CHAPTER V. General rule; All persons interested are necessary parties. OF PARTIES TO A SUIT. SECTION I.-Of necessary Parties, in respect of the Concurrence of their Interests with that of Plaintiff. 1 Ir is the constant aim of a Court of Equity to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of the Court perfectly safe to those who are compelled to obey it, and to prevent future litigation. For this purpose, all persons materially interested in the subject, ought generally, either as plaintiffs or defendants, to be made parties to the suit,2 or ought by service upon them of a copy of the bill, or notice of the decree to have an opportunity afforded of making themselves active parties in the cause, if they should think fit.5 1 Ld. Red. 163; Story Eq. Pl. §§ 72, 76; Caldwell v. Taggart, 4 Peters, 190; West v. Randall, 2 Mason, 190-196; Joy v. Wirtz, 1 Wash. C. C. 517; Mandeville v. Riggs, 2 Peters, 482; Cutler v. Tuttle, 4 C. E. Green, 549, 556; Richardson v. Hastings, 7 Beav. 323, 326; Hare v. London and North Western Railway Co., 1 J. & H. 252. It seems, however, that, under the modern English practice, the Court is less unwilling to relax the rule in special cases. Ford v. Tennant, 29 Beav. 452; 7 Jur. N. S. 615, L. JJ. 2 Ld. Red. 164. 8 Ord. X. 11, 14, 15. 4 15 & 16 Vic. c. 86, § 42, r. 8. 5 Orders, August, 1841, 23d and 26th. Generally, all persons interested in the subject of a suit should be made parties, plaintiffs, or defendants. Stephenson v. Austin, 3 Met. 474, 480; Williams v. Russell, 19 Pick. 162, 165; West v. Randall, 2 Mason, 181; Story v. Livingston, 13 Peters, 359; Pipe v. Bateman, 1 Clarke (Iowa), 369; New Braintree v. Southworth, 4 Gray, 304; Crocker v. Higgins, 7 Conn. 342; Footman v. Pray, R. M. Charlt. 291; Watkins v. Washington, 2 Bland, 509; Hoxie v. Carr, 1 Sumner, 172; Whiting v. Bank of United States, 13 Peters, 6-14; Hopkirk v. Page, 2 Brock. 20; M'Connell v. M'Connell, 11 Vt. 290; Evans v. Chism, 18 Maine, 220; Hussey v. Dole, 24 Maine, 20; Beals v. Cobb, 51 Maine, 348; Pierce v. Faunce, 47 Maine, 507; Oliver v. Palmer, 11 Gill & J. 426; Willis v. Henderson, 4 Scam. 20; Wells v. Strange, 5 Geo. 22; Turner v. Berry, 3 Gilman, 541; Hicks v. Campbell, 4 C. E. Green, 183; Pence v. Pence, 2 Beasley (N. J.), 257. The general rule, requiring all persons interested to be made parties to the suit, is confined to parties to the interest involved in the issue, and who must necessarily be affected by the decree. Michigan State Bank v. Gardner, 3 Gray, 308, per Thomas J.; Story Eq. Pl. $72. It is a rule, which is more or less within the discretion of the Court, and may be dispensed with, when it becomes extremely difficult or inconvenient. Wendell v. Van Rensselaer, 1 John. Ch. 349; Story Eq. Pl. §§ 94, 96; Hallett v. Hallett, Paige, 15; Cullen v. Duke of Queensberry, 1 Bro. C. C. (Perkins's ed.) 101, and Mr. Belt's notes; Mann v. Butler, 2 Barb. Ch. 362; Birdsong v. Birdsong, 2 Head (Tenn.), 289; Tobin v. Walkinshaw, 1 McAll. (Cal.) C. C. 26; United States v. Parrott, 1 McAll. (Cal.) C. C. 271; West v. Randalí, 2 Mason, 181; Brasher v. Van Cortlandt, 2 John. Ch. 242; Boisgerard v. Wall, 1 Sm. & M. Ch. 404; Whitney v. Mayo, 15 Ill. 251; Soc. for Prop. of Gospel v. Hartland, 2 Paine C. C. 536. Where the persons interested are so numerous as to make it impossible, or very inconven CH. V. § 1. When rule relaxed. One of a nu merous class, allowed to sue on behalf of The strict application of this rule, in many cases, creates difficulties; which have induced the Court to relax it; and, as we shall see, it has long been the established practice of the Court, to allow a plaintiff to sue on behalf of himself and of all the others of a numerous class of which he is one, and to make one of a numerous class (as the members of a joint-stock company), the only defendant, as representing the others, on the allegation that they himself and are too numerous to be all made parties; and, in addition, the the same class; Court is now enabled, whenever it thinks fit, to adjudicate upon Court may questions arising between parties, without making other persons who are interested in the property in question, or in other property comprised in the same instrument, parties