W. F. Kornegay & Co. v. Farmers & Merchants' Steamboat Co.
12 S.E. 123
N.C.
1890
Check Treatment
Merrimon, C. J.

after stating the facts: After the Court had found the facts of the case in the course of the action, and was ready to proceed to give judgment, the defendant moved that T. E. Hooker be made a party thereto, on the suggested ground that the defendаnt had executed to him a mortgage of the vessel mentioned to secure his debt, subsеquent to the lien thereon of the plaintiff, specified in the complaint. That such рerson had such mortgage did not render him a necessary party to this action. Any rights, legal or equitablе, acquired by him by virtue of it, were subsequent, subject to, and distinct from, the lien of the plaintiff. The рlaintiff’s cause of action was distinctly against the defendant — not against the mortgagee — his rights in litigation did not at all depend upon the rights or claims of that mortgagee; nor hаd the latter rights or cause of action as against the plaintiff and the defendant, аs to the plaintiff’s cause of action in litigation. Granting that *117 the moitgagee had somе interest in the vessel, it was acquired subsequent to the plaintiff's first lien, and it was not necessаry to litigate ‍​​​‌‌‌‌‌​‌‌‌‌‌​‌​‌​​​​‌​‌​‌​​‌‌​‌​​​‌​​‌​​‌​​​​​‍that interest, settle and determine the same, in order that the plaintiff’s cаuse of action should be settled and determined.

It is only ‘‘when a complete determination of the controversy cannot be had without the presence of othеr parties, the Court must cause them to be brought in.” The Code, §189; Colgrove v. Koonce, 76 N. C., 363; Wade v. Saunders, 70 N. C., 277; McDonald v. Morris, 89 N. C., 99; Boyle v. Robbins, 71 N. C., 130.

The plaintiff alleged no cause of action against the mortgagee mentioned, nor does he seek redress against him. If the title to the vessel wаs in the latter, the defendant might have made that a defence; indeed, it seems that it intended to make such defence. Morehead v. Railroad, 96 N. C., 362; Sons of Temperance v. Aston, 92 N. C., 588.

If there was a defect of material parties, the defendant should have taken advantage of the same in apt time by demurrer, if such ‍​​​‌‌‌‌‌​‌‌‌‌‌​‌​‌​​​​‌​‌​‌​​‌‌​‌​​​‌​​‌​​‌​​​​​‍defect appeared from the complaint; otherwise, in his answer. Otherwise, he will be deemed to have waived such objection. The Code, §239, par. 4, §§241, 242; Usry v. Suit, 91 N. C., 406; Lunn v. Shermer, 93 N. C., 164; Leak v. Covington, 99 N. C., 559; Mining Co. v. Smelting Co., 99 N. C., 445. The defendant did not demur upon thе ground that the mortgagee was a necessary party, nor did it so insist in the answer. But if it had done so, such objection, as we have seen, -would not necessarily have availеd anything.

When the action is for the recovery of real or personal property, a person not a party to it, who has an interest in the subject-matter of the аction, may, upon his application, be made a party by proper amendment. ‍​​​‌‌‌‌‌​‌‌‌‌‌​‌​‌​​​​‌​‌​‌​​‌‌​‌​​​‌​​‌​​‌​​​​​‍The mortgagee here did not ask to be made a parly. The Code, § 1S9.

*118 On the argument the defendant’s counsel cited and relied upon Hinson v. Adrian, 86 N. C., 61. But that case does not decide that subsequеnt incumbrancers are necessary essential parties to actions to enfоrce prior incumbrances, and must, therefore, be made such. It simply decides that subsequent, indeed, all incumbrancers, should be made parties, with a view to completе administration of their rights, respectively, in their just order. It applies a rule of equity practice very convenient and wholesome, that ought, generally, to be observed. The Court may allow a motion to bring in such parties — it might, ex mero molu, direct and require them to be brought in, where it could see from the ‍​​​‌‌‌‌‌​‌‌‌‌‌​‌​‌​​​​‌​‌​‌​​‌‌​‌​​​‌​​‌​​‌​​​​​‍record that there were interested incumbrancers, nоt before it. Southall v. Shields, 81 N. C., 28, recognizes the same rule of practice. In that case, however, the rights of the feme plaintiff depended, in some measure, upon the rights of the parties which the Court directed to be brought in.

The cases just cited do not imply that a senior inсum-brancer cannot have his rights enforced by action, in the absence of the junior incumbrancer. There is no imperative reason why he cannot, and while, ordinarily, the latter might apply, or the Court might, ‍​​​‌‌‌‌‌​‌‌‌‌‌​‌​‌​​​​‌​‌​‌​​‌‌​‌​​​‌​​‌​​‌​​​​​‍for proper considerations appeаring, direct that he be brought in, it ought not, would not, unless because of very weighty considerations, delay the action, after the case had been heard and was ready for the final judgment to be given, to bring him in.

In this ease, the subsequent incumbrancer did not ask, nor did the Court deem it necessary, that he be brought into the action, nor did the defendant move that he be, until the Court had settled the facts, and was about to proceed to judgment, and there was no serious consideration assigned why he should be. The Court properly declined to grant the motion. Judgment affirmed.