Sharpe v. Hughes ( 1918 )

The bill as amended is by a second mortgagee against the mortgagor and the first mortgagee, before foreclosure, to give the complainant's mortgage precedence, upon the theory that the first mortgagee had consented, for a valuable consideration, to subordinate his mortgage to the complainant's. If, however, this theory of the bill cannot be established by the proof, the bill sets up a state of facts which would authorize an accounting and redemption and which relief could be obtained under the general prayer. Indeed, the equity of the bill as against the respondents, other than N. L. Steele, is not seriously questioned in brief of counsel, though it is urged that the bill makes out no case for equitable relief against N. L. Steele, and that he is therefore joined as an improper party. The amended bill charges that the agreement to subordinate the Steele mortgage was made by the said N. L. Steele, who was, in effect, the alter ego of A. F. Steele, and that by virtue of the breach of the agreement, etc., the complainant has been prejudiced. It might be that, if this agreement was made and N. L. Steele had the authority to make it, it could be enforced without the necessity of making N. L. Steele a party; but as the bill sets up the transaction with N. L. Steele, and if he did not have the authority to make it, he would no doubt be personally liable for any damage he may have caused and should be answerable under this bill. At any rate, he is a proper, if not a necessary, party; and, whether or not that part of the bill as seeks relief against him would withstand an appropriate ground of demurrer, we need not decide. It is sufficient to say that the bill was not subject to the demurrer interposed thereto.

The decree of the circuit court is affirmed.

Affirmed.

McCLELLAN, SOMERVILLE, and GARDNER, JJ., concur.