
    Moses Hess v. Henry Feldkamp.
    (No. 9,411.)
    A mortgagee, wbo was not a party to a proceeding of foreclosure under which a sale was made, may he called on, by the purchaser at such sale, to exercise his equity of redemption within a reasonable time, or be foreclosed.
    
      Special Term. — On demurrer to petition.
    The petition sets forth that the plaintiff is in possession of certain premises in Cincinnati, and has a legal title thereto; that he purchased the property at sheriff’s sale; that the sale was made under proceedings of foreclosure, on a mortgage of the premises executed by one Lohman, on the 14th of July, 1852; that other mortgages were on the same property; that defendant Eeldkamp had a mortgage thereon executed in 1855; that proceedings were had in this court for the purpose of foreclosing the mortgage executed by Lohman, and-that defendant Eeldkamp, not being a party to the original proceeding, has an equity of redemption ; and the petition asks that he may be required to come in within a reasonable time and redeem, or else forever be foreclosed.
    
      Joseph Abraham, for plaintiff.
    
      Stallo, Andrews & McCook, for defendant.
   Spencer, J.

A prior mortgagee, who undertakes to fore-

close, is required to make junior mortgagees parties; and if he fails to do so, and the property is sold, the purchaser has,undoubtedly, a right to file a petition, and call on the junior mortgagee to pay up what is due, or else to be foreclosed. This is in harmony with proceedings in courts of equity. It is true that, had the facts been made known when the case was pending, the court would have stayed proceedings until the junior mortgagee could be brought in, for the protection of the mortgagor, as well as for the protection of other incumbrances. Where, by mistake or otherwise, parties have not been properly made, and the title has passed to a purchaser, that purchaser comes in with an independent equity, and may ask that the party should be required to come in within a reasonable time and redeem the property, or that he be forever foreclosed.

Demurrer overruled.  