Delaplaine v. Lewis

By the Court, Cole, J. According to the weight of modern authorities the rule seems to be settled, that a mortgagor who has absolutely parted with the equity of redemption is not a necessary, though he is a very proper, party defendant in an action to foreclose the mortgage. Story’s Eq. Plead., 197; Bigelow v. Bush, 6 Paige, 343 ; Shaw v. Hoadley, 8 Blackf., 165; Van Nest v. Latson, 19 Barb., 604; Drury v. Clark, 16 How. Pr. R., 424. It may be said that the purchaser of the equity of redemption is vitally interested in knowing the true amount due upon the mortgage, and that, in order to enable the court to make a complete determination of the cause, the mortgagor should be brought before the court, so that the whole controversy may be settled in one suit, and the rights of all be fully protected. Whatever force there may be in this view of the matter as an original question, still the rule seems to be settled the other way, that the mortgagor is not a necessary party where he has sold and conveyed his interest in the mortgaged property. We are not disposed to depart from this rule at this time, and we must therefore hold the second ground of demurrer, that the mortgagor, Lawrence, should be made a party defendant, untenable. From the complaint it appears that the city of Madison, to secure the payment of its bonds, conveyed the mortgaged premises therein named to Governor Randall and to his successors in office, as trustees in trust for the holders of the bonds. It is very clear that this trust is nothing appertaining to the office or duties of governor of this state as such governor, and that the character and liabilities of the trustee can only attach to the individual who for the time being happens to be governor, and who may be willing to accept the trust. And it is equally clear that even if Governor Randall accepted the trust, this fact would not devolve its liabilities on his successor in [479] tbe executive office wbo did not expressly, or by implication, accept it. -It is a very general principle of law, that a person cannot be compelled to act as trustee without his consent. And as the office and duties of governor, under the constitm tion and laws of this state, are entirely distinct from the character and office of trustee under this mortgage, it is very obvious that Governor Lewis might accept the former without in any way incurring the liability of the latter. When he succeeded to the office of governor, it was entirely optional with him whether he would act as trustee under the mortgage or not. But the fact that he “ has succeeded to said office so held by said Randall, and is now governor of said state,” by no means shows that he is a trustee for the holders of the city bonds under the mortgage; nor does it afford any reason for making him a party to this suit. If he is made a party defendant because he is trustee, then there should be some fact stated or some allegation made that he has assumed the liabilities and character of a trustee. But nothing of the kind is averred in the complaint. Were it not, therefore, that the complaint contains the further averment that 11James T. Lewis, governor of the state of Wisconsin,” with others therein named, has or claims some interest in or lien upon the mortgaged premises as hereinbefore alleged, or otherwise, which is subsequent to the mortgage in suit,” we should be clearly of the opinion that it stated no cause of action against him. But this allegation is undoubtedly sufficient to cut off and bar any interest which Governor Lewis has in the premises as subsequent incumbrancer. If he has no such interest, he can disclaim by answer. But as the ease now stands we must hold likewise the first ground of demurrer bad. The order sustaining the demurrer is therefore reversed.