
    *Alexander H. McGuffey v. Alexander Finley and Ann Ellen Finley, his wife; Susan Connery and Edward Connery, her husband.
    In a suit in equity to foreclose by an assignee of a mortgage, if the assignment has been absolute, transferring the entire interest of the mortgagee, it is not indispensably necessary that the mortgagee should be a party, although this court believes the better practice to be in all such cases to make him a party.
    This is a bill in chancery reserved in Hamilton county.
    The bill in this case shows that Alexander Finley and his with, on February 1, a. d. 1850, mortgaged to Nathan L. Rice certain real estate in Cincinnati, which is particularly described, to' secure the payment of a certain promissory note of that date, for the sum of $575, made by the said Alexander Finley, and indorsed by Ann Ellen Finley, and payable four months afterdate to the said Nathan L. Rice or order. That, on June 27, 1850, the said note and mortgage were, by the-said Nathan L. Rice, assigned and transferred to the complainant, whereby all the right and title of said Rice in and to said note and mortgage, and the money thereby secured, became vested in complainant.
    The assignment was made on the mortgage, and both the mortgage and assignment are referred to and made part of the bill.
    It is then stated in substance, that the money not being paid according to the terms of the note and mortgage, the estate had become absolute at law, etc. The complainant then states that he is informed that Susan Connery and her husband, Edward Connery, claim some interest in the land, and prays that Alexander Finley and Ann Ellen Finley, his wife, Susan Connery and Edward Connery, her husband, may be made defendants. The prayer of the bill is as usual in cases for the foreclosure of a mortgage.
    *A copy of the mortgage is attached to the bill, and the original is before the court as an exhibit, with the note attached.
    Subpena was issued for all the defendants named in the bill, but they are in default for answer.
    
    The assignment indorsed on the mortgage is as follows:
    “For value received, I hereby assign and transfer to Alexander H. McG-uffy all my interest in and under the within mortgage, and the note therein described.
    “ N. L. Rice.
    
      “June 27, 1851.”
    Rice is not a party to the bill.
    McG-ueeey & Holcombe, for complainant:
    Is a mortgagee, who has assigned his whole interest in the debt and mortgage unconditionally, but not by deed, a necessary party on a bill to foreclose filed by the assignee ?
    It would seem from the language of the authorities, that this question is settled. Story’s Equity Pleadings, secs. 153,199. This doctrine, it is true, is stated where ho is treating of the proper parties as plaintiffs to a bill to foreclose; but the principle is the same.
    So in Calvert on Parties, marginal page, 185: “If an assignment of all the interest of the mortgagee has been made and the mortgagor filed a bill aga'inst the assignee to redeem, or the assignee against the mortgagor to foreclose, the mortgagee need not be brought before the court.” Whitney v. McKinney, 7 Johns. Ch. 144; Hobart v. Abbott, 2 P. Wms. 642; Johnston v. Hart, 3 Johns. 322; Williams v. Sawell, 4 Ves. 389 ; Miller v. Bauer, 3 Paige, 168; Hosford v. Nichols, 1 Paige, 220; Anderson v. Walls, 6 B. Mon. 542; Shaw v. Hoadley, 8 Blackf. 165; Newman v. Chapman, 2 Rand.
    But it is insisted that the mortgagee should be made a party, because he holds the legal title, after conditions broken, and does *notpass all his interest by a written assignment on the mortgage, unless such assignment is a regular deed of conveyance.
    There is some confusion in the authorities in respect to the condition in which the mortgagee stands after condition broken. The weight of opinion is in favor of the doctrine that he may pass his whole interest without an instrument under seal. 11 Ohio, 341; Lessee of Phelps v. Butler, 2 Ohio, 224; Lessee of Hill v. West, 8 Ohio, 443; 4 Kent’s Com. 194; Brace v. Harrington, 2 Atk. 235; Brown v. Kirby, 10 Ohio, 215.
    Admitting that the legal title is in the mortgagee, after the assignment, that title is an airy phantom, and does not require the 'potent wand of a chancellor’s decree to dissipate it into nothingness.
    Tho question of leaal title is in no way involved. We simply seek the payment of a debt, and we ask this payment of the mortgagor, not of the mortgagee.
    And if the ground assumed by defendant’s counsel be tenable, it must follow that a debt evidenced by negotiable paper can not be assigned, except by deed, if it happened to be secured by mortgage l
    
    The point raised in this case has been decided by Judges Spalding and Avery, on the circuit, in the case of Hill v. Welsh, Pickaway Supreme Court, November Term, 1850; 8 Western Law Journal, 371.
    No argument came to the hands of the reporter, for defendants.
   Hitchcock, C. J.

