trator or executor

is a necessary party; if he is not united as a co-plaintiff, he must be added as a defendant.1

§ 167. 253. Rule Applicable to Persons Having Legal Demands Arising out of Same Subject-Matter. In all the foregoing, instances the rule has been applied to the holders of a legal and of an equitable estate or interest in the subject-matter; it extends also to all persons having legal demands against the defendant arising out of the same subject-matter or event. Thus, where a lease has been assigned by the lessee, both the lessor and the lessee may each sue the assignee at law for a breach by him of the covenants. In equity, however, neither is permitted to sue the assignee without joining the other also, so that the defendant cannot be subjected to a double action and recovery.2

§ 168. * 254. All Holders of Concurrent Equitable Rights against the Defendant should be made Co-Plaintiffs. In the class of cases thus far examined, either an equitable right existed in one person and a legal right in another, or a legal right was held by all. The same principle extends to the very numerous class of cases in which the rights against the defendant arising from the same subject-matter or event are all equitable. Whenever, therefore, in addition to the plaintiff who actually institutes the action, there are other persons having concurrent equitable rights against the defendant growing out of the same subject-matter, they should in general be made parties to the action, primarily no doubt as co-plaintiffs, but, if not, then as defendants. The doctrine thus stated in general terms has a very wide application, and upon it

1 Attorney General v. Wynne, Mos. 126; Wilson v. Moore, 1 My. & K. 126, 142; Saunders v. Druce, 3 Drew. 140. As examples of such actions, see Fisher v. Hubbell, 7 Lans. 481, 65 Barb. 74, 1 N. Y. Sup. Ct. 97; in which the same person was executor of the estates of A. and of B., and the plaintiffs, legatees of A., had claims which placed them in the position of creditors to the estate of B.; and Lancaster v. Gould, 46 Ind. 397, which was an action by legatees and next of kin, against a creditor of the estate and the executor, to set aside a fraudulent allowance and payment of a claim made by the executor to the creditor; and Stronach v. Stronach, 20 Wis. 129, 133. See also Hills v. Sherwood. 48 Cal. 386, 392; Haynes v. Harris, 33 Iowa, 516, 518-520;

Hardy v. Miles, 91 N. C. 131. For a full discussion of the circumstances under which the equity jurisdiction may be invoked in this country in aid of the probate courts, see 3 Pom. Eq. Jur. §§ 1152-1154, and extended note to § 1154.

8

21 Daniell's, pp. 206, 207; Sainstry v. Grammer, 2 Eq. Cas. Abr. 165; London v. Richmond, 2 Vern. 421; 1 Bro. P. C. 516. [Sanborn v. People's Ice Co. (1900), 82 Minn. 43, 84 N. W. 641: In a suit to restrain defendant from cutting and carrying away ice from a lake on which plaintiff is a riparian owner, there is no defect of parties plaintiff where the plaintiff shows himself specially affected by defendant's acts, on account of his peculiar relations to the water, not shared in common by other shore owners.]

1

is based a very large portion of the special rules as to parties which prevail in equity. It includes not only those who have concurrent rights in the whole subject-matter of the suit, but those also who have similar rights in a part of it, such as joint tenants, who must all be parties in an action concerning the property. In a suit by joint tenants or tenants in common for a partition, all must be before the court; but it is not necessary of course that all should be plaintiffs.2 There have been relaxations of this general rule. An action by three out of forty-seven tenants in common, brought to restrain the defendants from quarrying stone upon the land which was owned in common by the whole number, has been sustained, notwithstanding an objection on the ground of the non-joinder was interposed.3 And where one tenant in common had leased his share for a long period of years, the lessee was permitted to maintain a partition against the other tenants in common, without making the reversioner of his own share the lessor a party. And generally a tenant for life may institute a partition without bringing in the remainder-men.5 When land is held by tenants in common for

11 Daniell's, pp. 207, 208; Haycock v. Haycock, 2 Ch. Cas. 124; Weston v. Keighley, Finch, 82; Stafford v. London, 1 P. Wms. 428; 1 Stra. 95. Where there are two or more trustees, they must all unite, since their interest is strictly joint. Thatcher . Candee, 33 How. Pr. 145 (N. Y. Ct. of App.). In a suit by tenants in common to restrain a nuisance, the widow of a deceased co-tenant is properly joined as plaintiff, for the protection of her dower interest. Shepard v. Manhattan Ry. Co., 117 N. Y. 442, 446, 447. In Woodruff v. No. Bloomfield Gravel Min. Co., 8 Sawy. 628, s. c. 15 Fed. Rep. 25, it was held that one tenant in common might bring suit to enjoin a nuisance affecting the property without joining his co-tenants. And one heir may bring an action to restrain the desecration of his ancestor's grave, and for damages, without joining the other heirs. Mitchell v. Thorne, 57 Hun, 405. Where tenants in common of a tract have by separate deeds and at separate times and places conveyed their interests to a common vendee, they cannot join in a suit to cancel the deeds, as neither vendor has

an interest in the relief demanded by the other. Jeffers v. Forbes, 28 Kan. 174, 179, per Brewer J. See ante, § #219, and

notes.

