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![handle is hein.slavery/ssactsengr0817 and id is 1 raw text is: WOOD V. SURR
[551] WOOD v. SURR. July 22, 24, August 5, 1854.
Pending a suit by a mortgagor for redemption, the Plaintiff became an insolvent, and
he also aliened the property. Neither his assignees nor his alienee were made
parties, and in their absence an order was made foreclosing the Plaintiff. Held,
that the assignees in insolvency were not bound by it, the assignment to them by
the insolvent being in invitum, but that it was binding on the alienee pendente lite
and those claiming under him. Held, also, that the latter could not avail them-
selves of the objection of the absence in the suit of the former.
Under a deed of 1830, Surr and Brooking were the first mortgagees of some
real estate. In 1838 Davis, the mortgagor, instituted a suit (Davis v. Surr) against
the mortgagees, to set aside certain deeds, to take an account of what was due, and
that the mortgages and securities obtained from him might stand as a security for
the balance really due.
In July 1843 the common redemption decree was made.
In 1844, pending the proceedings in the Master's office, Davis took the benefit of
the Insolvent Act. His assignees were not made parties to the suit, yet the matter
proceeded, and in 1848 the Master made his report, finding the amount due and
appointing the 21st of August 1848 for payment. This was afterwards extended to
the 1st of August 1849, when default being then made in payment, the bill was
dismissed with costs, and thereby the mortgagor became foreclosed. (2 Atk. 267 ; 11
Yes. 199.)
Besides this, pending these proceedings, the following dealings had taken
place with the estate, which gave rise to the present suit.
In October 1841 Davis mortgaged the equity of redemption of the same property
to Mrs. Cuppage, with a power of sale, and in January 1849 Cuppage, under the
[552] power of sale, sold the property to the Plaintiff Wood. Neither Cuppage nor
Wood,. nor the assignees of Davis, had been made parties to the suit of Davis v. Surr,
but Cuppage and Wood had notice of the proceedings in the suit, and Surr, on the
other hand, had notice of the sale to Wood.
The Plaintiff, after much correspondence, filed his bill to set aside the proceedings
and the foreclosure in Davis v. Surr.
Mr. Roupell and Mr. Elderton, for the Plaintiff. Wood, who has purchased the
equity of redemption and become the owner, is entitled to redeem Surr and Brooking.
The foreclosure in Davis v. Surr was ineffectual, being made in the absence of the
owner of the equity of redemption, for neither the assignees of Davis nor Cuppage,
nor Wood, were parties to the proceedings, and therefore were not bound by them;
Fordyce v. Bridges (10 Beav. 90). In Quarrell v. Beckford (1 Madd. 269, 279),
assignees pendente lite not being made parties were held not bound by the decree.
Wood, though a purchaser pendente lite, ought to have been made a party to the suit
of Davis v. Surr. Secondly, the proceedings were not in good faith, the final order
having been obtained pending negotiations for an arrangement and compromise, and
with full notice of the Plaintiff's rights. Thirdly, the subsequent receipt of rents
opened the foreclosure.
As to costs they cited Montgomery v. Calland (14 Sim. 79); Morley v. Bridges
(2 Coll. 621); Detillin v. Gale (7 Ves. 583); Harvey v. Tebbutt (1 Jac. & W. 197);
Roberts v. Williams (4 Hare, 29).
[553] Mr. R. Palmer and Mr. J. H. Palmer, for the Defendants. The suit of Davis
v. ,urr was substantially for redemption. Mrs. Cuppage was bound as purchaser
pendente lite (2 Powell, Mortg. (Coventry's Edit.), 990-998), and consequently the
Plaintiff, to whom she sold, was also equally bound. The execution of the power of
sale had the effect of barring all interest of the assignees in insolvency, and rendered
them unnecessary parties. They cited Warburton v. Loveland (6 Bli. (N. S.) 1 ; 2 Dow.
& Cl. 480); Battersbey v. Rochfort (2 Jo. & Lat. 431); Re Atkinson (2 De G. Macn. &
G. 140).
Mr. Roupell, in reply.
August 5. THE MASTER OF THE ROLLS [Sir John Romilly]. This is a bill by a
19 BEAV. 551.](ViewImageLocal?handle=hein.slavery/ssactsengr0817&div=1&collection=&method=preview&ext=.png&size=3)