Johnson v. Golder — 31 N.Y. St. Rep. 410

Majority

p. 410

James M. Johnson and A. J. Piddian, App’lts, v. Emily Golder, Impl’d, Resp’t.

(City Court of Brooklyn, General Term,

Filed May 5, 1890.)

Headnote

Mobtgage-—Redemption—Pabties.

A mortgage on lands of plaintiff was foreclosed without making him a party. The purchaser at the sale gave a mortgage to respondent, who foreclosed it and the premises were sold thereunder to one 0. Held, that respondent having thus parted with all interest in the property was not a. proper party to an action to redeem, and is not made so by an allegation that she is collecting the rents, in the absence of any claim to be a mortgagee in possession.

(Clement, Oh. J., dissents.)

p. 411

Appeal from judgment sustaining the demurrer of Emily Goldpr and dismissing the complaint as to her.

Ira Leo Bamberger, for app’lts; 8. F. & F. H. Cowdrey, forresp’t.

This is an action brought by present owners of the equity of redemption to redeem mortgaged premises, upon payment of whatever may be found due after applying thereto all rents received by the mortgagee in possession upon a certain mortgage made by one Ponían, a prior owner. This mortgage was a subsisting lien upon the premises at the time plaintiff Johnson became the owner thereof. Plaintiff Piddian is the assignee of Johnson of an undivided three fourth (f) interest of this cause of action.

Defendant, Emily Golder, respondent, demurred to the complaint on two grounds, viz.:

1. That two causes of action are improperly united.

2. That complaint does not state facts sufficient to constitute a cause of action against her.

The special term sustained the same on the second ground, and judgment was thereupon entered, dismissing the complaint as to Emily Golder, with costs. From this, plaintiffs have appealed. The complaint, when stripped of the details incident to an equity pleading, shows that Johnson became the owner in fee simple of the premises, subject to this Ponían mortgage. While he was such owner, defendant PL W. Bates the assignée of that mortgage, foreclosed the same in the supreme court, but failed to make Johnson (the owner of the equity of redemption) a party to that action. At the foreclosure sale, defendant Louise E. Bates, was the purchaser and grantee thereof. Thereafter Louise E. Bates mortgaged the same premises to Golder. Thereafter Golder foreclosed her mortgage in the supreme court, and at the sale defendant Cowdrey became the purchaser and grantee thereof. This last foreclosure and sale certainly divested Golder of all interest of whatever kind which she ever had, or might have had, or could have claimed in, to or upon the premises by virtue of the mortgage made to her by, Louise E. Bates. She then parted absolutely and irrevocably with her only, claim to the mortgage or premises.

Assuming that Cowdrey is a mortgagee in possession by the devolution upon him of the original rights of H. W. Bates in the Ponían mortgage through the foregoing chain of circumstances, and that he consented to the redemption by Johnson of the premises from the Ponían mortgage upon the payment of the sum ascertained to be actually "due, would it affect any right of Golder, or could she with the least semblance of right object to it? No, for she has parted • with every shadow of interest, and Cowdrey has become possessed of every claim she ever had. Suppose Cowdrey should, by mutual agreement, convey to plaintiffs all his right, title and interest in these premises; would it in any way affect, injure or benefit Golder? No judgment can be granted in this action in respect to these premises which will affect in the least degree defendant Golder, for she has absolutely no interest in the premises.

p. 412

But, say the plaintiffs, if the foregoing facts do not constitute a cause of action against Golder, then the allegation in 19th subdivision of the complaint will do so. The allegation “ that defendants, H. W. Bates, Louise E. Bates, Emily Golder and S. F. Cowdrey, have, and are collecting the rents,” does not help the plaintiffs in their contention, for it has, according to the allegations of the complaint, no connection, so far as Golder is concerned, with an action to redeem mortgaged premises. Plaintiffs do not allege that Golder ever had possession or the right of possession, or ever claimed any right of possession, or ever was, or ever claimed to be a mortgagee in possession. Under such circumstances either a trespass upon the premises, or an interference with the rents by Golder without any alleged right or claim of right to do so as an owner, or as a mortgagee in possession, does not make her a proper party to an action to redeem mortgaged premises. For either of such wrongs there is a remedy in an action against her by the party injured, if the facts to sustain a cause of action for either of such wrongs are pleaded, but no such cause of action is set forth in the complaint herein.

“ There is no rule in equity or law which authorizes the bringing in of parties who have no inherent right to defend the action brought.” Spring v. Short, 90 N. Y., 546

Judgment affirmed, with costs.

Clement, Ch. J., dissents.