Barrett v. Boardman

In our opinion, plaintiff is not entitled to maintain this action because he is not a tenant in common of the property. It is not necessary in this partition action to decide whether plaintiff’s interest as a co-ordinate mortgagee could properly be wiped out by the judgment foreclosing the daughter’s co-ordinate mortgage. Assuming, without deciding, that that relief was improperly granted, that would not make plaintiff a tenant in common entitling him to maintain this partition action. We do not pass on the appeal from the order in the foreclosure action denying plaintiff’s motion to vacate the judgment of foreclosure insofar as it purports to wipe out his interest, because that appeal has not been perfected. Present — Carswell, Acting P. J., Johnston, Sneed, Wenzel and MaeCrate, JJ. [See post, p. 858.]