made the following response to a petition for rehearing.
The parties interested under and against the mortgage, having all been before the Court in such manner as to be concluded by the decree, and 'having, in fact, set up and litigated the rights and interests involved in all parts of the controversy, under the concession, express or implied, that the right of enforcing the mortgage upon the property subject to it, was sufficiently asserted by R. T. Bate, in his -original and amended bills, and by his creditors, who were the beneficiaries, and this right having been conceded by Tompkins, the mortgagee ; and the claimants against the mortgage having in fact, asserted their alleged equities in this form of the suit, as against Bate, and Tompkins and the beneficiaries, who also concurred in the prayer to subject the property to their debts, and in some instances made their answers cross bills against the purchasers from the mortgagor, and in one instance had process served on one of them; we are of opinion that although the suit ■might have been put in a more formal shape by requiring the claimants against the mortgage to have been before ■the Court upon the cross bill of each of the beneficiaries or of Tompkins, the mortgagee and their trustee, ■yet,as the former course, owing to the number of the *217'parties, would have been extremely ¡onerous and ineonvenient, and as the latter course is <in effect, dispensed with !by the consent of Tompkins, that the mortgage •may !he foreclosed in the suit as it stands, and as all have, :in fact, treated Bate as competent to litigate all questions in the case, it .is not necessary to the ends of •justice, and would be inconvenient after a record of nine hundred ¡pages has ‘heen ¡made up in litigating the case in its present form, 'to send it back ¡merely for ¡the purpose of a formal change in the attitude of the parties. The question as to Mrs. Bate’s claim, has more difficulty •than as to the others, because she was not made a party by any claimant sunder the mortgage, but was brought into the suit by the mortgagor on his'cross bill, and presents her claim in answer to his cross bill. But as she does not ask to be made a party to the other bills, and was not in possession, and as her claim was, in fact, litigated in the evidence, and is not sustained, there seems to be no more necessity for sending the case back, in «order that she might be made a defendant to the original bill, than if she had prayed to be made a defendant by petition, and upon the evidence presented or taken «on the ¡petition, iiit had appeared that she had no inter•est in the property.
A. Harris and Pirtle for appellants; Walker 4* Stuart •and Morehead 4” Reed for appellees.Wherefore, the petition for a re-hearing is overruled,.