56. But, by the doctrine adopt ed in a number of states, if the

His estate, in other words, remains unaffected by a proceeding to which he is not a party. It is occasionally said that the owner of the equity of redemption is a necessary party to the foreclosure prboeeding, but this can only mean, it would seem, that if he is not a party, he is not affected by the decree or the sale thereunder,57 and that the court will not knowingly decree a sale in the absence of such a party.58 The proceeding can not well be absolutely void, as to those who are made parties, by reason of the fact that one who has an estate in the land, even though in fee simple, is not a party thereto. In accordance with this view are occasional decisions that if the mortgagee had the legal title, such title passes on the sale, although the owner of the land was not a party,59 and so, it is conceived, a junior mortgagee, who is a party to a proceeding by a senior mortgagee, would, in spite of the omission to make the fee simple owner a party, lose his right to redeem from the prior mortgage, as well as the right to foreclose his own mortgage, his rights in these respects passing by subrogation to the purchaser at the sale under the decree.60 But although, if the purchaser takes possession by force of the invalid sale, he cannot be dispossessed unless the mortgage debt is paid. See ante, 613(c).

57. See Ohling v. Luitjens, 32 111. 23; Douglas v. Bishop, 27 Iowa, 214; Harsh v. Griffin, 72 Iowa, 608, 34 N. W. 441; Bull v. Campbell, 225 Fed. 923, 141 C. C. A. 47.

58. Woodward v. Brown, 119 Cal. 283, 63 Am. St. Rep. 108, 51 Pac. 2, 542; Hall v. Higgins 19 Ala. 200; Kunkel v. Markell, 26 Md. 390; Frank.in v. Beegle, 102 N Y. App. Div. 412, 92 N. Y. Supp. 449; Brandon v. Vroman,

29 N. Y. App. Div. 597. 51 N. Y Supp. 943; Reed v. Marble, 10 Paige (N. Y.) 409; Carpenter v. Ingalls. 3 S. D. 49. 44 Am. St. Rep. 753, 51 N. W. 948 (semble); Hawkenson v. Rostad, 86 Ore. 704, 169 Pac. 350.

59. Kelgour v. Wood, 64 111. 345; Taylor v. Adams. 115 111. 570, 4 N. E. 837; Frische v. Kramer, 16 Ohio, 125; Childs v. Childs, 10 Ohio St. 339, 75 Am. Dec. 528; Stark v. Brown, 12 Wis. 572, 78 Am. Dec. 762. These cases criticize Watson v. Spence, 20 Wend. (N. V.) 260, which is apparently contra.

60. Ante, Sec. 646.

As to the particular classes of persons having interests in the land who should or should not be made parties, the following statements may be made.

The mortgagor need not be made a party if he has transferred all his interest, unless it is desired to obtain a personal judgment against him.63

On the death of an owner of the mortgaged land, his heirs should be made parties64 or, in case the

61. Ante, note 59.

62. Skinner v. Buck, 29 Cal. 253; Berlaek v. Halle, 22 Fla. 236, 1 Am. St. Rep. 185; Landon v. Townshend, 112 N. Y. 93, 8 Am. St. Rep. 712, 19 N. E. 424; Richards v. Thompson, 43 Kan. 209, 23 Pac. 106; South Carolina Mfg. Co. v. Price, 4 Rich. (S. C.) 338; Ballard v. Carter, 71 Tex. 161, 9 S. W. 92.

63. Boutwell v. Steiner, 84 Ala. 307, 5 Am. St. Rep. 375, 4 So. 184; Hinson v. Gammon, 61 Fla. 641, Ann. Cas. 1913A, 83, 54 So. 374: Brockway v. McClun, 243 111. 196, 90 N. E. 374; Davis v. Hardy, 76 Ind. 272; Fitzgerald v. Flanagan, 155 Iowa, 217, Ann. Cas. 1914C, 1104, 135 N. W. 738; Miller v. Thompson, 34 Mich. 10; Mun-ger v. T. J. Beard & Bros., 87 Neb. 527, 127 N. W. 872; Andrews v.

