Britton v. Hunt

The opinion of the court was delivered by Kingman, C. J.: E. D. Bassett and wife executed a mortgage on block five in the town of Hartford, Lyon county. Soon thereafter the wife died, and a little later Bassett died, leaving a son, a minor. J. H. Hunt became the administrator of Bassett’s estate. An action was brought by the holder of the mortgage against the administrator to foreclose the mortgage. The heir was not made a party to the action. A judgment was rendered against the administrator of foreclosure, under which the block was sold, and a sheriff’s deed in due time made to the purchaser. The defendant in error by regular conveyances became the holder of the title under the sheriff’s deed, and brought an action of ejectment to 'recover the property, and on a trial by the court obtained judgment for the recovery of the real estate mentioned. The only question in the case is, Lid the purchaser under the judgment of foreclosure obtain the legal title to the property? We think , he did not. The land descended to the heir, burdened with the lien of the mortgage, and subject in certain contingencies to the payment of the debts of the decedent. The land so belonging to the heir, he became a necessary party to any suit affecting the land. The legal title was in him, and he was interested also in contesting the claim against his [233] property. The administrator might have been joined with the heir if it was desired to obtain further relief against the estate of the decedent. The authorities on this point seem to be harmonious, or nearly so. No judgment or decree can be entered until the heir is before the court. Story’s Eq. Pl., §194; 4 Kent’s Com., 185, side page; 2 Hilliard on Mort., 140; Barbour on Parties, 494; Graham v. Carter, 2 Henning & M., 6; Mayo v. Tomkins, 6 Munford, 520; Lane v. Erskine, 13 Ill., 501; Moore v. Starks, 1 Ohio St., 369. The judgment must be reversed. All the Justices concurring.