Bernard v. Shemwell

• Decision Date: 07 November 1905
• Citation: 52 S.E. 64,139 N.C. 446
• Parties: BERNARD v. SHEMWELL et al.
• Court: North Carolina Supreme Court

52 S.E. 64

139 N.C. 446

BERNARD v. SHEMWELL et al.

Supreme Court of North Carolina

November 7, 1905

Appeal from Superior Court, Davidson County; Bryan, Judge.

Action by George Bernard against Baxter Shemwell and others. From an order sustaining a demurrer to the complaint, plaintiff appeals. Dismissed.

A mortgagor who has conveyed his equity of redemption has no interest in an action to foreclose the mortgage and is not a necessary party defendant.

Walser & Walser, for appellant.

McCrary & Ruark and E. E. Raper, for appellees.

PER CURIAM.

This was a demurrer in a proceeding for foreclosure, upon the ground that the mortgagor, who had assigned his equity of redemption, was not made a party. The judge sustained the demurrer, but did not make any order directing him to be made a party or dismissing the action for failure to do so. Had the plaintiff declined to make the additional party and the action had then been dismissed, an appeal would lie. But the plaintiff should either have taken that course or have had his exception noted, and making the additional party should have brought the interlocutory order up for review, if it proved prejudicial and the final judgment were against him. If the final judgment should be in his favor, or the interlocutory order should not prove injurious, a review thereof would not be desired. The court does not entertain fragmentary appeals. It can very rarely happen that making an additional party will be a serious prejudice, and hence such orders are usually discretionary and not reviewable. Code, § 273; Tillery v. Candler, 118 N.C. 889, 24 S.E. 709 and cases cited.

But should it be contended that such order is prejudicial, no appeal lies at this stage. Lane v. Richardson, 101 N.C. 181, 7 S.E. 710; Emry v. Parker, 111 N.C. 261 16 S.E. 236; Bennett v. Shelton, 117 N.C. 105, 23 S.E. 95; Gammon v. Johnson, 126 N.C. 67, 35 S.E 185. The appellant should have noted his exception, and have presented it for review upon appeal from the final judgment should it be adverse to him. Even if the mortgagor had been made a party, no probable injury to the plaintiff thereby is shown. The appeal must be dismissed because premature; but it is not amiss to say that the mortgagor could have no possible interest in this action, since he had conveyed his equity of redemption. "It is well settled that a mortgagor, who since the execution of the mortgage has parted with his interest...