| Nev. | Jul 1, 1868
By the Court,
• In the month of March, 1865, Samuel Singleton executed to G. W. Brubaker a bond, by which he bound himself, at the expiration of five months, to make a deed to the obligee of a certain
After the execution of this bond for a deed, Brubaker entered into possession of the premises described, and commenced the erection of a hotel thereon. White & Chase furnished him with lumber to the amount of one thousand- dollars or more, and for an unpaid balance of some nine hundred and odd dollars filed a mechanic’s lien thereon.
This lumber was furnished between March and August 4th of 1865. In November, 1865, Singleton, not having received his purchase money, made a deed, and took from Brubaker and wife a mortgage to secure'the purchase money. In the month of February, 1866, White & Chase filed their bill, only making G. W. Brubaker defendant, and asking to sell the pi-operty herein mentioned, to, satisfy their lien. In December, 1866, a decree was rendered, ordering a sale of the property.
White & Chase became the purchasers at such sale, and obtained the Sheriff’s certificate of sale. This certificate was dated in March, 1867, and would have entitled them to a deed in September, 1867, hut it does not appear in this record' whether they ever received their deed from the Sheriff. In September, 1866, Singleton filed his bill, making G. W. Brubaker and wife defendants, asking to have his mortgage foreclosed, alleging that the note and mortgage were given for the purchase money of the lot mortgaged.
In May, 1867, White & Chase filed a petition asking the Court to allow them to intervene in the case of Singleton v. Brubaker and Wife. We do not find in the transcript any order allowing them to intervene, but presume from other papers, pleadings, etc., such an order must have been made. The petition for leave to intervene seems to have been treated by all parties as a pleading on the part of intervenors. It was demurred to and also answered by plaintiff Singleton. Treating the petition as a pleading in the case, it amounts to first an answer and then a cross bill. As an answer, it admits every material allegation of plaintiff’s complaint. It admits in express terms that the lot of land mortgaged belonged to Singleton when the lumber was furnished
As a cross bill, it sets up various immaterial and irrelevant matters. Perhaps the only material facts stated are those in connection with the complaint filed against Brubaker, and the rights acquired by intervenors at the sale under a decree in that case. If these facts are true, the intervenors certainly had succeeded to the rights ■of Brubaker, and were proper parties to this suit.
Among other things the intervenors allege that the mortgage ■executed by Brubaker to Singleton was executed after Singleton had executed the deed to Brubaker, and it appears from the in-dorsement on the several papers, and the findings of the Court, that the mortgage was filed for record ten minutes after the deed was filed. The Court also finds that the two instruments were ■executed about the same time: Both instruments are set out in the transcript, they hear the same date, are acknowledged the ■same day, and before the same officer.
About the time the intervention was filed, Singleton seems to have sold the note and mortgage, which was the foundation of the •action, to D. W. Virgin. Virgin applied to be substituted plaintiff instead of Singleton, and we may presume such order was made, though we do not find it in the transcript. In the final decree, however, his name appears as plaintiff, and we infer the Court must have made the order of substitution. The transcript comes to us showing manifest imperfections and omissions. There was also much controversy on the hearing of the case as to the regularity of the statement, and how far it could be considered by this Court. Nothing, however, in regard to the statement need be determined. Taking the facts as admitted by intervenors and respondents by their pleadings, and there is nothing to support the decree as rendered. Nor is there the slightest difficulty in determining from the pleadings themselves what the decree should have been.
The decree first establishes the right of plaintiff to have his judgment against defendant Brubaker for $428, and interest and costs, directs the sale of the property, etc., as in ordinary cases of foreclosure (with one exception which we will presently notice) ; then gives judgment in favor of intervenors against plaintiff for their
The intervenors, who are the only respondents represented in this Court, contend that this decree was right upon two grounds. First, the deed from Singleton to Brubaker was recorded, or filed for record, ten minutes before the mortgage was filed for record; and, Second, because the Court does not directly find that the mortgage was given for the purchase'money.
The recording of a mortgage is simply for the purpose of giving, .notice and preventing parties who hold encumbered real estate from imposing on innocent purchasers or subsequent mortgagees. It is not contended that intervenors gave any credit or were in any way imposed on during the period of ten minutes which intervened between the recording of the tivo instruments. Indeed, as all the credit given by intervenors was several months before the execution of either instrument, we cannot see what right they would have to complain if the mortgage never had been recorded. It was not necessary for the Court to find a fact which is admitted in the pleadings. The complaint states distinctly that the note was given for the purchase money of the property, and the mortgage to secure the note. The only answer to this allegation is that the deed was made before the mortgage.
