HUGGINS, ADM'R, and HILLIARD v. HALL, WRAGG & CHANDLER

HUGGINS, ADM’R, and HILLIARD v. HALL, WRAGG & CHANDLER. 1. Upon a bill filed to foreclose a mortgage, the heir of the mortgagee in possession, is a necessary party, and it is unimportant whether he isplain-tiff or defendant. Error to the Chancery Court at Mobile. This bill was filed by George Huggins, administrator de bonis non of George W. Hilliard, and George H. Hilliard, an infant, by his next friend, sole heir at law of George W. Hil-liard, as complainants, to foreclose a mortgage executed to G. W. Hilliard, by Elisha S. Bebee, and G. W. Clark, on a parcel of land in Mobile, to secure the payment of a debt due to the deceased. A supplemental bill filed by them, alledges, that George H. Hilliard, has obtained possession of the mortgaged premises by a writ of possession, under a judgment in ejectment, by virtue of which he is now in the sole and peaceable possession thereof. The defendant answered and demurred to the bill. The Chancellor dismissed the bill, because the heir was joined with the administrator as complainant. Peck & Claek. for defendant in error. The heir having recovered the possession of the land, was a proper, if not a necessary party to the bill. [4 Kent, 160; Story’s Eq. PI. 184; Powell on M. 970, n; 4 Madd. 186, 486 ; 3 Russ. 476 ; Calvert on P. 2, 154, 168, 187; 1 Cha. C. 51; 2 lb. 29.] In the case of Erwin v. Ferguson, 5 Ala. 163, relied on upon the other side, the point is not decided, and Battre v. Auze’s heirs, 5 Ala. 178, was the case of a mere equitable mortgage, in which the heir had no apparent interest in the land. Campbell, contra. [MAJORITY — ORMOND, J.] ORMOND, J. Our first impression was, and we so announced it, that the heir of the mortgagee was a necessary party defendant, and could not be a party complainant. Subsequent reflection has satisfied us, that we were under a mistake. The mortgagor being out of possession, the mortgage could not be foreclosed, without the heir of the mortgagee, who was in possession, being a party to the suit, and in our opinion, it is unimportant, whether he is a party plaintiff, or defendant. Let the decree of the court be reversed, and the cause be j-emanded.