
    Whitbeck v. Edgar, Administrator, &c., and others.
    Nov. 21, 28 ;
    Dec. 31, 1846.
    An assignee or purchaser, pendente lite, may file a supplemental bill in the nature of a cross bill, for the purpose of making himself a party to the pending suit, and thus to have his rights protected.
    Held accordingly, where during an abatement of a suit for the foreclosure of an old mortgage of more than twenty years standing, one of the defendants in possession claiming in fee, executed a mortgage to a non-resident of the state, who on the revivor was made a party, but not served with process or actually notified ; and who afterwards assigned his mortgage to one who had no notice of any of the suits.
    In such a supplemental bill in the nature of a cross bill, it is proper to ask for the foreclosure of the second mortgage thereby set up, as well as for a cancellation of the first mortgage.
    This case came before the court on a demurrer to the bill of complainant, by the defendant, H. L. Edgar. Various causes were assigned, which will be found noted in the defendant’s points. The material statements of the bill are set forth sufficiently in the opinion of the court.
    
      M. R. Zabriskie and A. L. Robertson, for the defendant, Edgar.
    I. The bill purports to be a cross bill. (Mitf. Pl. 3d Ed. 70, 75, S1; Coop. Eq. Pl. 85.)
    1. The complainant is not a party to the original suit; which he must be, to file a cross bill. (Earl of Newbury v. Wren, 1 Vern, 221; Story’s Eq. Pl. § 389 ; Kemp v. Mackerell, 3 Atk. 812; Field v. Schieffelin, 7 J. Ch. R. 252; Galatian v. Erwin, Hopk. 48 ; and 8 Cow. 361, S. C.)
    2. The bill waives any discovery under oath. (Story’s Eq. Pl. 311.)
    3. It does not state the condition of the original suit. (Mitf. Eq. Pl. 81; Coop. Eq. Pl. 88 ; 3 Atk. 812.)
    4. It does not show but that Waldron may have admitted away his rights. (Story’s Eq. Pl. 401, 483 ; Coop. Eq. Pl. 87, 88 ; Berkley v. Rider, 2 Ves. 533, 537.)
    5. It does not offer to go to hearing on pleadings or proofs already in. White v. Buloid, 2 Paige, 166, 164; Story’s Eq. Pl. § 395.)
    6. It has made parties defendants, who are not so to the original suit, or bound by a decree therein, nor does it show their interest in all the subject matter thereof,
    7. It shows no matter of defence which could not have been taken in the original suit. (Ward v. Egles, Moseley, 382.)
    8. It brings new matter before the court: viz. the foreclosure of the complainant’s mortgage. (Welf. Eq. Pl. 230; Story’s Eq. Pl. § 401.)
    II. It also purports to be a supplemental bill, to bring the complainant as a party before the court.
    1. As such it prays distinct relief, to wit; the foreclosure of the complainant’s mortgage. (Story’s Eq. Pl. § 616.)
    2. It does not set forth the state of the original suit, so as to be bound by acts and omissions therein, or preclude him from setting up defence in the bill. (Milford’s Pl. 69, 90.)
    
      3. It makes persons parties, who have no interest in the relief sought. (3 Dan. Ch. Pr. 180.)
    4. It prays relief, before any decree to make this complainant a party to the original suit.
    5. It does not offer to go to hearing on pleadings and proofs already in.
    6. It prays to have the mortgage to Edgar satisfied, but shows no legal title in himself. (Milford’s Pl. 149, 151.)
    7. It makes the same issue as the original cause, to wit, priority of lien of mortgage to Edgar and that to the complainant.
    III. The bill is multifarious. It prays satisfaction of Edgar’s mortgage ; to be made a party to the original suit; and to foreclose the complainant’s mortgage. (Story’s Eq. PL § 276, 528 ; Brooks v. Ld. Whitworth, 1 Mad. Ch. R. 57.)
    
