Borton v. Baxter ex rel. English

Dewey, J. — Baxter, suing for the use of English, brought a bill in equity, the object of which was the foreclosure of a mortgage, given to secure the payment of two promissory notes. The mortgage was executed by Lewis and wife, and the notes by Lewis. The defendants to the bill were the mortgagors and Burton, the latter claiming the mortgaged premises by a conveyance from Lewis, alleged to be of a date prior to that of the mortgage. - The bill alleges that the complainant, the mortgagee and payee of the notes, sold them to English, for whose use, and at whose request, the suit was commenced. On final hearing there was a decree of foreclosure, and sale of the mortgaged premises, and for costs against the defendants. This decree cannot be sustained. The bill shows that the complainant had no equity. The sale of the notes, secured by the mortgage, to English, was an equitable transfer to him of the mortgage. Rob. on Frauds, 272, 275. See, also, Clearwater v. Rose, 1 Blackf. 137, and Slaughter v. Foust et al. 4 Blackf. 379. The beneficial interest in the notes and [298] mortgage being in English, he should have been a party to the bill. Park v. Ballentine, 6 Blackf. 223. J. Dumont, for the plaintiff. Per Curiam. — The decree is reversed with costs. Cause remanded, &c.