
    
      David Christie v. Nathan N. Herrick et al.
    
    S. J. Win-kin, for complainant;
    J. Ganson, for defendants.
    Assignor of when 3a neces-*ií?o?foreclos-ure-
    
   Demurrer to foreclosure. Decide'd that where a mortgage is assigned as a mere security for the payment of a debt, or where but a part of the mortgage debt is assigned to the complainant, the assignor is a necessary party to a bill filed to foreclose the mortgage, so that a perfect decree may be made which will protect the mortgagor and the purchaser of the mortgaged premises under the decree, from the future claims which the assignor may make notwithstanding his assignment. But that where there is an absolute and unconditional assignment of a bond and mortgage to the complainant, who subsequently files a bill to foreclose the same, it is not •necessary to make the assignor a party to such suit.

That the same principle appears to be applicable to the case of an absolute assignment of a bond and mortgage to a third person in trust to collect the amount due thereon and apply the same to the payment of the debts of the assignor.

That the case of assignees or other trustees of a fund for the benefit of creditors suing for the protection of the fund, or to collect money due to the fund from third persons, is an exception to the general rule that the cestui que trust must be ■made a party to a suit brought by the trustee.

In this case, the chancellor, being satisfied it was the indention of the assignor of the mortgage to give to the assignee She right to receive the money due thereon, or to .foreclose íhe same in his own name, and to apply the proceeds to the-payment of the creditors to whom the assignee was holden as surety for the assignor, overruled with costs, the demurrer of the defendant, the mortgagor, by which he raised the objection that the mortgagee and assignor was not made a party complainant to the bill of foreclosure.

Defendant ordered to pay the costs and put in his answer within twenty days, or within forty days in case the bill is amended.  