
    Jones v. Weed, St. John and others.
    Poughkeepsie, July 31 ;
    Sept. 5, 1846.
    A bill by a mortgagee against his mortgagor, and against a stranger to the mortgage who claims the premises by a title paramount, praying a foreclosure of the mortgage ; is an ejectment in equity against the adverse claimant, and cannot be sustained.
    Chancery will not entertain a question of pure legal title, when it is not coupled with some equity against the party claiming the title.
    An infant defendant, without regard to his answer, may make at the hearing, any objection to the relief which the case discloses, whether it was apparent on the bill itself, or comes out in the testimony.
    The bill was filed to foreclose a mortgage dated September 26, 1845, on a farm in the county of Westchester, executed by Elnathan Weed and Rhoda his wife to the complainant; against the mortgagors together with Abijah St. John an infant, and Alice St. John his guardian. The bill was taken as confessed by all the defendants except the infant, who answered by his guardian ad litem, and claimed the mortgaged premises to be his own in fee by descent from his half brother, alleging that the mortgagors had not any title when they gave the mortgage, and were not in possession of the premises.
    Issue was joined on this answer, and proof taken. The whole controversy as to the title, turned on the point whether the infant or Rhoda Weed, was the heir at law of Joseph St. John, who it was conceded, died seised of the farm in July, 1845, intestate and without issue.
    It appears that the farm was the property of Rhoda’s sister Martha, who ¡was the wife of Abijah St. John. That on her death, it descended to her son Joseph. That her husband subsequently married Alice Clark, and the infant Abijah St. John, was the issue of such marriage, and was thus the half brother ex parte paterna of the person last seised, although not of the blood of the person from whom the estate descended.
    The complainant’s counsel argued the cause fully, (in writing,) on the title to the property. The counsel for the infant, insisted that he should not have been made a party to the foreclosure.
    
      
      M. Mitchell and W. Silliman, for the complainants.
    
      J. W. Tompkins, for the infant defendant.
   The Assistant Vice-Chancellor.

An infant defendant ..s entitled to make at the hearing, any objection to the relief sought by the bill, which the case discloses, whether it was apparent on the bill itself, or came out in the testimony.

It is now, objected in his behalf, that the complainant hád no right to make him a party to the suit, because his title is adverse to that of the complainant and his mortgagors.

■ The infant defendant claims the whole of the mortgaged premises as the heir of his brother "of the half-blood, Joseph St. John. The complainant claims that Rhoda Weed, (who with her husband mortgaged to him,) was the sole heir of Joseph St. John capable of inheriting those premises, and that on his death she became seised in fee of the whole premises. If the infant’s, claim be well founded, neither the mortgagors nor the mortgagee, have any title or right to the premises. If the complainant is correct in his position, the infant never had any interest in the same. And this is the principal, and the only important issue, made by'the pleadings.

; In The Eagle Fire Company v. Lent, 6 Paige, 635, the chancellor decided, upon" an objection for the want of parties, that a mortgagee filing a bill to foreclose his mortgage, has no right to bring into court one who claims a part of the lands mortgaged,' adversely to the title of the mortgagor and the mortgagee; and that the latter cannot try the validity of the legal title or claim to such part of the premises, in a foreclosure suit.

This appears to be perfectly decisive of the case, in respect of the infant.

I may add, that the same principle was applied to a bill for specific performance, in the opinion of Lord Eldon in Mole v. Smith, Jacob’s R. 490; and it was enforced in a similar suit by the court of appeals in Virginia, in Lange v. Jones, 5 Leigh, 192.

The same point was held in a mortgage case before me, February 19, 1845. (Banks v. Walker, 3 N. Y. Legal Observer, 340, 342.)

In Plumbe v. Plume, 4 Y. & Coll. 345, it was held, that a bill which was in the form of an equitable ejectment bill against one person, and a bill to redeem as against another, is multifarious.

This suit may be aptly termed an ejectment in equity, against Abijah St. John. He has no interest whatever in the mortgage or in the title mortgaged. He claims the land as his own, in defiance of all the parties to the mortgage and those claiming under them.

The question is one of title purely, a dry legal question, which this court cannot entertain, when it is not coupled with some equity against the party claiming the title.

The bill as to Abijah St. John must be dismissed with costs. 
      
       Since reported in 2 Sand. Ch. R 344 ; and affirmed by the chancellor, 3 Barb. Ch. R 438.
     