst, 20 Kan. 4^2 
 (1878) ; Lounsbury v. Catron, 8 Neb. 469 (1879) ; Shellenbaiirer 
 V. Riser, 5 id. 195 (1876); Roche v. Knight, 21 Wis. 324 (1867) ; 
 Wicke V. Fake, 21 id. 410 (1867). 
 
 3 Rathbone v. Hooney, 58 N. Y. 463, 467 (1847). See Stan- 
 dish V. Dow, 21 lovva, 363 (1866), a case of trust.
 
 ADVERSE CLAIMANTS NOT PROPER DEFENDANTS. 263 
 
 gaged premises in hostility to the mortgagor.^ In New 
 York it has been determined that where a party 
 setting up such a claim is made a defendant to the 
 foreclosure of a mortgage, the decree will be held 
 erroneous and will be refused, if it passes upon his 
 rights, though made after a hearing upon the plead- 
 ings and proofs.^ The mortgagee has no right to 
 make one who claims adversely to the title of the 
 mortgagor and prior to the mortgagee, a party de- 
 fendant for the purpose of trying the validity of his 
 adverse claim of title.^ The bill of foreclosure should 
 be dismissed as to an adverse claimant unless he alleges 
 in his answer, and is prepared to prove, that the 
 
 1 Eagle Fire Co. v. Lent, 6 Paige (N. Y.), 635, 638 (1837); 
 Lewis V. Smith, 9 N. Y. 502, 514 (1854), aff'g 11 Barb. (N. Y.) 
 153 (1851) ; Corning v. Smith, 6 id. 82 (1851); Frost v. Koon, 30 
 id. 428, 444 (1864); Bank of Orleans v. Flagg, 3 Barb. Ch. (N. 
 Y.) 318 (1848); Payne v. Grant, 23 Hun (N. Y.), 134 (1880); 
 Meigs V. Thomson, m How. (N. Y.) 466 (1884). See also Brown 
 V. Volkening, 64 N. Y. 76, 84 (1876) ; Wurcherer v. Hewitt, 10 
 Mich. 453 (1862) ; Comstock v. Comstock, 24 id. 39 (1871); Sum- 
 mers V. Bromley, 28 id. 125 (1873), citing New York cases. 
 Bogey V. Shute, 4 Jones Eq. (N. C.) 174 (1858) ; Banning v. 
 Bradford, 21 Minn. 808 (1875) ; Newman v. Home Ins. Co., 20 
 id. 422 (1874) ; Chamberlain v. Lyell, 3 Mich. 448 (1855) ; Wilkin- 
 son V. Green, 34 id. 221 (1876) ; Gage v. Perry, 93 111. 176 (1879) ; 
 Gage V. Board of Directors, 8 Bradw. (111.) 410 (1881) ; Carbine 
 V. Sebastian, 6 id. 564 (1880) ; San Francisco v. Lawton, 18 Cal. 
 465 (1861); Marlow v. Barlew, 58 id. 456 (1878); Crogan v. 
 Minor, 53 id. 15 (1878) ; Lani^ v. Jones, 5 Leigh (Va.), 192 (1834) ; 
 Lyman v. Little, 15 Vt. 576 (1843); Comely v. Hendricks, 8 
 Biackf. (Ind.) 189 (1846); Pattiscn v. Shaw,*6 Ind. 377(1855); 
 Dial V. Reynolds, 96 U. S. 340 (1877) ; Peters v. Bowman, 98 id. 
 56 (1878). See Chicago Theological Seminary v. Gage, 103 111. 
 175 (1882); Coe v. N. J. Midland Ry., 31 N. J. Eq. 105 (1879); 
 Shellenbarger v. Riser, 5 Neb. 195 (1876). 
 
 2 Corning v. Smith, 6 N. Y. 82 (1851) ; Lewis v. Smith, 9 id. 
 502, 514 (1854) ; Eagle Fire Co. v. Lent, 6 Paige (N. Y.), 635 
 (1837). 
 
 ^ Eagle Fire Co. v. Lent, supra; see the English authorities 
 cited in this case.
 
 264 PARTIES TO MORTGAGE FORECLOSURES. 
 
 facts upon which he relies arose subsequently to the ex- 
 ecution of the mortgage.' Disputes involving the title 
 to the mortgaged premises prior to the execution of the 
 mortgage cannot be litigated in a foreclosure, but must 
 be tried by ejectment or other suitable action apart 
 from the foreclosure ;- but where the title was acquired 
 at a tax sale subsequent to the mortgage the purchaser 
 is a proper party.^ It is not right that the mortgagee 
 in pursuing his remedies should be delayed or hindered by 
 litigation upon a question of title which does not affect 
 his rights in any way. In Indiana and Kansas, how- 
 ever, adverse claims may be litigated in a foreclosure.* 
 
 § 120. Subsequent mortgagees or incumbrancers claim- 
 ing priority of lien proper defendants for^itigating 
 that issue. 
 
 As has been stated in the two preceding sections, par- 
 ties who claim adversely or paramount to the mortgagor 
 are not even proper defendants in the foreclosure of a 
 mortgage ; but parties who claim subsequently to the mort- 
 gagor, but adversely and paramountly to the mortgagee, 
 are proper, if not necessary, defendants to a foreclosure 
 for the purpose of litigating questions of priority in lien 
 
 1 Corning v. Smith, 6 N. Y. 82 (1851); Meigs v. Thomson, 
 66 How. (N. Y.) 466 (1884). 
 
 2 Eagle Fire Co. v. Lent, 6 Paige (N. Y.), 635 (1837) ; Brun- 
 dage V. Domestic and Foreign Missionary Society, 60 Barb. (N. 
 Y.) 204, 213 (1871). See Price's Ex'rs v. Lawton, 27 N. J. Eq. 
 325 (1876). 
 
 ^ Horton v. Ingersoll, 13 Mich. 40^) (1865) ; Carbine v. Sebas- 
 tian, 6 Bradw. (111.) 564 (1880). See Chicago Theological Sem. 
 V. Gage, 103 111. 175 (1882); contra, Roberts v. Wood, 38 Wis. 60 
 (1875). 
 
 * Masters v. Templeton, 92 Ind. 447 (1883) ; Bradley v. Park- 
 hurst, 20 Kan. 462 (1878) ; Nooer v. Short, lb. 624.
 
 . JUNIOR LIENORS CLAIMING PRIORITY PROPER PARTIES. 265 
 
 between the mortgage under foreclosure and their claims. 
 This rule allows to be brought into the action for litiga- 
 tion such questions only as affect the rights of the 
 mortgagee.^ "Whether a defendant's equities are prior 
 and superior to the rights of the jjlaintiff under his 
 mortgage, or junior and subordinate thereto, must 
 necessarily be determined in the judgment for a fore- 
 closure of the plaintiff's mortgage. The defendant is 
 not contesting the title of the mortgagor, but simply 
 asserts a right under him prior in point of time to the 
 mortgage. The question of priority between the two 
 is necessarily involved in the action and proper to be 
 determined in it."-^ 
 
 If a mortgagee or incumbrancer claiming priority is 
 not made a defendant, his rights will be in no way 
 affected by the action. It is often necessary to bring 
 additional parties into the action for a complete de- 
 termination of the questions involved in the issue ; in 
 such cases the application may be made by the plaintiff 
 or the defendant, or the court on its own motion may 
 order such parties as it deems necessary to be brought 
 within its jurisdiction, but it must be a fact in each case 
 that the party is brought into court claims some 
 right or interest that is adverse to the claims of the 
 mortgagee foreclosing. The practice of making a de- 
 fendant to a foreclosure every party who claims an 
 
 1 Brown V. VolkeniiiK, 64 N. Y. 76, 84 (1876) ; Bank of Orleans 
 V. Flagg, 8 Barb. Ch. (N. Y.) 816 (1848); Payne v. Grant, 23 
 Hun (N. Y.), 184 (1880) ; Board of Hupervisors v. Mineral Point 
 R. R., 24 Wis. 98 (1869); Krutsiiiger v. Brown, 72 Ind. 166 (1880) ; 
 Hoppock V. Ramsey, 28 N. J. Eq. 414 (1877) ; Cockran v. Goodale, 
 181 Mass. 464 (1881); Dawson v. Danbury Bank, 15 Mich. 489, 
 495 (1867). 'See t<§ (3, 12, 18, 16 and 20, ante. 
 
 - Brown v. Volkenin^S 64 N. Y. 76, 84 (1876), per Allen, J.
 
 266 PARTIES TO MORTGAGE FORECLOSURES. 
 
 interest in the mortgage or the premises in order to 
 make a complete determination or settlement of all 
 questions affecting the mortgage or the premises, is 
 broadening and increasing in its application by the 
 courts of all our states.^ 
 
 ' New York Code, § 448. The same principle has been en- 
 acted in the codes of some other states.
 
 INDEX. 
 
 Action. PAGE. 
 
 To redeem, all mortgagees necessary parties 18 
 
 To foreclose, cannot be two on separate mortgages on same lands 
 
 at same time 47 
 
 The mortgages should be foreclosed in one action 47 
 
 Or the senior mortgage should be foreclosed, setting up the claim 
 
 on the junior mortgage. 47 
 
 See FORBCLOSURB. 
 
 Action at Law. 
 
 For recovery of mortgage debt 187, 188, 190, 192, 206 
 
 Formerly the only remedy to collect a deticiency 187, 188, 189 
 
 Equitable foreclosure does not extinguish the debt 188 
 
 Can now be had for a deficiency only by jiermission of the court 
 
 where the mortgage was foreclosed 189, 190, 195 
 
 For mortgage debt first allowed in 1786 190 
 
 Administrator. 
 
 Of mortgag-or, may foi-eclose a mortgage which he personally holds 
 against the mortgagor's premises 11 
 
 See' Personal Representatives. 
 
 Adverse Claimants. 
 
 Neither necessary nor pi-oper parties 262, 264 
 
 See Paramount Title. 
 
 Cannot litigate advei'se claims in a foreclosure 263 
 
 Decree passing on their rights, not binding 263 
 
 If claims arose subsequent to mortgage, then proper jjarties. ..263, 264 
 
 Disputes involving the title cannot be litigated in a foreclosni'e 264 
 
 In Indiana and Kansas the rule is otherwise 264 
 
 Annuitant. 
 
