Hyperlawhypertext legal database Fifth Avenue Bank v. Cudlipp 1 A.D. 524

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Fifth Avenue Bank v. Cudlipp

1 A.D. 524 Court N.Y. App. Div. English

Delivered by Patterson, J.:

Contents

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p. 524
Fifth Avenue Bank of Brooklyn, Respondent, v. Joseph R. Cudlipp and Others, Defendants. J. Willhelmine Hollister and Blanche I. Cudlipp, Appellants.

Headnote

Mortgage foreclosure—persons claiming by title paramount are not necessai-y pa/rties.
'The necessary parties to an action in foreclosure are the mortgagor and the mortgagee, and those who have obtained rights or interest in the lands subsequent to the mortgage, but persons who make claims under a title paramount are not proper parties.
In an action brought to foreclose a mortgage two grandchildren of Joseph Oudlipp asked to intervene and be made parties, alleging that by the will of Joseph Oudlipp the premises in question were devised to his son, Joseph Oudlipp, Jr., for life, and upon his death to his children in fee; that Joseph Oudlipp, Jr., was still living and had three children, namely, the two persons who asked to be made parties, and Joseph R. Oudlipp, who gave, upon his interest in the premises, the mortgage in suit and thereafter died, whereupon the entire remainder passed to the persons seeking to be made parties to this action, who sought to set up such facts as a defense to the action.
Meld, that they were not necessary parties;
'That their claim, if any, was by a title paramount under the will of Joseph Oudlipp, their grandfather, and that they did not claim any rights under the mortgagor;
That the real purpose of their defense was to obtain a judicial construction of the will of their grandfather, and that this was not permissible under the circumstances.
Appeal by J". Willhelmine Hollister and another from an order ■of the Supreme Court, mads at the New York Special Term and ■entered in the office of the clerk of the county of New York on the 11th day of November, 1895, vacating an order entered in the action on July 31, 1895, granting the motion of J. Willhelmine Hollister and Blanche I. Oudlipp to be made parties defendant in the action,1 and denying such motion.
p. 525
WilUam W Wiles, Jr., for the appellants.
Oli/oer J. Wells and George E. Waldo, for the respondent.

This is an appeal from an order denying an application of the appellants to be made parties to a foreclosure action. The persons seeking to intervene are two of the grandchildren of Joseph Cudlipp, by whose will a certain house and lot in the city of New York was devised to his son, Joseph Cudlipp, Jr., for life, and on his death to his children in fee. Joseph Cudlipp, Jr., is still living. In February, 1894, he had three children, the two appellants and. Joseph R. Cudlipp. The latter mortgaged his interest in remainder to the plaintiff. The mortgage was in process of foreclosure by this suit when he died. The appellants, claiming that by his death the one-third interest referred to lapsed and that the whole remainder is now in them, ask to be made parties that they may set up their alleged rights against the mortgagee.

They are not necessary parties. If their claim of title is valid, it is a title paramount. They would not take from Joseph R. Cudlipp,. but under their grandfather’s will. Theirs would be a prior title, and, being such, is not to be adjudicated in this foreclosure action. They would not be cut off by decree. They seek, in effect, to have a judicial construction given in this action to the will of their grandfather. The necessary parties to a foreclosure suit are the mortgagor and mortgagee and those who have obtained rights or interests in the land subsequent to the mortgage (Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127 ; Eagle Fire Ins. Co. v. Lent, 6 Paige, 637; Frost v. Koon, 30 N. Y. 428 ), and asserted hostile rights prior to the mortgage are not to be settled, in foreclosure suits. (Nelson v. Brown, 144 N. Y. 384 .)

The order must be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Rumsey, Williams and O’Brien, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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