Updike v. Adams

• Decision Date: 21 February 1901
• Citation: 48 A. 384,22 R.I. 432
• Parties: UPDIKE v. ADAMS et al.
• Court: Rhode Island Supreme Court

48 A. 384

22 R.I. 432

UPDIKE

v. ADAMS et al.

Supreme Court of Rhode Island.

Feb. 21, 1901.

Bill by Daniel B. Updike against A. Bige-Iow Adams and others. Decree for complainant.

Edwards & Angell, for complainant.

Tillinghast & Tillinghast, Isaac H. Southwick, Jr., and John Henshaw, for respondents.

TILLINGHAST, J. This is a bill in equity for the partition of real estate owned by the parties to the bill as tenants in common. It is before us on bill and answer. Two points are made by the respondents' answer, by way of defense to the bill, namely: (1) That the People's Savings Bank, which holds a mortgage on the entire estate, should be made a party; and (2) that partition should not be made as prayed, because it would work a hardship on the respondents.

As to the first point, it seems to be well settled that, in the absence of some statutory requirement, an incumbrancer whose lien extends over the entire premises is not a necessary party to a bill for partition. Freem. Co-Ten. § 478, and cases cited in note 1. The People's Savings Bank, as mortgagee, is not a necessary party, because no relief can be decreed against it. It may be an interested party, and therefore allowed to intervene on its own motion (Warren v. Tool Co., 21 R. I. 488, 44 Atl. 806; Burrill v. Garst, 19 R. I. 38, 31 Atl. 436); but, not being a necessary party, the court will not order it to be brought in on the motion of another party to the suit. Green v. Arnold, 11 R. I. 364, is not an authority in support of respondents' contention. In that case the mortgage did not cover the entire premises, and, although the mortgagee was made a party to the bill by the complainant, no question was raised or considered as to the necessity of joining it. The authorities cited by respondents in 15 Enc. Pl. & Prac. p. 795, do not support the position taken by them. Loomis v. Riley, 24 Ill. 307, is not in point for two reasons: (1) The mortgage in that case was on an undivided interest of one of the tenants in common, which interest was purchased from one of the parties pending the suit for partition, the purchaser then mortgaging it pending this suit; and the court hold that a mortgage of an undivided interest of a tenant in common, pendente lite, is only an incident to that interest, and after partition is limited to the portion allotted to the tenant in common executing it. (2) The statute of Illinois requires that all persons having an interest, or who, upon any contingency, may be or become entitled to any beneficial interest, in the premises, so far as known to the plaintiff, shall be made parties to the suit, Lewis v. Atkinson, 15 Iowa, 361, simply holds that a mortgagee who is not made a party to the suit for partition is not devested of his Hen upon the land by the sale thereof, and that he can maintain foreclosure proceedings against the same thereafter. Whitton v. Whitton, 38 N. H. 135, holds that mortgagees are not generally necessary parties to a bill for partition, but that they may be joined where their interests may be impaired. Long's Appeal, 77 Pa. St. 151, and Stewart v. Bank, 101 Pa. St. 342, not only do not sustain the position taken by respondents, but, on the contrary, sustain that of the complainant.

The argument in support of the contention that said savings bank should be made a party to the suit is that the several tenants in common, in the enjoyment of the respective parcels that shall be set off to them in severalty, may be protected by the decree of the court against paying more than their proportion of the joint and several obligation which now rests upon all of the real estate in question under the mortgage to said savings bank, which was given by all of the tenants in common. We appreciate the difficulty of so dividing the estate by metes and bounds (which is the only mode of partition prayed for in the bill) as to equalize the burden of said incumbrance on the several parcels, some of the parcels being productive and some of them unproductive. We also fail to see that any advantage can accrue to the owners by making partition, in view of the fact that the mortgage is for a very large amount, and that the makers thereof are not in a condition...