27 N.J. Eq. 93 | New York Court of Chancery | 1876
The bill in this cause was filed for foreclosure and sale of premises in Burlington county,, mortgaged to the complainant’s assignor by Phjneas Kirkbride. The mortgage is, by its terms, in fee. The premises are said in the bill to be the same which were conveyed to the mortgagor by Robert "W. Kirkbride and his wife. Besides the complainant’s mortgage there are other subsequent encumbrances (mortgages and judgments) on the property. The prayer for relief is in the usual form. The parties defendant to the bill are the mortgagor and the holders of encumbrances subsequent to that of the complainant. The petitioners are children of Robert W. Kirkbride. They apply to be made parties defendant, on the ground that they have an interest in the mortgaged premises. They allege that, as to part of the property, Robert W. Kirk-bride, their father, never had more- than a life estate therein, and that they have, and, prior to the making of the complainant’s mortgage, had,, and ever since have had,, and still have, a vested remainder in fee therein; and that, as to the rest, they have had for the same time, and still have, a contingent remainder in fee- therein-.' It appears that the premises were the property of their grandfather, the father of Robert W. Kirkbride, and that by the will of the former, part of the property was devised to their father for life, with remainder-in fee to them, and the rest to Pirineas Kirkbride, who is their brother, with a contingent remainder in fee to them; and and that their father and brother ignored the will, (which, though lodged in the surrogate’s office soon after the death of the testator, was not proved until after the commencement of this suit,) and, the former claiming the mortgaged premises by descent, conveyed them to Phineas by his deed in fee. The petitioners seek to be made parties for the purpose of' ■ setting up and-litigating their title to the remainders above-mentioned, as against the encumbrances mentioned in the bill. It is not necessary for their protection that they should be-admitted. As the case stands, no right of theirs can be affected by the decree. Nor would they be proper parties. “ So far-
The petition will be dismissed, with costs.