the decree. This is specially true if the complaint does not contain allegations setting forth her real rights in the property and asking to have them foreclosed; and even with such allegations in the complaint, it was held in one case that the judgment passing upon her rights and foreclosing them was erroneous and void.' A person claiming dower by title paramount to the mortgage can not be brought into court in a foreclosure and made to contest the validity of her dower. Whether she is made a party or not, her rights will remain unaffected by the action; the sale should be made subject to her dower. This rule also applies to persons holding an estate in remainder or reversion, where the life estate or the intermediate interests of the beneficiary have been mortgaged.' 192. Adverse claimants neither proper nor necessary defendants. It is now an established rule in practice that a foreclosure suit is not a proper action in which to litigate the rights of persons who claim title to mortgaged premises in hostility to the mortgagor. 1 Lewis v. Smith, 9 N. Y. 502, 514 (1854), affirming 11 Barb. (N. Y.) 153 (1851); Merchants' Bank v. Thomson, 55 N. Y. 7, 11 (1873); Lanier v. Smith, 37 Hun (N. Y.) 529 (1885). 2 Merchants' Bank v. Thomson, 55 N. Y. 7, 11 (1873); Payn v. Grant, 23 Hun (N. Y.) 134 (1880); Bradley v. Parkhurst, 20 Kan. 462 (1878); Lounsbury v. Catron, 8 Neb. 469 (1879); Shellenbarger v. Biser, 5 Neb. 195 (1876); Wicke v. Lake, 21 Wis. 410 (1867); Roche v. Knight, 21 Wis. 324 (1867). See Pool v. Horton, 45 Mich. 404 (1881). * Rathbone v. Hooney, 58 N. Y. 463, 467 (1874). See Standish v. Dow, 21 Iowa, 363 (1866), a case of trust. 4 Lewis v. Smith, 9 N. Y. 502, 514 (1854), affirming 11 Barb. (N. Y.) 153 (1851); Frost v. Koon, In New York it has been 30 N. Y. 428, 444 (1864); Cor- determined that where a party setting up such a claim is made a defendant to the foreclosure of a mortgage, the decree will be held erroneous and will be refused, if it passes upon his rights, though made after a hearing upon the pleadings and proofs.' The mortgagee has no right to make one, who claims adversely to the title of the mortgagor and prior to the mortgagee, a party defendant for the purpose of trying the validity of his adverse claim of title." The bill of foreclosure should be dismissed as to an adverse claimant, unless the plaintiff alleges in his complaint and is prepared to prove, that the facts upon which he relies arose subsequently to the execution of the mortgage.' Disputes involving the title to the mortgaged premises, arising out of circumstances ante-dating the execution of the mortgage, can not be litigated in a foreclosure, but must be tried by ejectment or other suitable action apart from the foreclosure;* but where the title was acquired at a tax sale subsequent to the mortgage, the purchaser was held a proper party. Mich. 125 (1873), citing New York cases; Comstock v. Comstock, 24 Mich. 39 (1871); Wurcherer v. Hewitt, 10 Mich. 453 (1862); Chamberlain v. Lyell, 3 Mich. 448 (1855); Banning v. Bradford, 21 Minn. 308 (1875); Newman v. Home Ins. Co., 20 Minn. 422 (1874); Bogey v. Shute, 4 Jones (N. C.) Eq. 174 (1858); Lyman v. Little, 15 Vt. 576 (1843); Lange v. Jones, 5 Leigh (Va.) 192 (1834); Peters v. Bowman, 98 U. S. (8 Otto), 56 (1878); bk. 25 L. ed. 91; Dial v. Reynolds, 96 U. S. (6 Otto), 340 (1877); bk. 24 L. ed. 644. See Chicago Theological Seminary v. Gage, 103 Ill. 175 (1882); Shellenbarger v. Biser, 5 Neb. 195 (1876); Coe v. N. J. Midland Ry., 31 N. J. Eq. (4 Stew.) 105 (1879). See the cases cited in the preceding section. Lewis v. Smith, 9 N. Y. 502, 514 (1854); Corning v. Smith, 6 N. It is Y. 82 (1851); Eagle Fire Co. v. 2 Eagle Fire Co. v. Lent, 6 Paige Ch. (N. Y). 635 (1837). See the English authorities cited in this case. 3 Corning v. Smith, 6 N. Y. 82 (1851); Meigs v. Thomson, 66 How. (N. Y.) Pr. 466 (1884); s. c. 5 N. Y. Civ. Proc. 106, containing an exhaustive note on parties defendant to foreclosures; Keeler v. McNeirney, 6 N. Y. Civ. Proc. 363 (1883). 