
    Harrison R. Johnston, Resp’t, v. Thomas F. Donvan et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 21, 1887.)
    
    1. Parties to foreclosure—Application to be made—Code Civ. Pro., §§ 452, 1671.
    It is no answer to an application to be made a party to an action of foreclosure, that the plaintiff was not in fault in bringing the action against the person having the record title, or that, if the action had proceeded to judgment, the petitioner would have been bound thereby.
    2. Same—Failure to record deed.
    The real owner of real property does not forfeit his right to be made a party to the action, and to defend his title in that character, because he has omitted to record his deed, provided his application is made in due time.
    Appeal from order of supreme court, general term, first department, affirming orders of special term denying motions of Silas J. and James V. Donvan, to be brought in as parties defendant in foreclosure proceedings.
    
      Geo. C. Holt, for app’lts; Hamilton Wallis, for resp’t.
    
      
       Reversing 6 N. Y. State Rep., 861.
    
   Andrews, J.

The petition of Silas J. Donvan and James V. Donvan to be made parties defendants was denied on the merits. We think it should have been granted. Section 452 of the Code of Civil Procedure declares that ‘•where a person'not a party to the action has an interest in the subject thereof, or in real property, the title to which may in any manner be affected by the judgment, and makes application to the court to be made a party, it must direct him to be brought in by the proper amendment. ”

The action was for the foreclosure of a mortgage on real property, executed by Thomas F. Donvan, one of the defendants in the action, to whom the premises were conveyed by the mortgagee, March 31, 1880. Prior to the commencement of the action, and on the twentieth day of February, 1883, Thomas F. Donvan conveyed the mortgaged premises to the petitioner, James V. Donvan, by deed, subject to the mortgage, and containing a covenant of assumption by the grantee. The deed to James V. Donvan had not been recorded at the time of the commencement of the action, but he then held, and still holds, the legal title to the mortgaged premises. The facts presented by the petition made a case as to the petitioner, James V. Don-van, which was directly within section 452 of the Code/ He had an interest in the subject of the action, and his title to the land would or might be affected by the judgment which the plaintiff sought therein. The application was made before the time for answering had expired, and-no laches in making the application are imputable to the petitioner. It is no answer to the application that the plaintiff was not in fault in bringing the action against the person having the record title, or that, if the action had proceeded to judgment, the petitioner would have been bound thereby. Code, § 1671. This is not the test of the right of the real party in interest to be made a party to the litigation upon his application under section 452. He is not compelled to commit his defense to the hands of a stranger to the title, and the real owner of real property does not forfeit his right to be made a party to the action, and to defend his title in that character, because he has omitted to record his deed, provided his application is made in due time. It appears from the petition that the original conveyance to Thomas F. Donvan was taken by him in trust for his brothers James V. Donvan and Silas J. Don-van, the petitioners, and that the subsequent conveyance by Thomas F. Donvan to James V. Donvan was taken by the latter in trust for himself and his brother Silas, and that the land was originally purchased by them as partners, and the title taken in the name of the defendant Thomas for their joint benefit. It is claimed that no valid trust was shown either in Thomas, the original grantee, or in,James V., and also that the petitioners are not in a position to defend against the mortgage. These are questions which may be litigated on the trial. It is not proper, on a motion of this kind, to pass upon the merits of the controversy.

We think the courts erred in denying the motion, and the orders of the special and general terms should therefore be reversed, and an order entered granting the application of the appellants, with costs.

All concur.  