The Eagle Fire Company vs. Lent and others, 6 Paige Ch. 635

The Chancellor. As the defendant Cozine went into possession of the premises as purchaser of the equity of redemption from the mortgagor, and subject to the complainants’ mortgage, he cannot set up an adverse title in a stranger for the purpose of preventing a sale of the whole mortgaged premises for the satisfaction of the mortgage. It was therefore unnecessary and would have been improper for the complainants to make the infant grantor, in whom the outstanding title to one fourth of the premises is supposed by Cozine to be, a party to this suit. And if B»

Evesson had been made a party he might have demurred to the bill, upon the ground that the complainants had no right to bring him into this court to try the validity of the legal title or claim to one fourth of the mortgaged premises. So far as mere legal rights are concerned, upon a bill of foreclosure, the only proper parties to the suit are the mortgagor and the mortgagee, and those who have acquired rights or interests under them subsequent to the mortgage.

And the mortgagee has no right to make one who claims adversely to the- title of, the mortgagor, and prior to the mortgage, a party defendant, for the purpose of trying the validity of his adverse claim of title in this court.

The case is analogous in principle .to making one who claims adversely to the vendor, a party to a bill filed by the vendee for the specific performance of the contract of sale., In which case it is held that such adverse claimant cannot.be made a party for the purpose Of having the validity of his claim settled by a decree of this court, which shall thereafter be binding upon him in relation to his claim of title. (Lange v. Jones, 5 Leigh’s.Rep. 192.) It appears, however, from the answer in this case, and the deed produced upon the hearing, that H.

Evesson, one of the infant grantors of Maybee, has conveyed all his right and interest in the premises to Cozine since the latter has become the owner of the equity of redemption therein. It becomes necessary,therefore, to inquire whether the conveyance of the infant grantors to Maybee was absolutely void, or merely voidable by them; for the purpose of ascertaining whether the subsequent "deed-from H.

Evesson-to the defendant Cozine passed an absolute title to him of one fourth of the premises discharged of the mortgage, or was a mere confirmation of the title which he had previously acquired under the deed from Maybee.

And upon this point I perfectly concur in the opinion of the vice chancellor, that the deed of an infant purporting to be founded upon a valuable consideration'is not absolutely void, but merely voidable. (See 2 Kents Comm. 234; 10 Peter’s Rep. 71.) ’ As. the deed to Maybee conveyed the legal title, subject to the right of .the infant to disaffirm the contract, it is perfectly clear, from the subsequent deed to Cozine, that the latter deed was intended to operate as a mere confirmation of the former title, and not as a disaffirmance of the previous deed. To render a subsequent conveyance by an infant

an act of dissent to his prior deed, it must be inconsistent therewith, so that both cannot properly stand together. . Here, if the allegations of Cozine in his answer are true, and as between him and the complainants they must be taken to be so, he was at the time of the second conveyance the legal owner of the premises, subject to the payment of the mortgage. A quit claim of all the right and title of the former grantor to him, therefore, previous to the doing of any act disaffirming the first deed was nothing more or less than a release of the right to disaffirm such former conveyance.

What will be the legal effect of the second conveyance as between Cozine and those claiming under Ferdon’s title, if it shall hereafter appear that the equity of redemption was not in Cozine but in Ferdon, must be left for the future decision of the court in settling the right to the surplus proceeds of the sale ; if there should be any surplus after paying the complainants’ debt and costs. All that is intended to be decided here is, that upon the facts as they now appear upon the bill and on the answer of the appellant, the mortgage is a lien upon the whole premises.

The decree appealed from is therefore right, and must be affirmed with costs to the complainants.