premises, he is of course, on every account, a necessary defendant. If, however, he has conveyed away the entire land by an absolute deed of conveyance, the grantee, who is the owner at the time of commencing the suit, is a necessary party defendant, even though his deed has not been put upon record, because without his presence the decree for a sale, which is the essential primary remedy granted by the action, cannot be made.2 In a few cases, however, such parties have been spoken of as proper

defendants merely. This latter view is, in my opinion, clearly incorrect, since it leads to the inevitable conclusion that there may be an action without any necessary defendant. If, however, the mortgagor has conveyed away only a portion of the premises and remains owner of the residue, the grantee of the part so conveyed is not a necessary defendant. The suit against the mortgagor alone is not a nullity; there is a title in him for the decree of sale to act upon; but the rights of the grantee would be unaffected. It follows as an evident corollary from the proposition just stated, that the mortgagor who has conveyed away the whole of the mortgaged premises is no longer a necessary party defendant in a foreclosure action, that is, he is not indispensable to the rendition of a simple judgment of sale, if no decree for a deficiency is asked. He is, however, an eminently proper party; and if the plaintiff wishes a personal judgment for any deficiency which may arise upon the sale, he, or his personal representative if he is dead, is a necessary party, and may defend the action, and defeat the same by any competent defence which he may establish. The decisions do not make any distinction between the case in which the mortgagor has simply conveyed the land incumbered by the mortgage, and that in which the grantee has assumed to pay the mortgage debt, and in fact there is and can be no such distinction. Whatever arrangement the mortgagor may make with his grantee, he cannot by his own act free himself from his liability to the holder of the mortgage; he

1 Sumner v. Coleman, 20 Ind. 486; Semple v. Lee, 13 Iowa, 304. In the last case, the mortgagor and the owner to whom the land had been conveyed were both joined, and the court said the owner was a proper party, and the mortgagor was not a necessary one. [The same doctrine was announced in Talbot v. Roe (1903), 171 Mo. 421, 71 S. W. 682, the court saying that the only result of not joining the grantee was to leave her right to redeem still open.]

2 Douglass v. Bishop, 27 Iowa, 214, 216. There is certainly a plain distinction between this case and the one where the entire premises are conveyed by the mortgagor. Watts v. Julian, 122 Ind. 124.

3 Drury v. Clark, 16 How. Pr. 424; Delaplaine v. Lewis, 19 Wis. 476, and cases cited; Stevens v. Campbell, 21 Ind.

471; Burkham v. Beaver, 17 Ind. 367; Huston v. Stringham, 21 Iowa, 36; Johnson v. Monell, 13 Iowa, 300; Semple v. Lee, 13 Iowa, 304; Murray v. Catlett, 4 Greene (Ia.), 108; Belloc v. Rogers, 9 Cal. 123; Williams v. Meeker, 29 Iowa, 292, 294; Story, Eq. Pl. § 197. See also Ayres v. Wiswall, 112 U. S. 187; Daugherty v. Deardorf, 107 Ind. 527; Bennett v. Mattingly (Ind. 1887), 10 N. E. 299; Keister v. Myers, 115 Ind. 312; West v. Miller, 125 Ind. 70; Johnson v. Foster, 68 Iowa, 140; Watts v. Creighton (Iowa, 1892), 52 N. W. 12; Miner v. Smith, 53 Vt. 551; Tutwiler v. Dunlap, 71 Ala. 126; Butler v. Williams, 27 S. C. 221; [Hopkins v. Warner (1895), 109 Cal. 133, 41 Pac. 868; Weir v. Rathbun (1895), 12 Wash. 84, 40 Pac. 625.]

4 See cases cited in last note.

will therefore remain liable, either as principal debtor or as surety for the grantee who has assumed the payment, and will continue subject to a judgment for a deficiency.1

Parties.

§ 234. * 337. Successive Grantees of Mortgaged Premises as Administrator and Heirs of Mortgagor. The same principle is of universal application, and embraces all successive grantees of the premises who have made themselves personally liable for the mortgage debt. Thus, if the mortgagor conveys the premises to A., who takes them simply burdened by the lien, but does not assume and agree to pay the debt, and A. afterwards conveys in the same manner to B., who again conveys to C. who is the owner when the foreclosure is commenced, A. and B. are plainly neither necessary nor proper parties; they have retained no interest in the land, and were never personally responsible for the debt. If, on the other hand, in this series of conveyances, A., B., and C. had each in turn assumed and agreed to pay the mortgage debt, C. would be the necessary defendant in any action to foreclose, because he is the owner of the land. The mortgagor, A., and B. would be proper defendants, because they are personally liable for the debt. The mortgagor's liability was created by the original instrument, bond, note, or otherwise, and he did not become freed therefrom because others also assumed it. A.'s and B.'s liability was created by their voluntary assumption, and having been once incurred, it could not be thrown off without the consent of the creditor. If the plaintiff therefore demands a judgment for deficiency, and desires to make his security as complete as possible, he may join the mortgagor and A. and B. as co-defendants in the suit to foreclose. If the mortgagor has conveyed his entire interest and

