-We need not consider whether McSae was a proper, or necessary party, as the complainant acquiesced in the order which required it, by amending his bill. If the requisition was improper, an application should have been made to vacate it, by mandamus, or in some other appropriate ‘ mode. Conceding, however, that the order was irregular, it could not have entered into the final decree, so as injuriously to affect the complainant. Whether he was an indispensable party or not, (a point upon which we express no opinion,) it must be conceded that he was not an improper party.
The bill, with its amendment, substantially alledges, that Taylor executed a mortgage on certain slaves for the security of a debt due by promissory notes to the complainant, and exhibits the notes; from all which it appears, if the debt is unpaid as ¿Hedged, the mortgage is forfeited : Further, that McRae claims some interest in these slaves, in subordination to the mortgage; and hence he is made a defendant.
It is then affirmed by the complainant, that the defendant, Taylor, was indebted as expressed in the mortgage, that this debt is due and unpaid, and that the mortgage is paramount to any claim which McRae has to the slaves in question.
Without stopping to inquire whether the fact of Taylor’s possession, at the time he executed the mortgage, is shown by the record, or whether the answer of McRae is a denial of the equity of the bill, so far as it respects the interests he represents, we think a dismissal of the bill generally, was improper. Taylor admitted the indebtedness, and execution of the mortgage, as charged, and submitted to such decree as the court might make ; stating, however, that previous to the filing of the bill, the slaves in question were taken by Mc-Rae, “ as his property, and that defendant had relinquished to him all his right, or interest in them, and that he has had neither possession or control of them since the filing of the bill, nor for some time previous.”
Where land is conveyed by wav of mortgage, it has been supposed that it was allowable for the mortgagee to proceed against the mortgagor, so as to make his security available, without making either a prior or subsequent incumbrancer a party ; that the rights of the former are paramount, and those *71of the latter will not be concluded, unless he is brought before the court. [See Cullum et al. v. Batre’s Ex. 2 Ala. R. 420; Judson v. Emanuel et al. 1 Id. 598.] And this although a sale may follow a decree of foreclosure. But in the case of personal estate, in order to consummate a sale, the possession would necessarily be changed, and this makes it necessary, where a third person is in possession, under a claim of right, that his title should be passed upon before the sale takes place. Where, however, the decree operates on land, upon the report of the sale having been made, the court may make such order in respect to the possession as is proper, or may leave the purchaser to his action at law.
In the case at bar, the complainant’s debt, as well as the execution of the mortgage was admitted. Here then, was a just ground of complaint as to Taylor, the mortgagor, and the question is, whether the legal title which McRae set up was subversive of the entire suit. The analogies furnished by the law, where real estate is the subject of litigation, would seem rather to indicate that an issue should be directed to try the validity of the independent title, or it may be that proceedings should be stayed until the complainant had shewn its insufficiency to defeat the mortgage in an action brought to recover the possession of the slaves; or, perhaps,, a decree of foreclosure might be rendered, and its execution by sale postponed, until the complainant recovered the possession of McRae. [See Norton v. Frecker, 1 Atk. R. 525; Saver v. Pierce, 1 Ves. Rep. 232; Livingston v. Livingston, 3 Johns. Ch. Rep. 51.] Whether the title asserted by Mc-Rae should be met and adjudicated in the one form or the-other, we are satisfied that the bill should not have been dismissed in toto. The mortgage would have estopped Taylor' had he attempted it, from asserting the invalidity of his title' to the slaves — the answer of McRae, whatever be its effect in his favor, cannot prejudice the complainant’s right to a decree against the mortgagor.
This view sufficiently indicates that the decree of the court of chancery is erroneous, and points out the course of procedure by which the rights of all parties may be adjusted. The-decree is reversed and the,cause remanded. Taylor will be= taxed with the costs of this court, or upon a return of “ no-*72property found” upon an execution issued against his estate, each of the other parties will be charged with an equal portion of the costs.