
    Mims vs. Mims.
    Where abill is filed by mortgagee against mortgagor for sale of mortgaged premises for satisfaction of debt secured by such mortgage, and the deed was not registered as the law required, it is riot necessary to allege in the bill that there were no creditors or subsequent purchaser, nor is it necessary to malee such creditors or subsequent purchaser parties to the bill, as they would not be affected by any decree rendered in the premises.
    Where A mortgaged lands first to Scruggs and afterwards to Mims, and Mims filed his bill to foreclose the mortgage: Held, that Scruggs, not being affected in any degree by the decree, would not be a necessary party, nor is it necessary for the widow of the mortgagor to be made a party for the same reason.
    Paulina 0. Mims, Eliza E. Mims, Caliph G. Mims, Almira C. Mims and Albert W. Mims, mipor children and heirs at law of Albert Mims, deceased, residents of the county of Cocke, by their guai’dian, Samuel M. Hughes, filed their bill in the chancery court at Greeneville, in the eastern division, against Robert W. Pullam, administrator of Alfred Mims, deceased, against the heirs at law of said Alfred, to wit, Milly E.-, William C., G. M., Drury H., Mai'y, Moses and Aaron J. Mims, minors, and their guardian, Casper Easterly, for the pui'pose of procuring the foreclosure of a deed of mortgage.
    This bill charges that their father, Albert Mims, departed this life in the county of Cocke, at his residence, intestate, leaving the complainants his heirs at law and distributees of his estate; that some time previous to his death a certain Alfred Mims, his brother, being indebted to a certain James Scruggs a large sum of money, mortgaged to said Scruggs - two’’"different tracts of land, one lying in the county of Greene the other in the county of Cocke, for the purpose of securing the payment of the before-mentioned indebtedness; that the time for the payment of the money mentioned in the mortgage having elapsed, and being unpaid, the said Albert, at the pressing instance and request of said Alfred, did pay and discharge the said mortgage money with the express agreement that he should be substituted to all the rights of said Scruggs,'and he did accordingly take an assignment of said mortgage to himself as a security for the re-payment of the money advanced.
    The bill charges that for the better security of the money so advanced, the said Alfred, on the 12th day of February, 1834, executed and delivered to Albert, deceased, a deed of mortgage, in the following words:
    “This indenture, made and entered into between Alfred Mims of the one part, and Albert Mims of the other part, witnesseth: that for and in consideration of the sum of thirteen hundred dollars in hand paid by the said Albert to the said Alfred Mims, the receipt whereof is hereby acknowledged, the said Alfred hath bargained, sold and conveyed, and by these presents do bargain, sell, convey and mortgage to said Albert Mims, his heirs, &c. two tracts of land, one lying in the county of Greene, on Nolachucky river, beginning, &c. &c. and containing seventy-seven and one-half acres, the other in the county of Cocke, beginning, &c. &c. and containing seventy acres, to have and to hold to him, the said Mims, his heirs and assigns, forever, in mortgage for the following purposes, to wit: if the said Alfred Mims shall refund to the said Albert Mims, or his proper representatives, the sum of thirteen hundred dollars in the following payments, with lawful interest: three hundred dollars on the 12th day of February, 1835; five hundred dollars on the 12th day of February, 1836; five hundred dollars on the 12th day of February, 1837; then this deed of mortgage to be null and void, and the two above tracts to revert to said Alfred, But if the said Alfred or his representative shall fail to pay the above thirteen hundred dollars, or any part thereof, with interest, then this deed of mortgage to stand in full force. ■
    “Test: J. Easterly, Alfred Mims.”
    James Scruggs, Jr.”
    The bill further charges that their father died intestate, without having the said mortgage proven and registered, and that said Alfred administered upon his estate, and became by appointment of the county court of Cocke county the guai’-dian of complainants; that thereupon he took in his possession the said deed of mortgage, with the other valuable papers of the deceased, and kept them in his possession till-his death, without having the mortgage registered, as it was his duty to have done, the witness to the deed residing a short distance from him; that the complainants did not know of the existence of the said deed till after the death of said Alfred Mims, they being then and still minors.
    The bill charges that so soon as they came to the knowledge of the existence of said deed they caused it to be proved and registered.
    The bill further states that complainants had discovered certain alleged payments endorsed on the back of said mortgage, to wit, the sum of three hundred and eighteen dollars on the 12th February, 1835, the other purporting the payment of the interest due on the same up to the 18th March, 1837, a period of about nine months only before his death, and that complainants could neither admit nor deny the fact in regard to those alleged payments.
    The bill further charges that Alfred Mims died intestate, and that Casper Easterly was appointed their guardian and Robert W. Pullam the administrator of the estate of the deceased.
    The bill prays that the heirs, the guardian and administrator be made parties, and an account be taken and the mortgaged premises be decreed to be sold for the payment of the sum ascertained to be due, and the interest thereupon.
    E. Easterly filed his answer on the 16th August, 1838. He admits the payment of the debt due to Scruggs by the ancestor of complainants, but denies that the mortgage was assigned, and alleges that a new mortgage was taken, as set forth in the bill. He alleges that the mortgage was not registered during the lifetime of complainants’ ancestor; that it came to the hands of his widow at his death; that she held two years after the appointment of Alfred Mims, deceased, to the administration of the estate, had expired, when the county court appointing commissioners to settle with Mims, a settlement was made, and the mortgage being regarded as evidence of debt only and as personal assets, the same was liquidated and returned to the mortgagor as discharged; that the payments endorsed on the mortgage were in fact made before the death of the mortgagor, hut were not endorsed on the deed by him. He alleged that this mortgage was not registered till the 10th day of January, 1838, after it had been liquidated and discharged, and insisted that said deed was void as to subsequent creditors.
    On the 12th day of August, 1838, Robert W. Pullam, administrator, filed his answer. He stated that he had filed his bill in the chancery court suggesting the insolvency of the estate of Albert Mims, transferring the administration of the assets to chancery, and praying a sale of the real estate, and that such suit was still pending. He alleged that he knew nothing in regard to the allegations of the bill.
    Hughes filed a general replication to these answers. Some depositions were taken and read to sustain the allegations of' the answer in regard to the payments alleged to have been made on the mortgage. The cause came on to be heard at the November term, 1838, before chancellor Williams, who, being of the opinion that complainants were entitled to have the mortgage set up and made effectual and to have the amount due on the mortgage discharged by a sale of the mortgaged premises, and not being satisfied from the proof introduced that the ci-edits claimed in the answers should be allowed, directed the clerk and master to take an account and report the sum due, allowing all just credits, and to report the proofs introduced. The clerk and master allowed the credit of three hundred dollars, and reported the balance due on the mortgage to be twelve hundred and fifty-five dob lars on the 13th May, 1839,
    
