Bigelow v. Bush

Citations

• 6 Paige Ch. 343
• 1837 N.Y. LEXIS 208
• 1837 N.Y. Misc. LEXIS 57

Syllabus

<p>A mortgagor who is personally liable to the mortgagee for the payment of the debt secured by the mortgage, but who has parted with all his right and interest in the mortgaged premises, is a proper party but not a necessary party to a bill to foreclose the mortgage.</p> <p>Where the mortgagor has conveyad the equity of redemption absolutely and without warranty, the mortgaged premises are the primary fund for the payment of the mortgage debt; and the grantee has no right to object that the mortgagor is not made a party to the bill of foreclosure.</p> <p>But where the complainant makes a mere surety of the mortgagor, for the payment of the debt, a party to the bill of foreclosure, for the purpose of obtaining a decree against such surety or his property if the proceeds of the mortgaged premises are found to be insufficient to satisfy the debt and costs, such surety has a right to insist that the principal debtor shall be made a party to the suit, if he is within the jurisdiction of the court.</p> <p>The fact that the principal debtor is an absentee, and has assigned all his right and interest in the equity of redemption of the mortgaged premises, is a sufficient reason for not making him a party to the bill of foreclosure, even where bis surety is made a party for the purpose of obtaining a decree over against such surety for a deficiency.</p>