101. If a subsequent incumbrancer is not made a party, his right of redemption is unaffected; but, in order to redeem, he must pay off the entire mortgage debt. Chase v. Abbott, 20 Iowa, 154. Every subsequent incumbrancer must be made a party in order to be foreclosed; also the wife of the mortgagor. Street v. Beal, 16 Iowa, 68. A subsequent incumbrancer is not a necessary defendant; omitting to join him does not vitiate the proceedings. But he must be made a defendant to cut off his right of redemption. In redeem ing, he must pay the entire mortgage debt. Darlington v. Effey, 13 Iowa, 177. When the mortgagor is dead, and a foreclosure suit is brought against his heirs, his administrator is a proper though not a necessary party, because the estate may be liable for a deficiency, and he may have a defence to the mortgage. He may, therefore, intervene. Johnson v. Monell, 13 Iowa, 300. After the mortgagor has conveyed the equity of redemption, he is a proper but not a necessary party. A decree can be rendered for a sale, but none for a deficiency without him. Semple v. Lee, 13 Iowa, 304. The mortgagor and the present owner, to whom he had conveyed the entire premises, and who had assumed to pay the mortgage debt, were both held proper, but neither of them necessary defendants. The absurd result to which this decision leads is spoken of infra, in the text and in the note. Parrott v. Hughes, 10 Iowa, 459. A chattel mortgage was executed on a steam-engine. The mortgagor being left in possession, placed the engine in a mill in such a manner that it became affixed to the soil, as was alleged, and afterwards gave a mortgage on the land, including the mill. In an action to foreclose the chattel mortgage, the mortgagee of the land was held to be a proper defendant, and, on his own application, he was admitted, on the ground that his rights might be adjusted in the one suit. Suiter v. Turner, 10 Iowa, 517. A failure to make the occupant of mortgaged premises a defendant

in a foreclosure suit will not invalidate the proceedings as to the actual parties; but the rights of the occupant will not be prejudiced by the decree. Heimstreet v. Winnie, 10 Iowa, 430. The only question was, whether Casad, a subsequent incumbrancer, was a necessary party defendant. Lowe C. J. said: "It is certainly regular and good practice to make all persons, whether senior or junior incumbrancers, parties in a foreclosure proceeding, for the very plain reason that it gives stability and security to the purchaser's title, prevents a multiplicity of suits, and tends to secure a proper distribution of the proceeds of the mortgaged property among the claim-holders according to the priorities of their respective liens. But we are not aware that it has ever been held absolutely necessary. It is not essential that prior mortgagees should be made parties, because their interests are not, and cannot be, touched in the suit, and are paramount to the party foreclosing. Nor is the making of the subsequent mortgagees parties indispensable, for the reason that the law of foreclosure established by the code not only does not require it, but § 2088 seems to contemplate that a mortgage may be foreclosed without making them parties. In that case, of course, they would not be barred by the decree, the general policy of the law being that no one shall be concluded without giving him an opportunity to assert and protect his rights." Rankin v. Major, 9 Iowa, 297. A person executed to B. two notes, - one at six months, and the other at twelve months, and gave a mortgage to B. to secure them. B. assigned the second note to R., and B. and R. united in an action to foreclose the mortgage. Held, that they could not thus unite as plaintiffs, because the indebtedness had been severed, and the demands are distinct and separate. The rights of all can, however, be protected in one action. If either brings an action to foreclose, he can make the other a defendant, and the latter can assert his

right by an answer in the nature of a cross bill, and the decree will award the proceeds to both. Under the Iowa law, the proceeds are to be applied to the payment of the first note in full, and the surplus to the second note. Crow v. Vance, 4 Iowa, 434; Veach v. Schaup, 3 Iowa, 194; Bates v. Ruddick, 2 Iowa, 423. Subsequent incumbrancers who are not made parties are not concluded by the decree and sale. The last-named case contains an exhaustive discussion of the doctrine. Sands v. Wood, 1 Iowa, 263. A person executed a note and a mortgage to secure it. The payee indorsed the note, and assigned the mortgage to the plaintiff, who brings a foreclosure action against the mortgagor and the indorser (the mortgagee), and prays judgment against both for the amount of the note Held improper. The action to foreclose should have been against the mortgagor alone. An action on the note might be brought against both the maker and the indorser; but the two actions cannot be joined. Murray v. Catlett, 4 Greene (Ia.), 108. A mortgagor who has conveyed his equity of redemption is not a necessary defendant. Williams v. Meeker, 29 Iowa, 292, 294. Same point as in the last case. The de fendant, who is owner of the premises, cannot object that the mortgagor has not been made a party defendant. Powell v. Ross, 4 Cal. 197. When a mortgage of husband's land is executed by him and his wife, she is not a necessary party defendant in a foreclosure suit. Her joining in the mortgage was not necessary unless the land was her separate property. This decision is based upon the local law of California, which is quite different from the common-law doctrines in relation to dower. Belloc v. Rogers, 9 Cal. 123. When a mortgagor has conveyed the land, and afterwards dies, his adminis