 Necessary defendant, if annuity charged by mortgagor on specific 
 premises 115 
 
 See Li'XiATEE.
 
 268 ASSIGNEE. 
 
 Annuity. page. 
 
 Mortgage to secure, in produce 11 
 
 Value of produce, the measure of damages 11 
 
 Mortgage conditioned for support during life may be foreclosed. . . 33 
 Administrator of a deceased mortgagee who held an annuity mort- 
 
 may foreclose for unpaid annuity 51 
 
 Assignee. x 
 
 Sole owner of mortgage, may foreclose 12, 175, 176 
 
 The only possible plaintiff 12, 13 
 
 Assignor not a necessary co-plaintiff or defendant 15 
 
 Of indemnifying mortgage may foreclose 127i 
 
 Pretended, without title, foreclosure by, void 13 
 
 Of mortgage, with power of sale 13 
 
 Of one of several notes is an assignee of the mortgage p)'o tanto or 
 
 ivo rata, and may foi-eclose 14, 15 
 
 Caimot foreclose in the name of the mortgagee H, 15, 16 
 
 Cannot foreclose by scire facias 16 
 
 Scire facias must be in the name of the mortgagee 16 
 
 Receives no better title than his assignor had 17 
 
 Otherwise, if the mortgage secures a negotiable note not due 17 
 
 Joint assignees 17, 20, 22 
 
 See Joint Mortgagees. 
 
 Of mortgage collaterally, necessary co-plaintiff or defendant 28, 29 
 
 Refusal to become co-plaintiff" should appear in the complaint, 29, 179, 180 
 
 See Decree, Mortgagee. 
 Purchaser at foreclosure becomes an equitable assignee of the mort- 
 gage, sometimes 34 
 
 Person advancing money to pay an existing mortgage becomes an 
 
 equitable assignee, and may foreclose 35, 36 
 
 Of mortgage without bond cannot foreclose 41, 42, 43 
 
 Such an assignment is a nullity 42 
 
 Accessorium non cUucit, seel sequitur 'principale 42 
 
 Held a naked trust for benefit of assignee 43 
 
 Assignee of bond without mortgage may foreclose 43, 45 
 
 Assig-nor a necessary party; may unite as a co-plaintiff 44, 45 
 
 Assignment of bond held an eciuitable assignment of mortgage .. 43, 44 
 
 Assignee in bankruptcy may foi'eclose 48 
 
 Pendente lite may be substituted as plaintiff" and foreclose in his own 
 
 name 49 
 
 May continue action in name of assignor 49 
 
 Change in name of plaintiff best practice 50 
 
 Of foreign executor may foreclose 59 
 
 Of subsequent mortgage or judgment a necessai-y pai-ty . . . 153, 156, 157 
 
 Assignor not a necessary party 153, 156, 157
 
 ASSIGNEE. 
 
 269 
 
 Assignee — continued. page. 
 
 Of junior mortgage, conditioiiMlly or collaterally, a necessary imily. InS 
 
 Of subsequent lien, pendente lite, not a necessary p;i i ty I aT, 1 58 
 
 May become a party on his own application 1 ;'> < . 1 ;"8 
 
 May ajipear and defend in name of assignor 1 .';7, 158 
 
 Of a mortgage, is an incumbi'ancer within meaning of N. Y. Code, 158 
 
 Of mortgage, absolutely assigned, njay foreclo.-c I"', 176 
 
 Never a defendant in a foreclosure 17- . 176 
 
 Proper defendant in an action to redeem 176 
 
 Of mortgage assigned collaterally or conditionally 1 TS, 179 
 
 Necessary defendant, if action commenced by assigiior 118, 179 
 
 Assignee and assignor may unite as co-plaintiffs 179 
 
 Omission of either assignee oi- assignor produces a defective title. . 179 
 Refusing to become co-plaintiff, refusal stated in complaint 179, 180 
 
 Assignee in Bankruptcy, or by Voluntary Assignment. 
 
 May be a defendant in his official capacity to a foreclosure brought 
 
 by him individually 18 
 
 May foreclose mortgage belonging to his assignor 48 
 
 May assign the mortgage 48 
 
 Assignor in bankruptcy not a necessai-y party 48 
 
 But veiy proper 48 
 
 Assignor may sometimes foreclose ." 48 
 
 - Purchaser of premises of, a necessary defendant 87, 89 
 
 Peiidente lite of a foi-eclosure, held formerly a necessary defend- 
 ant ; not necessary at present 93, 94, 128, 129 
 
 Of mortgagor or owner of premises, a necessaiy defendant 127 
 
 Receiver of insolvent corporation also necessary 127 
 
 Assignment must be made before commencement of foi-eclosure . .127, 128 
 Assignment made jiending foreclosure, assignee not a necessary 
 
 defendant 128, 129 
 
 Formerly it was held necessary to bring him into the action 128, 129 
 
 Can be made a defendant now on his own or plaintiff 's application. . 129 
 
 Of subsequent mortgagee or lienor, a necessary defendant 165, 166 
 
 Dying, pending foreclosure, his successor a necessary j)arty .... 165, 166 
 Proper party for fixing amount of deficiency against bankrupt's 
 estate, to be paid in the settlement of his estate 221 
 
 Assignment. 
 
 Defective, mortgagee and assignee necessaiy parties 12, 12??, 167i 
 
 After, mortgagee not a proper party 12 
 
 Invalid, makes a void foreclosure 13 
 
 By mari-ied woman in Pennsylvania, void unless signed by husband, 13 
 
 To wife, of mortgage on husliand's land, generally valid 13 
 
 In Maine, held to merge the mortgage 13 
 
 To husl)and, of mortgage on wife's land, valid 13
 
 270 ASSIGNOR. 
 
 Assignment— co7itmued. page. 
 
 In writing, not indispensable to be .- 14 
 
 By parol sufficient ; contra in Massachusetts and Maine 14 
 
 By mere delivery sufficient to sustain foreclosure 14 
 
 But assignor then a necessary party 14 
 
 Quit-claim deed may operate as an assignment, especially in Maine, 14 
 
 Suliject to equities against the mortgage 16 
 
 Of note opei-ates as an assignment of the mortgage -pi-o tanto 24 
 
 Form of, immaterial; intention essential 36, 37 
 
 Equitable. See Surety. 
 
 Of mortgage pending foreclosure 49 
 
 By heir of mortgagee, not valid 54 
 
 See Assignor and Assignee. 
 Assignor. 
 
 An executor or administrator may make a valid assignment \2n 
 
 Heir cannot make ; foreclosure by assignee of, void 12% 
 
 Defense pleaded against assignor, he may be made a defendant. ... 15 
 Of subsequent mortgage or judgment not a necessary party, 153, 156, 157 
 
 Having sold mortgage, no longer a necessary party 172, 175 
 
 Personal i-epresentatives making an assignment not necessary. . J 72, 173 
 Having guaranteed payment, necessary party for judgment of 
 
 deficiency 173, 174 
 
 Proper party if usury, fraud or other equitable defense pleaded, 174, 175 
 Or notice may be given him of the defense, and he will be bound by 
 
 the decree 15, 175 
 
 Proper party if assignment imperfect in form or by parol 174 
 
 Necessary defendant to foreclosure by assignee of the bond alone. . 174 
 Of mortgage collaterally or conditionally assigned a necessary party, 170 
 
 171, 176, 177 
 
 Necessary defendant if action commenced by assignee 176, 177 
 
 Assignor and assignee may unite as co-plaintiffs 176, 177 
 
 Reasons why a necessary party 177, 178 
 
 Of mortgage, guaranteeing payment oi' collection, liable for defi- 
 ciency '-^07. 248, 250 
 
 May be defendant to foreclosure 248, 249 
 
 Action at law may be maintained against 249 
 
 See Guarantor. 
 
 Intermediate assignors guaranteeing mortgage, liable 250, 251 
 
 Complete line of successive guaranties not necessary 250, 251 
 
 Covenanting as to title and against defenses, liable 251 
 
 Assumption of MortgUg-e.— See Grantee, Grantor, Mortgagee. 
 Grantee assuming payment, liable for judgment of deficiency in 
 
 foi-eclosure 228-235 
 
 Part only of moi-tgage assumed, liable for that part only 228, 229 
 
 Assumption by tenants ia-:'.omin'in, heM jointly and sevei-ally liable, 229
 
 ASSUMPTION OF MORTGAGE. 271 
 
 Assumption of M.OTtgage—conthiued. page. 
 
 Grantor becomes a mere surety 229 
 
 Remedy of grantor to protect himself 229 
 
 Mortgage debt becomes grantee's own debt 2'29 
 
 Oral agreement to assume, held sufficient 229?/,, 233 
 
 How liability enforced in different states 228n 
 
 Specific words not necessai-y to express assumption 2:^2 
 
 Intention the essential thing , 227-232 
 
 Expression, " subject to payment " 232 
 
 Expression, " subject to assumption as part of consideration " 232 
 
 Other expressions 224, 225, 232 
 
 Assumption of interest imposes no liability for principal 232, 233 
 
 Grantee need not sign deed to bind himself 233 
 
 Acceptance of deed sufficient 233 
 
 If no intention to assume, grantee will not be held liable 233, 234 
 
 Deed executed merely to transfer title, grantee not liable 234 
 
 Bona fide pui-chaser of mortgage, i-elying on contract of assump- 
 tion as shown on the record, may enfoi-ce it 234 
 
 Deed must be absolute in its terms 234, 235 
 
 Must convey the whole or an undivided i^art of premises 234, 235 
 
 Failure of title held a good defense for the grantee 235 
 
 Grantee cannot plead usury 235, 236 
 
 Nor other defenses affecting validity of mortgage 235, 236 
 
 Theories of law giving mortgagee benefit of assumption 236, 237 
 
 Theory of equitable subrogation 236 
 
 Theory of contract for benefit of third person 236, 237 
 
 Cannot be enforced against grantee unless his grantor was liable, 238, 239 
 A break in the line of successive assumptions will release subse- 
 quent grantees from all liability 238, 239 
 
 Above-mentioned theories applied , 238, 239 
 
 Want of consideration the basis of the rule 239 
 
 In Pennsylvania, grantee always held liable, whether grantor liable 
 
 or not ] 239, 240 
 
 By a subsequent mortgagee does not make him personally liable to 
 
 the prior mortgagee 240-242 
 
 Benefit to gi-antor of such an assumption 240, 241 
 
 Rights of parties in such an assumption 240-242 
 
 Grantor caimot i-elease grantee from liability on assumption 243-246 
 
 See Grantkk on this point. 
 
