The judge committed error in' sustaining the demurrer and dismissing the petition. The question was between the bank, claiming to be the holder of the note and mortgage, and *26Mrs. Bruce, who was the payee in the note and the mortgagee. As such she was the legal owner of both instruments, and, unless they were transferred in some manner, she continued to be such owner. Her interest could not be divested or limited merely by the act of the bank, to which she had not delivered such papers or otherwise transferred them, employing her name for the use of the bank without her knowledge or assent in the suit which the bank had instituted against the maker. Counsel have furnished no authority to sustain such a contention. A number of cases have been cited where the question was between the holder of the note and the maker, but they are obviously not in point. If the plaintiff, L. M. Bruce, owned the note and mortgage as alleged, it was entirely with her as to when, if ever, she should proceed to enforce the collection thereof; and until there was danger of a cloud being cast upon her title, or third persons being induced to become involved by bidding at a sale of the property under the mortgage foreclosure, she was not called upon to move in the matter of preventing such &■ sale or cloud upon her title. Whether or not, the bank having admitted in judicio her legal title by suing in her name for its use, she would ever be barred by prescription or laches, she would not be so barred under the facts of this case.
Whether or not the plaintiff’s attorney and the sheriff were necessary parties defendant to the suit, they were hot such improper parties as would authorize the dismissal of the action.
Judgment reversed.
All the Justices concur, except Gilbert, J., absent on account of sicJcness.