2 Anon., 3 Swanst. 139; Brashear v. Macey, 3 J. J. Marsh. 93; Braker v. Devereaux, 8 Paige, 513; Borah v. Archers, 7 Dana, 176; Cornish v. Gest, 2 Cox, 27. In partition by a tenant in common, his wife is not a necessary co-plaintiff; she should be made a party to the action, but rather as a defendant than as a plaintiff. Rosekrans v. White, 7 Lans. 486. The administrator of a deceased tenant in common may, under certain circumstances, be a proper party, together with his heirs, in a partition. Scott v. Guernsey, 60 Barb. 163, 181. See Sullivan v. Sullivan, 4 Hun, 198 (partition).

3

life, or when there are future contingent interests which may finally vest in persons not yet in being, a partition may be had between those who possess the present estates; but it will only be binding upon the parties who are before the court and those who are virtually represented by such parties.1 In an action brought to determine boundaries, all persons interested, whether their estates are present or future, remainder-men and reversioners, must be parties, although of course all need not be plaintiffs. It is not necessary, as a general rule, to make the actual occupying tenants or lessees parties in suits relating to real property. They must, however, be parties in special cases. where they are directly interested and their concurrence is necessary; as, for example, in a partition suit where a tenant in common has leased his share, and in a suit brought to restrain an ejectment which was instituted against the tenants themselves instead of against their lessor. If, on the other hand, lessees, or any persons holding limited interests, sue to establish some general right, that is, some right belonging to or affecting the whole estate and not merely their own temporary possession and user, the ultimate owners of the inheritance must also be made parties, so that they may be bound by the decree, but the requirement will be satisfied by making them defendants. Thus, where a lessee brought an action to establish a right of way against a person who had erected an obstruction, it was held that his lessor should have been joined as a party to the suit.6

1 Wotten v. Copeland, 7 Johns. Ch. 140; Striker v. Mott, 2 Paige, 387, 389; Woodworth v. Campbell, 5 Paige, 518; Gaskell v. Gaskell, 6 Sim. 643; Gayle v. Johnston, 80 Ala. 395.

21 Daniell's, p. 209; Story Eq. Pl. § 165; Bayley v. Best, 1 Russ. & My. 659; Miller v. Warmington, 1 Jac. & Walk. 484; Speer v. Crawter, 2 Meriv. 410; Attorney General v. Stephens, 1 K. & J. 724; 6 De G., M. & G. 111; Pope v. Melone, 2 A. K. Marsh. 239.

[United Coal Co. v. Canon City Coal Co. (1897), 24 Colo. 116, 48 Pac. 1045: Where a lessee coal company is under contract to pay the lessor company a certain royalty on every ton of coal mined, as rental for the property, both the companies may join as plaintiffs in an injunction suit against other parties who are wrong

fully extracting coal from the leased premises.]

41 Daniell's, p. 209; Story Eq. Pl. § 151; Lawley v. Walden, 3 Swanst. 142; Poole v. Marsh, 8 Sim. 528. See Saloy v. Bloch, 136 U. S. 338.

5 1 Daniell's, pp. 209, 210.

6 Poore . Clarke, 2 Atk. 515. [Columbia Water Power Co. v. Electric Co. (1894), 43 S. C. 154, 20 S. E. 1002: The plaintiff was the purchaser of a canal from the State. The defendant was lessee from the State of 500 horse power of water power in said canal, reserved by the State in the sale to plaintiff, the lease providing that defendant should supply the State penitentiary with 100 horse power, and should have the remainder for its own profit. Defendant erected a steam plant on the banks of the canal as supplemental

$169. *255. Doctrine extends to Actions relating to Personal Property. Illustrations. The doctrine that persons having or claiming a joint interest or estate must unite, extends to actions which relate to personal property as well as to those which relate to real property.1 The following particular instances will illustrate this application. If a legacy is given to two jointly, both must sue for it; but if legacies are given separately, there being no common interest in any particular one, each legatee may sue for his own. Where two or more persons are jointly interested in the money secured by a mortgage, that is, according to the law prevailing in this country, when they are joint mortgagees or joint assignees of a mortgage, they must all unite in a foreclosure. And it is not even necessary that they should be joint holders of the debt secured by the mortgage. All persons who are entitled to share in the proceeds, whether their interest is joint or in common, or several, must be made co-plaintiffs, or at least must be brought into the action as defendants. When,

to its use of the leased water power. Plaintiff brought a suit in equity to enjoin defendant from using the water power, and also asked for damages for the erection of the steam plant on plaintiff's land. Held, that inasmuch as the State, being owner of the penitentiary, is interested in the use of the water power, the State is an indispensable party to the injunction proceedings, but that in the law action the State is not a necessary party.]

1 1 Daniell's, p. 211.

2 Haycock v. Haycock, 2 Ch. Cas. 124; Hughsen v. Cookson, 3 Y. & C. 578.

v.