 Attaching Creditor. 
 
 Of moi'tgaged premises, necessary defendant 148 
 
 B. 
 Bankruptcy. — See Assi^inke in Bankruptcy.
 
 272 CESTUIS QUE TRUST. 
 
 Beueflciaries. — See Cestdis que trust. 
 
 Bond.— See Note. page. 
 
 Assig-nee of, without mortgage, may foreclose 41, 45 
 
 Mortgage executed without, creates no pei*sonal liability 43 
 
 Assignee of, without mortgage, may execute a valid discharge. 44 
 
 Assignor of bond without mortgage a necessary party 44, 45 
 
 Person signing bond, but not mortgage, liable for deficiency, 75, 205, 206 
 
 All persons signing bond or note liable for deficiency 205, 206 
 
 Husband signing wife's bond and mortgage liable 205, 206 
 
 Lial)ility on bond can be enforced in action at law 206 
 
 c. 
 
 Cestiiis Que Trust. 
 
 Should be defendants to a foreclosure by their trustee.. 62, 64, 183, 184 
 
 May be omitted if very numerous 62. 64, 183 
 
 Complaint should state that they are too numerous 62, 63, 64 
 
 Always omitted in foreclosure of railroad mortgages 63 
 
 .Bondholders not necessary parties, but may interplead 63 
 
 Mortgage for their benefit may sometimes be foi-eclosed in their 
 
 own names 64, 183, 184 
 
 Trustees necessary parties in such cases 64, 183, 184 
 
 Trustees and beneficiaries may unite as co-plaintiffs 64, 183 
 
 See Beneficiaries, Trustees. * 
 
 Of mortgaged premises, necessary defendants . . . .• 120, 124 
 
 Under a will or trust deed of mortgaged premises necessary de- 
 fendants 120, 124 
 
 Not necessary whei-e the premises ai-e converted into personalty 
 
 under the tei-ms of a will 120?i 
 
 Character of trust should appear in the will or deed 121 
 
 If names of beneficiaries not stated in the will or deed, not necessary 
 
 parties 121 
 
 Two exceptions to the general rule 121, 122 
 
 jB^rst, In cases of i-emote limitations a. 121, 122 
 
 Sufficient to make persons in esse defendants 121, 122 
 
 Second, Where beneficiaries are very numerous 122 
 
 Would be ojipi-essive to make all defendants 122 
 
 "Sufficient to make trustees defendants 122, 123 
 
 Necessary defendants even where trustee executes the mortgage, 123, 124 
 
 Beneficiaries hold the legal estate in the premises 123, 124 
 
 Trustees hold the title merely 123, 124 
 
 Collateral Securities. 
 
 Assignee may enforce what his assignor holds 17 
 
 Mortgage assigned collaterally, who may foreclose 28, 31, 176-179 
 
 See Assignee, Mortgagee.
 
 COMPLAINT, DECREE. 273 
 
 Collateral i^iecurities—coiitbmed. page. 
 
 Who necessary parties 28, 31, 176-179 
 
 Deed as collateral, mortgagor still a necessary defendant 85 
 
 Complaint. 
 
 Dismissed if mortgagee forecloses in behalf of his assignee 11 
 
 By collateral mortgagee or assignee, refusal to become co-plaintiff 
 
 should appear in 29 
 
 The fact of collateral assignment should appear 31 
 
 Cause of action for deficiency must be fully stated 194 
 
 Demand for decree must be clear and specific 195 
 
 Should state order of liability of the diflferent defendants 195 
 
 No demand for deficiency made in, judgment for, cannot be taken. . 195 
 
 Must state grounds on which judgment for deficiency is demanded, 213 
 
 Contemporaneovis Mortgages.— See Simultaneous. 
 
 Co-plaintiflfs. 
 
 Refusal to become, should be alleged in complaint 19, 22, 24, 29 
 
 32, 46, 51, 176, 179 
 
 Mortgagee and assignee collaterally may unite as 29, 30, 176, 179 
 
 Contemporaneous mortgagees may unite as 45, 47 
 
 Parties interested in mortgage, refusing to unite as co-plaintiffs, 
 necessary defendants 69, 171 
 
 Corporations. 
 
 0\vning mortgaged premises necessary defendant 132, 133 
 
 How authorized to execute mortgages 133 and n 
 
 Curtesy. — See Husband. 
 
 D. 
 Decree. 
 
 Foi-eclbsing a mortgage in severalty, to iiay to each his share ... 22, 23 
 Foreclosing a mortgage collaterally assigned, should direct payment 
 
 to pledgee first, and balance to mortgagee 29 
 
 Should first direct payment of costs and expenses of sale 196 
 
 Then payment of taxes, water rates, etc 196 
 
 Application of balance to mortgage debt 196 
 
 The balance then remaining unpaid will be the deficiency 196 
 
 Should fix order of liability of the principal and sureties for the 
 
 debt 196, 197 
 
 Form of, for directing judgment of deficiency 197, 198 
 
 Must follow the demand for judgment in the complaint 198 
 
 Should specify the order of liability of all guaranteeing mortgage, 250 
 
 18
 
 274 DOWER. 
 
 Deed. page. 
 
 To grantee, unrecorded, mortg-agor a necessary party 75, 85, 90 
 
 As a security, mortgagor still necessary 85 
 
 See Lis Pendens. 
 
 Defendants. 
 
 Persons interested in mortgage debt i-efusing to become co-plaintiflFs, 
 
 may be made 33 
 
 Who are necessai-y ; general principles 72 
 
 Defense. 
 
 Pleaded against assignor of mortgage, renders him a necessary 
 
 defendant 15 
 
 Practice of giving assignor notice to defend 15, 175 
 
 Deficiency, Judgment of. — See Jddgmbnt of Deficiency. 
 
 Cannot be recovered in foreclosing mortgage executed on incompe- 
 tent person's land under order of court 1307i 
 
 Devisees. 
 
 Of mortgagor or owner necessary parties, instead of heirs, 113, 114, 115 
 
 Heirs and devisees both necessary pai-ties until will proved 115 
 
 See Heir. 
 
 Divided Premises. — See Undivided Premises. 
 
 Dower. — See Wife. 
 
 Wife must be party to extinguish it 100 
 
 Not affected unless wife a defendant 100 
 
 Bequest made in lieu of, widow not a necessary defendant 105 
 
 Where abolished by statute, wife not a necessary defendant 108 
 
 E. 
 Easement. 
 
 Owner of, a necessary defendant 89, 90 
 
 Hjectnient. 
 
 Wife or widow cannot maintain, if omitted as a party 105 
 
 Equitable Assignee. 
 
 Of moi'tgage, one who pays it for another, is 36 
 
 Equitable Interest. 
 
 Owner of. in mortgage, may foreclose 32 
 
 Owner of, in moi-tgaged premises, a necessary defendant 81, 85 
 
 Escrovt^. 
 
 Deed of mortgaged jiremises delivered in, mortgagor a necessary 
 defendant 85
 
 FORECLOSURE. 275 
 
 Execution. page. 
 Equity of redemption sold on, mortgagor still a necessary party, 
 when 82 
 
 See Sheriff's Sale. 
 
 Executor. — See Personal Representatives. 
 
 Co-executor may foreclose against co-executor 33, 34 
 
 Of mortgagor generally not a necessary defendant 113, 116, 118 
 
 F. 
 Foreclosure. 
 
 Methods of 2, 3 
 
 Parties to, generally 3, 4 
 
 Result of, upon pai-ties 5, 6 
 
 There may be a second, if first foreclosure vacated 11 
 
 By pretended assignee, void 13 
 
 By moi'tgagee after assignment, void 12 
 
 Void, if assignment made by a married woman alone in Pennsyl- 
 vania ; husband should join 13 
 
 De novo, may be maintained to cut off omitted lienors 34 
 
 By U. S. Loan Commissioners, when void 35 
 
 Two mortgages on the same land cannot be foreclosed at the same 
 
 time in sepai-ate actions 47 
 
 If two actions have been commenced, one must be discontinued 47 
 
 See Action. 
 
 Effect of sale by foreclosure 171 
 
 Does not extinguish the debt 188 
 
 Formerly only an action in rein 189 
 
 Judgment for deficiency may now be recovered in 192, 194 
 
 Foreclosure by Advertisement. 
 
 Who necessary parties 75 
 
 A nullity, if the owner is not served witii a notice 88?i, 90 
 
 Personal representatives of the mortgagor or owner necessary de- 
 fendants Ill, 113, 118 
 
 Cannot be commenced until personal representatives have been 
 
 appointed 118 
 
 Subsequent mortgagees necessary defendants 141 
 
 Judgment creditors necessary defendants 145, 146 
 
 Foreign Personal Kepresentatives. 
 
 Cannot ordinarily foreclose 57, 61 
 
 See Personal Representatives. 
 
 Payment of mortgage debt to, cancels the lien 60 
 
 Can make a valid assignment of the mortgage 59, 60 
 
 Domestic administrator has preference over foreign 60 
 
 Foreign administrator may foi-eclose by advertisement 61
 
 276 GRANTEE. 
 
 Fraud. page. 
 
