The case has been several times before me, at different stages, and" I may recapitulate briefly the points de*365cided, and state those which are now decided upon the final judgment.
The assignees or grantees of Duffie, "by the various conveyances, or their grantees, in possession, were necessary parties to the bill to redeem. Lord Hardwicke once decided, that where the mortgagee had purposely complicated the case, and embarrassed the mortgagor by numerous conveyances, the court will relieve the mortgagor from the necessity of making all parties. (2 Atkyns' R., 237.) But, subject to such an exception, the assignees or grantees of a mortgage must be before the court. (Palmer a. Carlisle, 1 Sim. & Stu. R., 423; Calvert on Parties, 181, 183; Dias a. Herle, 4 Paige, 259.)
To hold that the parties in possession, under conveyances of a mortgagee made after what was supposed to be a perfect foreclosure, should be turned out without being heard in court, is, of course, preposterous. Then they must be parties, or ejectment brought after the redemption-money is paid to the mortgagee ; and then, it is clear, they should be at liberty to contest the right to redeem.
I consider that, in a strictly just and equitable sense, the grantees of a mortgagee so situated, with warranty, are assignees pro tcrnto of the mortgage, that is, as between the mortgagee and them, of every right, interest, and title which could exist, as if there had been distinct mortgages assigned on their ■ respective parcels. The case of Wilson a. Troup (2 Cow., 195) does not affect this proposition. The point decided was, that sales made and deeds executed by a mortgagee of part of the premises did not preclude his foreclosing the mortgage. But it was fully admitted that his purchase was for the benefit of his grantees. And Sutherland, justice, expressly says: “ So'far as they (the grantees of the mortgagee) had any interest in the mortgaged premises, they may be considered as assignees of the mortgagee, and the purchase by him v/as for their benefit and account.”
But, at any rate, here are Duffie himself, and his grantees or-assignees, with covenants of warranty, comprising all who are entitled to the redemption-money, properly before the court, on a redemption bill. It is the duty of the court to settle their respective claims definitively, as far as they can be in this suit.
The delivery of the summons and complaint in this suit to *366the sheriff to be served, with an honest intention to have it served, was a commencement of the action, so as to save the Statute of Limitations. The cases of Webb a. Pell (1 Paige, 564) and Hayden a. Bucklin (9 Id., 512), are sufficient authorities, and removed my first impressions, which, as the case was not governed by the Code, were, that actual service was necessary. (See, also, Fitch a. Smith, 10 Paige, 9.)
The point arising from the possession of one of the parties,' rendering the conveyance of Reilly and that from him invalid, because against the statute as to purchasing titles, when the party is out of possession, it seems to me is wholly untenable. (1 Rev. Stat., 739, § 147.) The conveyance by Davis before suit to Reilly was either absolutely void as between them, and then the title remained in Davis; or, good as between them, and then the reconveyance was equally good. The conveyance by Reilly of lots 23 and 9 to Oliver Davis is of no moment as to No. 28; and as to Ho. 9, now held by Duffie, there was no adverse possession. Duffie was in possession as mortgagee, if there was no foreclosure.
There remains the point raised upon the exceptions, and argued fully upon the hearing for final judgment, by way of a re-hearing of the order of reference. In fact, that order was not meant to settle the right of Duffie, but was to obtain a statement and information which would enable the court finally' to dispose of all questions without a further reference:
I am satisfied that the whole redemption-money ought to be distributed among his grantees on the basis of their purchase-money, and in the order of his conveyances. As Conklin and Van Beuren are to be treated as grantees by deeds of the same date, and Sherman acquired title from Brady, subsequently to Van Beuren, the latter as between those two, must have a priority. So the money is divisible in the following proportions, as of the 12th of January, 1861:
*367
As to costs, it cannot be, that when the defendants have resisted redemption on a point of law, which wholly fails them, the ordinary rule prevails, and costs should be allowed them. The rule referred to is by no means without exception.