19 Ala. 200 | Ala. | 1851
1. It is assigned as error, that the final decree- was made at a time when the court was not authorized to be held by law, and without legal authority. It is, however, unnecessary to decide this question, because the decree has to be reversed upon another ground.
2. The complainants dismissed their bill as to Daniel E. Hall, and afterwards proceeded without him as a' party. This we think, was erroneous.
E. S. Beebe and George W. Clark were the mortgagors; the former died,1 and his interest as mortgagor was sold under an order of the Orphans’ Court, and Mr. Hall become the purchaser, and as such, was made a defendant and answered. Generally, to a bill to foreclose, the mortgagor is a necessary party, but not so in this case, in consequence of his death, and of the sale of his equity of redemption. But Mr. Hall, as the purchaser of this equity of redemption, -was clearly a necessary party, and there could be no decree of foreclosure or of sale without him. He was a necessary party to the account, and was entitled to redeem.—Singleton v. Gayle, 8 Porter, 210; Story’s Eq. Plead. § 195-196-191.
After looking into the exact state of the record, wre arc not satisfied that there is any other error. The decree is reversed, and as the complainants may possibly be able to show a sufficient ground for leave to make Mr. Hall a party again, we remand the cause.