to the suit. When the interested Court acts on this power, the absent parties are not bound by the decree; whereas, in the cases first alluded to, the absent parties are generally bound. The application of the general rule, above referred to, will be considered first, with reference to those whose rights are concurrent with the rights of the party instituting the suit; and secondly, with reference to those who are interested in resisting the plaintiff's claim. With respect to the first class, it is to be observed, that (subject to the provisions of the late Act above pointed out) it is required in all cases where a party comes to a Court of Equity to seek for ient, to bring them all before the Court, a part of them may file a bill in behalf of themselves, and all others standing in the same situation. Robinson v. Smith, 3 Paige, 222; per Foster J. in Williston v. Michigan Southern and Northern R.R. Co., 13 Allen, 406. Where a decree in relation to the subject-matter of litigation, can be made without in any way concluding the interest of a particular person, that person is not an essential party. Story v. Livingston, 13 Peters, 359. 14 By 22d of the Equity Rules of the United States Courts, - If any persons, other than those named as defendants in the bill, shall appear to be necessary or proper parties thereto, the bill shall aver the reason, why they are not made parties, by showing them to be without the jurisdiction of the Court, or that they cannot be joined without ousting the jurisdiction of the Court as to other parties. And as to persons who are without the jurisdiction, and may properly be made parties, the bill may pray, that process may issue to make them parties to the bill, if they should come within the jurisdiction." See Erickson v. Nesmith, 46 N. H. 371; Towle v. Pierce, 12 Met. 329; Story Eq. Pl. § 78; ante, pp. 152, 153 and notes. All persons having the same interest should stand on the same side of the suit; but if any such refuse to appear as plain tiffs, they may be made defendants, their Parties having conflicting interests in 1 15 & 16 Vic. c. 86, § 51. The Court 2 Doody v. Higgins, 9 Hare App. 32. adjudicate in of some of the the absence persons. All having a right to sue defendant for the same thing should be parties. CH. V. § 1. that relief which the principles there acted upon entitle him to receive, that he should bring before the Court all such parties as are necessary to enable it to do complete justice; and that he should so far bind the rights of all persons interested in the subject, as to render the performance of the decree which he seeks perfectly safe to the party called upon to perform it, by preventing his being sued or molested again respecting the same matter either at Law or in Equity. For this purpose, formerly, it was necessary that he should bring regularly before the Court, either as co-plaintiff's with himself, or as defendants, all persons, so circumstanced, that unless their rights were bound by the decree of the Court, they might have caused future molestation or inconvenience to the party against whom the relief was sought. Where they need not be active par ties. Persons having legal estate. But now, a plaintiff is enabled, in many cases, to avoid the expense of making such persons active parties to the cause, by serving them with copies of the bill under the general order,1 or with notice of the decree under the recent Act. The practice arising under these provisions will be stated hereafter; for, as it does not affect the principle, requiring all persons concurrently interested with the plaintiff, to be bound by the decree, but only substitutes, in some cases, an easier mode of accomplishing that end; it will be convenient, in the first instance, to consider what is the nature of those concurrent rights and interests, which render it necessary that the persons possessing them, should be made either active or passive parties to the suit. In general, where a plaintiff has only an equitable right in the thing demanded, the person having the legal right to demand it should be a party to the suit; for, if he were not, his legal right would not be bound by decree, and he might, notwithstanding the success