Baass v. Chicago & Northwestern Railway Co.

LyoN, J. Tbe record does not give the name of tbe mortgagor, or inform us of tbe title- claimed by tbe defendant; but we gather from tbe argument that tbe mortgagor conveyed tbe mortgaged premises to tbe defendant by a deed junior in execution, but senior in récord, to tbe mortgage in suit. On tbe record before us it is uncertain whether tbe trust deed is prior or subsequent in right to tbe mortgage. If prior in right, it seems to be conceded that tbe Trust Company is not a necessary or proper party to tbe action; but otherwise if tbe same is subsequent in right. Were tbe stipulation conclusive on that question — did it render tbe trust deed prior in right to tbe mortgage in all proceedings, and in favor of or against all persons who bave now, or may hereafter bave, an interest in tbe mortgaged premises, — it would seem entirely unnecessary to mate the Trust Company a party to tbe action. But such is not tbe effect of tbe stipulation. It may be that tbe trust deed is subject to tbe mortgage; and if so, notwithstanding tbe stipulation, no good reason is perceived why any person interested, other than tbe plaintiff, may not be beard to assert tbe fact. Indeed, it is not certain that tbe plaintiff himself may not assert it in any other action or proceeding; for tbe stipulation is tendered-only “for tbe purposes of this case.” It seems to us that the defendant has the right to have tbe question determined in this action, whether tbe trust deed or the mortgage in suit has priority; and because tbe offered [300] stipulation does not determine that question, and because it cannot be conclusively determined without the presence of the Trust Company, we thinlc the circuit court properly refused to vacate the order making that company a party defendant in the action. By the Court. — Order affirmed.