#### Charles S. Weston, Resp’t, *v.*Mary R. Stoddard *et al.,*App’lts.

*(Supreme Court, General Term, Third Department,*

*Filed May 21, 1891.)*

1. Partition—Effect of defendant’s failure to serve answer on the OTHER DEFENDANTS.

The plaintiff was tenant in common of certain premises with the defendants and brought an action of partition alleging that no liens existed. The-, defendant Stoddard, who owned three-fourths of the premises, answered and set up a mortgage upon all the premises given in 1855 to one who was the common source of title and assigned to Stoddard. To this plaintiff *47replied setting up payment and the statute of limitations. The court refused to pass upon the validity of this mortgage. *Held,*that as the defendant Stoddard had not served her answer upon the other defendants, it was within the discretion of the court to refuse.

2. Same.

The defendant Stoddard also claimed to be mortgagee in possession and that as such'she was entitled to retain possession and that it was error therefore for the court to grant a judgment which would oust her without first deciding upon the validity of her mortgage. *Held,*that as by failing to serve her answer upon the other defendants she had withheld its issues from them she was not entitled to a judgment as against them which would in effect prevent for a time at least any final judgment.

Appeal from an interlocutory judgment in partition.

On April 3, 1855, the defendant Abiel Stoddard owned the premises described in the complaint, and on that day conveyed an undivided one-fourth part thereof to Haskell Weston, who, at the same date, gave to Stoddard his mortgage thereon to secure his bond also given for $1,000, the purchase money thereof. The mortgage was duly recorded the same day and no payments have been made thereon and it remains unsatisfied. Weston, June 2, 1857, conveyed his undivided one-fourth to Charles Lee and Samuel Weston. The plaintiff and several of the defendants have succeeded to or acquired the title to this undivided one-fourth. Mary E. Stoddard, in 1883, became the owner of the other undivided three-fourths. She has since sold some lots to the defendant Bridget Daig and others, not knowing anything of the deed to Haskell and his mortgage to Abiel Stoddard, but supposing .she owned the entire premises. She has since obtained an assignment of the bond and mortgage of $1,000. Haskell Weston, from the date of the mortgage to his death, was a resident of Vermont, and never returned to this state. Charles Lee and Samuel Weston were also residents of that state.

The complaint alleged the ownership by the plaintiff and Mary E. Stoddard and the defendants, Mary’s grantees, of the premises as tenants in common, and alleged “ that there are no general or specific liens or incumbrances against said premises or against any or either of the undivided shares in said premises.” Mary E. Stoddard, by her answer, denied this allegation, and set.up the $1,000 mortgage as a valid lien upon the undivided one-fourth part claimed by the plaintiff and other parties. The plaintiff replied to this answer setting up payment and the statute of limitatations.

The court found the facts as above set forth, and also that Mary E. Stoddard has been in actual possession of the premises since 1880, but refused to pass upon the validity of the mortgage, or whether it was a lien upon the shares awarded to the plaintiff and the defendants who have succeeded to the title of Haskell Weston, but decided that such mortgage, if valid, should attach to such shares; also, that the lots sold by Mary E. Stoddard should be embraced in the three-fourths to be set off to her.

C. *S.*Lester, for app’lts; *W. B.*French, for resp’t.

Landon, J.

There was an issue joined between the plaintiff and the defendant Mary E. Stoddard whether the purchase *48mortgage given by Haskell Weston April 3, 1855, upon an undivided fourth of the premises for $1,000 and interest, which mortgage is now owned by said defendant, is a subsisting incumbrance thereon. The court found that the mortgage was given, and that no payments have been made thereon, and that it is unsatisfied of record. Also that the mortgagor and hiá grantees and those claiming the undivided one-fourth have been continuously non-residents of the state since the date of the mortgage. The plaintiff and seventeen of the defendants are found by the court to be the owners of the undivided one-fourth. The court refused to determine the question whether the mortgage was a subsisting incumbrance upon the share of the plaintiff and the said seventeen defendants-, but adjudged that they were entitled to that share, and that the mortgage if valid should attach thereto to the exclusion of the remaining three-fourths which were allotted to the defendant and to the defendants holding under her, and that the mortgage should be subject to any defense that the plaintiff and any of the defendants interested in the one-fourth set off to them may have thereto, “ its validity as a mortgage or lien upon said premises not being passed upon or adjudicated in this action.”

