13 Iowa 177 | Iowa | 1862
—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
Reversed.