      N. Chase, for the complainant.
    The bill is correct in form. (Foster v. Deacon, Madd. & Geld. 59; Wilder v. Keeler, 3 Paige, 164; Binks v. Binks, 2 Bligh, 593 ; 2 Barb. Ch. Pr. 64; Mitf. Pl. 63; 1 Dan. Ch. Pr. 378.)
    If it be a cross bill, it is properly filed. (Mitf. Pl. 64.) The holders of this mortgage, have had no opportunity to defend the original suit.
    The new parties are inserted, because new interests have arisen since the bill of Edgar. (4 Paige, 85.) All rights were reserved when the chancellor gave leave to Edgar to proceed. (5 Paige, 34.) Waldron being a non-resident, could come in at any time within seven years, and we have the same right. (2 R. S. 187, § 134.)
   The Vice-Chancellor.

A statement of the facts contained in the bill, is the shortest mode of disposing of the demurrer. Robert L. Bowne, being seised in fee in possession of a farm of forty-five acres at Bloomingdale, of which the premises in question are a part, mortgaged the same to William Edgar the elder, on the 2d of January, 1809, to secure the payment of his bond for $20,000 with interest. The mortgagee died November 1st, 1820, leaving a will appointing four executors, of whom only one, his son William, qualified and acted as executor. The mortgage of Bowne was fully paid and satisfied, by various means, to the mortgagee and to his executor William Edgar. Junior.

Robert L. Bowne died intestate on the 21st of June, 1821, seised in fee of the lands mortgaged to Edgar, leaving a widow, and nine children who as his heirs thereupon became seised in fee of the same. R. L. Bowne was in the possession or in the receipt of the rents and profits of the farm, from the time he first purchased it until his death.

William Edgar, Junior, died on the 27th of August, 1823, leaving a will of which Duncan P. Campbell and others were executors.

On the 11th of February, 1828, the executors of W. Edgar, Junior, in their own names, and also in the names of the three surviving executors of his father, (neither of whom had ever taken upon themselves the execution of the will of the latter,) filed a bill in this court to foreclose the mortgage executed by Robert L. Bowne, claiming as due, $18,000 with interest from July 2, 1818, They made defendants to the suit, his widow, and George Bowne his son, with all his other heirs excepting four children and one grandchild; together with numerous judgment creditors of R. L. Bowne, the mortgagor.

No notice of the pendency of this suit, was ever filed in the county clerk’s office.

On the 26th of December, 1833, Herman Le Roy Edgar, a son of W. Edgar, Jr. took out letters of administration de bonis non, with the will annexed, on the estate of his grandfather, W, Edgar the elder. He thereupon presented a petition to the chancellor, ex parte, for leave to proceed with the foreclosure suit, and to file a supplemental and amended bill to bring in parties who had been omitted, or whose rights had been changed by marriage or otherwise. The chancellor granted his application on the 6th of January, 1835. (Campbell v. Bowne, 5 Paige, 34.)

In August, 1839, he filed an amended and supplemental bill, pursuant to the leave thus given, in which the omitted heirs of R. L. Bowne were made parties, together with Benjamin Waldron and others. Waldron at this time resided in New Jersey, and was never served with process in the suit, or had any actual notice of its existence.

In February, 1845, Herman Le Roy Edgar filed a second amended bill, making some new parties, and asking a further discovery from the parties to the former bills, and an injunction against Waldron and the heirs of R. L. Bowne, but not praying for process of subpoena against either of them. And Waldron has never been made a party to the second amended or supplemental bill. There has been no decree made upon either of the bills filed by the representatives of the Messrs. Edgar.

To travel back in the order of time, on the 5th of October, 1837, George Bowne, the son of R. L. Bowne, executed a mortgage on eight equal undivided ninth parts of the westerly twenty-four acres of the farm at Bloomingdale, to Benjamin Waldron, to secure his bond for $19,000, payable in four years, with interest. Previous to that date, George Bowne, by conveyances from the other heirs, had become seised of the premises so mortgaged ; he was then in possession of the same, and he has ever since been in possession. This mortgage was recorded Oct. 14th, 1837.

On the 11th of October, 1844, Waldron assigned the bond and mortgage to George W. Soule, but the assignment was not recorded till the month of June following.

