Drury v. Clark

By the court—Emott, Justice. There are but two objections in this case, which I think it necessary to notice. The first is, that the general allegation in the complaint, that William H. Clark and other defendants who are named, have or claim some interest in or lien upon the mortgaged premises, which, if any, is subsequent to the plaintiff’s mortgage, is not a sufficient statement of a cause of action against these defendants. This mode of statement in cases where junior incumbrancers are made parties to a foreclosure suit, was introduced . into the practice of the court of chancery by the rules of Chancellor Walworth. The rule was made to obviate the inconvenience which mortgagees had encountered in foreclosure suits, when they were compelled to wait the determination of all the rights and equities of junior incumbrancers and purchasers among themselves, before a decree could be obtained for the foreclosure of the first mortgage. (Hopk. 277.) The effect of the rule was to postpone to the sale any litigation between junior incumbrancers who were co-defendants. Such disputes were thus deferred until it was ascertained that there would be a surplus after satisfying the plaintiff’s mortgage, which surplus was the only fund which such a litigation concerned or which it should affect. (See 10 Paige, 395; 9 id. 545 ; 4 id. 85.) If the rule of pleading under the Code is stated correctly in the defendant’s points, this beneficial reform will be set aside, and foreclosure suits will bristle with new difficulties. The plaintiff will be compelled to state a variety of issues to different defendants, issues in which he has no interest, and to await their determination among the defendants whom he is bound to make parties. This should not be per [431] mitted if possible, and is not, I think,' required. The complaint before us states that these various defendants have or claim, each some interest in or lien upon the mortgaged premises, but in every case, such lien or interest is subsequent and subject to the plaintiff’s mortgage. This states sufficiently all that is necessary for the plaintiff’s purpose. The fact that these defendants have or claim some interest in the lands mortgaged, makes them proper parties to the foreclosure, and the fact that these interests are subsequent to the plaintiff’s lien, render it unimportant to him or to the purposes of his suit, so long as that is confined to the foreclosure and sale under his mortgage, what the particular rights of these defendants are. They are only interested in the eventual surplus, if any, and their respective interests are material only among themselves, and not to him. All that the plaintiff asks is a foreclosure of his mortgage against their estates or interests, and it is sufficient for that purpose and to justify making them parties that they have or claim some interests ór estates, but these whatever they are, are subject to his mortgage. Any detail of their titles or the extent and relative priority of their interests would be superfluous if the suit is confined to the first mortgage and the judgment proceeds no further. It is also contended by the defendants, that the suit is defective, because the mortgagor is not a party. The equity of redemption is stated in the complaint to have been conveyed to the defendant Clark, who assumed and agreed to pay the mortgage, as part of the consideration of the conveyance which he received. The mortgaged premises are, therefore, the primary fund for the payment of the debt, and after them the defendant Clark, is next liable. He has no right to complain of the absence of his grantor, for as between these two, Clark is the principal debtor, and Eichards the surety. It is only when the party, against whom the mortgagee asks a personal judgment for any deficiency, is a mere surety of the mortgagor, that he can insist that the latter should be made a party, and the plaintiff’s remedy exhausted against him for any deficiency in the lands before resorting to his surety. (See Bigelow agt. [432] Bush, 6 Paige, 343.) There is no controversy between the plaintiff and the defendants, which requires that Richards the original mortgagor, should be brought in, in order to its final determination. We cannot even assume upon the statements of the complaint, that there is any controversy between him and the defendant Clark, as to the liability of the latter to the plaintiff. But if there be, it is a dispute wholly between them, not affecting the immediate liability of Clark to the plaintiff, and with which, therefore, the plaintiff is not bound to concern himself. It is altogether probable that the question of pleading which this demurrer presents, has been determined in some of the courts, since the passage of the Code, but if any such case is reported, it has escaped my observation, and the argument printed by the defendant’s counsel, is entirely barren of any authorities affecting the question. I observe that the defendants contend that a grantee of mortgaged premises, who has assumed the payment of the mortgage, is not a proper party to a foreclosure, or cannot be made liable upon such a covenant. The reverse of this proposition has been so long settled that it needs no authorities to sustain it. The order of the special term must he affirmed, with costs.