
    JOHN HAVEN, Plaintiff and Respondent, v. MARIA L. DALY, et al., Defendants and Appellants.
    Before Curtis and Van Vorst, JJ
    
      Decided August 1, 1876.
    I. REAL ESTATE, TITLE TO.
    
    1. Agreement not affecting.
    One made and executed by Hand B, reciting that D, H and B had conjointly purchased the land in question, declaring that the deed of the property is held by D for herself, and in trust for them ; and providing that if they should fail to pay their proportional part of interest, accruing on a purchase money bond and mortgage, when the same should become payable, then their right and interest should cease; and concluding, “witness the hands and seals of said H and B the day and year first above written,” does not create in H and B an interest in, or a lien upon, the land, nor constitute the grantee a trustee for them.
    Parol agreement. This, although there was a parol agreement between D, H and B, to the effect that each was the owner of one-third of the property,—H and B having neither gone into possession, nor discharged any obligation imposed on them by the terms of the declaration signed by them.
    n. FORECLOSURE, PARTIES DEFENDANT.
    
    1. Who not necessary.
    1. H and B are not necessary parties to an action to foreclose the purchase money prayers.
    HI. SPECIFIC PERFORMANOE.
    
    1. Sale under judgment in a foreclosure action of the purchase money mortgage to which Eand B were not parties.
    
    
      (a) Purchase compelled to complete.
    This is an appeal from an order, compelling Lewis Allen to complete the purchase of certain premises, bid in by him, on a sale made under a judgment of foreclosure in this action.
    The purchaser objected to the title, on the alleged grounds that William J. Barnes and George F. Hopper had each an estate and interest in, and a lien upon the mortgaged premises, and had not been made parties to the foreclosure proceedings.
    
      Smith E. Lane, attorney, and William R. Martin, of counsel, for appellants, upon the point decided by the court, urged:
    I. Upon the conceded facts of this case, it is beyond question that Hopper and Barnes had an estate and interest in, and lien upon, the lands. They were joint purchasers with the defendants, who held the title, and under the agreement, they could have compelled a conveyance of their respective interests. Any purchaser, with knowledge of these facts, who took a deed of the land from the defendant, would hold it subject to the claims of Hopper end Barnes, and without a good title. The plaintiff must make a good title under the foreclosure, or the purchaser is not bound to take. This judgment must be good at the time it is entered. It cannot be aided by extrinsic, or subsequent affidavits. This judgment, as it appears, on the record, is defective. The papers on file show that Barnes and Hopper should have been made par- . ties, and the facts must here and always b? regarded' as they appeal- on the records. They must be assumed ' to be correct, and they cannot be contradicted or qualified after judgment.
    II. They were thus necessary parties to a complete determination of the action, and as such, their must be brought in (Voorhees’ Code, 1870, sec. 122, sub, 1, and notes A and C). The owner of the equity of redemption, even by an unrecorded deed, of which the mortgagee had no knowledge, must be brought in as defendant (Hall v. Nelson, 23 Barb. 88 ; Voorhees' Code, 1870, p. 105, note g ; 1 Wait's Practice, 135).
    
      Scudder & Carter, attorneys, and George A. Black, of counsel, for respondent, upon the point decided by the court, urged:
    The purchaser, on the motion below, based his defense on the allegation of an agreement between Mrs. Daly and Hopper & Barnes. To support this, he produces an agreement. This contains recitals that it is made by Mrs. Daly, but purports to be executed only by Hopper & Barnes, and in its character is not such an instrument as conveys any legal title. The interest they have is a conditional one, and there is no proof that they have performed the condition. But it is manifest that whatever rights they have under this agreement, the right of possession is not one of them. The test is, could Mrs. Daly convey a good title to a person who knew of this agreement. Undoubtedly she could, as the instrument contemplates such a transfer.
   By the Court.—Van Vorst, J.

The owners of the equity of redemption, should, without doubt, be made parties to the action, otherwise they are not affected by the judgment (Read v. Marsh, 10 Paige, 410). Not only is the owner of the equity of redemption a necessary party, but all subsequent incumbrancers existing at the commencement of the suit are such (Moak's Van Santvoord’s Pleadings, 131).

The right of redemption exists in favor of every person who has an interest in, or a legal or equitable lien upon the land (Kent's Com. vol. 4, 162).

The interest, if any, of Barnes and Hopper, in the mortgaged premises, is created by the instrument in writing, dated on the 15th day of May, 1873, after the execution of the mortgage, a copy of which is among the papers handed to the court, on this appeal.

The instrument, which has never been recorded, is a declaration, signed by Hopper and Barnes only. It does not purport to be, and is not in fact executed by Maria L. Daly, in whom the legal title to the property vests, and who with her husband executed the mortgage for a part of the purchase money. The instrument recites that Maria L. Daly, George F. Hopper and William J. Barnes, have conjointly purchased the land in question, declares that the deed of the property is held by the grantee for herself, and in trust for Hopper and Barnes, and provides that if Hopper and Barnes shall fail to pay their proportional part of interest accruing upon the bond and mortgage, when the same shall become payable, then their right and interest shall cease. The concluding part is, ‘‘ witness the hands and seals of said Hopper and Barnes, the day and year first above written.”

Barnes and Hopper could not by the execution of the instrument in question create in themselves an interest in or lien upon the lands or constitute the grantee, a trustee for them. It would require the consent of the grantee to be evidenced by an instrument in writing executed by her. She should have either joined in this instrument by executing it, or a similar paper. Courts of equity hold that a part performance of a parol agreement is sufficient to take a case out of the statute of frauds, upon the ground that a party who has permitted another to perform acts, on the faith of an agreement, shall not be allowed to insist that the agreement is invalid because it was not in writing.

In Lowry v. Tew (3 Barb. Ch'y. 408), it was held that “ talcing possession under a parol agreement, and in compliance with the provisions of such agreement, accompanied by other acts, which cannot be recalled, has always been held to take such agreement out of the statute of frauds.” A party going into possession, under a parol agreement with the owner of the land to sell and convey to him, which has been so far consummated as to entitle him to a specific performance, is considered the owner of the title for which he has contracted.

But there is nothing in the papers which tends to show either that Barnes and Hopper have gone into possession, or that they have discharged any obligation imposed upon them by ihe terms of the declaration signed by them.

At the time of the commencement of the action for the foreclosure of the mortgage, Mrs. Maria L. Daly, was the owner of the equity of redemption, and neither Barnes nor Hopper, from anything which appears, had any estate or interest in, or lien upon the mortgaged premises, and were not necessary parties to the action.

The order appealed from is affirmed with costs.

Curtis, J., concurred.  