Hess v. Feldkamp

2 Disney (Ohio) 332

• Court: Ohio Superior Court, Cincinnati
• Decided: October 15, 1858
• Docket: No. 9,411
• Status: Published

Opinion

Spencer, J.

A prior mortgagee, who undertakes to fore-

close, is required to make junior mortgagees parties; and if he fails to do so, and the property is sold, the purchaser has,undoubtedly, a right to file a petition, and call on the junior mortgagee to pay up what is due, or else to be foreclosed. This is in harmony with proceedings in courts of equity. It is true that, had the facts been made known when the case was pending, the court would have stayed proceedings until the junior mortgagee could be brought in, for the protection of the mortgagor, as well as for the protection of other incumbrances. Where, by mistake or otherwise, parties have not been properly made, and the title has passed to a purchaser, that purchaser comes in with an independent equity, and may ask that the party should be required to come in within a reasonable time and redeem the property, or that he be forever foreclosed.

Demurrer overruled.