But, argues the respondents’ counsel, “ even if this decree was wrong so far as Singleton is concerned, he has not appealed.” The appeal is taken by Virgin, and there is nothing in the pleadings connecting him with the case. It is not denied that an order was made substituting Virgin as plaintiff, and the decree which is signed by the Judge is entitled Daniel W. Virgin v. George W. Brubaker and Mary J. Brubaker, defendants, and A. G. White and S. C. Chase, intervenors.
The position of respondents is, however, that when Virgin was substituted as plaintiff, he should have filed a supplementary bill showing his interest in the case, before he could be heard. If
Here, according to respondents’ theory, is a decree subjecting Virgin to costs, and affecting property in which he claims an interest, from which he cannot appeal because he has no complaint on file. Where one is party to a ■ record, he may appeal from it. If he can show the Court that the judgment is erroneous, he will be entitled to a reversal, unless it appear affirmatively that the error complained of cannot injuriously affect his interest. In this case the errors in the judgment are palpable. It certainly is injurious to Virgin to have a judgment against him for costs. If he has bought the mortgage, as he shows by his affidavit asking for a. substitution, he certainly would be injured by other portions of the decree. If this Court cannot say that he did buy the mortgage from Singleton, for want of proper pleadings, proof or findings of fact, it certainly cannot assume the converse of that proposition.
But, according to the views entertained by this Court, when Virgin was substituted as plaintiff there was no necessity whatever for his filing any supplemental complaint. The pleadings were all filed, the issues (if there can be said to be any issues in the ease) were all made up. The Court only had to determine what relief the parties were entitled to under these pleadings. In this stage of the case, Virgin comes into Court and says: “ I have bought out the interest of Singleton, and wish to be made plaintiff in his room and stead.” The Court, undér the statute, has the discretion to make the change. If it is made, w'hat need of a new complaint ? The question is (so far as defendant and intervenors are concerned) as to what relief is Singleton entitled under the pleadings on file and the proof that may be thereunder introduced. It is with Singleton they had the controversy, and it is none of their • business what trade or transfer is made between Singleton and
We have looked at all the cases, so far as the authorities are in the library, which we could find referred to under the one hundred ■and twenty-first section of the New York Code, which corresponds with our section sixteen, allowing substitutions in cases of this kind. In all those cases we cannot find one where the party •applying to be substituted has been opposed by the defendant on ether than two grounds, or where there has been any collision in the arguments of counsel or the opinions of Courts as to the possibility of a defendant’s having more than two objections to substitution.
The one is in a case where the party asking to be substituted is not so responsible for costs, either for want of pecuniary ability, from absence, or some other cause, as the original party. In such •case, the Courts have intimated, at least, they would not change the name of the plaintiff without security or some satisfactory arrangement about costs. The other class of cases is where the Courts have suspected the object of change was to make the original plaintiff a witness. In such cases they have sometimes refused to change the plaintiffs without a stipulation that the original plaintiff should not be called as a witness.
In other cases it seems to be held the change would be made as a matter of course, on the petition of the assignee of the cause of action, if the original plaintiff consented. If such wras the case, the change could by no possibility hurt the defendants, for the original plaintiff would forever after be estopped to deny the transfer to the substituted plaintiff.
Usually an assignee must allege and prove the assignment to sustain an action in his own name. If it were .not so, a pretended •assignee might recover a judgment, and afterwards the original owner of the claim recover a second judgment for the same demand. But this could not be in the case where the original plaintiff assents to a substitution. The issues are between the original parties, and no change of pleading is required. If the judgment goes for plaintiff, it is simply entered up in the name of the assignee instead of .being entered for the original plaintiff, and then assigned after judgment, as it would have been under the old practice.
We can find no case reported, either in California or New York, under statutory provision similar to ours, where it has been held that in case of substituting an assignee for the old plaintiff it has ever been held necessary to file a supplemental complaint. We can see no reason for such a course, and certainly many against it. It would certainly involve delay and unnecessary cost and trouble in filing new pleadings.
The judgment and decree of the Court below must be reversed, and the Court will enter judgment in favor of the plaintiff for the amount 'of his mortgage debt, interest and costs, directing the sale of the mortgaged property to pay the same. The Court will also give judgment against the intervenors for all costs occasioned by their intervention. The Court will also direct in its decree that the intervenors shall have the privilege of redeeming this property upon the same terms that are allowed to statutory redemptioners.