Osborne v. Crump , 57 Miss. 622 ( 1880 )

Chalmers, J.,

delivered the opinion of the court.

The case was submitted without proof, and must be decided on the pleadings, which show the following state of facts. Crump sold a plantation in Bolivar County to one Smith for fifteen thousand dollars, of which amount nine thousand dollars were paid in cash, the note of the purchaser being taken for six thousand dollars. Crump executed to Smith a deed of the land, and received back from him a trust-deed to protect the note. Smith afterwards sold the land to one Looney, who, in turn, sold to Trowbridge, deeds being executed in each case. Crump, pressing Trowbridge for the money due him on the land, the latter paid to him the sum of three thousand two hundred dollars, which he had borrowed for that purpose from his son-in-law, Osborne, and executed his own note for^, two thousand three hundred and fifty dollars for the balance due. At Trowbridge’s request, Crump transferred and assigned the trust-deed to Osborne, and received from Trowbridge in lieu of it the assignment of a mortgage, held and owned by the latter, on a tract of land in New Jersey, being induced to do this by the assurances of Trowbridge that the New Jersey mortgage was worth far more than the twenty-three hundred and fifty dollars due, and that it afforded a perfect security for it. Crump knew nothing of the New Jersey mortgage, and relied wholly on Trowbridge’s statements in accepting it. It proved to be wholly worthless; and, in the mean time, Osborne foreclosed the trust-deed on the plantation in Bolivar County, which was transferred to him by Crump, and became the purchaser at the sale made thereunder. Crump brings this bill to assert against the Bolivar lands a lien for the balance of the original purchase-money, now represented by Trowbridge's note for two thousand three hundred and fifty dollars. That he is entitled to the relief prayed, under the facts stated, is not seriously denied; but it is contended that the decree in his favor was improperly rendered, because no testimony had been taken, and the burden of proving the case rested upon the complainant. The facts, as above set forth, were admitted by the answers of Trowbridge and Osborne, and of themselves entitled the complainant to a decree. Trowbridge, in his answer, sought to avoid them by the averment that, after the New Jersey mortgage was discovered to be worthless, a fact unknown to bim at the time he assigned it, he transferred other securities in lieu of it to Crump, with which the latter avowed himself satisfied, and which he still held. Manifestly, this was new affirmative matter, not responsive to any thing in the bill, and the burden of proving it devolved upon the defendants; but, though more than a year intervened between the filing of the answers and the final hearing, no depositions were taken in support of it.

No objection for want of parties was taken in the lower court; but it is urged here that there is such absence of essential parties that it is impossible to render a decree that will do justice, and that therefore, of our own motion, we must reverse. It is said that Montgomery, the trustee in the trust-deed executed by Smith to Crump, should have been made a party. The point is not well taken, because it is shown both by the bill and answers that he had fully executed his trust and divested himself of title by the sale made before the institution of the suit, at which Osborne became the purchaser of the land. Osborne stated in his answer that he had sold the land to one Rockwell, and it is said that the latter is a necessary party. But it is shown by the answer that he bought pendente lite, and such a purchaser is bound by the decree without being a party.

Trowbridge died after the answers were filed, and the cause was dismissed as to him. It is said that it should have been revived against his heirs and personal representatives. This was not essential, because Trowbridge himself, although a proper, was not a necessary party. In his answer he disclaimed all interest in the land, and no personal decree was asked or rendered against him. He stood in the relation of a mortgagor of the land, having accepted the obligation to pay off the mortgage executed by Smith; and it is well settled that a mortgagor who has parted with the mortgaged property is not a necessary party to a bill to foreclose, where no decree in personam is sought against him. Story Eq. PI. § 197; 2 Jones on Mortgages, § 1404, and authorities cited.

Decree affirmed.