By the Court,
Martin, J.The authority of the federal government to regulate and control the execution of process, emanating from its own Courts, irrespective of the practice acts of the several States, is too firmly settled upon authority, and too well grounded in reason and necessity, to admit of question; and the only question presented by this case, of sufficient importance for examination, and that, on account of its practical value, rather than its present necessity, arises from the joinder of' Lyell, as a co-defendant with Matthews and wife, and the attempt to litigate his title in this suit. The bill is filed to foreclose a mortgage, executed by Matthews and wife; and Lyell is made a party defendant, not for the purpose of binding him by the decree of foreclosure, but for that of setting-aside and avoiding a title held by him, adverse to that of the-parties to the mortgage, and acquired by virtue of a levy upon the property in question, under an execution issued from the Circuit Court of the United States, made before the.execution of the mortgage, and a subsequent sale. The-ground insisted on for setting aside Lyell’s title is, that such-property was, at the time of the levy, exempted by our Constitution and laws, from sale upon execution, as the homestead of the mortgagor, Matthews. Passing by, then, the-question of the authority of the United States Marshal to-levy upon and sell the premises in question, and conceding all that is claimed by the complainant in respect to the obligatory force of our Constitution and statute laws upon the Courts of the federal government, yet the fact still remains, that our exemption laws-, as well as the Constitution,, *458only confer upon a householder a personal privilege, which may be insisted upon or waived, at-his option. It forces no privilege upon him, nor does it compel him to withhold the appropriation of his property for the just satisfaction of his debts. In the present case, by the joint execution of the mortgage to this complainant, by the husband and wife, the mortgagors had renounced all benefit of the exemption law, as against the mortgage: they had extinguished any right created by the law, and upon foreclosure, the purchaser, at the sale, will succeed to all the title of Matthews, precisely as though no exemption law had ever existed. Before such sale, equity holds that the legal title remains in the mortgagor, and of course up to that time, the right conferred upon him by the exemption law, would also remain in him; for no one will contend that this right can be severed from the title; while, on the other hand, if it shall be claimed that by the mortgage, the title passes to the mortgagee, then, when Matthews parted with his title, the property ceased to be his homestead, and he became only a tenant, and consequently the privilege of exemption no longer existed in him; and, as it was not the homestead of the complainant, so no such privilege or right ever was or ever could be his. Any other view would result in this strange anomaly, viz: that the exemption, like certain covenants in a deed, would run with the land, and property once exempt, would be always exempt. Indeed, a simple statement of the case suggests many reasons, aside from that above given, why equity will not interfere to assist this complainant in litigating this question, but turn him over to seek such remedy as he may have at law; not the least of which is, that the benefits oi the exemption law never were claimed by the mortgagor, and that these parties stand as creditors with equal equities, at least, (if Lyell has not the greater,) and-this Court will not aid one at the expense of the other.
But the really important question in this case, respects the *459right of the complainant to make Lyell a co-defendant with the mortgagors in this bill. So far as this is a foreclosure bill, he is clearly an improper party. He can neither be concluded, nor is he affected by a decree of foreclosure.. He can have no interest in it, and the rule in relation to parties in this class of bills, is that all those should be made parties whose interests are to be affected or concluded by the decree; and this is determined by the inquiry, have they an interest in the equity of redemption? See Story’s Eq. Pl., § 193.
It is true, that by some Courts it is held that prior incumbrancers may be made parties to a bill of foreclosure, but this is upon the ground that the claims are concurrent, not adverse; and it is permitted, not for the purpose of litigating titles, but so as to dispose of the entire estate by one decree, and thus to prevent multiplicity of suits. And as a general rule, it is not permitted by a foreclosure bill to litigate any rights of incumbrancers, and never such- rights, as are adverse to those of the parties to the mortgage. In all such cases, equity regards the legal title as existing in the mortgagor, and proceeding upon such assumption, without permitting it to be questioned, enforces and protects the rights of parties having liens upon it, and enforces the securities only.
It has accordingly been held that “ so far as mere legal rights are concerned, upon a bill of foreclosure, the only proper parties to the suit are the mortgagor and the mortgagee, and those who have acquired rights or interests under them, subsequently to the mortgage; and the mortgagee has no right to make one who claims adversely to the title of the mortgagor and prior to the mortgage, a party defendant for the purpose of trying the validity of his adverse claim of title in this Court. The case is analogous in principle to making one who claims adversely to the vendor, a party to a bill filed by the vendee for the specific performance of the contract *460of sale; in which case it is held that such adverse claimant cannot be made a party for the purpose of having the validity of his claim settled by a decree of this Court, which shall thereafter be binding upon him in relation to his claim of title.” (Eagle Fire Company vs. Lent et al., 6 Paige, 635; and vide Lange vs. Jones, 5 Leigh's Rep. 192; Banks vs. Walker, 3 Barb. Ch. R. 438, 450; Wood vs. Davis, 4 Bibb. 47; Holcomb vs. Holcomb, 2 Barb. S. C. R. 20.)
So far as the complainant in this bill goes beyond the purposes of foreclosure, and seeks relief against the defendant, Lyell, entirely independent of and different from that sought against Matthews, the misjoinder of independent causes of action is too apparent to require demonstration. In short, there is no ground upon which the bill can stand against Lyell, and it must be dismissed as to him, with costs.