Ranger v. Goodrich , 4 Abb. Ct. App. 1 ( 1867 )

By the

J. M. Parker, J.

[After stating facts.]— I think the referee was right in holding that the defendant could not he compelled to satisfy the mortgage as to the interest held hy the mortgagees, unless they were parties to the suit.

It is insisted, that the referee has found as a fact, that the plaintiff purchased the interest of the mortgagees for one hundred' and eighteen dollars, and knew that they have no farther interest in it, and so are not necessary parties. Taking the whole of the referee’s report together, the finding of fact does not warrant that assumption. The most that can be said is, that the purchase was a conditional one, the security of the mortgage for the one hundred and eighteen dollars, to remain in the mortgagees until the money was paid, or otherwise secured.

In this view, even if the mortgagees were parties, the view of the supreme court at general term is correct, that the plaintiff would he entitled to a satisfaction of the mortgage, only upon payment of the one hundred and eighteen dollars.

The judgment is clearly right, and should he affirmed.

All the judges concurred.

Judgment affirmed, with cost's.