$ 170. *256. Suits to Redeem. The rule which regulates actions to foreclose prevails also in those brought to redeem. As all the persons entitled to share in the mortgage debt must unite in the foreclosure suit, so in a suit to redeem, the mortgagor, and all others who have a common right with him to redeem, must be made parties; in strict theory they should be co-plaintiffs, but it is sufficient if the one who for his own purposes institutes the action adds the others as defendants. Where a judgment of foreclosure had been obtained on a mortgage, and, with the authority or knowledge of the mortgagee, the sheriff sold the premises in the usual manner, but at a merely nominal price, it was held, in Indiana, that the mortgagor and the mortgagee might unite in an action to set the sale aside, and to redeem the land from the purchaser, the mortgagor by virtue of his ownership, and the mortgagee by virtue of his interest in having a price produced at the sale large enough to pay his entire claim.2 The general doctrine above stated is strictly enforced in redemption suits of all varieties, the underlying principle being that a redemption must be complete and total, that the creditor shall not be compelled to accept a partial payment of his claim, or to make a partial surrender of his securities. When two tracts of land are mortgaged to the same person to secure the same debt, and they afterwards come into the hands of different proprietors, one of them cannot be redeemed without the other; the owners of both the parcels, and all persons interested in them, must be parties to the action, if not all as plaintiffs, then at least as defendants.3 This joinder of the persons interested in the two estates is only necessary, however, while the mortgages are held by the same mortgagee or other holder. If one of them is assigned, or if by any other means they come into the hands of different holders, they being on dis

11 Daniell's, pp. 212, 213; Story Eq. Pl. § 201; Chapman v. Hunt, 1 McCarter, 149; Large v. Van Doren, 1 McCarter, 208. See also Haggerson v. Phillips, 37 Wis. 364 (widow of a deceased mortgagor is not a necessary party); Parker v. Small, 58 Ind. 349 (in a suit to redeem by a grantee, the grantor is not a necessary party); Southard v. Sutton, 68 Me.

575.

2 Berkshire v. Shultz, 25 Ind. 523. See also McCulloch's Administrator v. Hol

lingsworth, 27 Ind. 115; Stringfield v. Graff, 22 Iowa, 438.

8 Story Eq. Pl., §§ 182, 287; Palk v. Lord Clinton, 12 Ves. 48; Lord Cholmondeley v. Lord Clinton, 2 Jac. & W. 1, 134; Ireson v. Denn, 2 Cox, 425; Jones v. Smith, 2 Ves. 372, 6 Ves. 229 (n.); Watts v. Symes, 1 De G., M. & G. 240; Tassell v. Smith, 2 De G. & J. 713; Vint v. Padget, 2 De G. & J. 611; Selby v. Pomfret, 1 J. & H. 336, 3 De G., F. & J. 595; Bailey v. Myrick, 36 Me. 50.

tinct parcels of land, all connection between them is severed, and the actions to redeem must be separate. If the action to redeem is brought by an incumbrancer, the same rule applies. In a suit by an incumbrancer, who seeks to redeem from a prior incumbrance, the mortgagor or owner of the land subject to the incumbrances, whatever they may be, is an indispensable party, although not necessarily a plaintiff. While a second mortgagee, in an action to redeem, must thus bring in the mortgagor or his heir or other owner of the land, he may foreclose the mortgagor and a third mortgagee without joining the first mortgagee as a party, since his proceeding does not in the least affect the rights of such first mortgagee, but its effect is merely to put himself in the place of the mortgagor and of the third mortgagee. This rule may be stated in a more general form. In suits brought to enforce subsequent claims, interests, or incumbrances, on property subject to prior charges which are to be left unaffected, the holders of such prior liens or interests need not be made parties.*

§ 171. *257. Suits for Accounting. All Persons interested in having an Account Taken, or in its Result, should be made Co

Plaintiffs. The general principle that all persons concurrently interested in the subject-matter of the suit or in its result, whether that relate to real or to personal property, must be parties, is invoked and strictly enforced in all species of actions which are brought to obtain an accounting against the defendant. The remedy of accounting is multiform, and it is often made the basis of some further and ulterior relief, such as rescission and cancellation, redemption, and the like; but wherever an accounting is sought, either for its own sake or as the preliminary step to further judicial action, the rules as to parties are controlling. When several persons are interested in having an account taken, or in its result, one of them cannot be permitted to institute a

1 Willie v. Lugg, 2 Eden, 78.

21 Daniell's, p. 214; Story Eq. Pl. S$ 84, 186, 195; Thomson v. Baskervill, 3 Ch. Rep. 215; Farmer v. Curtis, 2 Sim. 466; Hunter v. Macklew, 5 Hare, 238; Fell v. Brown, 2 Bro. C. C. 276; Palk v. Lord Clinton, 12 Ves. 48; Hallock v. Smith, 4 Johns. Ch. 649.