of the plaintiff, have it in his power to annoy the defendant by instituting proceedings to assert his right in an action of Law, to which the decree in Equity being res inter alios acta would be no answer, and the defendant would be obliged to resort to another proceeding in a Court of Equity, to restrain the plaintiff at Law from proceedings to enforce a demand which has been already satisfied under the decree in Equity. This complication of litigation it is against the, principles of Equity to permit, and it therefore requires that in every suit all the persons who have legal rights in the subjects in dispute, as well as the persons having the equitable right, should be made parties to the proceedings.5 1 Ord. X. 11, 14. 2 15 & 16 Vic. c. 86, § 42, r. 8. maintain a suit in Equity, by bill or petition, to restrain the town from a misappli 3 See Johnson v. Rankin, 2 Bibb, 184; cation of money in violation of a statute Neilson v. Churchill, 5 Dana, 341. 4 Ld. Red. 145. 5 In a suit under a statute, which provided that any inhabitant of a town might under which it was received, the plaintiffs averred that they were inhabitants of the town, and men of property, liable to be taxed therein, and that the application of Upon this ground it is, that in all suits by persons claiming CH. V. § 1. under a trust, the trustee or other person in whom the legal estate is vested, is required to be a party to the proceeding. Thus where Trustees. an estate had been limited by a marriage settlement to a trustee and his heirs, upon trust during the lives of the plaintiff and his wife, to apply the profits to their use, with remainder to the children of the marriage, with remainder over; and a bill was brought by the persons interested under that settlement to set aside a former settlement, as obtained by fraud, it was held that the plaintiff could have no decree because the trustee was not a party;2 and where it appeared that a mortgage had been made to a trustee for the plaintiff, it was determined that the trustee was a necessary party to a suit to foreclose the equity of redemption.3 4 The rule is the same whether the trust be expressed or only Whether implied, as where the executor of a mortgagee files a bill to fore- trust expressed or close a mortgage of freehold or copyhold estate, he should make the implied. heir-at-law of the mortgagee a party; because although according to the principles upon which the Courts of Equity proceed, money secured by mortgage is considered as part of the personal estate of the mortgagee, and belongs on his death to his personal representative; yet, as the legal estate is in the heir, he would not, Heir of mortunless he was before the Court when it was pronounced, be bound gagee. by the decree. There is another reason why it is necessary to bring the heir before the Court in a bill to foreclose a mortgage, because if the mortgagee should think proper to redeem the estate under the decree, he will be a necessary party to the reconveyance.5 And so important is it considered in such a case that the heir should be a party, that where the mortgagee died without any heir that could be discovered, the Court restrained his executor from proceeding at Law to compel payment of the mortgage money, and ordered the money into Court till the heir could be found." The heir, however, is only a necessary party where nothing has Heir of mortbeen done by the mortgagee to affect the descent of the legal es- gagee not the money contemplated by the town would be a direct injury to them, it was held, that the plaintiffs had such an interest in the money and in its application, as would enti le them to maintain such bill, if any qual fication of interest were necessary. But it seems that no such qualification of interest is requisite for this purpose. Simmons v. Hanover, 23 Pick. 188. Eq. Pl. §§ 74 a, 200, 201; 4 Kent (11th ed.), 5 Wood v. Williams, 4 Mad. 186. 