Warren, Wallace & Co. v. Burton

The opinion of the Court was delivered by McIveR, A. J. This was an action to foreclose a mortgage of real estate, and the only legal question involved is whether to such an action an antecedent encumbrancer is a necessary party. While such an encumbrancer may be and is a proper party to such an action, in order that the purchaser at the sale in which such an action results may obtain a clear title, free from such encumbrance, yet he is not a necessary party, and the action may proceed to judgment without making him a party. — Story Eq. Pl., § 193; Cal. on Parties, 128-138; Pomeroy on Remedies, §§ 333-342; Rose vs. Page, 2 Sim. Rep., 471; Richards vs. Cooper, 5 Beav., 304 ; Delabere vs. Norwood, 3 Swans., 144. There are cases like Finley vs. Bank of the United States, (2 Wheat., 304,) Haines vs. Beach, (3 Johns. Ch., 459,) and DeSaussure vs. Bollmann, (7 S. C., 329,) which hold that unless an antecedent encumbrancer is made a party to a bill for foreclosure and sale of mortgaged premises he will not be bound by the decree, and, therefore, if it is desired so to bind him, he must be made [199] a party. But, on the other hand, the authorities above cited fully sustain the conclusion that while such an encumbrancer may be a proper party he is not a necessary party, and the action may be prosecuted to judgment without making him a party, the only effect being that, as he is not bound by the judgment, the purchaser at the sale made under such judgment takes subject to the encumbrancer. The other questions raised being questions of fact which have been determined adversely to the appellant in the Court below, this Court, as has been repeatedly decided, will not undertake to review such findings of facts, except'where they are shown to be without any evidence to sustain them, or where “ the overbearing weight of the evidence” is against the conclusion reached by the Circuit Court. Without undertaking to go into an examination of the testimony, it is sufficient to say that, so far from finding either of these conditions of things, the conclusions reached by the Circuit Court seem to be supported by the evidence. The motion is dismissed. Willard, C. J., and Hashell, A. J., concurred.