
    Sophia Chambers, etc., v. Wool Growers Bank of Newark, Ohio.
    Mortgage — Foreclosure—Assignment of Note — Necessary Parties.
    Although the appellee as the assignee of the two notes is beneficial owner of the mortgage executed to secure their payment, it is not vested with the legal title thereto. The benefit of the mortgage passed as an incident, when the notes were assigned, but the legal title remained in the mortgagee, and he was a necessary party to an action for its foreclosure.
    APPEAL PROM SCOTT CIRCUIT COURT.
    June 8, 1872.
    
      Polk, for appellants.
    
    
      Prewitt, for appellee.
    
   Opinion by

Judge Lindsay :

Although the appellee, as the assignee of the two notes executed by the Chambers, is the beneficial owner of the mortgage executed to secure their payment, it is not vested with the legal title thereto. The benefit of the mortgage passed as an incident when the notes were assigned, but the legal title remained in J. B. McLain, the mortgagee, and he was a necessary party to an action for its foreclosure.

The failure to make him a party was a defect appearing upon the face of the petition. This ground of objection was specified in appellant’s demurrer which should have been sustained.

Therefor the judgment appealed from, in so far as it forecloses the mortgage in question, is reversed. The judgment is personam is not to be affected by this reversal. The cause is remanded for further proper proceedings.  