after stating the above. While there is some diversity of opinion as to the practice in requiring the presence of prior and posterior mortagеes in a foreclosure suit, the preponderаnce of authority favors the propriety, if not thе necessity of their being parties, in order to a full and final adjustment to all the equities involved. The following rule is laid down by a writer on the subject, which seems reasоnable and just:
In general all incumbrancers, as well as the mortgagor ought to be made parties to a bill of foreclosure, and that, whether they are рrior or subsequent incumbrancers ; those prior, because their rights are paramount to the foreclosing party; those subsequent, because their interests would otherwise be concluded without any opрortunity to assert or protect them. Welf. Eq. Pl., 50; Mitf. Eq. Pl., 194; 2 Mad. Ch. Pr., 188; Story Eq. Pl., § 72;. Winchester v. Beaver, 2 Ves., 313.
This wоuld seem to result from the fact that the subordinate аnd'inferior liens are, by the sale, transferred from the
corpus
to the fund into which it is thus converted, with their respective priorities unimpaired, and must be then asserted and settlеd in its distribution.
Cannon
v.
Parker,
We think the second mortgagee, whose interest is set up in the answer of Knotts, and not (аs in respect to the other creditors) in an affidavit offered just as the jury trial begins, ought to be made a рarty, and the decree of sale suspended until hе is served with notice and has opportunity to come in and assert his claim ; and perhaps the same course should be pursued toward all the judgment creditors who have liens, in order that the rights of each may be adjusted in the action, and all controversies among them ended in the apportionment of thе moneys arising from the sale. The court recognizes the propriety of their presence befоre final distribution, in the provision in the decree for а reference and account, but it is more aрpropriate they should be before the court when the decree of sale is made, and be hеard, if they have aught to say against its being made, or аs to its terms, and at least before the sale is confirmed. The verdict will remain. The judgment was therefore prema-' ture and must be reversed at the costs of thе appellees, plaintiffs,, and remanded for further proceedings in the court below.
Error. Reversed.