 Deed of nioi'tgaged premises made in fraud, moi-tgagor remains a 
 necessary defendant 85 
 
 G. 
 Grantee- 
 
 Cannot object if the mortgagor is not made a party 77 
 
 Taking premises subject to mortgage, not liable for deficiency, 224, 227 
 
 Deed merely reciting mortgage, creates no liability 224 
 
 Deed reciting, " subject to mortgage " 224 
 
 Effect of that clause on grantee 225 
 
 A judicial sale made subject to mortgage, no liability thrown on 
 
 purchaser 225 
 
 Deed reciting mortgage as part of consideration, creates no liability, 225 
 
 226 
 Rule diiferent in New Jei'sey ; if the mortgage foi-ms part of the 
 
 consideration, the grantee will be liable 226 
 
 Tendency of New York courts toward New Jersey rule 227 
 
 Intention of i^arties to assume or not, always prevails 227, 233 
 
 Assuming payment of mortgage, liable for deficiency 228, 235 
 
 See Assumption of Mortgage. 
 Under the assumption of a mortgage, becomes principal debtor, 229, 230 
 
 Mortgage debt becomes his own 229, 230 
 
 May be sued by grantor on assumption 230 
 
 Measure of damages, unpaid amount of mortgage 230 
 
 Need not sign deed to bind himself. 233 
 
 Acceptance of deed sufficient 227, 233 
 
 Intention to assume, the essential thing 232, 233 
 
 Assumption clause inserted in unusual place or fraudulently.. .233, 234 
 
 Not liable if deed merely to ti-ansfer title 234 
 
 Failure of title held a good defense to the assumption 235 
 
 Cannot plead usury or other defenses against the mortgage . . . 235, 236 
 Theories of law on which mortgagee may enforce assumption . . 236, 237 
 Not personally liable on assumption, if his grantor not lial^le . . 238, 240 
 A break in the line of successive assumptions will release the 
 
 grantee from all liability 238, 239 
 
 Above-mentioned theories applied. ... 238, 239 
 
 Grantee released from assumption for the i-eason that there is no 
 
 consideration to sustain it 239 
 
 In Pennsylvania this I'ule does not apply 239, 240 
 
 Grantee assuming payment, liable, though his grantor not liable, 239, 240 
 
 Cannot be i-eleased from assumption by gi-antor 243, 246 
 
 Unless assumption was conditional 244 
 
 Theories and reasons for rule 240, 245
 
 GRANTOR. 277 
 
 Grantee — continued. page. 
 
 In New Jersey grantee can be released, if not fraudulently , , . . 245, 246 
 See Grantor. 
 
 Intermediate grantee, having assumed payment, liable 247, 248 
 
 Line of successive assumptions must be complete 247, 248 
 
 Intermediate gi-antee not assuming- payment, not lial)le 248 
 
 Grantee assuming payment, deceased, his estate liable, 254 
 
 Personal representatives proper parties. See §§ 9S, 99 254 
 
 See Owner. 
 Grantor. 
 
 Paying- a mortgage assumed by his grantee, hel<i subrogated to 
 
 rights of moi-tgagee 36 
 
 See Surety, Owner, Purchaser. 
 Under contract of assumption by grantee, lieeomes a mere surety. . 229 
 
 Remedy of grantor to enforce assumption 229 
 
 May sue grantee on assumption 230 
 
 Measure of damages, unpaid amount of mortgage 230 
 
 ■ Discharged of liability as surety by variation of bond and mortgage, 231 
 
 See Assumption of Mortgage. 
 Rights of, in contract of assumption of pi-ior moi-tgage by sub- 
 sequent mortgagee 240, 242 
 
 "^ Subsequent mortgagee assuming, liable to grantor alone 240, 241 
 
 Cannot release grantee from liability on assumption 243, 246 
 
 Reasons why he cannot 243, 245 
 
 If the assumption was conditional or conting-ent in any way, a 
 
 release may be given 244 
 
 Theories of subrogation, etc., applied 244, 245 
 
 In New Jersey, a release may be given if it is not fraudulent. . .245, 246 
 
 Insolvent grantor cannot release 245 
 
 Grantor re-i^urchasing and re-assuming, discharges grantee from 
 liability 246 
 
 Guarantor. 
 
 Of Jhoiid and mortgage at its inception, liable for a deficiency 207 
 
 May be made a party to foreclosure 207 
 
 Assignor guaranteeing payment of mortgage a necessary defendant 
 
 foi- a judgment^'of deficiency 248, 250 
 
 Order of lial>ility and the decree 249, 250 
 
 Intermediate assignoi-s guai-anteeing payment, liable 250, 251 
 
 All jiersons guaranteeing payment oi- collection by a sepai-ate instru- 
 ment, liable 250, 252 
 
 Giiaranty_[of payment and of collection, distinction 249 
 
 Guardian. — See Okkicial Capacity. 
 
 Of infant heir of mortgagor not a necessary <lefendant Ill, 112 
 
 Summons must l)t) served on guardian Ill, 112
 
 278 HEIRS. 
 
 Gruardiajl— continued. page. 
 
 Of incompetent person a necessary defendant 130, 131 
 
 See Incompetent Person. 
 Of incompetent jierson, holding subsequent mortgage or lien, a neces- 
 sary party 166 
 
 H. 
 Heirs. 
 
 Of mortgagee cannot foi-eclose a mortgage 53-55 
 
 Not necessary parties to the action in any way 51 
 
 Of vendor in land contract, when necessaiy parties 53 
 
 Of mortgagee, when allowed to foreclose, if no personal representa- 
 tive has been apiiointed 54 
 
 Cannot make valid assignment of mortgage 54 
 
 Have been held necessaiy defendants in an action to redeem Trom 
 
 the mortgage 54 
 
 Of mortgagor, no longer owning the pi-emises, not necessary 76 
 
 Of deceased joint mortgagor not necessary 81, 114 
 
 Advisable parties, however 81 
 
 Of moi'tgagor or owner, necessary defendants 110-114 
 
 They succeed to decedent's rights 110, 111 
 
 Infant heirs neeessary Ill 
 
 Widow, an heir by statute in Indiana llln 
 
 Sale held void for omission of heirs llln 
 
 Necessary parties in Missouri by statute IIIti 
 
 Heirs of a sub-vendee necessary defendants in the foreclosure of 
 
 aland contract llln 
 
 Necessary defendants in reviving a foreclosiu-e commenced against 
 
 a deceased mortgagor 112 
 
 Not sufficient to i-evive against personal representatives 112 
 
 See Persoxal Rbprbsentatives. 
 
 Not necessary, if the owner sold the jiremises in his life-time 112 
 
 If owner holds any equitable interest at death, heirs necessary. . . . 112 
 Not necessary parties where the real estate passes by law to the 
 
 personal representatives 113 
 
 If omitted, any interested party may object by demurer or answer, 113 
 Not necessary parties where premises devised by will.... 113, 114, 115 
 
 Proper parties, as the will may be impeached 113, 114, 115 
 
 Of deceased joint owner not necessary 81, 114 
 
 Pi'oper and advisable defendants, however 114 
 
 Doctrine of survivorship applied 114 
 
 Not necessary parties to a foreclosure by advertisement 118 
 
 Of a trustee, not necessary parties 1197i 
 
 Necessary defendants if mortgage executed by order of court to 
 pay decedents' debts 132
 
 HUSBAND. 
 
 279 
 
 Heirs — continued. page. 
 
 Of subsequent inortgag-ee or lienor, not necessary parties. 162-164 
 
 Of deceased obligor, not jiroper parties wbere a judgment of defi- 
 ciency is sought against his estate 218-220 
 
 Proper parties, however, for that purpose, if the personal prop- 
 erty is insufficient to pay decedent's debts 220 
 
 Husband. 
 
 Must sign mortgage with wife in Pennsylvania 13 
 
 May take valid assignment of mortgage on wife's land 13 
 
 "Wife may take assignment of mortgage on husband's land 13 
 
 Mortgage made to husband and wife jointly 21 
 
 See Makried Woman, Wife. 
 In some states a necessary defendant to the foreclosure of a mortgage 
 
 on his wife's seiiarate estate 99 
 
 Generally not a necessary defendant if wife owns premises. . ..109, 110 
 
 Upon wife's death, may become a necessary defendant 109, 110 
 
 Four requisites : mai-i-iage, seisin, issue, and death of wife intestate, 109 
 Where curtesy abolished by statute, husband never necessary.... 110 
 Signing wife's bond, liable for deficiency 205, 206 
 
 I. 
 
 Incompetent Persons. 
 
 Owning mortgaged premises, necessary defendants in their own 
 
 names 129, 131 
 
 Their lands may be mortgaged by proceedings in court 129, 130 
 
 Necessary defendants to the foreclosure of such mortgages 130 
 
 Guardian or committee executing mortgage under order of court 
 
 a necessary defendant 130 
 
 Effect of such a mortgage stated by N. Y. Code 130 
 
 Bond not necessary with such a mortgage 1307j 
 
 Fact of incompetency must be alleged in complaint 131 
 
 Holding a subsequent mortgage^or lien, a necessary party 166 
 
 Indemnifying Mortgage. 
 
 Assignee of, may foreclose 12?! 
 
 See Surety. 
 
 Infant. — See Incompetent Persons. 
 
 Necessary defendant in his own name 129, 131 
 
 Mortgage executed by, premises sold by him when of age, subject to 
 the mortgage, held valid 130» 
 
 Interest Clause. 
 
 Rendering sevei-al notes or installments due at the same time 26
 
 280 JUDGMENT CREDITORS. 
 
 Introduction. page. 
 Foreclosures generally considered 1-6 
 
 J. 
 Joint Mortgagees. 
 
 Any one or moi-e may foreclose 17, ISO, 181 
 
 May unite as co-plaintiffs 17, 180, 181 
 
 Joint foreclosure allowed where mortgage secures debts in severalty, 18 
 All persons interested in the mortgage necessai-y parties iilaintiff 
 
 or defendant 18, 180, 181 
 
 Must be requested to join as co-plaintiff before made a defendant, 18, 180 
 
 Refusing to become co-plaintiffs, necessary defendants 18, 180, 181 
 
 Acting in an official or representative capacity as co-executoi's..l8, 19 
 See Partners. 
 
 One dying, doctrine of survivorship 20, 67, 181 
 
 Survivors can foreclose without bringing in the personal i-epresenta- 
 
 tives or heirs 20, 21, 67, 181 
 
 They are proper parties, however 21 
 
 Personal representatives may unite as co-plaintiffs 21 
 
 Mortgage to husband and wife, one dying 181, 182 
 
 Joint Mortgagor. 
 
 Heirs of one dying, not necessary parties 81, 114 
 
 Personal representatives of, proper parties in seeking judgment of 
 
 deficiency 114 
 
 Otherwise not necessary defendants 116a 
 
 Judgment Creditors. 
 
