
    John Miller vs. Mary Henderson et al.
    M. D. W., A. P. W., C. W., and M. W. entered into an agreement with G. D. A. to convey to him. a tract of land for $400. G. D. A. paid down $150 on the agreement, and was to have a deed on the payment of the balance of the money. G. D. A. assigned the agreement to J. C., as security for the payment of a note of $150. J. C. died, leaving several children her heirs at law, and a will, with one J. H. executor. The heirs at law of J. C. assigned the agreement, for the consideration of $200, to O. W., one of the original parties to the agreement. C. W. then assigned the agreement to the complainant. M. D. W., A. P. W., and O. TV., three of the parties to the original agreement, died, leaving M. W., another party to the agreement, surviving. The bill is filed against M. W. and W. P. S., the executor of C. W., for a specific performance.
    The heirs at law of J. C. had no right to assign the agreement. She held it merely as a mortgage security, and her interest in it passed, at her death, to her exeeutor, and not to her heirs at law. The bill does not show that the heirs of J. C. could make any title to the agreement.
    M. W. and A. P. W., original parties to the agreement, being dead, their heirs at law should be parties to the suit.
    G. D. A., the party of the second part to the original agreement, being dead, his personal representative should be a party to the suit. G. D. A., having assigned the agreement only as collateral for a debt, retained an interest in the agreement.
    
      Whero the mortgagee assigns the mortgage absolutely to a third person, he is not a necessary party to a foreclosure suit. But if the assignment is not absolute, then he is a necessary party.
    The bill is filed to compel the specific performance of an agreement. The defendants filed a general demurrer to the bill. Sufficient of the case appears in the opinion of the Chancellor to understand the points decided.
    
      M. Beasley, in support of the demurrer.
    
      W. Halsted, contra.
   The Chancellor.

The demurrer is well taken on several points. The original agreement was made on the 31st of May, 1831, and purports to be between Mary D. Wright, A. P. Wright, Charles Wright and Mary Wright, heirs at law of Joshua Wright, deceased, of the one part, and George D. Abrahams of the other part, by which the parties of the first part agree to convey to the party of the other part a lot of land containing five acres, for the consideration of eighty dollars an acre. On the making of the agreement, Abrahams paid down one hundred and fifty dollars. The deed was to lie made when the residue of the purchase money was paid. On the 13th of September, 1836, Abrahams endorsed on this agreement his prommissory note, by which he agreed to pay, to the order of Jemima Chambers, three hundred and fifty dollars, with interest, twelve months after date ; and he then assigned to her all his interest in the said agreement, to secure the payment of the said note, the said assignment to be void when the note was paid. In 1838, Jemima Chambers died, leaving several children, and one of them an infant. She left a will which was proved by Joseph Howell, the executor thereof.

On the 21st of May, 1811, the children of Jemima Chambers, then of age, and the one an infant, by her guardian, for the consideration of two hundred dollars, assigned the said agreement to Charles Wright, one of the original parties to the same.

On the 13th of March, 1852, Charles Wright, for the consideration of $200, assigned the said agreement to the complainant.

Mary D. Wright, Aaron P. Wright and Charles Wright are dead. The bill does not state who are their heirs at law. The bill is filed against Mary Henderson, formerly Mary Wright, the only surviving party to the original agreement. She afterwards married one Henderson, who is deceased. There is but one other defendant, William P. Sherman, the executor of Charles Wright. There is no one before the court to represent Mary D. and Aaron P. Wright.

According to the case made by the bill, the complainant does not show himself entitled to maintain this suit. He claims title through the heirs at law of Jemima Chambers, who assigned the agreement to Charles Wright. The bill ought to show what right these heirs had,to assign the agreement. Jemima Chambers held it merely as a mortgage security. At her death it belonged to her personal representative, and not to her heirs at law. She left a will. Her interest in the agreement passed to Joseph Howell, her executor, unless specifically disposed of by the will. Her heirs at law could no more convey a good title to the agreement than could a perfect stranger to the transaction. On this ground the demurrer is well taken.

The bill is defective for want of parties. Mary and Aaron P. Wright are not represented before the court. At their death, their respective interest in the land descended to their heirs at law, and those heirs should be made parties. The bill does not state who they are. It may be that the defendant, Mary Henderson, is the sole heir to each of the deceased parties to the agreement. This, however, is mere conjecture. If it is so, the bill is defective, for the reason it does not show this fact.

Abrahams is dead, and his personal representative should be a party to the suit. Abrahams did not assign bis interest in the agreement absolutely to Jemima Chambers. It was a conditional assignment, and be retained an interest in the property assigned. Where the mortgagee assigns the mortgage absolutely to a third person, it is not necessary that the mortgagee should be a party to the suit for the foreclosure and sale of the mortgaged premises. But if the assignment is not absolute, but the mortgagee retains an interest in the mortgage security, then he is a necessary party, because be is interested in the suit, and particularly in taking the account of what is due on the security. For the same reason, Abrahams’ personal representative should be before the court.

Cited in Ackerson v. Lodi Branch R. R. Co., 1 Stew. 543.  