Lockwood v. Benedict

3 Edw. Ch. 472

• Court: New York Court of Chancery
• Decided: January 6, 1841
• Status: Published

Opinion

The Vice-Chancellor :

In Bristol v. Morgan and others, decided by me in January, one • thousand eight hundred and thirty-eight, it was held that the mortgagee who had assigned to the complainants under a personal covenant to guarantee the payment of the debt or of any deficiency was a proper party to the bill for the purpose of discovery and of taking the account of the amount due on the mortgage guaranteed, even if he were not within the statute so as to have a decree over against him personally in that suit fora deficiency; and I, accordingly, overruled his demurrer.

But that is not this case. Here, the defendant Duncombe, who bought the premises subject to the mortgage and assumed it as a part of the purchase money, came under no personal obligation to the mortgagor for the debt. The contract was only between the purchaser Duncombe and the mortgagor as bis vendor; and the latter only can sue upon it or, if he assigns it as a chose in action, the assignee may prosecute the demand at law. But, in the foreclosure suit, the court has nothing to do with the purchaser’s agreement. It does' not belong to.the holder of the mortgage except by an express assignment, as a chose inaction which the mortgagor is at liberty to make; and if Duncombe, as the former purchaser, is called upon and is obliged to pay, he may have his action over against his immediate vendee, Mitchell, for the purchase money which he agreed to pay. Mitchell, as owner of the equity of redemption, and Benedict, the mortgagor, are both necessary parties to the suit; but Duncombe, having no longer any interest in the mortgaged premises and no personal liability resting upon him which can be enforced in this suit by the holder of the present mortgage, is unnecessarily made a party.

I, therefore, think the demurrer is well taken and must he apowe¿ . anci tbe bill, as to the defendant Duncombe, be dismissed with costs.