 Necessary defendants to a foreclosure 144, 151 
 
 Judgment must be docketed before foreclo-sure commenced to be a 
 
 lien 145, 147 
 
 Cannot be made co-plaintiffs 145, 147 
 
 Proper parties only in some states. 145 
 
 Holding judgments against owner of life estate in mortgaged lands, 
 
 necessary 146, 147 
 
 If premises acquired after the judgment is docketed, the judgment 
 
 becomes a lien 146, 147 
 
 Subsequent to a purchase-money mortgage 146, 147 
 
 Judgments perfected after mortgagor makes a general assignment, 
 
 judgment creditors not necessary parties 147 
 
 Ci-editors at large not proper parties 147 
 
 Owners of equitable decrees and orders treated the same as money- 
 judgment creditors 147, 148 
 
 Having levied an execution, remains a necessary party till the 
 judgment is satisfied in full 148
 
 JUDGMENT OF DEFICIENCY. 281 
 
 Juclgnient Creditors— conthmed. page. 
 
 Attaching creditor a necessary jiarty 148 
 
 Judgment docketed pending foreclosure, creditor not necessary 148 
 
 If omitted, any interested party may object by demurrei- oi- answer, 148 
 
 If omitted, his only remedy is to redeem 149 
 
 How redemption may be made 149-151 
 
 What must be paid to redeem 151 
 
 Lien by judgment need not be specific to redeem 150 
 
 If omitted, not bound by the decree of foreclosure 150 
 
 Utterly void as to liim 150 
 
 Having assigned the judgment, not a necessary jiarty 152-155 
 
 Assignee of the judgment a necessary party 153-156, 157 
 
 Heirs of, not necessary parties 162-164 
 
 Person'al representatives of, necessary pai-ties 162-164 
 
 Judgment of Deficieucy.— See Deficiency, Liability Personal. 
 
 General principles at common-law 187-192 
 
 General principles ; common-law rule modified by statute 192-194 
 
 May be recovered in foreclosure 186, 187 
 
 Formerly recovered only in actions at law 1 87, 190 
 
 First allowed in 1786 190 
 
 Statutory modifications allowing it in foreclosure actions 192, 194 
 
 New York Code rule 193 
 
 Rule in other states 194 
 
 Rule in Uiiited States courts 194 
 
 How the amount of, ascei-tained 196, 199, 201 
 
 How order of liability for mortgage debt fixed 196, 197, 250 
 
 Dependent for its terms upon the decree of foreclosure 197 
 
 See Decree. 
 
 Proper form of lieci-ee 1 97, 250 
 
 Must follow the demand for judgment in the complaint 198 
 
 Cannot be rendered against defendant, unless he was personally 
 
 served with the summons oi- has appeared 199 
 
 Cannot be rendered against a non-resident 199 
 
 Service by publication does not give jurisdiction 199 
 
 Cannot be directed where moi'tgage debt not due 199-201 
 
 Can be rendered only for what is due 199, 200, 201 
 
 Cannot be directed until referee to sell has filed his rejiort 200 
 
 Report of referee to sell should state the amount of deficiency.... 200 
 Generally decreed in the order confirming the repoi-t of the referee 
 
 to sell 200 
 
 Execution may issue before or after confij-mation 200 
 
 Amount bid at the sale conclusive as to value of premises 200, 201 
 
 Conclusive for determining the amount of deficiency 200, 201 
 
 Mortgagoi- lialile for 203, 204 
 
 All per.sons signing bond or niiti; liable for 205, 206
 
 282 LAND CONTRACT, LEGATEE. 
 
 Judgment of Deficiency — coneimied. page. 
 
 All persons g-uaran teeing- bond and mortgage liable 207 
 
 Married woman signing bond or gaaranteeing payment, when 
 
 liable 208-213 
 
 Against estates of persons who were liable in any way 214-218 
 
 Personal representatives proper parties 214-218 
 
 Heirs not proper parties 218-220 
 
 Judgment against personal representatives merely fixes amount 216 
 
 Execution cannot issue 215 
 
 Judgment to be paid in due course of administration 214-218 
 
 If personal representatives not made parties, the claim for deficiency 
 
 can be presented to them afterwards 218 
 
 Heii'S proper parties when there is an insufficiency of personal 
 
 property to pay the decedent's debts 219, 220 
 
 Assignee in banki'uptcy, etc., proper party to fix amount of defi- 
 ciency against bankrupt's estate 221 
 
 See Personal Representatives, Grantee, Grantor, Assumption of 
 
 MORTGAGK. 
 
 Junior Mortgagees. — See Subsequent Mortgagees. 
 
 L. 
 Land. 
 
 Primary fund for payment of mortgage 40, 225, 230 
 
 Land Contract. 
 
 Assignee of, may foreclose 13 
 
 Foreclosure by pei-sonal representatives of vendor 53 
 
 Must tender a deed 53 
 
 Or make heirs or devisees of vendor parties to the action 53 
 
 Vendor and vendee j^arties to foreclosure of moiigage 75, 88?/, 
 
 Mortgagor making, remains a necessary defendant 75, 84 
 
 Latent Equities. 
 
 Assignee takes, subject to 16, 17?* 
 
 Legatee. 
 
 May foreclose where the interest alone was bequeathed 33 
 
 May foi-eclose if entitled to a portion only of the mortgage fund, 33, 34 
 
 Sole plaintiflF, if mortgage specifically bequeathed to him 54 
 
 Personal representatives even then proper defendants \.. 55 
 
 Pei'sonal i-epresentatives allowed to foreclose mortgage specifically 
 
 bequeathed 55 
 
 Foreign specific legatee of mortg-age may foreclose 59
 
 LIS PENDENS. 283 
 
 LiCgatee — contiiiued. page. 
 
 A necessary defendant where a will charges the legacy specifically 
 
 on mortgaged premises 115, 116 
 
 If legacy made generally from mortgagor's estate, legatee not a 
 
 necessajy party 116 
 
 May become necessary if there is an insufficiency of personal 
 
 property to pay legacy 116 
 
 Subsequent lien specifically bequeathed to, a necessary party., 163, 164 
 
 Liability, Personal for Deficiency. 
 
 General princi2:)les 183-187 
 
 General principles at common-law 187-192 
 
 General principles ; common-law rule modified by statute 192-194 
 
 May be enforced in foreclosure 186, 187, 192, 194 
 
 Rule in New York Code 193 
 
 In other states 194 
 
 How order of, should be fixed in the decree and in the judgment for 
 
 deficiency 196, 198, 250 
 
 Must follow the demand in the complaint 198 
 
 Persons originally liable, deceased, their estates liable 214-218 
 
 Personal representatives proper parties 214-218 
 
 Heirs not proper parties for that purpose 218 
 
 See Judgment for Deficiency, Grantee, Grantor, Assumption op 
 Mortgage. 
 
 Lis Pendens. 
 
 Cuts off unrecorded deed 90, 96, 97 
 
 Grantor remains a necessary party if deed remains unrecorded — 90 
 
 Pui'chasei" pendente lite not necessary 93, 94 
 
 Common-law docti-ine 95, 96 
 
 History and nature of 95, 96 
 
 Pendente lite, nihil innovetur 96 and n 
 
 New York and other state statutory pi'ovisions 9(5-98 
 
 When may be filed • 9^, 97 
 
 "When operative 96, 97 
 
 Cuts off all conveyances executed or recorded after it is filed, 97, 159, 160 
 
 Purchaser pendente lite may be made a party 97 
 
 "Who can take advantage of omission to file 98 
 
 Consequences if lis pendens is defective 98 
 
 Void till corrected 98 
 
 Notice to whom 98 
 
 Not effective till complaint filed 160 
 
 Cannot l)e filed nunc pro time 160 
 
 Lunatics and Idiots.— See Incompetent Persons.
 
 284 
 
 MARRIED WOMAN. 
 
 M. 
 Married Woman. Ipage. 
 
 May take an assignment of a mortg-age on lier husband's land 13 
 
 Owning a mortgage may foreclose it 66 
 
 Husband not a necessary party 67 
 
 Mortgage made to her and her husband, she may foreclose as sole 
 
 plaintiff on his death , 67 
 
 Discharge by husband of mortgage belonging to her, void 67 
 
 Marriage of mortgagee, feme sole, to mortgagor does not extinguish 
 
 or merge the mortgage 67 
 
 Wife can fpreclose mortgage against husband's land 67 
 
 Assignment to her of mortgage on husband's land does not dis- 
 charge it 67 
 
 See Hdsband. 
 
 A mortgagor having a separate estate a necessary defendant 99 
 
 Husband of, a necessary defendant in some states 99 
 
 See Wife. 
 
 Being a subsequent mortgagee, a necessary defendant 161 
 
 Husband of, genej-ally not a necessary party 161 
 
 Wife of a subsequent mortgagee, not a necessary party 161 
 
 Signing bond or othei' obligation, when liable, general principles. . . 208 
 
 Liable on all contracts under the New York act of 1884 209, 210 
 
 Rule same in Massachusetts and England 210 
 
 Liability on bond in New York prior to act of 1884 210-213 
 
 Liability on bond same as on other contracts 211 
 
 Thi'ee cases in which she is liable 211 
 
 1st. When contract created in her business 211 
 
 2nd. When contract i-elates to or is for benefit of her estate 211 
 
 3rd. When contract is in writing, charging her seiiarate estate 211 
 
 This is the law in most states 211, 212 
 
 Moi'tgage by, always valid to extent of value of lands 212 
 
 Reason for rule is that she may mortgage her own lands 212, 213 
 
 Liability of, where bond and mortgage executed jointly with hus- 
 band. . 213 
 
 Liable if she receives part on^ of consideration 213 
 
 Complaint must state grounds on which judgment against her is 
 
 demanded 213 
 
 Liable for deficiency if mortgage for purchase money 214 
 
 Assuming payment of mortgage always liable 252-254 
 
 Not necessary to charge her separate estate in writing 252, 253 
 
 If her grantor was not liable, she will not be liable 252, 253 
 
 Guaranteeing a mortgage, her liability governed by rules in § 97. . 254 
 
 Mechanic's Lien. 
 
