VAN LOAN v. SQUIRES

VAN LOAN v. SQUIRES. New York Supreme Court, First District, Chambers; July, 1889. Interpleader.] Where a bond and mortgage under foreclosure are claimed by a third person, he may he made a party on his own application ; and the owner of the equity of redemption may have leave to pay into court the amount secured by the mortgage, and compel the adverse claimants to litigate their rights between themselves. Motions to make a new party plaintiff and to interplead. Bronk Van Loan sued Mary J. Squires and others, to foreclose a mortgage. It appears that all of the defendants defaulted, and a sale of the premises was had, which was subsequently set aside, and Mary E. McKinley and M. Louise Jarvis were made new defendants. Simon Stern, now moved to be substituted as plaintiff on the ground that he was the assignee of the bond and mortgage, having purchased the same from one Brennan, who Stern claimed purchased the same from- Van Loan. M. Louise Jarvis also claimed to be the owner of the bond and mortgage, contending that she became the lawful purchaser thereof from Van Loan. Mary McKinley the present owner of the equity of redemption also moved to be allowed to pay into court the sum due on the bond and mortgage, so that the contention between Stern and M. Louise Jarvis could be settled in the action. Joseph O. Brown, for Mary E. McKinley. Anderson Price, for M. Louise Jarvis. Jno. Alex..Beall, for Simon Stern. [MAJORITY — O’Brien, J.] O’Brien, J. Mr. Stern moves to be made the party plaintiff in place of Van Loan. The defendant McKinley moves for leave to pay the money secured to be paid and due under the mortgage in court, and to have the mortgage discharged. Both these motions can be considered together. As stated upon the argument, in view of the fact that the present plaintiff has no interest in the controversy and Mr. Stern lias, no good reason has been shown why the motion to substitute should not be granted. It seems to me equally clear that the motion of Mrs. McKinley, the owner of the equity of redemption, should be granted, allowing her to pay the money into court. It must be remembered that this court, by order made on June 26, permitted Mrs. Jarvis to come in as party defendant upon her statement that she was entitled to the amount due on the mortgage or some part thereof. The only persons, therefore, who claim any interest are now before tlie court, Mr. Stern, by motion now granted, being made party plaintiff, and Mrs. Jarvis, by the order formerly entered, being made party defendant. They are the only persons entitled to the fund, and purpose contesting each other’s right thereto. It would certainly, therefore, be inequitable to compel the owner of the equity, who is ready and willing to pay what is claimed in the complaint, to first either tender to one who may not be authorized or entitled to receive the money, or to be subjected to further interest or to costs of further proceedings to determine the ownership of the fund, in which matter she is not interested. Section 820 of the Code provides in what cases an interpleader may be made. This section, together with the general equitable power vested in the court, is sufficient to warrant in a proper case the granting of leave to pay into court moneys due upon a mortgage, the title and ownership of which is claimed by two different persons, who desire to proceed in the action and litigate their rights. Motion, therefore, is granted. Code Oiv. Pro. § 820, is as follows : “ A defendant against whom an action to recover upon a contract or an action of ejectment, or an action to recover a chattel., is pending, may, at any time before answer, upon proof, by affidavit, that a person not a party to the action, makes a demand against him for the same debt or property, without collusion with him, apply to the court, upon notice to that person and the adverse party, for an order to substitute that person in his place, and to discharge him from liability to either, on his paying into court the amount of the debt, or delivering the possession of the property, or its value, to such person as the court directs. The court may, in its discretion, make such an order.” The court in this case apply the principle of the section to foreclosure. See also 2 All. New Pr. 531,' note 3.