#### R. S. PULLEN, as Exec’r., and Trustee and another v. THE HERON MINING COMPANY and others.

In an aetion to foreclose a mortgage, the mortgagees are necessary parties, in order that the legal title may pass to the purchaser. A mortgagee who has assigned his interest is not a necessary party.

This is but another branch of the preceding case, being the defendants’ appeal therein. For the facts necessary to an un*568derstanding of the points taken by defendants, see the statement and opinion in the preceding case.

On the trial below, the defendants insisted that certain other persons were necessary parties. His Honor ruling differently, the defendants appealed.

' Mason and Fowls, for appellants.

Moore <& Gatling, contra.

RodMAN, J.

1. We are unable to see how the heirs of Richard Smith are necessary parties. The title to the Company begins with the deed from Penelope and Mary Smith.

2. Wiseman is not a necessary party. Inasmuch as all the parties acquired their present estates during the pendency of the action for partition between the Company and him, they are all concluded by the decree in that suit.

3. Winder is not a necessary party. All his estates and interests have been assigned to' the present parties.

4. Mary A. SAith is a necessary party. It does not appear that the legal estate in the land conveyed to her by the assignment from Winder has ever passed to any one else, and this legal estate should be represented in this action, in order that the purchaser, under a decree of sale for foreclosure may acquire a full legal estate.

5. The counter-claim for breach of the covenants in the deed from Penelope Smith and Mary A. Smith to Winder isa good one so far as now appears. Such covenants run with the land to a purchaser. It may be doubtful whether upon a deed made since the Revised Code, (chap. 44, sec. 10,) the heirs of Penelope Smith or her executor would be the proper person to be defendant in an action upon her warranty. Rut this is of no importance in this case, as Pullen represents both characters, and as between the two the primary liability is on the personal estate. The fact of Mary A. Smith’s liability for any breach of this covenant is an additional reason why she should be a party.

*569The admission by Winder that he had been satisfied for the breach was not evidence. He was not introduced as a witness, he was not sworn or liable to cross-examination. If he had been a party, such admission in his answer would not have been evidence against his co-defendants. If the fact of satisfaction to Winder or of a release by him before he parted with his estate in the land was established, it might be of weight. '

Pee CuRiAM. There is error in the judgment below and the ease is remanded.