1 Daniell's, p. 214; Story Eq. Pl. § 193; Rose v. Page, 2 Sim. 471; Brisv. Kenrick, 1 Coop. temp. Cott.

coe

371; Arnold v. Bainbrigge, 2 De G., F. & J. 92; Audsley v. Horn, 26 Beav. 195, 1 De G., F. & J. 226; Person v. Merrick, 5 Wis. 231; Wright v. Bundy, 11 Ind. 398. In England, if the plaintiff in such an action brings in the prior mortgagee, he must offer to redeem his mortgage. Gordon v. Horsfall, 5 Moore,

393.

41 Daniell's, p. 214; Rose v. Page, 2 Sim. 471; Parker v. Fuller, 1 R. & M. 656.

proceeding for that purpose by himself alone and without joining the others in some manner, so that they shall be bound by the decree, for otherwise the defendant would be exposed to as many actions as there are persons interested, each brought and maintained for the same purpose and upon substantially the same proofs. The actions in which an accounting is necessary are very numerous, and arise out of external circumstances very unlike, but, in all of them, the rule as thus stated must be followed in the selection of the parties. Thus in a partnership, or any other like adventure where there is a sharing of profits or losses, all the persons having shares must be made parties to a suit brought for an accounting.2 Under the proper circumstances one may sometimes sue on behalf of himself and all the others interested, and it is not indispensable that the individuals having concurrent rights should all be joined as plaintiffs in the action. If, however, one or more of the parties are non-residents, and beyond the jurisdiction of the court, the rule, under such circumstances, is sometimes relaxed, and the action is allowed to proceed with those parties who are within the reach of the court and its process. The admission of this exception, or of similar ones, is not, however, a matter of absolute right; it depends rather upon the sound discretion of the court regulated by considerations of equity and justice. The heirs of a deceased partner must be parties in an action brought to sell real estate of the firm in winding up the partnership and paying the firm debts; although the land is, for the purpose of paying firm debts, treated in equity as a personal asset, yet the legal title of the heir must be divested, and to that end he must be brought in as a party.5

1 1 Daniell's, p. 216; Petrie v. Petrie, 7 Lans. 90. See also Getty v. Develin, 70, N. Y. 504 (accounting); Pfohl r. Simpson, 74 id. 137 (action against a fund or a class of persons); Eldridge v. Putnam, 46 Wis. 205 (all the cestuis que trustent must join in an action against the trustee for an accounting); Hughes v. Boone, 81 N. C. 204 (action for contribution); Hammond v. Pennock, 61 N. Y. 145 (rescission on account of fraud).

2 Ireton v. Lewes, Finch, 96; Moffat v. Farquharson, 2 Bro. C. C. 338.

Story Eq. Pl. § 166; Good v. Blewitt, 13 Ves. 397; Cullen v. Duke of Queensbury, 1 Bro. C. C. 101; Hills v. Nash, 1

Phila. 594; Wells v. Strange, 5 Ga. 22;
Mudgett v. Gager, 52 Me. 541.

4 The following cases will show to what extent, and under what circumstances, the rule has been relaxed: Story Eq. Pl. § 78; Darwent v. Walton, 2 Atk. 510; Walley v. Walley, 1 Vern. 487; Towle v. Pierce, 12 Metc. 329; Vose v. Philbrook, 3 Story, 335; Lawrence v. Rokes, 53 Me. 110, 116; Fuller v. Benjamin, 23 Me. 255; Drage v. Hartopp, 28 Ch. D. 414; Palmer v. Stevens, 100 Mass. 461. See Bowdoin College v. Merritt, 54 Fed. Rep. 55.

5 Pugh v. Currie, 5 Ala. 446; Lang ". Waring, 25 Ala. 625; Andrews v. Brown, 21 Ala. 437.

On the death of a partner, his personal representative may at once maintain an action against the survivors for an accounting; and when there was no real estate held by the firm as a part of its assets, so that no question can arise as to the title of any lands, the heirs of the deceased are neither necessary nor proper parties to such action.1

§ 172. *258. Residuary Legatees, Distributees, and Next of Kin. Statement of General Rule herein. Another example is found in the action by a residuary legatee, brought to obtain an account of his share of the residue; he must make all persons interested in the residue parties, even though their interest may be quite remote and contingent.2 One residuary legatee may sometimes sue on behalf of all others interested. Also in a suit by next of kin or distributees against the administrator for an account, all of the next of kin or distributees must be parties, naturally as plaintiffs, but if not, then as defendants. This is the established equity rule prior to or independent of any changes made by statutes. These instances of distributees and residuary legatees thus given are in fact particular cases of a more general rule in reference to actions which have for their object, in whole or in part, an accounting by the defendant, which may be stated as follows: When the persons assert the claim to an account as a portion of a class entitled under a general description, all the members of that class, or all the individuals included under that general description, must be before the court; if not among the original parties to the suit, they must be brought in before the final hearing, so that the rights of the entire body can be deter

