As before stated, the most usual method of foreclosure is by a proceeding in equity. In such an action the rights of all parties in the mortgaged premises are to be determined. Therefore all persons interested in the mortgage debt should join as plaintiffs.506 However, a mortgagee who has assigned all his interest is not a proper party plaintiff,507 unless the assignment was only for secur501 Smith v. Packard, 19 N. H. 575. And see Ray v. Scripture (N. H.) 29 Atl. 454.
502 2 Jones, Mortg. (5th Ed.) § 1276. In Rhode Island possession is obtained by an action of ejectment Id. § 1279.
503 Somes v. Skinner, 16 Mass. 348; Wheelwright v. Freeman, 12 Mete. (Mass.) 154; Young v. Miller, 6 Gray (Mass.) 152; Johnson v. Brown, 31 N. H. 405.
504 Straw v. Greene, 14 Allen (Mass.) 206; Hunt v. Hunt, 17 Pick. (Mass.) 118.
505 2 Jones, Mortg. (5th Ed.) § 1306. Except in New Hampshire, where it is one year.
506 Mangels v. Brewing Co., 53 Fed. 513; Pogue v. Clark, 25 I11 351; Shirkey v. Hanna, 3 Blackf. (Ind.) 403.
507 Cutler v. Clementson, 67 Fed. 409; Whitney v. Mckinney, 2 Johns. Ch. (N. Y.) 144; Mcguffey v. Finley, 20 Ohio, 474; Garrett v. Puckett, 15 Ind. 485. But see Saenger v. Nightingale, 48 Fed. 708.
508 An assignee of the mortgage, to whom the bond or note se-sured thereby has not been transferred, cannot foreclose the mortgage.509 But, in states where an assignment of the note carries the mortgage with it, an assignee of the note without the mortgage may bring foreclosure without joining the mortgagee with him.510 When several notes are secured by the same mortgage, the holder of one note can file a bill to foreclose, making the holders of the other notes defendants.511 A trustee may foreclose in his own name without joining the beneficiaries, when their number is very large.512 But a beneficiary who seeks to foreclose must always join his trustee.513 On the death of the mortgagee, his personal representative is the proper party to bring foreclosure.514 Mortgages given to persons in their official capacity may be foreclosed by their successors in office.515
Same - Parties Defendant.
Of parties defendant there are two kinds,-necessary and proper parties.516 But the distinction is not of much importance, because all who are proper parties should be joined as defendants, in order that .all rights of redemption may be cut off.517 In general, all parties may be joined who have any interest in the mortgaged premises. And, when such persons are not joined, they may redeem from the mortgage.518 A trustee in a deed of trust is a necessary party, since he holds the legal title.519 But, when the beneficiaries under a trust deed are very numerous, it is not necessary to make them defendants.520 The holder of an equitable estate or lien should be made a defendant.521 The mortgagor, while holding the equity of redemption, is a necessary party.522 And so he must be joined whenever a personal judgment is sought against him.523 But when no personal judgment against the mortgagor is asked, and he has no interest in the mortgaged premises, he is not a proper party.524 An assignee of the equity of redemption is a necessary party,525 but, if he has transferred the equity, he cannot be joined.526 A purchaser pendente lite need not be made a defendant.527 The heirs or devisees of the owner of an equity of redemption, who has died seised, must be made defendants;528 and so must legatees whose legacies are charges on the mortgaged premises.529 The wife of the mortgagor must be made a defendant, to cut off her dower; 530 but, when she did not join in the mortgage, she is not a proper party, unless some defense as to her dower has arisen subsequently to the mortgage.531 But the wife must be joined where the mortgage is on the homestead,532 unless it be for purchase money.533 Subsequent mortgagees are proper, though not necessary, parties, since they may redeem.534 And so a subsequent mortgagee who has assigned his mortgage for security is a proper party.535 Where an assignment of the mortgage note carries the mortgage with it, the assignee of the note may be made defendant.536 On the death of a junior mortgagee, his personal representative is the proper party to make defendant.537 Judgment creditors having a lien are proper parties, because they may redeem if not joined,538 but a general creditor without any lien cannot be joined.539 Prior mortgagees need not be made defendants, though they may be.540 Ad528 Stark t. Brown, 12 Wis. 638; Abbott v. Godfroy, 1 Mich. 178; Richards v. Thompson, 43 Kan. 209, 23 Pac. 106; Hill v. Townley, 45 Minn. 167, 47 N. W. 653. But see Wood v. Morehouse, 1 Lans. (N. Y.) 405.
508 Kittle v. Van Dyck, 1 Sandf. Ch. (N. Y.) 76; Cerf v. Ashley, 68 Cal. 419,. 9 Pac. 658. Or where he has guarantied payment. Burnett v. Hoffman.. 40 Neb. 569, 58 N. W. 1134.
509 Cooper v. Newland, 17 Abb. Prac. (N. Y.) 342; Merritt v. Bartholick, 47 Barb. (N. Y.) 253.
510 Briggs v. Hannowald, 35 Mich. 474; Gower v. Howe, 20 Ind. 396; Swett v. Stark, 31 Fed. 858.
511 Pettibone v. Edwards, 15 Wis. 95; Myers v. Wright, 33 111. 284; Godall v. Mopley, 45 Ind. 355. That the holders of the notes cannot be joined as plaintiffs, see Swenson v. Plow Co., 14 Kan. 387. Contra, Pogue v. Clark, 25 111. 351. Joint mortgagees may join, though the debts secured are several. Shirkey v. Hanna, 3 Blackf. (Ind.) 403.
512 Chicago & G. W. Railroad Land Co. v. Peck, 112 111. 408; Lambertville Nat. Bank v. Mccready Bag & Paper Co. (N. J. Ch.) 15 Atl. 388.
