Opinion of the Court-Sullivan, J.

other than the plaintiff, and that the damage done and the acts complained of were suffered by the plaintiff, and that plaintiff has lost the sums mentioned and prays for judgment for $3,250, and also prays that if it appears that the defendant is still the owner of the said $2,000 note, that said note be set off and canceled as against any judgment recovered by plaintiff.

Then the question presented for determination is whether said complaint on its face shows that the Springston Lumber Company is a necessary party plaintiff to this action. Counsel for appellant first contends that the authorities are uniform in holding that where one sells real estate and makes representations as to the quantity of land sold, that he is liable in an action for damages in case his representations, whether believed by him to be true or not, are in fact false, and the boundary lines pointed out by him are not the true boundary lines and the purchaser suffers any loss by reason thereof.

It was said in Miller v. Wissert, 38 Okl. 808, 134 Pac. 62, that "False representations of a vendor as to the quantity of a tract of land he offers for sale are not mere matters of opinion, but are material, and he cannot avoid their consequences merely because the vendee might have ascertained their falsity by a survey of the land or by reference to official plats and records."

In Quarg v. Scher, 136 Cal. 406, 69 Pac. 96, the court held that where the vendor represents that a tract of land contains a certain number of acres, the vendee can rely on the statement, and may rescind the sale, or have the purchase price decreased, if there is less land than vendor states. (McGhee v. Bell, 170 Mo. 121, 70 S. W. 493, 59 L. R. A. 761.)

It was held in Culbertson v. Blanchard, 79 Tex. 486, 15 S. W. 700, that even honesty in making a mistake is no defense, as it is incumbent upon the vendor to know the facts.

It is not necessary for us to pursue this point further. As we understand the record, the learned district judge held that the complaint stated a cause of action, but sustained the de

Opinion of the Court-Sullivan, J.

murrer solely on the ground of nonjoinder, and held that the Springston Lumber Company was a necessary party plaintiff.

It will be observed from the allegations of the complaint above set forth that this is not an action for the cancelation of the $2,000 note, but is an action for damages by one claiming to be the vendee against the vendor. The contract alleged in the complaint is based upon the fact that the plaintiff and the defendant were the only parties to the contract for the purchase and sale of said timber; they are the real parties. The defendant by the demurrer admitted the material allegations of the complaint. He admitted that the timber was purchased by the plaintiff from him and admitted the pointing out of said boundary lines and that said boundary lines were not correct, and that the deed to the timber was made to the Springston Lumber Company for the purpose of security only. Then the only question remaining is as to whether, under all of those admitted facts, the Springston Lumber Company is a necessary party plaintiff to the action.

Under our practice act, if another person is a necessary party to an action, then the demurrer for nonjoinder will lie; but if such person is only a proper party, as distinguished from a necessary party, the demurrer for defective parties or nonjoinder will not lie.

It is stated in 31 Cyc. 293, as follows: "Under the codes and practice acts, a 'defect of parties' is expressly enumerated as a ground of demurrer, and such provisions apply equally well to a defect of parties plaintiff, as well as a defect of parties defendant. But nonjoinder of a proper, as distinguished from necessary, party is not ground for demurrer."

A "necessary" party is universally held to be one without whom the cause cannot proceed to final determination, whereas a "proper" party is one without whom the cause might have proceeded, but whose presence will allow a decree or judgment to more clearly settle the controversy between all of the parties.

Opinion of the Court-Sullivan, J.

It is stated in Bliss on Code Pleading, 21, that "In general, in an action founded upon tort, the person who suffered the injury must bring the action, for he is the party in interest.

The allegations of the complaint clearly show that the plaintiff is the one who suffered the alleged injury, and since it is alleged that the Springston Lumber Company was only security for the payment of the purchase price for said timber, it has not suffered any injury, as it has the title to said timber which it took as security, and such title is not sought to be affected in any way by this action. Injury is alleged to the plaintiff; no injury is alleged to the Springston company; no intimation is made in the complaint that the Springston company has a legal interest in this cause of action and that it could enforce it, notwithstanding a full and complete recovery were had by the plaintiff. It is not necessary to join as plaintiffs persons who do not appear by the allegations of the complaint to be united in interest with the plaintiff in the relief sought. (Garner v. Wright, 28 How. Pr. 92; Washburn v. Case, 1 Wash. Ter. 253; Sheridan Gas, Oil & Coal Co. v. Pearson, 19 Ind. App. 252, 65 Am. St. 402, 49 N. E. 357.)