1 Cheeseman v. Wiggins, 1 N. Y. Sup. Ct. 595.

21 Daniell's, pp. 216, 217; Story Eq. Pl. §§ 89, 203, 204; Parsons v. Neville, 3 Bro. C. C. 365; Cockburn v. Thompson, 16 Ves. 328; Brown v. Ricketts, 3 Johns. Ch. 553; Davoue v. Fanning, 4 Johns Ch. 199; Pritchard v. Hicks, 1 Paige, 270; Sheppard v. Starke, 3 Munf. 29; West v. Randall, 2 Mason, 181, 190-199; Huson r. McKenzie, Dev. Eq. 463; Arendell v. Blackwell, Dev. Eq. 354; Bethel v. Wilson, 1 Dev. & Bat. Eq. 610. See McArthur v. Scott, 113 U. S. 340, 395. As illustrations of such remote and contingent interests, see Sherrit v. Birch, 3 Bro. C. C. 229 (Perkins's ed. note); Davies v. Davies, 11 Eng. L. & Eq. R. 199; Lena

ghan v. Smith, 2 Phil. 301; Smith v. Snow, 3 Mad. 10; Hares v. Stringer, 15 Beav. 206; Grace v. Terrington, 1 Coll. 3.

8 Kettle. Crary, 1 Paige, 417, 419, 420; Ross v. Crary, 1 Paige, 416; Hallett v. Hallett, 2 Paige, 15, 19; Egberts v. Woods, 3 Paige, 517.

41 Daniell's, pp. 217, 218; Story Eq. Pl. § 89; Hawkins v. Hawkins, 1 Hare, 543, 546; Noland v. Turner, 5 J. J Marsh. 179; West v. Randall, 2 Mason, 181, 190; Kellar v. Beelor, 5 Monr. 573; Oldham v. Collins, 4 J. J. Marsh, 50. See Petrie v. Petrie, 7 Lans. 90; McArthur r. Scott, 113 U. S. 340, 395; Bland v. Fleeman, 29 Fed. Rep. 669; Richtmyer v. Richtmyer, 50 Barb. 55.

mined in one decree, and the defendant relieved from the possibility of a multiplicity of actions. Primarily, all these persons being interested in the account adversely to the defendant, they should all be made co-plaintiffs; but, as has often been observed, the rules of equity do not demand this strict distinction between plaintiffs and defendants, and they are satisfied if all the individuals, besides the one actually instituting the suit, are placed among the defendants. It is also often possible, when the class is numerous, that one should sue on behalf of all the others. This general rule is most comprehensive in its practical application, and must be invoked in a very large number of cases which have little external resemblance; it was well established both in England and in this country as a doctrine of equity procedure, but has of late years been much modified and relaxed in England by statutes.1

§ 173.259. Same Subject. Exceptions. Statement of Distinction herein referred to. There are some exceptions, however, to the foregoing rule which requires all persons interested in the result of an accounting to be made parties. When some of the individuals who were originally interested have been already separately accounted with and paid, they need not be made parties to the suit.2 And when the accounts and shares of the different persons have been kept entirely separate and distinct from each other, so that neither one is interested in that of the others, although all relate to the same adventure or undertaking, there need be no joinder of all. And where persons are each entitled to a certain fixed portion of an ascertained sum in the hands of a trustee, each may sue for his own share without joining his co-beneficiaries. The distinction here referred to is important, and should be stated more fully, as follows: If a trustee holds a fund which he is bound to distribute to different beneficiaries in unequal proportions, and the proportionate share of each has not yet been ascertained, all the persons who are

1 See 1 Daniell's, p. 217; Story Eq. Pl. § 90. See Lancaster Baptist Church v. Presb. Church, 18 B. Mon. 635; Hutchinson v. Roberts, 67 N. C. 223.

2 D'Wolf v. D'Wolf, 4 R. I. 450; Branch v. Booker, 3 Munf. 43; Moore v. Beauchamp, 5 Dana, 70.

3 Weymouth v. Boyer, 1 Ves. 416; Hills v. Nash, 1 Phil. 594, 597; Brown v.

De Tastet, Jac. 284; Bray v. Fromont, 6 Mad. 5.

41 Daniell's, p. 219; Story Eq. Pl. §§ 207 a, 212; Perry v. Knott, 5 Beav. 293; Smith v. Snow, 3 Mad. 10; Hares v. Stringer, 15 Beav. 206; Lenaghan v. Smith, 2 Phil. 301; Hunt v. Peacock, 6 Hare, 361.