Cooper v. Johnson

• Citation: 157 F. 104
• Parties: COOPER v. JOHNSON.
• Decision Date: 25 September 1907
• Court: U.S. District Court — Southern District of Georgia

157 F. 104

COOPER v. JOHNSON.

United States Circuit Court, S.D. Georgia, Western Division.

September 25, 1907

Daley &amp Bussey, for the motion.

Malcolm D. Jones, opposed.

SPEER District Judge.

The pending question is one of equity practice. The complainant as receiver of the Southern Building & Loan Association, has brought a bill in equity for the foreclosure of a mortgage given while in life to the association by William L. Johnson deceased. The mortgagor died in the year 1898 or 1899. It appears from the averments of the bill that there was no administration upon his estate; but a division was had, and the property mortgaged was awarded to E. A. W. Johnson, the defendant, who assumed the indebtedness to the association to secure which the mortgage had been given. The substantial defense presented by the answer is that the indebtedness to the association had been discharged by the mortgagor. The defendant also denies that he received the property by inheritance, or that he assumed the indebtedness as alleged. On the contrary, he asserts that he purchased the property from the mortgagor in good faith, believing that all indebtedness evidenced by the mortgage deed, and the note and bond connected therewith, had been paid. For these reasons he insists that there is now no valid lien or claim existing against the property.

E. A. W. Johnson is the sole defendant. By both bill and answer he is treated as the sole owner. In the bill it is averred that title to the equity of redemption exists in him by descent. In the answer he asserts title adversely to the estate of the mortgagor as a bona fide purchaser for value. On the hearing, the defendant, invoking the fifty-second equity rule, moves to dismiss the bill for want of parties. This rule provides:

'Where the defendant shall by his answer suggest that the bill is defective for want of parties, the plaintiff shall be at liberty, within 14 days after answer filed, to set down the cause for argument upon that objection only. * * * And where the plaintiff shall not so set down his cause, but shall proceed therewith to a hearing, notwithstanding an objection for want of parties, taken by the answer, he shall not, at the hearing of the cause, if the defendant's objection shall then be allowed, be entitled as of course to an order for liberty to amend his bill by adding parties. But the court, if it thinks fit, shall be at liberty to dismiss the bill.' The contention is that the interests of the estate of the mortgagor, William L. Johnson, deceased, cannot be protected, that such estate has no legal representative, and that there can be no valid judgment or decree affecting the property mortgaged. From this statement, it appears plainly enough that it is competent for the court, with the parties before it, to determine the substantial controversy, and that is whether the complainant has a valid and enforceable lien against the land in question. E. A. W. Johnson, the sole defendant, is found in possession of the property. The bill, it is true, alleges that he acquired it by a division of the estate between the heirs at law. By his answer, however, in which he presents this motion, this averment is denied. By the same pleading he disclaims any title by inheritance, and insists that he holds title by purchase. Will, then, the mortgage lien prevail as against his alleged purchase? In that inquiry, will supposititious heirs, of whose identity, or even existence, the court is given no information, either by averment or suggestion, have any concern? We think not. It is true that, as a general rule, the owner of the equity of redemption in property mortgaged is a necessary party, and all persons having an interest therein should be made defendants, to a bill of foreclosure. 2 Jones on Mortgages (4th Ed.) Sec. 1394; Van Zile's Equity Pl. & Pr. Sec. 466. But here the allegations exclude the application of that rule. If, as asserted, all the parties at interest were divested of title to the mortgaged premises through the division, by which E. A. W. Johnson has become the sole owner, such persons have no concern in the result of the litigation. For the purpose of this motion, the averment must be taken as true, and

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