Bigelow vs. Bush and others, 6 Paige Ch. 343

The Chancellor. Henry Bush, the first mortgagor, was personally liable to the complainant for the payment of the debt secured by his mortgage *, and, if he had been within the jurisdiction of the court, the complainant might unquestionably have made him a party for the purpose of having a decree over against him for the residue, under the provisions of the revised statutes, in case the proceeds of the mortgaged premises should be insufficient to satisfy the debt and costs. He was, therefore, a proper party, although not a necessary party, to a bill of foreclosure against the grantee of the equity of redemption.

In other words, so far as concerns this first mortgage, the complainant might, if he had thought proper, have made the mortgagor a party, for the purpose of having a decree over against him for a. deficiency. But the assignee of the equity of redemption, who had no interest whatever in that question, and who could not be in any way benefitted by having him made a party for that purpose, has no right to object that the original mortgagor is not a party to the suit.

So far as the right's of an assignee of the equity of redemption are concerned, the mortgaged premises are the primary fund for the payment of the debt, unless the mortgagor has conveyed to him with warranty ; and the assignee may set up any defence which will be a bar to the complainant’s claim against the land. The claim of O. N. Bush to have the first mortgagor made* a party depends upon a different principle. He is, in' this case, in the situation of a mere surety for the payment of the debt secured by the first mortgage; and, if the mortgaged premises are insufficient to pay the debt and costs, H.

Bush is, in equity, bound to pay the deficiency, before resort is had to the lands mortgaged by O. N. Bush, or to the surety personally. Had it not been stated in the bill, therefore, that the original mortgagor was beyond the reach of the process of the court, I should have had no hesitation in ■ declaring that the demurrer on the ground that he was not a party, was well taken by O. N. Bush the surety. It remains then to consider the question whether a sufficient excuse is stated in the bill for not making Henry Bush a party to the suit.

Under the provisions of the revised statutes relative to proceedings against absentees, I can see no possible benefit jn this case which the. surety would obtain by having the absent mortgagor made a party to this bill of foreclosure. The proceeding against a defendant residing out of the state js strictly a proceeding in rem, and will not be binding upon him personally beyond our territorial jurisdiction unless he should think proper voluntarily to appear in the suit. (Story's Confl. of Laws, 458, § 546.

Id, 508, § 609.) A decree over against Henry Bush, personally, for the payment of the balance which may remain after applying the proceeds of the premises first mortgaged, would therefore be of no possible use to the surety, or to those claiming under him; as-their rights against the principal debtor will be the same whether he is or is not a nominal party to this suit. For these reasons I think this demurrer is not well taken by either o£ these defendants. The demurrer as to Avery is clearly frivolous, as he had no pretence for insisting that H.

Bush should be made a party to the suit, so far as related to the proceedings against the mortgaged premises in which Avery was interested. As to the other defendant, however, I cannot say that there was not sufficient doubt on the subject to authorize him to take the opinion of the court upon the question whether the principal debtor ought not to be made a party, as an absentee, although he resides in another state.

The usual order must therefore be entered overruling the demurrer, with costs, and requiring the defendants to pay the costs and put in their answer within twenty days or that the bill be falten as confessed against them.