This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The mortgagee, if he has not assigned his rights, is the proper party plaintiff in a foreclosure suit. An assignee of the mortgage debt, with or without an express assignment of the mortgage, may foreclose, and is the proper person to do so, since he is the person interested in realizing on the security;28
Y.St. 579; Yarborough v. Hughes, 139 N. C. 199, 51 S. E. 904; First Tex. Civ. App. 476, 79 S. W. 53; Nat. Bank of El Paso v. Moor, 34 Orme v. Wright, 3 Jur. 19, and one to whom the mortgage and the debt are as signed merely as collateral security may foreclose,29 as may his assignor, since the latter is still interested in the mortgage debt.30 One who is entitled to but part of the mortgage debt, as being the assignee of one of the notes secured, or otherwise,31 and likewise a person who is subrogated to the rights of the mortgagee/ may foreclose.32
25. Ante, Sec. 646. '
26. The numerous cases to this effect are collected in an editorial note in 40 L. R. A. (N. S.) 839.
27. Ante, Sec. 612.
28. Bendey v. Townsend, 109
U S. 665, 27 L. Ed. 1065; Center v. Planters' & Merchants' Bank, 22 Ala. 743; Adler v. Sargent. 109 Cal. 42, 41 Pac. 799; Austin v. Burbank, 2 Day (Conn.) 474, 2 Am. Dec. 119; Carper v. Mun-ger, 62 Ind. 481; Holmes v. French, 70 Me. 341; Mooreland v. Houghton, 94 Mich. 548, 54 N. W. 285; Merritt v. Bartholick, 36 N. Y. 44; Smith v. Commercial Nat. Bank, 7 S. D. 465, 64 N. W.
One who has assigned the mortgage debt absolutely cannot institute a foreclosure suit, since he is no longer a party in interest ,33 nor can one to whom the mortgage alone is attempted to be assigned, without the debt.34
In cases in which all the persons interested in the mortgage debt do not join as plaintiffs in the institution of the proceeding, those not so joining must be made parties defendant, in order to cut off their interests, and pass a clear title to the purchaser at the mortgage sale.35 Accordingly, one who has assigned the mortgage as collateral security,36 or received such as assignment,37 and joint owners with the plaintiff of the mortgage debt, including owners of other notes secured thereby,38 must be made parties in order to cut off their rights against the land.
529; Castleman v. Berry, 86 Va. 604, 10 S. E. 884.
29. Hunter v. Levari, 11 Cal. 11; Moore v. Boise Land & Orchard Co., 31 Idaho, 390, 173 Pac. 117; Chicago v. G. W. Railroad Land Co. v. Peck, 112 111. 408, 439; Brown v. Tyler, 8 Gray (Mass.) 135; McKinney v. Miller, 19 Mich. 142; Bard v. Poole, 12 N. Y. 495. See Chew v. Bru-magen, 13 Wall. (U. S.) 497, 20 L Ed. 663.
30. Consolidated Nat. Bank of San Diego v. Hayes, 112 Cal. 75, 44 Pac. 469; Hopson v. Aetna Axle & Spring Co., 50 Conn. 597; Benjamin v. Peterson Heat, Light & Power Co., 170 Iowa, 461, 153 X. W. 71; Norton v. Warner, 3 Edw. Ch. (N. Y.) 106; Wells v. Wells, 53 Vt. l.
31. Sanford v. Bulkley, 30 Conn. 344; Berry v. Van Hise, - Ga. -, 95 S. E. 690; Goodall v. Mop-ley. 45 Ind. 355; Utz v. Utz, 34 La. Ann. 752; First State Bank of Le Sueur v. Sibley County Bank, 93 Minn. 317, 101 N. W. 309; Pugh v. Holt, 27 Miss. 401; Studebaker Bros. Mfg. Co. v. Mc-Cargur, 20 Neb. 500, 30 N. W. 686.
32. Risk v. Hoffman, 69 Ind. 137; Wood v. Smith, 51 Iowa, 156, 50 N. W. 581; Shinn v. Shlnn 91 111. 477; Hamilton v. Dobbs, 19 N. J. Eq. 227; Burnett v. Hoffman, 40 Neb. 569, 58 N. W. 1134. See ante, Sec. 646.
