M'Gown v. Yerks

6 Johns. Ch. 450 | New York Court of Chancery | 1822

The Chancellor.

These legatees, whose legacies, as stated in the answer, were a prior encumbrance, ought to be made parties, in order to prevent a sale of the premises from being deceptive or embarrassing to the purchaser, and injurious to the rights of the defendants, and to enable "the plaintiffs, if necessary, to redeem the land from the prior encumbrance. In cases of a strict technical foreclosure, there may be no injury in leaving a prior encumbrance undisturbed, but, where the land is to be sold, it would seem to be essential to the interests of all concerned, and necessary, to prevent a sacrifice of the subject, at the sale, that the certainty, value, and extent of the prior encumbrance, made known by the pleadings, should be ascertained and declared. It is the general doctrine of this Court, that all parties having an interest in the subject matter of the suit, should be before the Court, to the end that their interest may be embraced by the decree, and that one suit may terminate all controversy depending on the various rights. In this case, it is said, that the legacies are a charge on the whole land, of which the interest mortgaged is only an undivided part. It may be necessary, in that case, to apportion the charge, and settle the proportion that the interest of the mortgagors ought to-bear, before a sale can be discreetly ordered, or the purchaser safely and intelligently buy. The cause must, therefore, be ordered to stand over, to the end, that the legatees may be brought in, by a supplemental bill, in which case, the present defendants need not be made parties, according to the cases referred to in Ensworth v. Lambert, (4 Johns. Ch. Rep. 605.)

Order accordingly.-