Southard v. Sutton

WaltoN, J. All the owners of a right in equity to redeem real estate under mortgage must be made parties to a bill to [577] redeem. If any one of them refuses to become a parly plaintiff, he must be made a party defendant. “A person having a partial interest in the equity of redemption, in the absence of the other parties interested therein, cannot maintain a bill to i’edeetn.” Story’s Equity Pleading, § 187. The fact that one of the parties having an interest in the equity of redemption resides out of the state, is no excuse for omitting to make him a party to the bill to redeem. Chamberlain v. Lancey, 60 Maine, 230. In this case, the equity of redemption, owned by John Dean, at his death descended to his eight children. The plaintiff has purchased the interest of seven of the heirs, and, without making the other heir a party to the bill, either as a plaintiff or a defendant, claims the right to redeem the whole estate, and to have an account of the whole of the rents and profits, to aid hitn in so doing. This the law will not allow. The other heir has a right to his share of the rents and profits, and a right to be heard in the determination of the amount thereof. He also has a right to redeem his share at the same time that the other joint owner redeems his. He has a light to be consulted before the fee and the light of possession are transferred to a new party, for his interests may be thereby seriously compromised. The new party may be less responsible for the rents and profits, less likely to keep the estate in repair, and less likely to avoid strip and waste. The defendants also have an interest in having the other heir made a party to the bill. In view of the conveyance made by his mother, he may decline to redeem his share, or to require the defendants to account for his share of the rents and profits, and thus the defendants may be left in possession of valuable interests of which it is now proposed to deprive them. In other words, the other joint owner of the equity of redemption is an interested, and therefore a necessary party to the bill, and one, without which, the court cannot rightfully make the decree prajed for. The fact that he resides out of the state, as already stated, is no excuse for omitting him. If his residence could not be ascertained, so as to serve him with personal notice, such other service as the court might order would then be sufficient. Another difficulty. The facts reported by the referee are not [578] sufficiently full and explicit to enable the court to' determine the rights of the parties now before the court. If one having a right to redeem real estate under mortgage assures a proposed purchaser of the fee that he will not redeem, and this assurance is given for the purpose of inducing such purchaser to buy, and he is thereby induced to buy, the owner of the right will be estopped afterward to enforce it against the purchaser or his assignees; and if one afterward purchases the right of redemption, with notice of the facts which create the estoppel, he also will be estopped to enforce such right. Fay v. Valentine, 12 Pick. 40. Chapman v. Pingree, 67 Maine, 198. Hence it is important to know how many and which of the heirs of dohn Dean were consulted and desired the defendant (Sutton) to purchase the estate in question, of their mother, and what assurances, if any, they gave him, and what knowledge, if any, the plaintiff had of these assurances when he purchased of the heirs, to the end that the court may see how far they and he may be estopped. In these particulars the report of facts is fatally defective. Bill dismissed, with costs. Appleton, C. J., Barrows, Daneorth, Peters and Libbey, JJ., concurred.