Ord v. Bartlett

<p>Foreclosure of Mortgage — Adverse Title — Practice — Dismissal — Reservation in Degree. — An adverse title to the mortgaged premises held by parties claiming by conveyance prior to the mortgage, or by title paramount to the title of the mortgagor, is not the proper subject for determination in a suit for foreclosure. The court may refuse to pass upon such title, and the proper course would be to dismiss the action as to the adverse claimant, or to specify in the decree that it is made without prejudice to his adverse rights.</p> <p>Id.—Appeal—Error without Prejudice—Modification of Judgment. ■— It is not prejudicial error requiring the reversal of the judgment to sustain a demurrer to an answer in an action of foreclosure setting up an adverse title, by conveyance from the mortgagor, and alleging that it is superior to the lien of the mortgage, although the claimants were made parties defendant, and the complaint alleged that their interests were subject and subsequent to the lien of the mortgage; but if the decree failed to dismiss the action as to such claimants, or expressly to reserve their rights, it will be modified upon appeal so as to make such reservation.</p> <p>Id. — Payment of Mortgage — Pleading of Adverse Claimant — Evidence. — It is a matter of no concern to one who claims under an adverse title paramount to the mortgage whether the mortgage note has been paid or not, and he cannot, upon appeal, assign error in the admission of evidence relating to an issue tendered by his answer as to payment of the mortgage.</p>