McMillan v. Gordon

COLLIER, C. J. ■— The facts stated in the two affidavits first recited in the record, unexplained by what Mr. Aikin deposes, would lead to the conclusion that the moneys paid by him were intended pro tanto to extinguish the mortgage ; but his affidavit very satisfactorily repels any such inference. Mr. A. states, that the instructions given him by F. Shaw & Co., ' the agents of the complainants, made him anxious to raise the amount due on the mortgage, or some part of it, as soon as possible ; and, without waiting a foreclosure and sale, he induced the defendant to procure his friend, John King, to make an advance for him, under an assurance that he should be reimbursed from the proceeds of a sale of the mortgaged premises ; that the advance was made and paid over to the agents of the complainants, and that the latter, when advised of the circumstances, approved of the manner in which the collection was made ; that the money was received by Mr. A. of McMillan, as the agent of King, and was considered by him as a mere matter of account between himself and the complainants. These circumstances do not, in our opinion, show that the mortgage became inoperative to the extent of the moneys paid, but rather that King became assignee in equity, and was entitled to the benefit of the mortgage thus far, as a means of securing the repayment of his advance. It is certainly competent for all the parties to a security of this nature, to agree that if a third person has or shall advance money to the mortgagee, he shall stand in the situation of an assignee, and enjoy all the rights of his assignor. To consummate such an arrangement, it is not necessary that it should be evidenced by writing, but will be effectual in a court of equity, though it be verbally made. In this view of the case, the only question is, can a decree be rendered in favor of the complainants, for the amount due, including the advance by King, or in order to the recovery of the latter sum, should King have been joined as a party ? The bill was filed by the proper complainants, and to have associated King with them, would have made it demurrable ; for his interest did not accrue until his money was paid to Mr. Aikin, which, we have seen, was subsequent to the institution of [720] the suit. In Cook v. Mancias, (5 Johns. Ch. Rep. 89,) a trustee and cestui que trust filed a bill in equity, and pending the suit, the cestui que trust assigned his interest to another ; the question was, whether the assignee should not have been made a party. The Chancellor said : “ A change of interest from the cestui que trust to another, pendente lite•, can hardly be admitted as sufficient to support the objection at the hearing, of a want of parties, when we have before us the party in whom the legal title resides, and the cestui que trust existing at the filing of the bill. The Court is not bound to take notice of any interest acquired by purchase in the subject-matter of a suit pending the suit.” In the present case, the specific objection of a want of proper parties, has not been made either at the hearing or in this Court. If it had been, it could not be sustained, if the case cited is to be regarded as an authority. Here, according to' the view taken, the complainants are trustees for King to the amount of his interest, and being the only proper parties when the bill was filed, are entitled to a decree not only for what is; due them in their own right, but for what is legally due to them for King’s benefit. Whether we consider the decree with reference to its amount or the parties to it, it is free from error, and must be affirmed.