8 Story Eq. Pl. § 201; Stucker Stucker, 3 J. J. Marsh. 301; Wing v. Davis, 7 Greenl. 31; Noyes v. Sawyer, 3 Vt. 160; Woodward v. Wood, 19 Ala. 213; Palmer v. Earl of Carlisle, 1 S. & S. 423; Lowe v. Morgan, 1 Bro. C. C. 368; Stansfield v. Hobson, 16 Beav. 189. For an example of misjoinder, because there was no community of interest, see Ferris v. Dickerson, 47 Ind. 382. See also Thompson v. Smith, 63 N. Y. 301 (a vendor's lien); Simpson v. Satterlee, 64 id. 657, 6 Hun, 305 (where the holder of a mortgage has assigned it as collateral security, he may foreclose, but the assignee must also be joined as a necessary party): see also Cerf v. Ashley, 68 Cal. 419; Church

v. Smith, 39 Wis. 492 (in an action by a grantor to enforce the grantor's lien, when a portion of the notes given for instalments of the fund have been assigned, the assignees are necessary parties). Mesechaert v. Kennedy, 4 McCrary C. Ct. 133 (joint owners of bonds must join in a suit to declare them a lien on property). Contra, Swenson v. Moline Plow Co., 14 Kan. 387 (where a mortgage was given to secure two notes, and one of the notes was assigned, the mortgagee and the assignee of the note cannot maintain a joint action on the notes and mortgage).

Story Eq. Pl. § 201; Goodall v. Mopley, 45 Ind. 355, 358. In this case a mortgage had been executed to several different mortgagees. All but one joined in a foreclosure, and he was afterwards permitted to foreclose for his own behalf, making the other mortgagees, as well as all other persons interested, defendants. See, per contra, Montgomerie v. Marquis of Bath, 3 Ves. 560. -a case which has been severely criticised. gees of land, holding several mortgages given at the same time to secure several obligations. are tenants in common, and may join in a suit to foreclose their mortgages. Cochran v. Goodell, 131 Mass. 464.

Two mortga

however, the mortgage has been assigned to trustees in trust for the benefit of creditors, the trustees are the only necessary parties plaintiff in a foreclosure suit, and the creditors, being represented by them, need not be joined.1 Actions to foreclose mortgages upon land, and those to enforce and foreclose the vendor's lien upon land for the purchase-price thereof, are in all respects based upon the same principles. The equitable doctrine prevailing in by far the greater part of the States, and which has entirely displaced the legal notion, regards the debt as the essential fact, and the mortgage as a mere incident thereto. The holder of the mortgage has therefore no estate in the mortgaged premises.2 Whoever is interested in the debt as one of the creditors is therefore interested in the mortgage or in the vendor's lien, and, upon the well-settled rules of equity procedure, all must be made parties in order to avoid a division of the claim and a multiplicity of actions. In the Western States it is very common, on the sale of land, for the vendor to take the vendee's notes payable at successive dates for the price, and either to receive back a mortgage given to secure such notes, or to rely upon the equitable lien arising from the sale as the security. All the holders of such notes must join as plaintiffs in an action to foreclose, whether the security be a mortgage or the mere vendor's lien.1 A note and mortgage having been given to a husband and wife as security for money of the wife loaned to the mortgagor, and the husband dying, the wife was held to be the proper party to sue in her own name, either as the surviving promisee and mortgagee, or because the contract concerned her separate estate. 5

1 Morley v. Morley, 25 Beav. 253; Thomas v. Dunning, 5 De G. & S. 618; Knight v. Pocock, 24 Beav. 436.

2 [It was held in Sidney Stevens Implement Co. v. South Ogden Land Co. (1899), 20 Utah, 267, 58 Pac. 843, that since by the law of Utah trustees in a deed of trust are not vested with any title to the property, legal or equitable, they are necessary parties in an action to foreclose the deed of trust.]

not

[Held in Casey v. Gibbons (1902), 136 Cal. 368, 68 Pac. 1032, that the plaintiff, in her individual capacity as distributee of one half the mortgage, might join with herself as executrix representing the other half of the mortgage.]

4 Pettibone v. Edwards, 15 Wis. 95; Jenkins v. Smith, 4 Metc. (Ky.) 380; Merritt v. Wells, 18 Ind. 171; Goodall v. Mopley, 45 Ind. 355, 358. See, however, Rankin v. Major, 9 Iowa, 297. Upon the death of a vendor, it is held, in Kentucky, that his heirs must be joined as plaintiffs in a suit to enforce the lien for purchasemoney, that the administrator cannot maintain the action alone. Anderson v. Sutton, 2 Duv. 480, 486; Smith v. West's Ex., 5 Litt. 48; Edwards v. Bohannon, 2 Dana, 98; Thornton v. Knox's Executors, 6 B. Mou. 74; Etheridge v. Vernoy, 71 N. C. 184, 185, 187. [See, however, 340, and cases cited in the note.]

*

5 Shockley v. Shockley, 20 Ind. 108.