Winterson v. Wilson — 40 N.Y.S. 961

Majority

p. 961

WINTERSON v. WILSON et al.

(Supreme Court, Appellate Division, First Department.

July 31, 1896.)

Headnote

Mortgages—Discharge.

A mortgage cannot be discharged of record by order, unless all the parties interested therein are made parties, so that the rights of all can be determined, and the lien of each transferred to the money which is substituted for the property.

Appeal from special term, New York county.

Action by Maria L. Winterson against Harriet D. T. Wilson and others, to determine the amount to be paid on a mortgage of $1,000, and to remove the same as a cloud on title. From an order directing the register to discharge the mortgage of record, defendant Wilson appeals. Reversed.

Argued before BARRETT, RUMSEY, PATTERSON, and IN-GRAHAM, JJ.

William A. Abbott, for appellant.

E. G. Bullard, for respondent.

There is no question that the court has jurisdiction in an action brought for the relief which is sought here. Whether it would he proper, in such case, under any circumstances, •to grant the relief which was given by this order, before final judgment in the action, it is not necessary to determine. Certainly, such relief cannot be granted by order, unless the parties interested in the mortgage are made parties to the action, so that the rights of everybody can be determined, and the lien of every party to the action lie transferred to the money which is substituted for the property upon which the mortgage was given. That was not the case here. Mrs. Bullard, whose right to a certain portion of this property is alleged in the complaint, is not made a party to this action; and for that reason, without discussing any other reasons, the mortgage should not have been canceled, and it was erroneous to grant the order, which must he reversed, with $10 costs and disbursements.