      At the May term, 1839, the cause came on for final hearing. The complainants excepted to the report allowing the. credit. The chancellor sustained the exception, and he being of the opinion that no satisfactory proof of the payment had been made as alleged, and that there was due to complainants the sum of seventeen hundred and nine dollars and fifty cents, with the interest which should accrue, decreed that unless the representative of Alfred Mims should pay to the guardian of complainants the above sum, with interest, in four months from the date of the decree, the clerk and master should expose to public sale the mortgaged property, after giving forty days notice according to law, and apply the proceeds of the sale in satisfaction of the debt, .and report to the next term what he had done in the premises.
    The defendant prayed and obtained an appeal to the supreme court.
    
      R. J. M’Kinney, for complainants.
    1. As between the parties to a deed registration is not essential to its validity. 10 Yerg. 146.
    2.The omission to have the mortgage registered in this case will be relieved against in equity. 1 Story’s Eq. 179.
    
      J. A. M’Kinney and Arnold, for the defendants.,
    1. The mortgage deed having in the life time of the mortgagee been held up for more than twelve months after its execution and delivery without probate and registration, it is void as to judgment creditors and subsequent purchasers, and the bill to foreclose should charge that there were none such.
    2. The settlement with the committee of the county court, in which the sum due upon the mortgage was accounted for and tendered, and for which sum security was subsequently given when the said Alfred was appointed guardian to complainants, was a complete satisfaction of said mortgage deed, and it was thereby cancelled.
    3. The widow of the mortgagor, who is entitled to dower, should have been made a party.
    4. Scruggs, the first mortgagee, and in whom the legal, title is vested, should have been made' a party.
   'jTuRuey, J.

delivered the opinion ol the court.;

This bill is filed to foreclose a mortgage for two tracts of land, executed on the 12th day of February, 1834, by Alfred Mims to Albert Mims, which mortgage was not registered until the 9th day of January, 1838, after the death of both mortgagor and mortgagee. A decree to foreclose is resisted on several grounds:

1. It is contended, that because the deed was not registered as the law requires, it is void as against creditors and subsequent purchasers without notice; and that inasmuch as there may be those in existence who are not before the court, no decree ought to be rendered. To this the answer is that if there be such persons there is no necessity to make them parties to the bill. They claim in different rights, have no connection whatever with this transaction, and no decree that may be made in the present case can in any wise affect them.

2. It is said that it appears that previous to the mortgage from Alfred Mims to Albert Mims the same lands were mortgaged to James Scruggs, and that he ought therefore to have been made a party. To this objection the same answer which is given to the first applies with equal force. He is no party to this mortgage, and a decree between the present complainants and defendants as to him will be res inter alios acta, and therefore have no effect whatever upon his rights.

3. It is contended that inasmuch as the widow of the mortgagor is entitled to dower in the equity of redemption, she ought to have been made a party. We do not think this necessary. “Upon the death of the husband,” as this court has said in the case of Thompson vs. Stacy, 10 Yerger, 494, “his real estate descends to his heirs at law, who have the undivided seizin till an assignment of dower has been made, and who alone can bring suits to recover the possession and for injuries done to the estate.” If, then, the wife cannot be a party plaintiff she need not be a party defendant; and this principle applies as well to suits in equity concerning equitable rights to real estate as it does to suits at law. Whatever rights a widow may have may always be enforced against the tenant of the freehold, if it be to the land itself, and against the trustee of the fund if it be to a portion of money received for lands of which she would have been endowable had they remained in kind.

These are the material objections taken to the decree of the chancellor. Inasmuch as none of them are available, the decree will be affirmed.  