Opinion
04-29-1903
BOON et al. v. PADGETT et al.
Walter H. Bacon, for petitioner. J. W. Acton, for defendants.
Suit by Sallie B. Boon and others against Ebenezer Padgett and others, in which the Cumberland Trust Company, as administrator with the will annexed of Elmer Biddle, deceased, seeks to be admitted as a defendant. Order to show cause dismissed.
Walter H. Bacon, for petitioner.
J. W. Acton, for defendants.
GREY, V. C. (orally). The present application is made by the Cumberland Trust Company, administrator with the will annexed of Elmer Biddle, deceased, to be admitted asa defendant in that capacity in this foreclosure suit. The petitioner seeks to deny the validity of the complainants' mortgage, on the ground that it was created under a mistaken and unlawful exercise of a power given by Elmer Biddle's will. The petitioner is not now a party defendant, as administrator with the will annexed of Elmer Biddle. No decree can, in the present condition of the pleadings, be made against the petitioner, affecting its rights as such administrator. The questions it seeks to litigate arose antecedently to the making of the mortgage now in suit, and set up a title hostile to that mortgage. The rights of the petitioner have not yet been established by any judgment or decree. A defense to a foreclosure of a mortgage, which mortgage was admittedly made subsequently to the happening of the circumstances on which the petitioner bases its equity, is not the proper method in which to assert that equity. The petitioner claims that its right is superior to that of the complainants in the present foreclosure suit. Its proper mode of procedure is to file its own bill of complaint, setting up its alleged equity, and making defendants those who adversely claim the property, or liens upon it. In such a suit the petitioner may pray for such relief as may be applicable to the equities which it may establish.
The present application to admit the petitioner as a party defendant to litigate the matters recited, in this foreclosure suit, must be denied. I will make an order dismissing the rule to show cause, with costs.