Shaw v. Hoadley

8 Blackf. 165 | Ind. | 1846

Perkins, J.

Bill to foreclose a mortgage. Decree for the complainant.

The bill states that on the 3d of September, 1840, Elam Shaw, since deceased, and Daniel Mace, being indebted to Abner D. Bond in a certain sum of money, executed to him the mortgage in question to secure the payment of said indebtedness; that Bond subsequently assigned the mortgage to the complainant; and that Mace conveyed his interest in the equity of redemption of the property mortgaged to Shaw, his co-mortgagor, who thereupon assumed the payment of the whole debt. The bill was filed against the heirs of Shaw only. The defendants made default, the bill was taken as confessed, and a decree rendered against them as follows: That a certain sum was due, that the mortgaged premises be sold to pay it, and that the overplus, if any, be paid to Daniel Mace and Mark Jones, administrators of Elam Shaw deceased ; and further, that if the mortgaged premises failed to sell for a sum sufficient to pay the decree and costs, the balance of said decree should be regarded as a debt due from Mace and Jones, as administrators as aforesaid, and that execution should issue against the goods of said Shaw, deceased, in their hands, &c.

J. Pettit and S. A. Huff, .for the plaintiffs. D. Mace, for the defendant.

Mace and Jones not being parties to the bill, that part of the decree rendered against them is void; nor would it have been proper to decree to them, as administrators, the surplus arising from the sale of said real estate had they been parties. On the death of Shaw, the equity of redemption in these, premises descended, as real estate, to his heirs; and on a sale' taking place, the surplus will go to them and not to Shaw's administrators. Wright v. Rose, 2 Sim. & Stu. 323. — Moses v. Murgatroyd, 1 Johns. Ch. R. 130.

A question has been made as to whether Mace, the co-mortgagor with Shaw, should not have been made a co-defendant to' the suit. The bill shows that he has parted with his interest in the equity of redemption of the mortgaged land, and that the purchaser of the same took it subject to, and assumed the payment of, the whole mortgage-debt. Under such circumstances, we do not think Mace has such an interest in the real estate incumbered by the mortgage sought to be foreclosed, as renders him a necessary party to this bill. The cases of Brown v. Stead, 5 Simons, 535, and Swift v. Edson, 5 Conn. 551, are directly in point, that where a mortgagor has conveyed his equity of redemption to a person who has assumed payment of the mortgage-debt, he need not be made a party to a bill to foreclose such mortgage.

Per Curiam.

/That part of the decree relative to a foreclosure and sale is affirmed; and the other part is reversed. Cause remanded, &c.