Suit on notes and to foreclose a mortgage.

Answer, that the mortgage had not been recorded within ninety days, and that afterwards the defendant sold said lands to one Brown in good faith and for a valuable consideration, who was in possession and was a necessary party, &c.

Demurrer to the answer sustained.

The answer was not sufficient. If it had been sufficient to prevent a foreclosure, it was not a valid defense against a recovery of judgment on the notes, and would, therefore, be bad, having been pleaded in answer to the whole complaint. But it was not an answer to the prayer for a foreclosure. If Brown had any rights, distinct from those of the defendant, they would not be concluded by a proceeding to which he was not a party. He was not, therefore, a necessary party; whether a proper party upon his own application, we need not decide.

The judgment is affirmed with 5 per cent, damages and costs.