53 Vt. 551 | Vt. | 1881
The opinion of the court was delivered by
This is a petition to foreclose the equity of redemption of a mortgage, given by Luman A. Smith. The petition alleges that said Luman conveyed his equity of redemption in said premises to Curry ; and that Curry has conveyed the same to the defendant Smith. These conveyances were by quit-claim deed. And, also, alleges that Luman A. Smith has deceased. The defendant, Alma R. Smith, demurs to the petition because the representatives of Luman A. Smith, the mortgagor, are not made parties. Where the proceeding is, merely, to foreclose the equity of redemption, and not a personal judgment on the notes or debt, the authorities upon equity pleadings seem to concur that the mortgagor who has parted with his entire right and title in the equity of redemption, is neither a necessary nor a proper party, unless the bill or petition seeks a personal judgment against him. Story’s Eq. Pl. s. 197; 2 Jones on Mort. s. 1402-4, pp. 364, 6; Bigelow v. Bush, 6 Paige (N. Y.) 343; Chester v. King, 2 N. J. Eq. 405.
In Barton v. Kingsbury, 43 Vt. 641, the court, Prout, J.,
II. The demurrer reaches only such defects as are apparent of record. It does not appear that there is or has been of Luman’s estate administration, or that there is any living representative. We think, in this case, it was incumbent on the defendant to suggest to the court by pleas, or otherwise, such facts as might require the court in its discretion to make the representative of Luman A. Smith, if such there be, a party defendant.
The decree of the Court of Chancery is affirmed, and cause remanded.