4 Eagle Fire Co. v. Lent, 6 Paige Ch. (N. Y.) 635 (1837); Brundage v. Domestic and Foreign Missionary Society, 60 Barb. (N. Y.) 204, 213 (1871); Keeler v. McNeirney, 6 N. Y. Civ. Proc. 363 (1883). See Price's Ex'rs v. Lawton, 27 N. J. Eq. (12 C. E. Gr.) 325 (1876). 5 Horton v. Ingersoll, 13 Mich. 409 (1865); Carbine v. Sebastian, 6 Ill. App. 564 (1880). See Chicago not right that the mortgagee, in pursuing his remedies, should be delayed or hindered by litigation upon a question of title which does not affect his rights in any way. In Indiana and Kansas, however, adverse claims may be litigated in a foreclosure.' 193. Senior mortgagees or incumbrancers, claimed to be junior lienors, proper defendants for litigating questions of priority.—As has been stated in the two preceding sections, parties who claim adversely or paramount to the mortgagor are not even proper defendants in the foreclosure of a mortgage; but parties who claim subsequently to the mortgagor, but adversely and paramountly to the mortgagee, are proper, if not necessary, defendants to a foreclosure for the purpose of litigating questions of priority in lien between the mortgage under foreclosure and their claims. This rule allows such questions only as affect the rights of the mortgagee to be brought into the action for litigation. "Whether a defendant's equities are prior and superior to the rights of the plaintiff under his mortgage, or junior and subordinate thereto, must necessarily be determined in the judgment for a foreclosure of the plaintiff's mortgage. The defendant is not contesting the title of the mortgagor, but simply asserts a right under him prior in point of time to the mortgage. The question of priority between the two is necessarily involved in the action and proper to be determined in it."* If a mortgagee or incumbrancer claiming priority is not made a defendant, his rights will be in no way affected by Theological Sem. v. Gage, 103 Ill. 175(1882). Contra, Adair v. Mergentheim, (Ind.) 13 West. Rep. 852 (1888); Roberts v. Wood, 38 Wis. 60 (1875). Masters v. Templeton, 92 Ind. 447, 451 (1883); Bradley v. Parkhurst, 20 Kan. 462 (1878); Nooner v. Short, 20 Kan. 624 (1878). * Brown v. Volkening, 64 N. Y. 76, 84 (1876); Bank of Orleans v. Flagg, 3 Barb. Ch. (N. Y.) 316 (1848); Payn v. Grant, 23 Hun (N. Y.) 134 (1880); Krutsinger v. Brown, 72 Ind. 466 (1880); Cochran v. Goodell, 131 Mass. 464 (1881); Dawson v. Danbury Bank, 15 Mich. 489, 495 (1867); Hoppock v. Ramsey, 28 N. J. Eq. (1 Stew.) 414 (1877); Board of Supervisors v. Mineral Point R. R., 24 Wis. 93 (1869). 3 Brown v. Volkening, 64 N. Y. 76, 84 (1876), per Allen, J. the action. It is often necessary to bring additional parties into the action for a complete determination of the questions involved in the issue; in such cases the application may be made by the plaintiff or the defendant, or the court on its own motion may order such parties as it deems necessary to be brought within its jurisdiction, but it must be a fact in each case that the party who is brought into court claims some right or interest that is adverse to the claims of the mortgagee foreclosing. The practice of making a defendant to a foreclosure every party who claims an interest in the mortgage or in the premises, in order to make a complete determination or settlement of all questions affecting the mortgage or the premises, is broadening and increasing in its application by the courts of all our states. In New York it is provided that "any person may be made a defendant, who has or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party defendant, for the complete determination or settlement of a question involved therein.” Whenever the plaintiff desires to litigate questions of priority, which may affect his mortgage, he must state his claims specifically in his complaint and demand separately the judgment of priority to which he believes himself entitled. Likewise, the defendant must raise by answer all of his claims to priority, or he will be deemed to have waived them in the foreclosure. His silence, however, will not necessarily prevent his maintaining an action as plaintiff for affirmative relief. 1 N. Y. Code Civ. Proc. SS 447, 448. The same principle has been enacted in the codes of some other states. |