Carpenter v. Ingalls
Carpenter v. Ingalls
Opinion of the Court
This was an equitable action to foreclose a mortgage, and was against James L. Ingalls as sole defendant.' The complaint alleges that William H. and Abbie C. Ingalls made á note to plaintiff’s assignor, and to secure its payment made and delivered to him a mortgage upon real estate thereinafter described, and continues with the further usual allegations of a complaint in the foreclosure of a mortgage. Among other things, it is aEeged that the defendant has, or claims to have, some interest in or lien upon the mortgaged premises, and that the same, if any exist, accrued subsequently to the lien of the mortgage. The defendant (appellant) demurred to the complaint upon the ground that there was a defect of parties defendant, in that-WEliam H. and Abbie C. IngaEs, who executed the note and mortgage, were not made parties defendant. The demurrer was overruled, and the defendant appeals. The argument of the demurrant is that the holder of the equity of redemption was a necessary party defendant; that the complaint, by fair construction, shows that the mortgagors were stiE such holders, for it nowhere suggests any change in the ownership of the mortgaged property or in the mortgagor’s relation to it; and that the defendant is only mentioned as a party claiming some interest in or lien upon the mortgaged premises. The object of the equitable action of foreclosure is, of course, to cut off the right to redeem the property mortgaged from the claim of the mortgage. By the statute there may be united with this equitable proceeding a claim for a personal judgment for any deficiency that may remain after the proceeds of a sale have been applied towards the payment of the mortgage debt, against whomsoever may be legally liable to pay such deficiency. Until foreclosure, there is an equitable right to redeem in the mortgagor, or in the person to whom he may have transferred such right. Such transfer is usually made by a conveyance of the .-legal title. The primary object of the action being to extinguish this right to redeem,- the party who holds such right is always a necessary party
Reference
- Cited By
- 2 cases
- Status
- Published
- Syllabus
- 1. In an equitable action to foreclose a real estate mortgage the owner of the equity of redemption is the only necessary party defendant. 2. In such action against a sole defendant, not the maker of the note and mortgage, a complaint which, after the usual allegation as to the making of such note and mortgage, alleges against the sole defendant that he has or claims to have some interest in or lien upon the mortgaged premises, which interest or lien is inferior and subordinate to the mortgage, is not demurrable on the ground of defect of parties defendant, in that the makers of the note and mortgage are not joined as defendants. 3. Such complaint does not show upon its face that such sole defendant is not the owner of the equity of redemption; the general allegation that he has an interest in the mortgaged premises being broad enough to cover such ownership. (Syllabus by the Court.