513 Martin v. Mcreynolds, 6 Mich. 70; Hambrick v. Russell, 86 Ala. 199, 5 South. 298. But see Ettlinger v. Carpet Co., 142 N. Y. 189, 36 N. E. 1055.
514 Dayton v. Dayton, 7 111. App. 136.
515 Iglehart v. Bierce, 36 111. 133.
516 see Tyler v. Hamilton, 62 Fed. 187; Galford v. Glllett, 55 111. App. 576; Pettingill v. Hubbell (N. J. Ch.) 32 Atl 76; London, Paris & American Bank v. Smith, 101 Cal 415, 35 Pac. 1027.
517 2 Jones, Mortg. (5th Ed.) § 1394.
518 chase v. Abbott, 20 Iowa, 154; Gaines y. Walker, 16 Ind. 361; Bradley v. Snyder, 14 111. 263; Brainard v. Cooper, 10 N. Y. 356; Kennedy v. Moore (Iowa) 58 N. W. 1066; Hunt v. Nolen, 40 S. C. 284, 18 S. E. 798. But see Eschmann v. Alt, 4 Misc. Rep. 305, 24 N. Y. Supp. 763.
519 Gardner v. Brown, 21 Wall. 36.
520 Van Vechten v. Terry, 2 Johns. Ch. (N. Y.) 197; Willis v. Henderson, 0 111. 13.
521 Noyes v. Hall, 97 U. S. 34; De Ruyter v. St. Peter's Church, 2 Barb. Ch. (N. Y.) 555. As to joining as defendants persons entitled in remainder or reversion, see Nodine v. Greenfield, 7 Paige (N. Y.) 544; Eagle Fire Ins. Co. v. Cammet, 2 Edw. Ch. (N. Y.) 127; 2 Jones, Mortg. (5th Ed.) § 1401.
522 Kay v. Whitaker, 44 N. Y. 565; Michigan Ins. Co. of Detroit v. Brown, 11 Mich. 265; Moore v. Starks, 1 Ohio St. 369.
523 Miller v. Thompson, 34 Mich. 10; Jones v. Lapham, 15 Kan. 540; Stevens v. Campbell, 21 Ind. 471.
524 Swift v. Edson, 5 Conn. 532; Craig v. Miller, 41 S. C. 37, 19 S. E. 192; Baker v. Collins, 4 Tex. Civ. App. 520, 23 S. W. 493.
525 Watson v. Spence, 20 Wend. (N. Y.) 260; Cord v. Hirsch, 17 Wis. 415; Travellers' Ins. Co. v. Patten, 98 Ind. 209; Clark v. Gregory, 87 Tex. 189, 27 S. W. 56. But not when the deed is not recorded. Connely v. Rue, 148 111 207, 35 N. E. 824; Oakford v. Robinson, 48 111. App. 270; Hatfield v. Malcolm, 71 Hun, 51, 24 N. Y. Supp. 596.
526 Lockwood v. Benedict, 3 Edw. Ch. (N. Y.) 472; Scarry v. Eldridge, 63 Ind. 44.
527 stout v. Lye, 103 U. S. 66; Mcpherson v. House!, 13 N. J. Eq. 299.
529 Mcgown v. Yerks, 6 Johns. Ch. (N. Y.) 450.
530 Foster v. Hickox, 38 Wis. 408; Wright v. Langley, 36 111. 381; Mills v. Van Voorhies, 20 N. Y. 412; Gibson v. Crehore, 5 Pick. (Mass.) 146. And see Moomey v. Maas, 22 Iowa, 380.
531 Barr v. Vanalstine, 120 Ind. 590, 22 N. E. 965.
532 Sargent v. Wilson, 5 Cal. 504.
533 Amphlett v. Hibbard, 29 Mich. 298.
534 Kenyon v. Shreck. 52 111. 382; Gower v. Winchester, 33 Iowa, 303; Pat-tison v. Shaw, 6 Ind. 377; Jewett v. Tomlinson, 137 Ind. 326, 36 N. B. 1106; Williams v. Kerr, 113 N. C. 306, 18 S. E. 501. And see Rose v. Chandler, 50 111. App. 421.
535 b Dalton v. Smith, 86 N. Y. 176; Bard v. Poole, 12 N. Y. 495.
536 Burton v. Baxter, 7 Blackf. (Ind.) 297.
537 Citizens' Nat Bank v. Dayton, 116 111. 257, 4 N. E. 492; Lockman t. Reilly, 95 N. Y. 64.
538 Brainard v. Cooper, 10 N. Y. 356; Com. v. Robinson (Ky.) 29 S. W. 306.
539 Gardner v. Lansing, 28 Hun (N. Y.) 413; Sumner r. Skinner, 80 Hun, 201, 30 N. Y. Supp. 4.
540 Jerome v. Mcoarter, 04 U. S. 734; Strobe v. Downer, 13 Wis. 11; Frost verse claimants of the mortgaged land cannot be made parties, because their claims to title cannot be litigated in the foreclosure suit.541
Same - Strict Foreclosure and Decree of Sale.
In a few states the original form of decree in foreclosure is still used; that is, unless the mortgagor redeems within a limited time after the decree, the estate becomes absolute in the mortgagee.542 The time allowed for such redemption is within the discretion of the court.543
But in most states, instead of a strict foreclosure, a sale of the mortgaged land is decreed,545 and the amount due the mortgagee is paid him, while any surplus is applied for the benefit of the mortgagor, in paying off other incumbrances according to their priority.546 Such a sale is made by an officer of the court, and the manner of conducting it is prescribed by statute.547 However, before such a sale becomes effective, it must be confirmed by the court.548