Bristol v. Morgan
New York Court of Chancery
Bill of foreclosure on a mortgage made by the defendant Morgan to the defendant Horatio Wilkes. The latter had assigned this mortgage to the complainant; and entered into covenant (in the assignment) that the amount of the consideration, eight thousand one hundred dollars, was due and owing upon the bond and mortgage, the payment whereof, with interest, he guaranteed to the complainant. General demurrer interposed by the defendant Horatio Wilkes.
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Bill of foreclosure on a mortgage made by the defendant Morgan to the defendant Horatio Wilkes. The latter had assigned this mortgage to the complainant; and entered into covenant (in the assignment) that the amount of the consideration, eight thousand one hundred dollars, was due and owing upon the bond and mortgage, the payment whereof, with interest, he guaranteed to the complainant. General demurrer interposed by the defendant Horatio Wilkes. The question upon it was : whether Wilkes was a necessary or proper party 1
1Opinion of the Court
The Vice-Chancellor :
Where a mortgagee parts with all his interest, by an absolute assignment and has no connection, afterwards, with the mortgaged premises, it cannot, in general, be necessary for the assignee to make him a party to a bill of foreclosure : Whitney v. M'Kinney, 7 J. C. R. 144.
Still, special circumstances may render it proper to bring him before the court; and such circumstances exist here. His covenant, that a certain sum is due, makes it proper he should be present at the taking of the account of principal and interest due on the mortgage, so that, if his covenant shall…
2Cited by4 opinions
- Tedder v. SteeleSupreme Court of Alabama · 1881
- Averyt Drug Co. v. Ely-Robertson-Barlow Drug Co.Supreme Court of Alabama · 1915
- Jones v. StienberghNew York Court of Chancery · 1845
- Jarman v. WiswallNew Jersey Court of Chancery · 1873