Wandle v. Turney — 12 N.Y. Super. Ct. 661

Majority

p. 661

Wandle v. Turney & Coman.

Headnote

When a vendor of real estate conveys it by a full covenant warranty deed, and a prior outstanding mortgage, unsatisfied of record, is discovered, which the holder of it declares to be valid, and that money is due upon it, and the grantor insists nothing is due or owing upon it, the grantee may bring an action to have it satisfied of record on paying what may be found due. He may make his grantor a defendant, so, that a complete determination of the controversy may be had in one action. To that end, he is not only a proper but a necessary party. Such a complaint does not improperly unite several causes of action.

At Special Term,

April 26, 1856.

This action comes before the court on a demurrer by Turney to the complaint, assigning the grounds that several causes of action are improperly united, and that it does not state enough to constitute a cause of action as against him. The complaint shows that Wandle bought real estate of Coman, which the latter conveyed to the- former by a full covenant warranty deed. The discovery of a prior mortgage recorded, which Turney owns as assignee of it, and oh which he claims some $1,400 to be due, while Coman insists that nothing is due upon it, and that the plaintiff is ignorant of the truth of the matter. He brings this action against Coman, his grantor, and Turney, the owner of the mortgage, to ascertain whether any thing, and if so, how much is due upon it, and to obtain a judgment that it be cancelled of record, on his paying the amount that may be found to be due, and a further judgment that, on his paying such amount, the grantor refund it to him. The mortgage, by its terms, has been due several years, and payment of principal or interest has not been recently de

p. 662

manded, but the holder refuses to cancel it, except upon being paid the balance which he alleges is due.

There is no misjoinder of several causes of actions. They all arise out of transactions connected with the same subject of action. (Code, § 167, sub. 1.)

The only point of controversy, viz., whether any thing is due upon the mortgage, affects one defendant as much as the other, and it is proper that both should be concluded, in relation to it, by one suit; the grantor has an interest in the controversy, adverse to the plaintiff, and is a necessary party to a complete settlement of the question involved in the controversy.

The mortgage is a cloud on the plaintiff’s title. If actually satisfied, it is his right to have it discharged of record. And though it may not have been fully paid, it is equally the right of the plaintiff, on paying any‘balance justly due, to have it can-celled of record. Any balance that may be due, if paid by the plaintiff, should be refunded by Coman.

Legal and equitable causes of action may be united, when they arise out of transactions connected with thesame subject of action, and affect all the parties to the action. (Code, § 167, subs. 1 and 7.) "Whether any thing, and, if so, how much, is due, affects both defendants, and one as much as the other.

Demurrer overruled, with liberty to answer in ten days, on payment of costs.