The defendant Mary E. Stoddard claims that since thé plaintiff tendered the issue, and she accepted it, and the issue was joined between them, the court erred in not determining it.

It was undoubtedly competent for the court to determine the issue, but as it was joined only between the plaintiff and the defendant, and not between the defendant and the seventeen other defendants who were interested in the one-fourth part of the premises as to which the mortgage was alleged to be an incumbrance, it is obvious that the determination would bind only the parties to the isáue, and leave the question open between the defendant Stoddard and the seventeen other defendants interested in the question.

The determination of the issue was not necessary to the determination of the rights of the parties to a partition of the premises, and to the several allotments of their respective shares. Section 975, Code Civ. Pro., provides: “ An issue, the disposition of which is not necessary to enable the court to render the appropriate judgment, is not required to be tried.”

Had the defendant Stoddard served her answer upon the seventeen other defendants pursuant to §§ 521 and 1541, then the-whole controversy as to this mortgage could have been brought before the court as to all the parties interested in it, and the court, in its discretion would either have determined it or directed judgment pursuant to § 1204 substantially as has now been done, and then have severed the action under § 1205 and directed that the same proceed between such of the parties as raised or were tendered issues as to the mortgage. The defendant has not improved her position by omitting to serve her answer upon the defendants, interested in the claim raised by it.

We think the procedure adopted by the court was within its. discretion, and that the discretion was properly exercised.

*49The court found that the defendant Mary B. Stoddard had "been in possession of the premises since 1880, holding adversely. It had been previously determined that she was only entitled to hold as tenant in common. *Stoddard*v. Weston, 25 N. Y. State Bep., 922. It is not claimed that her adverse holding, if her title was in fact nothing more than that of a tenant in common with the other parties, could defeat the action. Section 1543. Under the present Code it is what a party to the action rightfully holds, and not what he may wrongfully claim, that determines the nature of like relief to be awarded respecting him. But the defendant claims that she was a mortgagee in possession, and as such entitled to retain possession until her mortgage is fully paid, and that since the action is a possessory one and she is by the judgment to be ejected from such portion of the land as is allotted to others, § 1558, she will therefore be turned out before her claim to stay in is determined, and hence her claim to have the validity of her mortgage and amount due thereon determined was well founded, and it was error to reserve or postpone its determination. Whetker the defendant Stoddard is mortgagee in possession we do not decide. We have already decided that her assignor of the mortgage was not. *Stoddard*v. Weston, *supra.*The defendant Stoddard is not entitled to any such judgment against the parties upon whom she has not served her answer. *Edwards*v. *Woodruff,*90 N. Y., 397; *Payn*v. *Grant,*23 Hun, 134.

Assuming that the court had sustained the defendant’s position, then plaintiff could not have procured final judgment of partition against her, for in such case her possession would have been' that of holding the premises as security for payment of her mortgage, and not merely as tenant in common. Bedemption would have to precede final judgment, since such judgment awards possession to the several parties. Sec. 1538. Plaintiff being defeated or postponed and the non-answering defendants having no issue to bring before the court, this defendant would secure a substantial and perhaps unjust victory. She is responsible for withholding the issues from the other defendants, and though she may claim this relief only against the plaintiff, she in fact would obtain it for a time at least against the défendants, and the court to prevent this injustice may properly deny it until she brings before the court upon this issue all tke parties interested in its determination. Such is the spirit if not the exact letter of § 452.

If the defendant’s mortgage is an incumbrance, her remedy by foreclosure is not prejudiced by this judgment. If she is a mortgagee in possession and entitled to payment before partition, she has not so pursued that remedy as to justify the court in awarding it to her in this action. Whether the one course or the other is pursued is a mere question of the remedy, and as the one left to her is sufficient, her rights of property remain unimpaired.

Interlocutory judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.