It will be seen by the statement of the case, that Nathan L. Eice, the original mortgagee, is not a party in this case, either as complainant or defendant; but the exhibits show that there was.an absolute and unconditional transfer of the note and mortgage by Eice, for a valuable consideration, to the complainant, and the solo question raised, is, whether, under the circumstances of the case, the complainant *is entitled to a decree; in other words, whether the assignee of the original mortgagee can enforce the mortgage against the property mortgaged without having his assignor before the court.

According to the earlier practice of this court, it is believed to have been absolutely necessary, in such case, that the mortgagee should be made a party; and the same rule was applied in all cases where an assignee came into court to' enforce a contract, made and entered into between his assignor and a third person. We believe that this rule is founded in good sense; and that it should never have been departed from. The general rule is, that all parties interested in the subject matter of litigation in a chancery proceeding, should be before the court.

It may be said that a mortgagee, having made an absolute and unconditional assignment, has no interest. The fact, however, that such an assignment has been made, may be material to be ascertained by proof, as the assignment can not prove itself. Upon the existence of this fact, the question, whether the assignee has any title, must depend ; and it is contrary to our usual notions of legal propriety, that evidence should be introduced to prove that one who was once interested in a contract or mortgage, has parted with that interest, when he is not before the court to contest, if he .thinks proper, the proof so offered. But, although such is believed to have been formerly the uniform practice of this court, yet, within these latter days, the rule has been, in some instances, departed from, and bills in chancery have been sustained at the suit of the assignee of a mortgage, or other contract, without having the assignor before the court. In adopting this practice, we have followed the courts of other states in the Union, and perhaps the courts in England.

In Whitney v. McKinney, 7 Johns. Ch. 144, Kent, Chancellor, gays, “I do not apprehend it to be necessary, in all cases of a bill to foreclose, by the assignee of a mortgage, that the mortgagee should be made a party defendant.” Again, on page 147: “ But where the assignment is absolute, and the ^assignee parts with all his interest in the mortgage, and there is nothing special and peculiar in the case, the assignee is under no necessity to make the mortgagee a party to a bill to foreclose.” To sustain the text, the chancellor cites 7 Ves. 287; 4 Ves. 389.

In Miller v. Bear, 3 Paige, 466, Chancellor Walworth says:

“There are many cases where an assignee of a chose in action, or of an interest in property, is now permitted to sue, without bringing the assignor before the court, where the latter was formerly held a necessary party. Where the assignee has the equitable interest in himself, so that nothing remains to be done by the assignor, who has parted with his entire interest in the proj^erty, both at law and in equity, I see no benefit which can result to any person by making him a party.”

In Story’s Equity Pleadings, sec. 153, it is said: “ The true principle would seem to be, that in all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party.”

But it is unnecessary to cite further authorities. All the cases referred to by complainant’s counsel, go to sustain the principle to a greater or less extent. We yield to these authorities; but still we believe the old practice to be the best, and, as before stated, regret that it should have been departed from.

The complainant is entitled to a decree for a sale of the mortgaged promises, having first ascertained the amount due upon the note secured by the mortgage. 
      
       For decisions in relation to mortgages, see Wilcox’s Dig.; and for other decisions, 17 Ohio, 264, 356, 371, 482; 18 Ohio, 35, 273, 428; 19 Ohio, 212; 1 West. Law Journal, 207, 398; 2 West. Law Journal, 70, 325; 7 Ib. 581; 8 Ib. 256, 371, 472, 536. See also 18 Ohio, 567.
     