Opinion
Decided February 2, 1937.
In a bill for foreclosure all those who have an interest in the mortgage are necessary parties and must either join as plaintiffs or be joined as defendants.
In such case one who has been joined as a co-plaintiff without his consent may have his name stricken from the record as a party plaintiff, but may then be made a co-defendant; thereafter his interest may be protected by a receivership during the period of redemption and pending an ultimate order of partition or sale.
BILL IN EQUITY, to foreclose a mortgage. The bill was brought by Jesse A. Blanchard, who joined Lucie B. Wheeler and Ida J. Farmer as party plaintiffs without their consent. Later the consent of Ida J. Farmer was obtained. The order for answers was not complied with, and the court ordered the bill taken pro confesso. The mortgage and the note thereby secured were given by one Roby and wife to James W. Baldwin, and Roby and wife conveyed the mortgaged premises to the defendants, who did not assume payment of the note. At the time of the filing of the bill the defendants were in possession of the premises, and the three named plaintiffs, legatees under the will of James W. Baldwin, were owners of the note and mortgage.
Lucie B. Wheeler, declining to join with the other plaintiffs and alleging that any foreclosure of the mortgage would be an injury to her interest, moved "that her name be stricken from the record as party plaintiff" and "that the action itself be dismissed" on the ground that the bill could not be maintained "without her joinder in said action." On the filing of a bond by Jesse A. Blanchard and Ida J. Farmer, this motion was denied subject to exception. An order was then made that the writ of possession should not issue pending final determination of the case. A bill of exceptions was allowed by Lorimer, J.
Bernard Jacobs (by brief and orally), for Jesse A. Blanchard.
Fred W. Baker (by brief and orally), for Lucie B. Wheeler.
While it has been said that "where two or more are interested as mortgagees or assignees of a mortgage, it is necessary that all shall be joined in a bill to foreclose" (Johnson v. Brown, 31 N.H. 405, 411; Page v. Pierce, 26 N.H. 317, 326), this statement is not in contravention of the general rule that one person has no right to bring an action in the name of another, who is more than a nominal party, without the latter's consent (Manchester Bank v. Fellows, 28 N.H. 302, 307).
The statement means no more than that all those who have an interest in the mortgage must either join as plaintiffs or be joined as defendants in the foreclosure suit. The principle has been thus stated: "Where a joint or several mortgage is foreclosed by one of the mortgagees, and the remaining mortgagees refuse to unite as co-plaintiffs in the action, they are uniformly held necessary defendants, for the reason that their omission fails to give the court complete jurisdiction over the mortgage debt." 1 Wiltsie, Mort. Foreclosure (4th ed.), s. 397. To the same effect, see 42 C. J. 46; 19 R. C. L. 526.
It follows that the motion of Lucie B. Wheeler to strike her name from the record as a party plaintiff should have been granted. But it does not follow that the bill should be dismissed or that Lucie B. Wheeler's rights will be prejudiced by a continuance of the proceedings. She cannot of course, by refusing to join as a plaintiff, divest the others of their right to foreclose (Sanford v. Bulkley, 30 Conn. 344, 349), but, after she has been properly made a party to the suit, she may, if the protection of her interest as co-owner requires it, invoke the equitable jurisdiction of the court to preserve the property by receivership (5 Pom., Eq. Jur., (2d ed.), p. 4813) during the period of redemption and pending an ultimate order of partition or sale (Heaton v. Bartlett, 87 N.H. 357, 361, and cases cited).
Case discharged.
PAGE, J., was absent: the others concurred.