119 N.Y.S. 946 | N.Y. App. Div. | 1909
This action is brought to foreclose a mortgage for $2,500 made on December 29, 1896, by one Mary Smith to the administrators, etc., of Leonard Mott, deceased, and assigned to the plaintiff on November 8,1907. Subsequently to the making and recording of said mortgage Mary Smith conveyed the premises to Christopher C. Firth and Robert W. Firth. On December 29,1896, Robert W. Firth executed a paper which was in form a deed and in which his wife, Lily L. Firth, joined, which purported to convey his undivided half interest in the premises to Christopher C. Firth. This instrument was not recorded until May 14, 1898. Before that time Robert W. Firth executed another paper which was in form a deed, which purported to convey his undivided one-half interest in the said premises to his wife, Lily L. Firth. This instrument was dated July 27, 1897, and was recorded November twentieth in the same year, nearly six months before the instrument above referred to which was made to Christopher C. Firth. Each of these deeds contained full covenants and a warranty. On November 4, 1899, Lily L. Firth executed a paper in form a deed with full covenants, including warranty, which purported to convey to Frank S. Pilditch an undivided one-half interest in the premises. It was recorded November 8, 1899. ' On October 3, 1907, the said Pilditch conveyed the said premises, with others, to the defendant Maria A. Bird. While Pilditch claimed to be the owner of this undivided one-half interest through the con
We think that the defendant should have prevailed in this regard. “ The court may determine the controversy, as between the parties before it, where it can do so without prejudice to the rights of others, or by saving their rights, but where a complete determination of the controversy cannot be had without, the presence of other parties the court must direct them to be brought in.” (Code Civ. Proc. § 452.) It is no answer to say that Christopher C. Firth was not a party to the action brought by Walter A. Peck, in which action it was determined that the conveyance to him was only a mortgage, and that Frank S. Pilditch, the predecessor in title to the defendant Bird, was the owner of one-half part of the premises, and, therefore, the said Christopher C. Firth is not bound by that adjudication." That is all the more the reason why he should now be brought in and the rights of all of the parties settled. In the agreement executed by Christopher C. Firth, Peck and Fallows, although Pilditch was not a party, there appeared recitals as to his claim of ownership in a portion of the said premises, and Schenck, whose only interest was as mortgagee of Pilditch’s interest, was a
The judgment appealed from should be reversed and a new trial granted, costs to abide the event.
Hirsohberg, P. J., Rich and Miller, J J., concurred; Jenks, J., taking no part.
Judgment reversed and new. trial granted, costs to abide the event.