Harrison R. Johnston, Respondent, v. Thomas F. Donvan et al., Silas J. Donvan et al., Petitioners, etc., Appellants

Harrison R. Johnston, Respondent, v. Thomas F. Donvan et al., Silas J. Donvan et al., Petitioners, etc., Appellants. The real owner of mortgaged premises does not forfeit his right to be-made a party to an action to foreclose the mortgage by an omission to record his deed; and, provided he make application in due time, it is the duty of the court to direct him to be brought in. (Code of Civil Pro. § 452.) The members of a firm contracted for the purchase for the firm of certain real estate, the title was taken in the name of one of them for their joint benefit, the grantee giving back a mortgage for the purchase money. Held, that the other two partners were entitled to be made parties defendant; and that the questions as to whether a valid trust was-created in their favor, or as to whether they were in a position to defend against the mortgage could not properly be determined on a motion to-have them brought in as parties, but were questions to be litigated on trial of the action. (Argued June 7, 1887; decided June 21, 1887.) Appeal by Silas J. and James Y. Donvan from order of the General Term of the Supreme Court in the first judicial department, made January 22, 1887, which affirmed orders-of Special Term denying the application of said appellants to-be made parties defendant herein. The nature of the action and the material facts are stated in the opinion. George 0. Holt for appellants. The appellants, Silas J. Donvan and James V. Donvan, have an absolute right to be joined as defendants in this action. (Code of Civ. Pro. § 452; Chester v. Dickerson, 54 N. Y. 1; Fairchild v. Fairchild, 64 id. 471; Reed v. Marble, 10 Paige, 410; Hall v. Nelson, 23 Barb. 88.) In a foreclosure suit all persons having an interest in the property at the time of filing the lia pendens have an absolute right to be made parties. (Earle v. Hart, 20 Hun, 75; Haas v. Craighead, 19 Hun, 396; Chandler v. Powers, 25 id. 445; People v. Albany & Vt. R. R. Co., 77 N. Y. 232.) As to parties who have acquired their interest before the filing of the lis pendens, the right to be joined is absolute under the statute. (Earle v. Hart, 20 Hun, 75; People v. Albany & Vt. R. R. Co., 77 N. Y. 232.) Hamilton Wallis for respondent. The conveyance to James V. Donvan not having been recorded, he was not a necessary party to the suit. (Code, § 1671.) FTot being necessary parties, it was entirely within the discretion of the Supreme Court to admit or refuse to admit the appellants as parties to the litigation, and such discretion cannot be reviewed here. (Ith. Gas L. Co. v. Treman, 93 N. Y. 660.) James V. Donvan by the conveyance to him having assumed and agreed to pay this mortgage, principal and interest, is thereby precluded from defending against it. (Root v. Wright, 21 Hun, 344.) [MAJORITY — Andrews, J.] Andrews, J. The petition of Silas J. Donvan and James V. Donvan to be made parties defendant 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 20th day o"f February, 1883, Thomas F. Donvan conveyed the mortgaged premises to the petitioner, James V. Donvan, by deed, subject to the mortgage, 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. Donvan, 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. Donvan, 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 orignally 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 coarts below erred m denying the motion, and the orders d£ the Special and General Terms should, therefore, be reversed ind an order entered granting the application of the appellants, 'with costs. ■ All concur. Ordered accordingly.