 Ownei" of, necessary 151 
 
 S(nnetimes a question whether lien is not prior to mortgage 151, 152
 
 MORTGAGEE. 285 
 
 Mortg'age. paue 
 
 Not canceled if foreclosure vacated for ii-regularity 11 
 
 Dischai-ged by ei-ror, may be foreclosed 35, 86 
 
 Revived and foreclosed if dischai-ged for a usurious or void nioi-t- 
 
 gage 35, 36 
 
 Paid by mistake, revived 36 
 
 Assignee of, without bond, cannot foreclose 41-43 
 
 Made to secure performance of contract, void on rescission of the 
 
 conti-act 43 
 
 "Without a bond, a valid lien on the land alone 43 
 
 To personal rejiresentatives, foreclosure of. 55 
 
 All i^ersons interested in, necessary parties to foreclosure 169-171 
 
 Ownershiji of, doubtful, all parties claiming rights necessary. . . 182, 183 
 
 Mortgage Debt. 
 
 Laud primary fund for its payment 186, 187 
 
 Other sources and remedies for its collection 186 ei seq. 
 
 Mortgagee. 
 
 Sole owner may be plaintiff 10 
 
 Rule same in statutory foreclosures 10 
 
 May foreclose, though administrator of mortgagor's estate 11 
 
 May foreclose an annuity moi-tgage to be paid in produce 11 
 
 Having sold the mortgage, cannot foreclose 11, 15 
 
 Such a foreclosure will be voiil 11, 15 
 
 Cannot foreclose in behalf of his assignee without making the 
 
 assignee a party 11, 16 
 
 Allegation that action is for benefit of assignee, rule the same 16 
 
 May be plaintiff if assignment defective 12 
 
 After valid assignment, cannot be a party 12 
 
 In severalty 22 
 
 See Severalty. 
 
 Having assigned moutgage collaterally, may foreclose 28 
 
 Pledgee or assignee necessary co-plaintiff' or defendant 28, 29 
 
 Refusal to become co-plaintiff should appear in the complaint 29 
 
 See Decree, Co-plaintiffs, Simultaneous. 
 
 May foreclose a mortgage conditioned for support during life 33 
 
 Dying — See Personal Representatives, Heirs, Devisees, Sub- 
 sequent Mortgagees. 
 Prior mortgagee foreclosing must set forth his junior claims. ..143, 144 
 
 Rights of, against grantee assuming mortgage 228-235 
 
 Enforced in equitable foreclosure or in action at law 228-235 
 
 Notice of assumption not necessary 234 
 
 Theories of law ai)plicable to contract of assumption 23(3, 237 
 
 Theory of equitable subrogation 236, 237 
 
 Theory of contract for benefit of third ]ierson 236, 237
 
 286 MORTGAGOR. 
 
 Mortgag^ee — conthuted. page . 
 
 Cannot enforce assumption against gi-antee if gi-antoi* not liable for 
 
 mortgage debt 238, 239 
 
 Cannot enforce assumption against subsequent mortgagee assuming 
 
 payment of prior mortgage 240-242 
 
 Effect of such an assumption 240 
 
 Benefit of, to grantor 240-242 
 
 Mortg'agor. 
 
 Payment of a mortgage by one of a number subrogates him to the 
 
 right to foreclose against the othei's 41 
 
 Still owning equity of redemption, necessary 73-75 
 
 If there are two or more, all are necessary 74 
 
 One cannot represent the others 74 
 
 Person signing note, but not mortgage, not necessary , 74 
 
 A necessary party if his deed to grantee remains unrecorded 75 
 
 Having executed land conti-act, still a necessary party 75, 84 
 
 No longer owning premises, not necessary 76-78 
 
 May intervene on his own application to become a defendant.. .76, 77 
 
 Always a desirable defendant, even after selling premises 77, 78 
 
 Owning a divided or undivided part of premises, necessary 78-81 
 
 Being a tenant in common, by descent or grant, necessary 78-81 
 
 See Undivided Premises. 
 Being tenants in common or jointly, foreclosure must be against all, 80 
 
 Mortgage debt cannot be collected in part 80 
 
 Continuing to own an equitable or contingent interest, necessary. . .81-85 
 Necessary party if premises sold on execution, till delivei-y of 
 
 sheriff's deed .- 82 
 
 Purchaser also a necessary defendant 82 
 
 Necessary if his deed is unrecorded, in esci'ow, a collateral security, 
 
 or in fraud So, 90 
 
 Only necessary defendant in foreclosure by scire facias 87 
 
 Remedy of, if purchase!" omitted as defendant*. 88, 89 
 
 Not affected if omitted as a party 89 
 
 See Owner, Heir. 
 
 Right to redeem if omitted as a party 89 
 
 A married woman owning a separate estate, necessary 99 
 
 Signing bond or note, liable for deficiency 203, 204 
 
 His liability changed from principal to surety by assumption 204 
 
 No bond or note executed, not liable for deficiency 204 
 
 Pi-emises then the only source for payment 204 
 
 N. 
 Necessary Parties. 
 
 Definition 71
 
 OWNER. 
 
 287 
 
 Note.— See Bond. page. 
 
 Owner of one of several, secured by mortgage, may foreclose — 14, 23 
 
 Owners of other notes necessary parties 24, 27 
 
 Two owners of notes generally cannot unite as co-plaintiffs 24 
 
 Note carries an interest in the mortgage p?'o tanto 14, 15, 24 
 
 Entitled to payment in order of maturity in some states 24, 25 
 
 In New York and other states pro rata 26 
 
 Notes maturing at same time equal liens 26 
 
 Default in one, rendering all due ; interest clause 26 
 
 Notice of Pendency of Action.— See Lis Pendens. 
 
 0. 
 Occupants. -See Tenants. 
 
 Official Capacity. 
 
 Mortgage made to person in, may be foreclosed in his name as such 
 
 officer 55, 61, 65 
 
 Party equitably owning the fund, not a necessary party to the action, 65 
 
 Successor of officer may foreclose in his name as such officer 65 
 
 Held to be equitable assignee of security 65 
 
 His predecessor in office not a necessary party to the foreclosure. . . 65 
 
 Owner. 
 
 Of equity by grant or otherwise necessary 85-92 
 
 Of undivided part necessary 87 
 
 By purchase of assignee in bankruptcy 87 
 
 As necessary as original mortgagor .-..85, 86 
 
 Held only a proper party in some courts 87 
 
 Not affected if omitted as a party 89 
 
 Decree a nullity as to him 89 
 
 Right to redeem 89 
 
 If omitted, any interested party may object by demurrer or answer, 91 
 
 If omitted, need not redeem, already owner 91 
 
 May redeem if he wishes 91 
 
 Mesne owners, no longer owning, not necessary 92 
 
 Necessary if deeds unrecorded or fraudulent 92 
 
 See PcRCHASBR, Heir, Mortgagor, Grantee. 
 
 A mairied woman owning a separate estate necessary 99 
 
 P. 
 Paramount Title. 
 
 Parties holding, neither necessary noi- pi-oper defendants 261, 262 
 
 If made parties, not bound by decree 261, 262 
 
 "Widow not having signed mortgage, made party, her rights not 
 
 affected 262 
 
 See Adverse Claimants.
 
 288 PERSONAL REPRESENTATIVES. 
 
 Parol. PAGE. 
 
 Assignment by, sufficient for foreclosm-e 14 
 
 Parties. 
 
 Generally considered 1-8 
 
 Effect of foreclosure upon 5, 6 
 
 All interested in the niortgag-e debt necessary 29, 32 
 
 May be co-plaintiffs or defendants 28-33 
 
 "Who necessary and proper 71 
 
 Not affected by a foreclosure unless a party 91 
 
 Proper and necessary, definition of. 71, 137, 138, 187, 203 
 
 All persons interested in mortg-age under foreclosure, necessary. .169, 171 
 
 Liable and not liable defined 187 
 
 Partition. — See Undivided Premises 79 
 
 Partners. 
 
 Any one or more may foreclose 19, 22 
 
 Any one refusing to be a co-plaintiff may be made a defendant 19 
 
 Refusal to become a co-plaintiff a prerequisite 19 
 
 Mortgag-e executed to one for all, all held necessary 19 
 
 But if held by one as trusteee for the partnership, rule different — 19 
 
 One pai'tner dying, rule of survivorship 19, 20 
 
 See Joint Mortgagees, Joint Mortgagors. 
 
 Personal Representatives. 
 
 As joint mortgagees 18 
 
 One co-executor may sue another co-executor for foreclosure - 18 
 
 Of a deceased partner, unnecessai-y parties in action brought by 
 
 survivors 19 
 
 So of a deceased joint mortgagee 20, 21 
 
 They are proper parties, however 21 
 
 Foreclosing against each other 33, 34, 52 
 
 May foreclose mortgage owned by decedent 50, 53, 55 
 
 Now the uniform law in America. . ; 50 
 
 Oidy pai'ties who can foreclose 50 
 
 May foi-eclose annuity mortgage if default in decedent's life-time. . . 51 
 
 And recover unpaid annuity 51 
 
 All should unite as co-plaintiffs 51 
 
 Any refusing may be made defendants 51 
 
 All must be made parties 51 
 
 Mortgagee djdng pending foreclosure, action revived by 52 
 
 Cannot be revived by heirs 54 
 
 An executor being the mortgagor, a necessary defendant personally, 52 
 
 Necessary defendants in action to redeem from mortgage 54 
 
 Proi^er defendants to foreclosure by legatee 54, 55 
 
 May foi-eclose mortgage specifically bequeathed 55
 
 * PERSONAL REPRESENTATIVES. 289 
 
 Personal 'Representntixes— continued. page. 
 
 May foreclose mortgage, part of which is bequeathed 55 
 
 Mortgage executed to, to secure assets of an estate 55 
 
 Foreclosure by personal representatives in official capacity 55 
 
 Officdal character of personal representatives must appear in the 
 
 complaint 55, 56 
 
 Mortgage to, foreclosure by successors in office 57 
 
 Administrator of personal representatives cannot foi*eclose it 57 
 
 Foreigri personal representatives, when they may foreclose 57-61 
 
 Cannot ordinarily maintain a foreclosure 57 
 
 Must procure letters of administration in state whei-e moi'tgaged 
 
 premises are situated 58 
 
 This rule may be avoided by making assignment of mortgage 59 
 
 Assignee of foreign executor may foreclose 59 
 
 Foreign specific legatee of mortgage may foreclose 59 
 
 Perfect record title not produced 59, 60 
 
 Domestic administrator has preference over foreign 60 
 
 Objection that plaintiff is foreign administrator may be taken by 
 
 demurrei' 60, 61 
 
 Foreign administi-ator may foreclose by advertisement 61 
 
 See Trustee, Official Capacity. 
 
