Majority
p. 557The Merchants’ Insurance Company v. Marvin and others. August 4th.
Headnote
Where the rights of the several defendants are truly stated in a bill of foreclosure, it is not necessary for them to appear and answer to protect their rights.In such a case, where the mortgagor paid the complainant’s debt and costs before any decree in the cause, the complainants were permitted to discontinue without paying the costs of junior incumbrancers who had unnecessarily appeared and answered.
The bill in this cause was filed to foreclose a mortgage given to the complainants. The mortgagor and some junior incumbrances were made defendants. Some of the junior incumbrancers appeared and answered; but before any decree was made in this cause, the mortgagor paid to the complainants the amount due them and costs. The junior incumbrancers who have answered how claim the
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right to have the suit continued to enable them to obtain their costs.
L. Hoyt for the complainants.
Wells & Bushnell for the junior incumbrancers.
The Chancellor :—If the junior incumbrancers had been subjected to any costs which were necessary to protect their rights, it would be proper that they should be paid before the suit was discontinued. From the facts stated in the case, I cannot see that it was necessary for them to put in any answer. They do not deny that their claims were truly stated in the bill. If so, suffering it to be taken as confessed would not have injured them, but would have saved expense to all parties. The bill must, therefore, be dismissed without prejudice to the future claims of the parties, and without costs.