Noyes v. Barnet

57 N.H. 605, 1876 N.H. LEXIS 133

Opinion

Cushing, C. J.

According to Page v. Pierce, 26 N. H. 317, and Johnson v. Brown, 31 N. H. 405, there seems to be no doubt that in a case like this all the parties interested as mortgagees may join ; and the intimation is very strong, as I understand those cases, that they must join.

According to the doctrine of those cases, the mortgaged land is all held as security for all the debts. If a holder of part of the debts foreclose the mortgage, he must foreclose it on the whole land; and if he do it in his own name, he must hold as trustee for the owners of the remaining indebtedness. I can see no reason why this should be permitted, or why all the parties in interest should not be represented in the adjustment. The mortgagor’s interest and safety also require this to be done. It seems to me, therefore, that the parties interested as mortgagees not all being plaintiffs in this suit, the verdict should be set aside, and judgment of nonsuit against the plaintiff, unless he can, by amendment, bring in th(e other parties.

Ladd and Smith, JJ., concurred.

Exception sustained.