1 Sumner v. Coleman, 20 Ind. 486; Semple v. Lee, 13 Iowa, 304. In the last case, the mortgagor and the owner to whom the land had been conveyed were both joined, and the court said the owner was a proper party, and the mortgagor

trator is a necessary party if the plaintiff seeks to recover a judgment for a deficiency; but if the plaintiff elects to rely upon the proceeds of the mortgaged premises, and asks no such judgment, the administrator is not a necessary defendant; citing and approving Bigelow . Bush, 6 Paige, 345; Harwood v. Marye, 8 Cal. 580. When a mortgagor dies owning the land, his administrator or executor is a necessary defendant in California; the heir is not a sufficient party. In California the land goes to the administrator or executor as well as the personal property, and the title thereto remains in him until the estate is settled. Hayward v. Stearns, 39 Cal. 58, 60. Subsequent incumbrancers are not necessary parties, although their rights are unaffected by the decree unless they are joined. Davenport v. Turpin, 43 Cal. 597, 601. The title of a person to whom the mortgagor had conveyed the land is not affected by the decree in an action in which he was not made a party defendant; citing Carpentier r. Williamson, 25 Cal. 161; Schadt r. Heppe, 45 Cal. 433, 437. A mortgage was given by husband and wife on land which was common property. The hus band died, and, under the peculiar law of California, these mortgaged premises were set off for the use of the widow and infant child. An action was afterwards brought to foreclose the mortgage, and it was held that the administrator was, under the circumstances, neither a necessary nor even proper party defendant. The premises when thus set off ceased at once to be assets of the estate, and passed beyond all control of the administrator or of the Probate Court. The present right to the possession of the land at once passed to the widow and child, and they thenceforth held it subject to the mortgage, but free from all other

was not a necessary one. The absurd result was thus reached that there was no necessary defendant; for if these persons were only proper ones, they might be omitted, and the suit go on without any defendant.

claims against the estate. For the purpose of a mere foreclosure, therefore, the administrator was no longer a necessary or proper party to the action. Ordinarily, it will be remembered, the administrator is an indispensable party, since the title to the lands, as well as to the chattels, vests in him, and not in the heir, until the estate is settled and distribution made. Morris . Wheeler, 45 N. Y. 708. In an action to foreclose a mortgage against the owner, who was a subsequent grantee, he set up in his answer that a certain named person was a judgment creditor of a former owner of the mortgaged premises, that his judgment was a lien thereon, and that he had not been made a party. The court held that such judgment creditor was a necessary party, and that a decree of foreclosure ought not to be rendered in favor of the plaintiff because he had not been made a defendant (!) This is certainly a most extraordinary decision; it is in direct conflict with other decisions made by the same court, and is an utter confounding of all distinctions between necessary and proper parties. The decision is so clearly erroneous that it can only be regarded as an inadvertence. Kay v. Whittaker, 44 N. Y. 565. In a foreclosure suit against the mortgagor and a subsequent grantee and owner, the latter set up in his answer, among other defences, that his wife, who has an inchoate dower right in the premises, is not a party, and that she is a necessary defendant. The answer was struck out as frivolous. The court, per Hunt J., said (p. 572): "To sustain a foreclosure suit the mortgagor is a necessary party, and generally the only necessary one. Others may be joined if it is desired to

cut off their interests, as a wife, a subsequent purchaser, or subsequent mortgagee. They are not indispensable

parties. The action is good without them; and the only effect of their absence is that their interests are not affected by the proceeding. Such was the condition of Mrs. W. [the wife in question], even if her husband was a subsequent purchaser or owner." This decision is entirely inconsistent with the case last before cited. While the opinion of Mr. Justice Hunt, as to subsequent incumbrancers, is entirely correct, he has fallen into an obvious error when he declares that the mortgagor is always a necessary party. Brundage v. Domestic and For. Miss. Soc., 60 Barb. 204. In a foreclosure action, a person who claims in opposition to the title of the mortgagor cannot be made a defendant so as to litigate his title and settle it. Leggett v. Mutual Life Ins. Co., 64 Barb. 23, 36. A mortgagor died. By his will. after certain legacies, he left the rest and residue, including the mortgaged premises, to trustees in trust for his children for life, remainder in fee to his grandchildren. In a suit to foreclose the mortgage, the trustees were made defendants, but the grandchildren were not. Held, that the grandchildren were necessary parties in order to cut off their right of redemption; the trustees did not, and could not represent them. Daly v. Burchell, 13 Abb. Pr. N. s. 264, 268. After the mortgagor has conveyed away the land, he is not a necessary defendant; and if he dies, his heirs are not; citing Paton v. Murray, 6 Paige, 474; Van Nest v. Latson, 19 Barb. 604.