Wandle v. Turney

5 Duer 661

Opinion

Bosworth, J.

There is no misjoinder of several causes of actions. They all arise out of transactions connected with the same subject of action. (Code, § 167, sub. 1.)

The only point of controversy, viz., whether any thing is due upon the mortgage, affects one defendant as much as the other, and it is proper that both should be concluded, in relation to it, by one suit; the grantor has an interest in the controversy, adverse to the plaintiff, and is a necessary party to a complete settlement of the question involved in the controversy.

The mortgage is a cloud on the plaintiff’s title. If actually satisfied, it is his right to have it discharged of record. And though it may not have been fully paid, it is equally the right of the plaintiff, on paying any‘balance justly due, to have it can-celled of record. Any balance that may be due, if paid by the plaintiff, should be refunded by Coman.

Legal and equitable causes of action may be united, when they arise out of transactions connected with thesame subject of action, and affect all the parties to the action. (Code, § 167, subs. 1 and 7.) "Whether any thing, and, if so, how much, is due, affects both defendants, and one as much as the other.

Demurrer overruled, with liberty to answer in ten days, on payment of costs.