Roberts v. Ismay

Headnote

Parties.—In an action of ejectment mortgagees cannot be made parties under § 452 Gode.

Appeal by plaintiff from an order making the respondent a party defendant.

The action was in ejectment and the sole defendant was one Baumgarten. The respondent held a mortgage upon the land affected by the action, made by defendant Baumgarten. The respondent made an application to the

court below that he be made a defendant on the ground that the defendant Baumgarten had colluded or would collude to allow the plaintiff to take judgment in the ejectment. The court granted the apphcation.

The court at General Term said “It is agreed that the judgment in ejectment could not affect the title as against the respondent. If he were made defendant, the plaintiff could make no claim against him which would affect the issue between the parties as they stood originally. Nor could the respondent make any defense which would prevent judgment as between the original parties, according to the defense the original defendant chose to make. Under section 452 of the Code of Civil Procedure the respondent had no interest in the subject of the.action,because the action or judgment in it would not impair any interest of respondent nor had the mortgagee any title to the property which the judgment could affect.”