 Of mortgagor or owner not necessary Ill, 116, 118 
 
 Necessaj'y defendants in foreclosure by advertisement 111, 113, 118 
 
 Of mortgagor held necessary parties in Georgia llln 
 
 And in some other states llln 
 
 Always advisable and proper parties 117 
 
 Not sufficient to revive action against, on death of mortgagor 112?i 
 
 Pi-oper parties if deficiency judgment sought against mortgagoi-'s 
 
 estate 113 
 
 Necessary parties if by law the real estate passes to ihem instead 
 
 of to the heirs 113 
 
 Of mortgagor necessary defendants pending a proceeding in pro- 
 bate court to sell mortgaged premises to pay debts 116 
 
 Mortgage executed by, to pay decedent's debts, heirs and personal 
 
 representatives both necessary defendants 132 
 
 Of subsequent mortgagee or lienor, necessary parties 162-164 
 
 Of subsequent lienor, action i-evived against 164 
 
 If none have been appointed, i)laintiff cannot safely rely on making 
 
 only the heirs parties 164 
 
 Proper parties, whei-e judgment for deficiency sought against estate 
 
 of deceased obligors 214-218 
 
 Judgment will be for payment in due course of administration . . 214, 215 
 
 Execution cannot issue against personal rejiresentatives 212 
 
 Pi-actice in other states than New Yoi-k 214, 215 and n 
 
 Judgment of deficiency does little more than fix amount of deficiency, 216 
 
 19
 
 290 PLAINTIFF. „ 
 
 Personal Representatives— co7iii7i?iecZ. page. 
 
 Not made j)arties, claim for deficiency can be presented to them 
 
 later 218 
 
 Of deceased grantee who assumed payment of mortgage, proper 
 
 parties for judgment of deficiency 254 
 
 Rule same for guarantors of mortgage 254 
 
 Plaintiff. 
 
 Inti'oductory ; who may generally be 8-10 
 
 Sole mortgagee may be 10 
 
 Rule the same in statutory foi-eclosures 10 
 
 Mortgagee may be plaintiff, though administrator of the mortgagor's 
 
 estate 11 
 
 Mortgagee having assigned mortgage cannot be 11 
 
 Such a foreclosure void 11 
 
 Owner of equitable interest of any kind in mortgage may be 32 
 
 Must always be a real party in interest 32 
 
 All persons interested in the mortgage debt are best united as co- 
 plaintiffs 32 
 
 No one can be made a i>laintiff against his will 33 
 
 A legatee may be plaintiff 33 
 
 Person advancing money to pay existing mortgage may foreclose 
 
 as equitable assignee 35 
 
 See SuRKTY, Personal Representatives. 
 Parties interested in mortgage, not co-plaintiffs, necessary defend- 
 ants 169-171 
 
 Pledgee of Mortgage. — See Assignee, Mortgagee. 
 
 Necessary party plaintiff or defendant 28, 29 
 
 Practice. 
 
 Points in ; complaint 194, 195 
 
 See Complaint. 
 
 Decree of foreclosure 196, 199 
 
 Should specify order of liability of parties 250 
 
 See Decree. 
 
 Judgment for deficiency 199-201 
 
 See Judgment for Deficiency. 
 
 Primary liability 200, 201 
 
 Principal — See Surety. 
 
 Gi-antee and grantor in assumption of mortgage hold I'elation of, to 
 
 each other 230, 231 
 
 See Grantor, Grantee. 
 Grantor discharged as siu-ety by variation of bond and mortgage. . . 231
 
 PRIOR INCUMBRANCERS, PURCHASER. 291 
 
 Prior Incumbrancers. page. 
 
 Not proper defendants generally 256-259 
 
 General practice to sell sul)ject to 257 
 
 Proceeds of sale cannot generally be applied to payment of. 257 
 
 Rights of, not affected if made parties 257, 258 
 
 If dies pending foreclosure of junior mortgage, action need not be 
 
 revived against his personal representatives 258 
 
 Party owning mortgages, prior and subsequent to mortgage under 
 
 foreclosure, may have both paid from proceeds of sale 258 
 
 If made parties improperly, general practice is to dismiss action as 
 
 to them 258, 259 
 
 When they can properly be made defemlants 259, 260 
 
 To have amount of their claims ascertained 259 
 
 When their claims may be j^aid from pi-oceeds of sale 259, 260 
 
 Must express their willingness to have payment made 259, 260 
 
 Incumbrance must be due and payable 259, 260 
 
 English rule and practice adopted in some states 260, 261 
 
 In Indiana, prior incumbrancer a propel* party 261 
 
 Bound by the decj'ee in Indiana 261 
 
 Foreclosing must set forth in complaint his junior claims 143, 144 
 
 Not affected by Us j^endens 98 
 
 Prior Mortgagees. — See Prior Incumbrancers. 
 
 Proper Parties. 
 
 Definition 71, 137, 138 
 
 Purchase-money Mortgage.— See Wife. 
 
 Purchaser. 
 
 At foreclosure sale, an equitable assignee of mortgage if title defect- 
 ive 34, 35, -88, 151 
 
 Of equity at sheriff's sale on execution necessary 82, 83 
 
 Of equity at sheriff's sale, pending foreclosure, not necessary 83 
 
 Under land contract necessary 84 
 
 See Land Contract. 
 
 Of equity of mortgagor necessary 85, 92 
 
 See Owner. 
 
 Not a pi'oper party in foreclosure by scire facias 87 
 
 Held only a proi^er i?arty in some courts 87 
 
 At foreclosure sale acquires no title unless owner of equity was 
 
 a defendant 88, 91 
 
 Remains a stranger to title 88, 91 
 
 Sale not void 88 
 
 Intermediate purchasers, no longer owners, not necessary 92 
 
 Pendente lite not necessary 93, 94 
 
 Assignee and attaching creditor pendevte lite not necessary 93
 
 292 REDEMPTION, REMAINDERMEN. 
 
 Piii'Cliaser — continued. page. 
 
 Purchaser pendente lite has same i-ights only as his grantor 93, 94 
 
 Purchaser pendente lite may appear if he wishes 94 
 
 May be made a defendant 97 
 
 See Lis Pendens. 
 
 At foreclosure sale relieved of bid if title defective 134, 140, 146 
 
 See Grantee. 
 Receiving premises subject to mortgage, not liable foi- deficiency, 224-227 
 
 Assuming payment, liable 228-235 
 
 Intermediate purchasers assuming payment of mortgage liable for 
 
 deficiency 247, 248 
 
 See Grantee, Owner. 
 
 R. 
 
 Receiver of a Corporation. — See Assignee in Bankruptcy. 
 
 May foreclose a mortgage 49, 65 
 
 Owner of mortgaged premises a necessary defendant 127 
 
 Being a subsequent mortgagee or lienor, a necessary party 165, 166 
 
 Redeem, Redeiuption. 
 
 Right of omitted mortgagor or owner to 89 
 
 Right of omitted Avife or widow to 105 
 
 Right of omitted subsequent mortgagee to 141, 142 
 
 Right of omitted judgment creditor to 149-151 
 
 Remaindermen and Reversioners. 
 
 Of mortgaged pi-emises necessary defendants 124-127 
 
 All persons ha\'ing future and contingent interests not indispensable 
 
 parties 124 
 
 It is sufficient to make owner of first vested estate defendant. . . 124, 125 
 
 And the owners of intermediate estates defendants 124, 125, 126 
 
 There must be a defendant who is in esse 126 
 
 And who holds a vested estate of inheritance 126 
 
 Advisable to make the remotest remainderman, if he is in esse, a 
 
 defendant 127 
 
 s. 
 
 Scire Facias. 
 
 Foreclosure by, must be in name of moi'tgagee 16 
 
 Mortgagor and his personal representatives the only necessary 
 
 defendants 87 
 
 Held sufficient to make either heirs or personal representatives 
 
 parties IIItj. 
 
 Secondary or Subsequent Liiability. 
 
 How created 223
 
 SUBSEQUENT INCUMBRANCERS. 293 
 
 Severalty. iaoe. 
 
 Mortgage to secure debts in severalty foreclosed in joint action, 18, 180 
 
 181 
 See Undivided Premises, Joint Mortgagees. 
 
 Mortgagees in severalty, any one may foreclose. . 22, 180 
 
 Others refusing to become co-plaintiffs, necessary defendants. . .22, 180 
 
 All the mortgagees are necessary parties 22, 180 
 
 One dying, his personal representatives necessary pai-ties 22, 181 
 
 Decree should be to pay to each his share 22 
 
 Several notes given secured by one moi-tgage 24, 26, 180 
 
 See Note. 
 
 Sheriff's Sale.— See Execdtion. 
 
 Purchaser at, necessary party to foreclosure 82, 83, 89 
 
 Purchaser at, pending foreclosure, not necessary 83, 89 
 
 Simultaneous Mortgages. 
 
 Mortgagees may unite as co-plaintiffs or not 23, 45, 47, 182 
 
 One may foreclose, making others defendants 45, 47, 182 
 
 Treated as if one mortgage 23, 46, 182 
 
 See Note. 
 Several notes given secured by one mortgage, rule as to payment, 24, 27 
 
 Maturing at different times, entitled to payment pro rata 27 
 
 All owners of, necessary parties 45, 46 
 
 Strict Foreclosure. 
 
 Who necessary parties in 75 
 
 Subject to Mortgage. — See Grantee. 
 
 Subrogation.— See Surety. 
 
 Equivalent to assignment 37-41 
 
 Theory of, applied to contract of assumption 236, 237 
 
 Subsequent Incumbrancers. 
 
 Cut off by second foreclosure 34 
 
 As surety for prior mortgage - 40 
 
 See Surety. 
 
 May sometimes compel foreclosure of prior mortgage 40 
 
 Generally necessary defendants 137-139 
 
 Introductory section on 137-139 
 
 Rights acquired by, in mortgaged pi-emises 138, 139 
 
 Rights not affected if omitted as defendants 139 
 
 Action to foi-eclose will not be dismissed if omitted 139 
 
 Prior and subsequent incumbrancers may be made parties in 
 
 Maryland 145 
 
 Assignee of, pendente lite, not necessary 157, 158 
 
 PeJidente lite, not necessary parties 160, 159
 
 294 SUBSEQUENT MORTGAGEES. 
 
 Subsequent lnc\inibra,ncers— continued. pasb. 
 
