Appold v. Prospect Building Ass'n

Stewart, J., delivered the opinion of the Court. From a review of the record of the proceedings in this cause, it is manifest that there has béen such irregularity, and the case is so involved, that the reversal of particular orders only would not meet the substantial ends of justice, between the parties interested. The Building Association, the mortagee that instituted the proceeding — John Spear Nicholas, the vendor of the property to the defendant — -certain creditors who have intervened — the widow and children of the defendant — the purchaser, who is interested in procuring an available title, under a valid sale, have all to some extent been shown to be affected by the proceedings; and their interests have been disclosed, although all of them are not strictly parties to the cause. Without going into a useless detail of the proceedings, it is very clear the purposes of justice require that the property should be re-sold, with a full understanding that the sale is made, disencumbered, not only of the mortgage, but the vendor’s lien of Nicholas, and any claim the widow of the defendant, and his children, may have, to the property.

With this view the case will be remanded for further proceedings. ⁴⁶⁶ It appears that after the decree passed on the 10th of August, 1870, to foreclose the mortgage of the Building Association, and before the sale of the property on the 19th April, 1871, the defendant, Andrew J. Wilcox, departed this life, to wit, on the 15th November, 1870— that he died intestate, leaving his widow, Jane Ellen Wilcox, and two children, Julia C. and Elizabeth B. Wilcox, who were minors, his only heirs. There is no suggestion of his death on the record, to enable the Court to take such action, if any was deepaed necessary by the Court, in this exigency. The 7th and 8th secs, of the 16th Art. of the Code, make provision against the abatement of the decree by the death of any