According to the allegations of the complaint, the Springston Lumber Company was not a party to the contract for the purchase of said timber. The representations alleged to have been made to the plaintiff to induce him to buy the timber could not be relied upon by the Springston company, since it was not a party to the contract and had no interest therein, and it is a well-recognized rule of law that one who is not a party to a contract and has no interest in the contract is neither a necessary nor a proper party to an action because of a breach of the contract. (Hurlbutt v. N. W. Spaulding Saw Co., 93 Cal. 55, 28 Pac. 795.) If the defendant can show by allegations in his answer that a complete determination of this controversy cannot be had without the Springston Lumber Company being made a party, it would then become the duty of the court to direct it to be brought in. We therefore conclude that the court erred in holding that

Opinion of the Court-Ailshie, C. J., Concurring Specially.

there was a defect of parties plaintiff, in that the Springston Lumber Company was not made a party.

The judgment of dismissal must therefore be reversed, and it is so ordered, with directions to the trial court to overrule the demurrer and to permit the defendant to answer. Costs are awarded to the appellant.

AILSHIE, C. J., Concurring Specially. In concurring in a reversal of the judgment in this case, I want to state the reasons which lead me to do so. I do not think upon the face of the complaint the question could be fairly presented to the court by demurrer that the Springston Lumber Company was a necessary party to the adjudication of any cause. of action alleged as existing between plaintiff and defendant. On the other hand, I do not see where there would be any protection to either plaintiff or defendant under any judg ment on this contract as against the Springston Lumber Company. A determination that the Springston Lumber Company had no real interest in the contract and only appeared as a nominal party thereto would be binding as between the parties to this action, but it would be in no sense binding upon the Springston Lumber Company and would in no way bar the company from prosecuting its action on the contract, or any action against either party involving any right under the contract. For that reason, I have no doubt but that the Springston Lumber Company is a "proper party," if not a "necessary party," and it would have been entirely proper, and I think wise, for the trial judge to have ordered the plaintiff to bring in the Springston Lumber Company and make it either a defendant or a plaintiff in the action.

While I agree that so far as the complaint shows, it cannot be said that the Springston Lumber Company was a necessary party, I am fully persuaded that it was a proper party, and that it should have been brought into this action and required to set up any interest it may have in the matter, so that justice may be done all the parties under the contract in the one action.

Argument for Respondent.

(May 23, 1914.)

JAMES PAGE, Appellant, v. ONEIDA IRRIGATION DISTRICT, a Corporation, Respondent.

[141 Pac. 238.]

TAXPAYER ESTOPPED-IRREGULARITY IN BOND ISSUE-VOID BOND ISSUE. 1. Where it is shown that a land owner within an irrigation district seeks to avoid the payment of assessments levied against his land by the district because of alleged irregularities or infirmities in the issue of bonds, and who, with full knowledge of such alleged defects or infirmities, has, by his silence, acquiesced in the expenditure of the fund derived from the sale of said bonds, and who has had knowledge that said bonds were passing into the hands of bona fide purchasers, held, that he will be estopped by his laches from being heard to object to the payment of such assessments.

2. A taxpayer may, by his conduct, be estopped from questioning the validity of municipal bonds because of alleged irregularities or infirmities in their issue.

APPEAL from the District Court of the Fifth Judicial District for the County of Franklin. Hon. Alfred Budge, Judge.

Action to have declared void certain liens and encumbrances created by assessments levied by an irrigation district, and to have determined the nature and amount of such liens as were legally created, and for the purpose of enjoi ing respondent from creating or attempting to create other or additional liens or encumbrances by levying future assessments. Judgment for defendant. Affirmed.

W. A. Lee and W. H. Wilkins, for Appellant, cite no authorities on points decided.

Richards & Haga, for Respondent.

"A taxpayer is barred by laches from enjoining the collection of a tax where he has stood by and permitted large numbers of taxpayers to pay such taxes." (Kennedy v. Montgomery County, 98 Tenn. 165, 38 S. W. 1075; Abbot, Public