Stelle, 22 N. J. Eq. 478; Bigelow v. Bush, 6 Paige (N. Y.) 343; Carpenter v. Ingalls, 3 S. D. 49, 44 Am. St. Rep. 753, 51 N. W. 948; Buchanan v. Munroe, 22 Tex. 537; James v. Brainard- Jackson & Co., 64 Wash. 175, 116 Pac. 633. 64. Hunt v. Acre, 28 Ala. 580; Kiernan v. Blackwell, 27 Ark. 235; Lane v. Erskine, 13 111. 501; Reedy v. Camfield, 159 111. 254, 42 N. E. 833; White v. Ritten-meyer, 30 Iowa, 286; Richards v. Thompson, 43 Kan. 209, 23 Pae. 106; Abbott v. Godfroy 's Heirs, 1 Mich. 178; Isler v. Koonce, 83 N. C. 55; Renshaw v. Taylor, 9 Ore. 315; Anrud v. Scandinavian-American Bank, 27 Wash. 16, 67 Pac. 364; Stark v. Brown, 12 Wis. 572, 78 Am. Dec. 762. Occasionally the statute provides for the making of the personal representative a mortgaged land is devised, his devisees.65

The wife of the mortgagor or of a subsequent purchaser of the property, if entitled to dower, should be made a party if her right of dower is subordinate to the mortgage, as where she joined therein;66 and the wife's right of redemption by reason of her right of homestead cannot generally be foreclosed unless she is a party to the foreclosure proceeding.67

One having a beneficial interest in the land subject to the mortgage should be made a party, in order to extinguish her right of redemption, although the person having the legal title is also a party.68

One to whom the owner of land, after having mortgaged the land, makes a lease for years, should be a party to a proceeding to foreclose, and if not a party his rights should, it seems, not be affected by the decree.69 Conceding that he has a right of redempparty rather than the heir. See e. g., Tierney v. Spiva, 97 Mo. 98, 10 S. W. 433; Kelsey v. Welch, 8 S. Dak. 255.

65. Chew v. Hyman, 7 Fed. 7; Chadbourn v. Johnston, 119 N. C. 282, 25 S. E. 705.

66. Leonard v. Villars' Adm'r, 23 111. 377; Bigoness v. Hibbard, 267 111. 301, 108 N. E. 294; Swan v. Wiswall, 15 Pick. (Mass.) 126; Byrne v. Taylor, 46 Miss. 95; McArthur v. Franklin, 15 Ohio St. 485, 16 Ohio St. 193; Franklin v. Beegle, 102 N. Y. App.

Div. 412, 92 N. Y. Supp. 449. See Merchants Bank v. Thompson, 55 .N. Y. 7, and ante Sec. 222.

67. Hefner v. Urton, 71 Cal. 479, 12 Pac. 486; Revalk v. Krae-mer, 8 Cal. 66, 68 Am. Dec. 304; Morris v. Ward, 5 Kan. 246; Larson v. Reynolds, 13 Iowa, 584. See Townsend Sav. Bank of New Haven v. Epping, 3 Woods, 390, closed are not necessary parties to the proceeding to foreclose, the object of the proceeding being to extinguish the rights of those whose interests arc subject to the mortgage.81 It is, however, a very usual practice to make such a senior mortgagee a party, in order to obtain a sale of the property free from sucn mortgage, such senior claim to be first paid from the proceeds of sale.82 Or he may be made a party merely to obtain an adjudication as to the amount of his lien, in order that the purchaser may be advised of what he is purchasing.83 And one claiming a prior lien may, in some jurisdictions, be made a party merely to determine the question of priority.84 When the purpose! of making him a party is to obtain a sale free from his lien, the proceeding, as regards him, bears somewhat the aspect of a bill to redeem.85 In case his claim is not yet due, a sale can be made free from his lien