co-defendants, and a neglect to join them is an error against which he should be permitted to object, and from which he should be suffered to obtain a relief. The former equitable procedure, as well as the common-law practice, recognized this right of the defendant. But it is a very different thing to say that such an error, when established, should in any class of cases absolutely defeat the action. The error is not essentially fatal. This is shown by the practice itself of the courts, which treats the objection as dilatory, and requires it to be presented in a certain technical manner, or else regards it as waived. There is then no reason in the nature of the proceeding why the equity doctrine should not have been applied under these circumstances to all legal actions, so that, when an improper nonjoinder is finally established by the decision of the court, the action should never be defeated thereby, but should be retained by the court in order that the plaintiff might add the necessary defendants, and then the cause proceed to judgment on the merits. It is certainly as practicable and as easy to pursue this course with all legal actions, as it is with those that are equitable; and the codes expressly permit, if not require it, in language which in terms embraces every species of suit. I shall now proceed to consider the particular cases which have arisen, and the various specific rules as to parties defendant which have been established by judicial decision. This examination will show how the general principles of interpretation have been applied by the courts, and will exhibit the system as a whole which has been constructed in respect to the selection and joinder of defendants. The discussion will be separated into three general divisions: namely, legal actions generally; actions against husband and wife, or either of them, as affected by the marriage relation; equitable actions generally. FIRST: LEGAL ACTIONS. of § 195. *294. I. Actions against Owners or Occupants of Land. Limitation herein. Distinguished from Common-Law Action Ejectment. This division does not include actions for trespass or other torts to the land or its possession, which will be considered under a subsequent subdivision relating to torts. The actions here intended must be brought against joint owners, owners in common, or occupants. The action to recover possession of land, and to try the title thereto, is generally called by lawyers and judges the action of ejectment. Yet wherever the new procedure is adopted, it far more nearly resembles in all of its essential features the ancient real actions which were displaced in use by "ejectment," in its essential features, I say, for of course it has none of the technical peculiarities which marked those old common-law forms of proceeding. One fact is certainly true, namely, that it does not bear the slightest resemblance to the action of "ejectment" as that was contrived by the old judges and lawyers, and only confusion and misconception result from applying to it that name. Undoubtedly the courts have continued to connect with it some of the special rules and doctrines which belong to the action of ejectment; but many of them, I am sure, could never have been retained if the courts had fully appreciated the completeness of the change wrought by the reformed system of procedure in abolishing all the forms of legal actions, and had reflected that the technical rules resulting alone from the absurd fictions which characterized ejectment have no legitimate connection with the simple action to recover possession of and try the title to land which has been introduced by the codes in the place of the former modes. As in the "real actions," the real party in interest, and that is the owner of the estate entitling him to possession, whatever be its nature, must be the plaintiff, and if the object be to establish a title, the holder or claimant of the adverse title must be made the defendant, while in respect of the claim to possession the occupant must be made a defendant. These are the simple essentials of the action, and they clearly have nothing in them akin to "ejectment." The codes of some States contain express provisions in relation to parties defendant, and especially in relation to the union of the landlord and tenant as co-defendants,1 but these are rather inserted from an excess of caution, and do not add anything to the force of the more general clauses. $196. *295. Who should be joined. Illustrations. In an action to recover possession of an entire tract or parcel of land, when the claim of the plaintiff to the whole rests upon and is 1 Code of New York, § 118 (447, 1503, 1598); California, §§ 379, 380; South Carolina, § 141; North Carolina, § 61; [Utah, Rev. St., 1898, § 2914; North Dakota, Rev. Codes, 1899, § 5230; South derived through a single title, he may, and unless their occupation is distinct, should join all the actual occupants or tenants of the tract, even though they may be in possession of separate and distinct portions thereof, and may hold, possess, and claim under separate and distinct titles.1 In addition to these he may join the landlord or person holding the fee, or any person claiming the ownership and right of possession, and must join such person if he desires to establish in that action his own ultimate ownership against that claimant.2 If the entire tract is in the possession of two or more persons who possess the same, not in separate portions, but jointly or in common in undivided shares, they should all be made defendants. If the plaintiff, however, claims separate portions of an entire tract under distinct titles, and each of these portions is possessed or occupied by a different person holding under a separate right or title from the others, he cannot join all these occupants in a single action; a suit must be brought 1 [Lewis v. Hinson (1902), 64 S. C. 571, 43 S. E. 15, quoting the text. Andrews v. Carlile (1894), 20 Colo. 370, 38 Pac. 465 Where several defendants are sued jointly in ejectment, and each files a separate answer, a joint judgment may be rendered against them unless they demand separate trials and judgments within a proper time. In Klinker v. Schmidt (1898), 106 Ia. 70, 75 N. W. 672, plaintiff alleged that defendant was in wrongful possession of a strip of land fourteen feet wide along the westerly side of his lot. This, if true, indicated that each lot owner in that tier of lots was fourteen feet on his neighbor's land to the east. Held, that this did not show an interest in the suit which would warrant the other lot owners being made parties defendant, on defendant's motion. There was merely a possibility of controversies arising between the other lot owners, and, besides, their defences might not be the same.] See, however, Sutton v. Casseleggi, 77 Mo. 397. 