6 Schoole v. Sall, 1 Sch. & L. 177. The result of this case was, that after the cause had remained some years in Court, it was thought worth while to get an Act of Parliament to revest the estate, on an allegation that the heir could not be found. See also Stoke v. Robson, 19 Ves. 385; 3 V. & B. 54; Smith v. Richnell, ib. notis; Schelmardine v. Harrop, 6 Mad. 39. The difficulty experienced in the case referred to is now met by the provisions of the Trustee Act, 1850, § 19,which enables the Court, in such a case, to vest the estate; see post; and see Re Boden's Trust, 1 De G., M. & G. 57; 9 Hare, 820; Re Lea's Trust, 6 W. R. 482, V. C. W.; but see Re Hewitt, 27 L. J. Ch. 302, L. C. and L. JJ. CH. V. § 1. necessary where legal estate devised, or assigned. Last assignee only necessary. Derivative mortgagees. Covenantee, in a suit for specific performance of covenant. tate upon him. If the descent of the legal estate has been diverted, it is necessary to have before the Court the person in whom it is actually vested;1 and therefore, where a mortgagee has devised his mortgage in such manner as to pass not only the money secured, but the legal estate in the property mortgaged, the devisee alone may foreclose without making the heir-at-law of the original mortgagee a party.2 Upon the same principle, where a mortgagee in his lifetime actually assigns his whole interest in the mortgage, even though the assignment be made without the privity of the mortgagor, the assignee alone may foreclose without bringing the original mortgagee before the Court; and where there have been several mesne assignments of the mortgage, the last assignee, provided the legal estate is vested in him, will be sufficient without its being necessary to bring the intermediate ones before the Court. It is to be observed, however, that in order to justify the omission of the intermediate assignees in the case of an assignment of a mortgage, the conveyance must have been absolute, and not by way of mortgage; for if there be several derivative mortgagees, they must all be made parties to a bill of foreclosure by one of them. Thus, where A. made a mortgage for a term of years for securing 3501. and interest to B., who had assigned the term to C., redeemable by himself on paying 3007. and interest; and B. died, and C. brought a bill against A. to foreclose him without making the representatives of B. the original mortgagee parties, it was held by the Court that there was plainly a want of proper parties. 5 The principle that requires a trustee or other owner of the legal estate to be brought before the Court in suits relating to trust property, applies equally to all cases where the legal right to sue for the thing demanded is outstanding in a different party from the one claiming the beneficial interest. Thus where a bill is filed for 1 See Eagle Fire Ins. Co. v. Cammet, 2 Edw. Ch. 127. 2 Williams v. Day, 2 Ch. Ca. 32; Renvoise v. Cooper, 6 Mad. 371. 3 Chambers v. Goldwin, 9 Ves. 269; Story Eq. Pl. § 189; Bishop of Winchester v. Beavor, 3 Sumner's Ves. 314, and note (a), and 315, 316; Whitney v. M'Kinney, 7 John Ch. 144. 4 Chambers v. Goldwin, 9 Ves. 269. 5 Story Eq. Pl. § 191; Kittle v. Van Dyck, 1 Sand. (N. Y.) 76, cited post, § 2 of this chapter, in note to point, "mortgagee unnecessary where mortgage is assigned." Hobart v. Abbot, 2 P. Wms. 643; Kittle v. Van Dyck, 1 Sand. (N. Y.) 76. The general, although not universal, rule, is that all incumbrancers, as well as the mort gagor, should be made parties, being, if not indispensable, at least proper, parties to a bill of foreclosure, whether they are prior or subsequent incumbrancers. Story Eq. Pl. § 193, and cases cited; Findley v. Bank of United States, 11 Wheat. 304; Haines v. Beach, 3 John. Ch. 459; Ensworth v. Lambert, 4 John. Ch. 605; McGown v. Yorks, 6 John. Ch. 450; Bishop of Winchester v. Beavor, 3 Sumner's Ves. 314, note (a); Taite v. Pallas, 1 Hogan, 261; Bodkin v. Fitzpatrick, 1 Hogan, 308; Canby v. Ridgeway, Halst. N. J. Dig. 168; Lyon v. Sandford, 5 Conn. 544; Renwick v. Macomb, 1 Hopk. 277; Fell v. Brown, 2 Bro. C. C. (Perkins's ed.) 278, 279, notes; Maderias v. Cutlett, 7 Monroe, 476; Wing v. Davis, 7 Greenl. 31; Poston v. Eubank, 3 J. J. Marsh. 44; Stucker v. Stucker, 3 J. J. Marsh. 301; Cooper v. Martin, 1 Dana; 25; Noyes v. Sawyer, 3 Vt. 160; Judson v. Emanuel, 1 Ala. N. S. 598; Miller . Kershaw, 1 Bailey Eq. 479; Bristol v. Morgan, 3 Edw. Ch. 142; Nodine v. Greenfield, 7 Paige, 544; 4 Kent (11th ed.), 186; see Platt v. Squire, 12 Met. 494. |