1. Defendant guaranteed the title of certain property on which complainant took a bond and mortgage which it soon after assigned to the testator, guaranteeing the payment of principal and interest thereof. On a bill to foreclose, testator's executors and the assignor company join as complainants against the present owner of the property and the defendant title guarantor as defendants. On motion to strike the bill as multifarious on the ground that it joins an action of law which the complainant assignor had on the policy contract against the defendant title guarantor, with an equitable action that the executors have against the owner of the mortgaged premises, held, such joinder is proper.
2. The policy contract guaranteeing the title, the mortgage taken as a result thereof and the assignment of the mortgage with the mortgagee's guaranty of payment, were all parts of a single transaction. Under chancery rules 23 and 24 persons interested in separate causes of action may be joined if the causes of action have a common question of law or equity and arose out of the same transaction or series of transactions, which includes any transaction growing out of the subject-matter in regard to which the controversy arises.
3. Since the executors have a right of action to foreclose the mortgage in question (an equitable action) and for any deficiency a right of action against the company that assigned the mortgage on its guaranty of payment (a law action); and in case that company pays the deficiency, it will have an action at law against the title guarantor, equity is the only forum in which all these rights can be adjudicated in a single suit and complete justice done.
4. Equity has jurisdiction to determine and enforce the rights of all parties to the transaction to avoid circuity of action, inasmuch as the complainant executors have the right of substitution, as a creditor of the company that assigned the mortgage, to all the collateral obligations for the payment of their claim which that company holds for its indemnity.
5. The claim of the complainant executors is not for unliquidated damages, for if the property sells for less than the amount of the decree in foreclosure, their claim is for a definite amount — the difference between the sale price and the decree. Even where the claim is for unliquidated damages, under the Chancery act of 1915, the case can be retained and the question of damages sent to a jury for determination. If no jury trial is demanded, equity will determine the damages.
6. Mere lapse of time, if properly explained, will not bar relief, and laches, if a proper defense, should be pleaded.
PER CURIAM.
The order appealed from will be affirmed, for the reasons stated in the opinion delivered by Vice-Chancellor Fielder in the court of chancery.
For affirmance — THE CHIEF-JUSTICE, TRENCHARD, PARKER, LLOYD, CASE, BODINE, DONGES, HEHER, PERSKIE, VAN BUSKIRK, HETFIELD, DEAR, WELLS, WOLFSKEIL, RAFFERTY, JJ. 15.
For reversal — None