1 See same cases last cited. [In Plankinton v. Hildebrand (1895), 89 Wis. 209, 61 N. W. 839, the court said: "In the absence of some statute extending their power, courts of equity, in foreclosure cases, have invariably left the complainant to his remedy at law for the part of the mortgage debt not satisfied by the foreclosure and sale. Statutory provisions of the character referred to were adopted in Wisconsin during its territorial existence, and continued in force until, by the adoption of the code, they were repealed. The result was that it was held by this court,

in several cases, after the repeal of the statute, that the legal cause of action on the note or bond could not properly be joined with the equitable one to foreclose the mortgage, unless both causes of action affected all the parties to the action"]

2 See same cases last cited. See also Logan v. Smith, 70 Ind 597; Scarry v. Eldridge, 63 id. 44. [Johns v. Wilson (1898), Ariz. 53 Pac. 583; Hopkins v. Warner (1895), 109 Cal. 133, 41 Pac. 868. One who becomes liable by endorsement on note of mortgagor may also be joined

afterwards dies, is administrator or executor must be joined as a defendant if a judgment for deficiency is prayed, and may be admitted to contest the validity of the mortgage and of the debt it is given to secure. It is even said by some courts that the personal representative of the deceased mortgagor is a necessary party defendant with the heirs and widow. When the mortgagor dies intestate owning the land, or when any subsequent owner thus dies, his heirs are indispensable parties; and if the objection to their nonjoinder has not been taken, the court will of its own motion order them to be brought in as defendants. No effectual decree of sale can be made without them.

§ 235. * 338. Personal Representative of Owner of Mortgaged Premises Necessary Party in California. Judgment Creditors of Mortgagor. Assignor of Secured Debt. In California, the personal representative of a deceased person succeeds at once to all lands as well as personal property; the title vests in him for purposes of administration; and if an owner of mortgaged land dies, his executor or administrator is therefore an indispensable party defendant. A mortgagor having conveyed the land to assignees in trust for the benefit of creditors, judgment creditors whose judgments were recovered subsequent to such assignment, and which were therefore not direct liens on the land, were held to be proper parties defendant in an action brought to foreclose the mortgage against the mortgagor and the trustees. These trustees having suffered a default, the judgment creditors were permitted to intervene and to contest the validity of the mortgage and of the debt which it secured by setting up usury.2 The general proposition was announced by the court, that the cestuis que trustent are proper defendants as well as the trustees. When a mortgage was given to secure a note payable to the order of the mortgagee, and the latter indorsed and transferred the note and assigned the mortgage, the assignee cannot maintain an action against the mortgagor and maker of the note, and the indorser of the note (the mortgagee), to foreclose the mortgage and to obtain judgment against both for either the whole amount of the note or for the deficiency. A legal action may be brought against both on the note, but a foreclosure must be against the mortgagor alone.3 This last rule is exactly otherwise in Minnesota by virtue of an express statute. If the mortgage debt is secured by the obligation of any person other than the mortgagor, he may be joined as a defendant in the foreclosure suit, and a judgment for deficiency may be rendered against him alone, or jointly with the mortgagor, as the case may be.1

The heirs and devisees of a deceased mortgagor are necessary parties: Wall v. McMillan (1895), 44 S. C. 402, 22 S. E. 424.]

1 Harwood v. Marye, 8 Cal. 580. It is held that the heirs of the deceased mortgagor are not necessary parties. Bayly v. Muehe, 65 Cal. 345. [See Kelsey v. Welch (1896), 8 S. D. 255, 66 N. W. 390, where the heirs were held proper parties, and the administrator, where the judg

ment will result prejudicially to the estate, a necessary party.]

2 Union Bank of Masillon v. Bell, 14 Ohio St. 200. [But see Sidney Stevens Implement Co. v. Improvement Co. (1899), 20 Utah 267, 58 Pac. 843, where it was held that the trustees of a deed of trust were not necessary parties in an action to foreclose the same.]

3 Sands v. Wood, 1 Iowa, 263.

4 Nichols v. Randall, 5 Minn. 304, 308.