 May become party on his own application 159, 160 
 
 LL<! pendens must be filed before incumbrance perfected on record, 159 
 
 160 
 
 Heirs of, not necessary parties 162-164 
 
 Personal representatives of, necessary parties 162-164 
 
 Claiming priority of lien over mortgage, necessary defendants.. 264-266 
 Question of priority may be litigated in foreclosure 264-266 
 
 Subsequent Judginent Creditors.— See Judgment Creditors. 
 
 Subsequent Mortgagees. 
 
 Still owning mortgage, necessary defendants 131-144 
 
 Action can be sustained without them ; defective title produced, 139, 140 
 
 If omitted as parties, their rights not affected by the action 140, 141 
 
 Held not necessary defendants to foreclosure by scire facias 140» 
 
 Trustee for numerous bondholders, trustee alone necessary party.. 141 
 
 If omitted as party, his remedy is to redeem 141 
 
 Redemption must be within ten years 14J 
 
 In redemption an accounting of rents and profits can be had 141 
 
 Will be obliged to pay only mortgage debt and interest without 
 
 costs 141, 142 
 
 When selling price of property the amount to be paid to redeem. . . 142 
 If omitted as a party, may also foreclose his junior mortgage 
 
 instead of redeeming 142, 143 
 
 If omitted, may be subsequently cut off by strict foreclosure 143 
 
 Foreclosing a prior mortgage must set forth in the complaint his 
 
 junior mortgage, or it will be cut off 143, 144 
 
 Cannot compel premises to be sold subject to junior mortgage. . 143, 144 
 If he has released the mortgaged pi-emises from his mortgage, he will 
 
 no longer be a necessary defendant 144 
 
 Having assigned his mortgage, no longer a necessary party 152-154 
 
 Assignee of, a necessary party 153-156, 157 
 
 Having been paid in full, not a necessary party 153 
 
 Holding any equitable interest in mortgage conditionally or collater- 
 ally, necessary 154 
 
 Being a part or joint owner, necessary 154, 155 
 
 Collateral or conditional assignee necessary 154, 155 
 
 Notice of collateral or conditional nature of assignment must be 
 
 given plaintiff 154, 155 
 
 Assignee of, pendente lite, not necessary 157, 158 
 
 If subsequent mortgage not recorded, & lis pendens will cut it off, 
 
 though moi'tgagee not made a party 160 
 
 Being a married woman does not alter the rule ; a necessary party, 161 
 
 Heirs of, not necessaiy pai-ties 162-164 
 
 Personal representatives necessary parties 162-164 
 
 Dying pending action, revival against personal representatives 164
 
 SURETY, TENANTS. 295 
 
 Suiniiious. PAGE. 
 
 IService of, on wife 105-107 
 
 See Wu-'E. 
 Service of, by publication, not sufficient for personal judgment.... 199 
 
 Surety. 
 
 May foreclose an indemnifying mortgage .... 11 
 
 Principal not necessary party 11 
 
 Of a note can foreclose after payment lln 
 
 An indorser or acceptor of bill can foreclose lln 
 
 See Indemnifying Mortgage. 
 
 For mortgage debt may foreclose 37 
 
 Held subrogated to rights of mortgagee 37 
 
 Suretyship may arise in three ways : 
 
 (1) By guaranteeing payment of mortgage 37 
 
 (2) By assumption of payment; rule of subrogation 37, 38 
 
 (3) By being a subsequent incumbrancer and bound to protect his 
 own debt 40 
 
 Assignment of mortgage not necessary in either case 38 
 
 Assignment can be compelled 38 
 
 Equitable subrogation, the theory of assignment 38 
 
 Actual payment must be made by, before foreclosure 41 
 
 Survivorsliip. — See Joint Moiotgagors, Joint Mortgagees. 
 
 T. 
 Tax Sale, Purchaser at. 
 
 Not affected by a lis pe?ide?is 98 
 
 Pi'oper, but not necessary, defendant 167 
 
 Regarded as prior incumbrancer 167 
 
 Not affected by foreclosure unless a party 167 
 
 All persons interested in unpaid taxes, proper defendants 167, 168 
 
 Provisions <if New York Code for paying taxes, water rates, etc... . 168 
 
 Tenants and Occupants. 
 
 Of mortgaged premises necessary defendants 133-135 
 
 If omitted as a i^arty, not bound by the decree 134 
 
 Cannot then be ejected until expiration of tenancy 134 
 
 Entitled to emblements and crops if omitted 134 
 
 His redress against mortgagor if ejected by foreclosure 135 
 
 Right to i-emove fixtures 135 
 
 Measure of damages, if ejected, value of unexpired term 135 
 
 Tenant for Life. 
 
 Paying existing moi-tgage will be subrogated to mortgagee's rights, 41
 
 296 TRUSTEES, UNDIVIDED PREMISES. 
 
 Trustees. page. 
 
 One partner acting as trustee for partnership. 19 
 
 Of persons owning- mortgage may foreclose 61-63 
 
 Mortgage executed to, in trust 55, 61-63 
 
 Cestuis que triist should generally be co-plaintiflFs 62, 183, 184 
 
 May be made defendants 62,183, 184 
 
 May be omitted if very numerous 62, 64 
 
 Trustees necessary defendants if action commenced by cestuis que 
 
 trust 64, 183, 184 
 
 May unite with beneficiaries as co-plaintiflFs 64, 183, 184 
 
 Of mortgagor necessary defendants 118, 119 
 
 Of mortgaged lands necessary defendants 118, 119 
 
 Invariable rule whatever the character of the trust 118, 119 
 
 Reason for the rule 119 
 
 Express trust or trust coupled with an interest 119 
 
 Must be a party in his oflicial capacity 119 
 
 Has been held not a necessary party where no legal or equitable 
 
 estate vested in him 119?t 
 
 Heirs of trustee not necessary parties 119 
 
 See Cestuis que trust. 
 
 Of subsequent mortgagees, necessary defendants 141 
 
 Beneficiaries not necessary, but may interplead 141 
 
 u. 
 
 Undivided Premises. 
 
 Owner of undivided part may foi-eclose mortgage on another undi- 
 vided part 19 
 
 Owner of undivided part, paying mortgage on whole, may foi-eclose 
 
 against the other owner 41 
 
 Owner of undivided part necessary defendant 78, 81, 87 
 
 Mortgagee and mortgagoj'S uniting in a deed of undivided part does 
 
 not i-elease mortgage 79 
 
 Mortgage by tenant in-common does not affect his co-tenant 79 
 
 A lien on only his undivided pai-t 79 
 
 Such a mortgage may be enforced only against the tenant's divided 
 
 part after partition 79 
 
 After partition suit, the mortgage will be a lien on the divided part 
 
 only 79 
 
 Owner of part not mortgaged not a necessary party 80 
 
 All owners of divided parcels necessary parties 81 
 
 U. S. Lioaii Coiumissioners. 
 
 Foreclosure by one held void 35 
 
 Usurious.— See Void.
 
 WIFE. 297 
 
 V. 
 
 Void. • PAGE. 
 
 Mortgage, void for any reason, given in place of a valid mortgage, 
 the valid moi'tgage will be revived and foreclosed ^d^^, H6 
 
 w. 
 
 Widow. — See Wife. 
 
 Dower admeasured where husband alone signed moi-tgage 104 
 
 Decree of sale must be for remaining two-thirds 104 
 
 Not having executed mortgage, cannot be made a defendant. . . 261, 262 
 Her rights paramount to mortgage 262 
 
 Wife. 
 
 Mortgage made to husband and wife jointly, one dying 21 
 
 Of mortgagor or owner necessary 1 (;0-105 
 
 Inchoate right of dower, a i-eal interest in land 100 
 
 Necessary defendant if she signed the mortgage 100, 102 
 
 Or if she released her right of dower otherwise. 1(J0 
 
 Or acquired that right subsequent to the mortgage 100 
 
 If mortgagor has two wives, both necessary 101 
 
 Cannot grant her inchoate right of dower apart from husband 101 
 
 If right of dower abolished by statute, wife not necessary , . - . 101 
 
 Reason why she is a necessary defendant 102 
 
 Mortgage executed by husband before marriage, wife necessary. . . 102 
 
 Widow necessary 102 
 
 Mortgage for purchase money, wife necessary, though she did not 
 
 sign it 103 
 
 Conti'ary rule in Illinois, Indiana and Michigan 103 
 
 Rights not affected if omitted as a party 103 
 
 If she did not sign mortgage, her rights will not be affected, though 
 
 made a party 104 
 
 Allegations in complaint setting forth facts will not alter rule. . . 103, 104 
 
 Her dower is paramount to the mortgage 1 04, 262 
 
 If omitted as a defendant, any interested party may object by 
 
 demurrer or answer 104 
 
 After executing deed of conveyance with husband, not necessary. . . 104 
 
 Remedy of wife or widow if omitted is to redeem lO.') 
 
 Right to redeem accrues at death of husband 105 
 
 Can assert her rights before death of husband 10.5 
 
 Cannot maintain ejectment 105 
 
 If she accepts a devise or Request in lieu of dower, not a necessary 
 
 defendant 105 
 
 Service of summons upon 105, 107 
 
 At common-law not required to be served on wife 105, 106 
 
 Common-law doctrine for this rule 106 
 
 20
 
 298 WIFE. "' 
 
 Wife— contimotd. page. 
 
 Service on husband for her sufficient 106 
 
 Except where moi-tgaged premises were her separate estate 106 
 
 Wife's name must appear in the summons , 106 
 
 If her name oinitted, court acquires no jurisdiction of her 106 
 
 Common-law rule changed in New York by Code 107 
 
 Rule now seems to be that wife must be personally served 107 
 
 This is the rule in Maryland 107 
 
 Undei- common-law rule, wife could not appear separately 107 
 
 She can now ajipear separately without doubt 107 
 
 After husband's death, personal sei-vice on widow always necessary, 107 
 
 Where dower abolished by statute, not a necessary party 108 
 
 Where husbands and wife's rights in premises severed by statute, 
 
 wife not necessary 108 
 
 Mortgage executed to husband and wife, one dying, survivor fore- 
 closing 181, 182 
 
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