
    Israel Bell v. Edgar W. Pate, Kate Pate and Mary A. Pate.
    
      Adverse title not litigated by foreclosure proceedings.
    
    Foreclosure is not a proceeding in which, to litigate the adverse and! paramount title of a defendant who claims under the foreclosure of a previous mortgage, from which the complainant does not seek to-redeem.
    Appeal from "Wayne.
    Submitted Jan. 5.
    Decided Jan. 18.
    Foreclosure. Defendant Mary appeals.
    Reversed.
    
      Ward da Palmer for complainant.
    
      Moore da Moore for defendant Mary A. Pate.
   Graves, C. J.

The sole purpose of complainant in filing- • this bill was to obtain foreclosure of a mortgage executed to him on tbe 12th of October, 1878, by the defendants Edgar and Kate Pate, and at the same time to have a claim of title-asserted hy defendant Mary, examined and cancelled.

The court below made the usual decree of foreclosure, authorizing the premises to be sold, and in case of sale barring all rights and claims of the respective defendants, and providing that the purchaser should be let into possession.. The defendant Mary A. Pate appealed. She is in possession and holds, as the bill admits, under foreclosure of a mortgage-given by the grantor of complainant’s mortgagor in 1877, and hence prior to the mortgage in suit. The case admits- and the fact is evident that she is clothed with a colorableright and title both adverse and paramount to the right and title of the parties to the mortgage now sought to be foreclosed, and that she relies on such apparent right and title-as an effectual protection against that mortgage. Whatever-force may be due to the objections to her title, this foreclosure suit is not a proceeding in which to litigate them, and it was not within the power of the complainant to compel the adjudication of her claim in his action instituted to enforce payment of his mortgage.

There is no room for any theory that complainant desires to redeem against Mrs. Pate. The case is repugnant to that view. As there is no right to pass upon the validity of her title in this controversy, an examination of the criticisms made upon it by complainant’s counsel is declined. The point now ruled was explained in Summers v. Bromley 28 Mich. 125. In addition to the authorities there cited see Rathbone v. Hooney 58 N. Y. 463; Banning v. Bradford 21 Minn. 308: 18 Amer. 398; Dial v. Reynolds 96 U. S. 340; Peters v. Bowman 98 U. S. 56.

As against the defendant Mary A. Pate the decree must be reversed and the bill dismissed, and she will recover her ■costs of both courts.

The case will be remitted as provided by statute.

The other Justices concurred.  