Bair v. Watkins

HARRISON, J.

The plaintiff seeks by this action the foreclosure of a mortgage upon certain real estate executed by Ros'e Ann Watkins. The appellants herein were made parties defendant to the action, under the allegation that they claimed to have,some interest in the land described in the mortgage, and that their interests, if any they have, are subject to the lien of the mortgage. The mortgagor suffered default, and the appellants answered the complaint admitting that they claimed an interest in the land described in the mortgage, but denying that the same was subsequent to or subject to its lien, and they also filed a cross-complaint setting forth their claim of ownership to an undivided one-half of said land, and asking judgment that the mortgage lien of the plaintiff be decreed to be a lien upon only an undivided half of said land. Upon the trial the court made findings of fact to tire effect that the mortgagor

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was the sole owner of the land at the date of the mortgage, and that the other defendants had no interest therein. Judgment was thereupon rendered in favor of the plaintiff, foreclosing the lien of his mortgage as prayed for hy him. From this judgment the defendants, other than the mortgagor, have appealed.

The respondent contends that the appellants are not entitled to he heard, and that their appeal must be dismissed for the reason that their notice of appeal was not served upon the mortgagor, and that, as she would be injuriously affected by any modification or reversal of the judgment, this court is without jurisdiction to act upon the appeal without her presence before it. We are of the opinion that this contention must be sustained.

The judgment declares that the amount found due to the plaintiff from the mortgagor—three thousand three hundred and forty-one dollars and fifty-one cents—is a valid lien upon the mortgaged land, and directs that the land be sold, and that the proceeds of said sale be applied toward the payment of the sums so found due, and that if said proceeds are insufficient to pay the same, judgment for the deficiency shall be docketed against the mortgagor, and that the plaintiff may have execution ther'efor. It is manifest, therefore, that if the contention of the appellants that the lien of the mortgage should be limited to an undivided half of the land should prevail, and the judgment be modified accordingly, the mortgagor would be injuriously affected thereby. By the judgment, as it now stands, the proceeds of a sale of the entire land are to be applied to the satisfaction of the mortgage lien before a judgment for any deficiency can be docketed against her, whereas, if the appeal therefrom should be sustained, she would be liable for whatever deficiency there might be after applying the proceeds of a sale of one-half of the land. The appellants cannot be permitted to east this burden upon her without giving her an opportunity to resist their claim, and they, therefore, should have made her a party to the appeal. Not having done so, the court is without jurisdiction to entertain their appeal.