19 Wis. 476 | Wis. | 1865
By the Court,
According to the weight of modern authorities the rule seems to be settled, that a mortgagor who has absolutely parted with the equity of redemption is not a necessary, though he is a very proper, party defendant in an action to foreclose the mortgage. Story’s Eq. Plead., 197; Bigelow v. Bush, 6 Paige, 343 ; Shaw v. Hoadley, 8 Blackf., 165; Van Nest v. Latson, 19 Barb., 604; Drury v. Clark, 16 How. Pr. R., 424. It may be said that the purchaser of the equity of redemption is vitally interested in knowing the true amount due upon the mortgage, and that, in order to enable the court to make a complete determination of the cause, the mortgagor should be brought before the court, so that the whole controversy may be settled in one suit, and the rights of all be fully protected. Whatever force there may be in this view of the matter as an original question, still the rule seems to be settled the other way, that the mortgagor is not a necessary party where he has sold and conveyed his interest in the mortgaged property. We are not disposed to depart from this rule at this time, and we must therefore hold the second ground of demurrer, that the mortgagor, Lawrence, should be made a party defendant, untenable.
From the complaint it appears that the city of Madison, to secure the payment of its bonds, conveyed the mortgaged premises therein named to Governor Randall and to his successors in office, as trustees in trust for the holders of the bonds. It is very clear that this trust is nothing appertaining to the office or duties of governor of this state as such governor, and that the character and liabilities of the trustee can only attach to the individual who for the time being happens to be governor, and who may be willing to accept the trust. And it is equally clear that even if Governor Randall accepted the trust, this fact would not devolve its liabilities on his successor in
The order sustaining the demurrer is therefore reversed.