33. Cutler v. Clementson (C. C.) 67 Fed. 409; Barraque v. Manuel, 7 Ark. 516; Call v. Leisner, 23 Me. 25; Pryor v. Wood, 31 Pa. St. 142. See McGuffey v. Fin-ley, 20 Ohio, 474; Gould v. Newman, 6 Mass. 239; Crabtree v. Levings, 53 111. 526.
34. Bulkley v. Chapman, 9 Conn. 5; Pope v. Jacobus, 10 Iowa, 263; Ellison v. Daniels, 11 N. H. 274; Merritt v. Bartholick, 36 N. Y. 44; 4 Kent's Comm. 194.
Personal representatives of mortgage claimant.
Upon the death of the owner of the mortgage debt, the title thereto, with the right to proceed by foreclosure, passes to his personal representatives, and not to his heirs, and consequently the former are the proper persons to foreclose,39 unless the debt has passed to another, either in course of distribution or otherwise.40
In the case of a mortgage debt owned jointly by more than one person, the doctrine of "survivorship" applies, and, on the death of one, the survivor or survivors may foreclose without making the representatives of the deceased owner parties to the suit.41
35. Mangels v. Donau Brewing Co. (C. C.) 53 Fed. 513; Pine v. Shannon, 30 N. J. Eq. 501; Goodall v. Mopley, 45 Ind. 355; Hopkins v. Ward, 12 B. Mon. (Ky.) 185.
36. Woodruff v. Depue. 14 N. J Eq. 168; Dalton v. Smith, 86 N. Y. 176.
37. Plowman v. Riddle, 14 Ala. 169; Simson v. Satterlee, 64 N. Y. 657.
38. Myers v. Wright, 33 111. 285; Goodall v. Mopley, 45 Ind. 255; Rankin v. Major, 9 Iowa, 297; Brown v. Bates. 55 Me. 520; Johnson v. Brown, 31 N. H. 405; Delespine v. Campbell, 45 Tex. 628; Pettibone v. Edwards, 15 Wis. 95.
39. Thornborough v. Baker, 3 Swanst. 628; Buck v. Fischer, 2 Colo. 182; Roath v. Smith, 5 Conn. 133; White v. Rittenmyer, 30 Iowa, 268; Felch v. Hooper, 20 Me. 163; Newton v. Stanley, 28 N. Y. 61; Griffin v. Lovell, 42 Miss. 402; Miller v. Donaldson 17 Ohio, 264; Douglass v. Durin. 51 Me. 121.
40. White v. Secor, 58 Iowa, 533, 12 N. W. 586; Walter v. Wala, 10 Neb. 123, 4 N. W. 938; Babbitt v. Bowen, 32 Vt. 437; Ford v. Smith, 60 Wis. 222, 18 N. W. 925.
41. Erwin v. Ferguson. 5 Ala 158; Williams v. Hilton, 35 Me 547, 58 Am. Dec. 729; Lannay v Wilson, 30 Md. 536; Blake v. Sa
Beneficiary under trust deed. In the case of a deed of trust to secure a debt, any beneficiary may institute a foreclosure proceeding, it has been held, if the trustee refuses to act,42 or if the trustee is disqualified by interest or otherwise properly to represent the beneficiaries.43 There are decisions apparently to the effect that a beneficiary may bring the suit even though the trustee has not refused to do so, and is not incapacitated,44 but this view is clearly repudiated in other decisions.45 An express stipulation that no individual bondholder shall proceed to foreclose unless the trustee refused so to do on the request of a certain percentage of the bondholders has been regarded as rendering necessary such a request and refusal as a condition to foreclosure by a bondholder.45a person instituting the foreclosure suit has the legal title to the land, this will pass under the sale in spite of the failure to make the owner of the equity of redemption, that is, of an estate in the land, a party to the proceeding,61 this is not so when the legal title is not in the mortgagee, and he has only a lien on the land. In such a case the legal title is in the mortgagor or his transferee, and he must be a party to the proceeding in order that his legal title may be divested, and pass to the purchaser.62