162 A. 724 | N.J. | 1932
The vice-chancellor dismissed the bill as against the respondents above named. We think he was right in so doing, but find ourselves unable to subscribe to his opinion in all respects.
The bill is a foreclosure bill filed by a second mortgagee in whose mortgage it is expressly recited that it is "subject and subordinate" to a mortgage by Passaic Arms, Incorporated, to Fidelity Union Trust Company, as trustee, dated, c., "for $215,000." See
It is to be noted that the bill makes no offer to redeem from the first mortgage; nor does it pray that the property be sold to satisfy the first mortgage according to its priority and amount. What it seems to seek is a decree fixing the amount recoverable under the first mortgage so that the holder thereof will be estopped to claim more as against a purchaser under complainant's mortgage.
In general, a prior mortgagee is not a necessary party to the foreclosure of a junior mortgage. He may properly be joined where there is an offer to redeem. Hudnit v. Nash,
The two respondents not having been made parties for any proper purpose, the bill was properly dismissed as to them.
We see no reason to interfere in the matter of counsel fees awarded or withheld by the vice-chancellor. The decree under review will be affirmed.
For affirmance — THE CHANCELLOR, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, BROGAN, VAN BUSKIRK, KAYS, HETFIELD, DEAR, WELLS, KERNEY, JJ. 14.
*535For reversal — None.