
    (84 Hun, 240.)
    SPRAGUE et al. v. COCHRAN et al.
    (Supreme Court, General Term, Third Department.
    February 12, 1895.)
    Parties—Assignor of Mortgage—Enforcement of Lien.
    A mortgage which, by mutual mistake of the parties, omitted a portion o£ the premises intended to be mortgaged was assigned by the mortgagee in ignorance of the mistake, and with the representation that it embraced ail the land intended to be included therein. The assignee obtained reformation of the mortgage, and foreclosed it, not knowing that in the meanwhile the mortgagor had conveyed the omitted portion of the premises to his daughters, and therefore the daughters were not made parties to the action to reform and foreclose. Held, that the mortgagee, being liable on her representation to the assignee that the mortgage covered the whole premises, was a proper party plaintiff, as well as the assignee, in an action to declare the mortgage a lien on such omitted portion, and to enforce it.
    Appeal from special term, Sullivan county.
    Action by Warner E. Sprague and Antoinette Appley against William B. Cochran and others to enforce against certain land the lien of a mortgage executed by William B. Cochran in favor of Antoinette Appley, and by her assigned to Warner E. Sprague. From an order overruling a demurrer to the complaint, and from an
    
      interlocutory judgment entered thereon, defendants appeal. Affirmed.
    For former report, see 2i N. Y. Supp. 369.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Geo. H. Carpenter, for appellants.
    T. F. Bush, for respondents.
   MAYHAM, P. J.

The demurrer is solely based upon the misjoinder of parties plaintiff. In order to determine whether, upon the face of the complaint, there is or is not a misjoinder of parties plaintiff, a brief résumé of the allegations of the complaint may be necessary. It alleges, in substance, that William B. Cochran, one of the defendants, was the owner of certain real estate, which he undertook to mortgage to Appley, to secure a loan of money made by her to him. In making the mortgage, a valuable portion of the real estate which was to have been embraced therein was by mutual mistake omitted from the same. Without knowledge of that omission, Appley assigned the mortgage to Sprague, representing and believing that it embraced all of the mortgagor’s land intended to be included therein. Sprague foreclosed the mortgage, and became the purchaser of the land covered by it, and as, in that action, the mortgage had been reformed so as to cover the land omitted from the mortgage by mistake, the whole of the land was sold, and Sprague, the assignee of the mortgage, became the purchaser, and took the referee’s deed. The complaint also alleges that before the foreclosure, Cochran, the mortgagor, fraudulently conveyed the land left out of the mortgage by mistake to his two daughters. It also alleges that Cochran, after the making of the mortgage, married, and that his wife has, or claims to have, an inchoate right of dower in the premises left out of such mortgage by mistake; that at the time of the commencement of the action to foreclose the mortgage the deed to the daughters had not been recorded, and their claim under the deed was unknown to the plaintiff in the foreclosure proceeding, and they were not parties to that action; that on the foreclosure of the mortgage there was a deficiency; that the grantees under the deed from Cochran are in possession of the premises so left out of the mortgage, and refuse to surrender to Sprague, the purchaser, under an assignee of the mortgage, or the person or persons having his interest We are inclined to think that, under the facts alleged in the complaint, both the mortgagee and assignee of the mortgage are proper, if not necessary, parties plaintiff in this action. Appley, by her assignment of the mortgage, representing to the assignee that it covered all of the premises which by mistake were left out of the description, was clearly liable to the assignee to make good that representation. Sprague, who had purchased and foreclosed the mortgage, had a right to the complete title to the entire mortgaged premises, as well that included in the actual description of the mortgage as that left out by mistake. As the daughters of Cochran were not parties to thé action of foreclosure, and not, therefore, bound by the judgment reforming the mortgage, their deed, though fraudulent, was a cloud upon the title of the purchaser under the mortgage, which was not discoverable by a mere inspection of the record, and which Sprague in this action would be interested in having removed. Both of the plaintiffs therefore had a direct interest in the relief demanded in the complaint. Mrs. Appley had parted with her legal title to the mortgage by the assignment. She had a direct interest in having the mistake corrected so as to relieve her upon her warranty as to the extent of the mortgaged premises. In Malins v. Brown, 4 N. Y. 404, it was held that when a party had conveyed by deed free from incumbrance, relying upon a mortgagee to release, upon a sufficient consideration paid therefor, a portion of the land conveyed from the lien of the mortgage, the grantor of such land might maintain an action to compel such release, although he had no interest in the land, he having conveyed away his interest by warranty deed. The ground of such right was his liability to his grantee on his covenants of warranty. Applying the doctrine of that case to the one at bar, and Mrs. Appley is clearly a proper party plaintiff in this action. See, also, Pendergast v. Greenfield, 127 N. Y. 23, 27 N. E. 388. We think that Sprague also had an interest in the subject-matter of this action, which arose out of the same transaction. In the language of section 446 of the Code of Civil Procedure, he has “an interest in the subject of the action and in obtaining the judgment demanded.” It is difficult to see how a complete determination of the right of both of these plaintiffs can be had without their presence before the court, and we can see no possible harm to the defendant, under the rules relating to parties in equitable actions, by having them united as plaintiffs in this action. Murray v. Hay, 1 Barb. Ch. 59; Kennedy v. City of Troy, 14 Hun, 312; Haines v. Holister, 64 N. Y. 1-4. By having the rights and interest of both of the plaintiffs adjusted in this action, a multiplicity of actions may be avoided, which, in equity, is always desirable. Shepard v. Railroad Co., 117 N. Y. 442-447, 23 N. E. 30; Townsend v. Bogert, 126 N. Y. 374, 27 N. E. 555. We think the defendant William B. Cochran is a proper party defendant, and the demurrer as to him cannot be sustained. He is charged in the complaint with being a party to the fraudulent conveyance to his daughters. He is also in possession of the lands with his fraudulent grantees, as appears by the complaint, which is admitted by the demurrer. Hubbell v. Bank, 42 Hun, 200; Miller v. Hall, 70 N. Y. 250.. As the rule on demurrer in the construction of the pleading demurred to is to allow all reasonable intendment in support of the pleading demurred to, we think the demurrer in this case must be overruled. Demurrer overruled, and judgment on demurrer ordered for the plaintiff, with costs, with leave to the defendants to answer on payment of costs of demurrer. All concur.  