Chamblin v. Slichter

[278] By the Oowt "Wilson, Cii. J. It does not appear that the plaintiffs were, or could be prejudiced by the redemption of said mortgaged premises by Scheffer, or by any disposition which the sheriff might make of the redemption money. And .it is a general rule applicable in cases like this, that an injunction will not be granted against a person not a party to the suit. 3 Dan. Ch. Proc. (3d ed.) 1717; Fellows vs. Fellows, 4 I. C. R., 25. The injunction therefore should not have been granted, and was properly dissolved. But we think the action should not have been dismissed. Though the plaintiffs had conveyed away the lots, they had covenanted that they were free from incumbrances, and their grantee claimed the right to apply a portion of the purchase money in payment of the mortgage which this action is brought to cancel. If the mortgage was void, there was no consideration for the money paid by way of redemption, and if Scheffer paid it in ignorance of the facts, he could maintain an action against the defendants to recover it back. The question, therefore, whether the mortgage is a valid incumbrance is not one solely between the plaintiffs and their vendee ; the rights of the defendants are also involved in its decision, and in its litigation they are necessary parties. "While the redemption of the lots from the mortgage sale removed the cloud that the record cast on the title, it did not dispose of the question of the validity of the mortgage. This is a question in this case, and lies at the foundation of the rights of both the parties, plaintiff and defendant, and the plaintiffs, we think, had a right to have it determined in this action. Let the order appealed from be modified accordingly.