Dodd v. . Neilson

*247 Andrews, Ch. J. We think the purchaser should not be compelled to complete his purchase. It is a reasonable inference from the facts stated, that Haskins was the beneficial owner of the premises conveyed by Griffin and Bailey to Dodd, and that the conveyance was made at Haskins’ request. The instrument of October 1,1859, executed by Dodd to Haskins, concurrently with the delivery of the deed, declared that the conveyance was made to secure advances made by Dodd to Haskins, the amount of which is stated, and contains a covenant on the part of Dodd, either to hold the property until reimbursed for his advances to Haskins, or to sell the same, and, after paying his advances, to pay over the surplus to Haskins, or convey to him the residue of the lands. The action and the judgment of sale were based distinctly upon the theory that the transaction constituted an equitable mortgage from Haskins to Dodd, and this view seems to be sustained by authority. (Stoddard v. Whiting, 46 N. Y. 627; Carr v. Carr, 52 id. 258; Pardee v. Treat, 82 id. 385.) If the relation of mortgagor and mortgagee existed between Haskins and Dodd, then upon the death of Has-kins the equitable fee descended to his heirs, and they were necessary parties to the foreclosure. If, as assumed by the General Term, the transaction between Dodd and Haskins constituted a trust, it was a trust in the nature of a mortgage, and upon payment of the money owing to Dodd the heirs of Has-kins would be entitled to compel a conveyance to them of the legal estate. They could not be cut off and barred of the right of redemption by a sale under a judgment in an action to which they were not parties. The objection that the suit was not revived against the heirs of Haskins, and that they are not barred by the judgment, is, therefore, well taken, and it is unnecessary to consider the other objections urged. The order of the General Term should be reversed and that of the Special Term affirmed, with costs. All concur. Ordered accordingly.