WEIGHT v. PHIPPS et al.

WEIGHT v. PHIPPS et al. (Circuit Court, E. D. New York. December 1, 1893.) Abatement — Death of Pabty — Foreclosure Suit — Removal and Remand. A foreclosure suit abates by the death of the owner of the equity of redemption, and if it is' a removed cause it cannot be remanded until the representative of the legal title is brought in as a defendant. In Equity. Suit to foreclose a mortgage. On motion to remand to the state court. Denied. Armstrong & Fosdick, (Edward S. 'Clinch, of counsel,) for plaintiff. Strong & Oadwalader, for defendant Helen F. Attrill. Charles H. Tweed, for defendant Huntington. Stewart & Boardman, for defendant Hatch. [MAJORITY — BENEDICT, District Judge.] BENEDICT, District Judge. This action is brought to foreclose a mortgage upon certain land at Hockaway, made by the defendant Phipps. The parties defendant are Frederick A. Phipps, the mortgagor; Henry Y. Att rill, to whom Phipps conveyed the property in question prior to the commencement of this action; Helen F. Attrill, wife of Henry Y. Attrill; and Frederick S. Hatch and Oollis P. Huntington, judgment creditors of Henry Y. Attrill. The plaintiff is a citizen of the state of New York. The defendants Hatch and Huntington are residents of the state of New York. The cause was removed from the state court to this court upon the ground of a separable controversy between the plaintiff and Henry Y. Attrill, who was a citizen of the state of Maryland. The defendants Phipps and Helen F. Attrill suffered a default in pleading. In the month of January, 1892, the defendant Henry Y. Attrill died, and subsequent to the commencement of the action the interest of Henry Y. Attrill in the property in question was sold by the sheriff under the execution in favor of the defendant Hatch, so that now the only parties io the controversy, aside from the plaintiff, are Hatch and Huntington, who have no interest whatever in the dispute. In this state of the case the plaintiff moves that the cause he remanded to the state court, upon the ground that the controversy between the plaintiff and the defendant Henry Y. Attrill has been terminated by his death. The motion to remand is opposed upon the ground that by the death of Attrill the action has abated, and cannot proceed until some parties a,re brought in to represent the legal title to the property in question. The question to he decided, therefore, is whether an action to foreclose a mortgage upon real estate can proceed without bringing in as party defendant the owner of the legal title to the property. Upon-this question my opinion is adverse to the plaintiff’s contention. It is urged that notice of lis pendens having been filed rendered it unnecessary to make parties subsequent purchasers; hut that, in my opinion, does not relieve the plaintiff from the necessity of having the legal title to the property represented in an action brought to foreclose a mortgage upon it. The object of the action is to cut off rite legal title to the property by a foreclosure of the mortgage upon it. Such an action cannot proceed until the cause is in such a situation that the decree to be made will hind the parties owning the equity of redemption in the property. Upon the ground that this suit is abated by the death of Henry Y. Attrill, the motion to remand is denied.