Darlington v. Effey

Wright J. —By our statute it is declared that deeds of trust of real or personal property may be treated like mortgages, and foreclosed by action in tbe District Court. (Code 1851, § 2096; 1860, § 3673.) Treating tbis, tben, as a proceeding to foreclose a mortgage, it is proper, upon his motion, to make tbe administrator of tbe mortgagor a party respondent. As a general rule it is well settled by tbe English practice, as well as that of most of tbe states, that tbe beir, in whom is tbe equity of redemption, is tbe only proper defendant in a bill of mere foreclosure. (3 Powell, 969; Story’s Eq. Pl., § 196 ; Slaughter v. Foust, 4 Blackf., 377.) To tbis rule there are exceptions. If tbe mortgagee prays on account of tbe personal estate, because of tbe inadequacy of bis security, arising from tbe mortgage, tbe executor should be a party with tbe beir. Tbe reason of tbis is, not because a sale of tbe land may be decreed, but because in addition thereto, tbe bill seeks also to appropriate tbe personal assets, of which tbe executor is tbe representative. (3 Powell, supra; Story’s Pl., § 196.) So it has been held necessary to make him a party where tbe bill contained an averment that be bad been in receipt of tbe rents and profits of tbe mortgaged premises, and bad paid tbe interest and part of tbe debt. Or, where tbe mortgage was upon a term of years, for tben tbe equity is said to belong to tbe personal representative. (Bradshaw v. Outram, 13 Ves., 235.) Under our statute, it is our opinion that tbe spirit of tbe first exception, and not tbe general rule of tbe English practice, applies, and that tbe administrator is a proper, if not a necessary, party in a bill to foreclose. It is one of tbe boasts of a court of equity that it delights todo complete justice, and not by halves. So again, it [180] always delights, as far as possible, to avoid circuity of action. Now the old practice was that the heir alone had a right to the equity of redemption; that the proceeding was in rem, for a sale of the mortgaged premises alone, and the heir having no right to insist that the administrator should be joined to relieve him by payment out of the personal assets, he was required to bring a new bill against such representative for relief. And this, notwithstanding the mortgage was a debt, to be charged primarily upon the personal assets. In the case however, where a deceased obligor has bound his heirs to the performance of an' obligation, the heir and executor both being parties, the court does complete justice by decreeing the latter to perform, the covenant, as far as the personal estate will extend, the rest to be made good by the heir from the real assets. And well might Judge Story say (Eq. Pl., § 175) that, “ it is not a little remarkable that courts of equity have refused to act” upon this latter rule, in case of a bill to foreclose. The reason and spirit of equity proceedings, it seems to us, would favor the adoption of the rule. And especially is this so, under a statute like ours, where the mortgagee has a right to a general execution to satisfy any deficiency of his mortgaged debt after exhausting the property mortgaged. (§ 2085.) It is true that in a case like the present there is no general judgment, the mortgagor being dead. But as the assets in the administrator’s hands would be liable to pay so much as might be unsatisfied by a sale of the mortgaged property, there is, to our minds, no legal inconsistency in treating this adjudication as conclusive in fixing the amount of the liability of tbe estate, nor any more impropriety in having the decree contain an order that such balance be made from assets in the hands of the personal representative. Being decisive of the amount, it is his duty to prevent a recovery for a larger sum than was due. Or [181] take this case as an illustration. It is pretty conclusively shown that this deed of trust is a forgery; that the supposed grantor was not-in this -state when the deed purports to have been executed, if, indeed, living for several years prior to its execution; that he was personated by another person who received the consideration. If this deed is foreclosed, the administrator will be bound and compelled to pay any deficiency, after exhausting the property mortgaged, from the assets in his hands. Why, then, is he not a proper party ? And particularly so, as it is claimed by appellee that the heir is a “ non-resident alien foreigner,” and as such has no right to be heard. Upon this subject generally, see Wilkins v. Same, 4 Port., 250; 2 Hilliard on Mortg., 95; Little v. Sinnett, 7 Iowa, 324. Reversed.