On the 16th of August, 1845, Soule assigned the same bond and mortgage to the complainant in this suit, who claims that there is due $12,542, with interest from October 5, 1844. The complainant was ignorant of the existence of the first Edgar suit, until after he received such assignment, and neither he nor G. W. Soule have been made parties to any of those suits.

On the 30th of October, 1845, he applied in writing to the solicitor of Mr. Edgar in those suits, setting forth his rights and claims under George Bowne’s mortgage, and requesting to be made a party defendant therein, and notifying the solicitor in the suits that in the event of his neglect or refusal, he should file an original bill in the nature of a supplemental bill, to enforce his mortgage against the land, and to establish its priority over that of Edgar. No response being made to his application, the complainant exhibited this bill accordingly.

Besides the allegations of payment and satisfaction of the Edgar mortgage, he relies upon the lapse of time as a valid bar against it.

Such is the case made by the bill of complaint, and for the purposes of this argument, it is all to be taken as true.

In reference to an objection that the bill dons not describe any land, where it attempts to show what was mortgaged to Waldron, there is evidently an omission in the metes and bounds. But if those that remain were stricken out, the description would suffice. It would then be the westerly twenty-four acres of the farm of forty-five acres, which Robert L. Bowne mortgaged to William Edgar, and which is particularly described in the bill. To set off twenty-four acres upon such a description, a surveyor would run a line parallel to the west line of the farm.

The right of a person, who pendente lite takes an assignment of the interest of one of the parties in the suit, to make himself a party to the suit by a supplemental bill, is well settled. In Foster v. Deacon, 6 Madd. 59, Sir John Leach, Y. C., held that such a proceeding was proper; and Chancellor Walworth lays down the same rule in Wilder v. Keeler, 3 Paige, 164. It is also sanctioned by the best treatises on the pleading and practice of the court. (2Barb. Ch. Pr. 64 ; 1 Daniell’s Ch. Pr.378; Story’s Eq. Pl. § 348.)

What will be the result of such a bill, and how far the purchaser may be affected by the proceedings in the original suit, are wholly different questions. I have no doubt that the complainant in this case was entitled to file such a bill. When the mortgage was executed to Waldron, George Bowne was in the possession as the ostensible owner of the lands mortgaged. The mortgage to Mr. Edgar was apparently discharged by lapse of time. Waldron knew nothing of the suit upon it, and there was no constructive notice to him by a lis pendens, filed according to the statute.

When Soule became the assignee of the mortgage, Waldron was a non-resident, having no actual notice of the second suit, and not served with process. If the bill had been taken as confessed against him, on publication as an absentee, the statute reserved to him the right of contesting the claim of Mr. Edgar, and that right at least passed to his assignee. All the title and immunities which Soule acquired, were transmitted to the complainant.

Thus it seems that the latter has substantial rights and interests, upon which he is entitled to a hearing and an adjudication, before the court proceeds to sell the estate mortgaged. Mr, Edgar declined to yield to him this opportunity, by making him a defendant, and he had no alternative but to proceed by a supplemental bill.

In so doing, it was not only proper, it was commendable, to make the bill in the nature of a cross bill. All the parties were before the court who were required to enable it to do complete justice to all concerned; and it would, have been oppressive to have used the supplemental suit merely to defeat the Edgar claim, and then to file an entire new bill to foreclose the Waldron mortgage. This is not a pure cross-suit, nor does the bill profess that character. Hence the objections to it as a cross bill, are not tenable.

In respect of the state of the original suits, and the possibility that Waldron may have admitted away his rights, it suffices that he was not a party to more than one of those suits, and not knowing of that one, he could not have confessed away his rights in it; and as there had been no decree, it was not too late for him, as a non-resident, to contest the claim, whatever other steps might have been taken in the suits.

The bill is not multifarious. What I have stated of its nature and objects, meets this ground of the demurrer.

The demurrer must be overruled, and the usual order entered. 
      
       Affirmed by the chancellor on appeal, Jan. 26,1847 ; 2 Barb. Ch. R. 106.
     