2 State v. Orwig, 34 Iowa, 112, 115. As to proper defendants in actions to recover possession of land, and to try the title thereto, see also Jackson v. Allen, 30 Ark. 110; Rollins v. Rollins, 76 N. C. 264; Colgrove v. Koonce, 76 id. 363; Lytle v. Burgin, 83 id. 301; Young v. Greenlee, 82 id. 346; Cagger v. Lansing, 64 N. Y. 417; in Wisconsin, see Gray v. Tyler, 40 Wis. 579; Pier v. Fond du Lac, 38 id. 470 (the Wisconsin statute provides for an action of ejectment against a person not in possession; this person must be one exercising some acts of ownership over the land, or claiming title thereto or some interest therein;" and the complaint must allege that the defendant "unlawfully withholds the possession from the plaintiff;" held, that in such an action the title claimed by the defendant must be one which, if valid, would give him a possessory right to the premises; and ejectment will not lie against one not in possession who only claims a lien); Wilson v. Henry, 40 id. 594; Platt v. Jante, 35 id. 629; Barclay v. Yeomans, 27 id. 682; Burchard v. Roberts, 70 Wis. 111. Under the Missouri statute, requiring the action to be brought against the person in possession, Shaw v. Tracy, 95 Mo. 531 (possession of the tenant is not such possession of the landlord as to enable the plaintiff to recover against the landlord as sole defendant); Phillips v. Phillips, 107 Mo. 360 (occupancy of or residence upon the property is not a necessary element of possession); Bensieck v. Cook (Mo. 1892), 19 S. W. 642; Callahan v. Davis, 90 Mo. 78; Charter Oak L. Ins. Co. v. Cummings, 90 Mo. 267. to recover each portion against the occupant thereof; the mere fact of propinquity would not produce any community of interest. The foregoing propositions are sustained and illustrated in the following instances. In an action brought by a widow to recover dower (which had not been assigned) in a city lot of land and block of stores, the occupant, holding under a lease for one year, of a single floor of one store standing on a small portion of the entire tract was held to be properly joined as a co-defendant.1 A similar action being brought to recover dower in a tract which the husband had conveyed during his marriage to a single grantee by one deed in which his wife did not join, and which land had by subsequent deeds been conveyed, one-half to one separate owner, and one-half to another, it was held that the widow, being entitled to dower in the whole tract, might join both these owners of the fee, who were also the occupants, as defendants in the same action.2 The rule is not confined to proceedings for the recovery of dower. Where it was alleged that one defendant claimed to be owner in fee of the whole premises, and that the three other defendants were his tenants, and that they all "unjustly withheld from the plaintiff the possession of the said premises," and it appeared on the trial that each of these four defendants actually occupied a separate portion, it was held that all these persons were properly united as co-defendants in the action. When the land is in the actual possession of a tenant, the landlord may be joined with him as a co-defendant, independently of any express provision of the code authorizing such a course, if the landlord has in any manner interfered to resist the plaintiff's claim, or has aided and abetted the tenant in his resistance, or has asserted the right of ownership to be in himself as against the plaintiff." 1 Ellicott v. Mosier, 7 N. Y. 201. This was so held under the 2 R. S. of New York, p. 303, §§ 2 and 4, and p. 304, §§ 10 and 13, which provide that ejectment must be brought against the person actually in occupation; citing Sherwood v. Vandenburgh, 2 Hill, 303. The defendant had contended that the action, being for dower, must be against the owner of the freehold, as in the common law action of dower. In Missouri, when an action is brought to recover lands claimed to be owned in fee by a wife, her husband is the only proper party to be made defendant, since he is entitled to the possession. 2 Galbreath v. Gray, 20 Ind. 290. It was held that the respective liabilities of the two defendants could be arranged and determined in the judgment. Fosgate v. Herkimer Man. Co., 12 N. Y. 580. See Fisher v. Hepburn, 48 N. Y. 41, 55, per Earl J. 4 Abeel. Van Gelder, 36 N. Y. 513; Fosgate v. Herkimer Man. Co., supra ; Pearce v. Ferris's Ex., 10 N. Y. 280; § 197. 296. Who should not be joined. Illustrations. Persons, however, whose rights cannot be at all affected by a recovery against the party in actual possession, whose interest is entirely distinct from his, and under or from whom he does not derive any title, are neither necessary nor proper co-defendants with him in an action brought to recover the possession as against his special title; as, for example, the remainder-man in fee after a life estate, when the action is merely for the purpose of recovering possession during the continuance of such life interest. Thus, in an action against a husband, tenant by the curtesy in actual possession, brought, not to establish an absolute title in fee, but to recover the possession during the husband's life, the heirs of the deceased wife who are the reversioners in feeare neither necessary nor proper parties defendant. On the same principle, an action by the grantee in a sheriff's deed of lands given on an execution sale, the judgment debtor having died, should be against the latter's heirs alone, and not against them and his widow; her dower right could not be affected by the recovery, and being as yet unassigned, it did not entitle her to possession as against the plaintiff." Lands having been given to a tenant for life, with remainder in fee to another, the former leased the premises for a term of years, with a covenant of quiet enjoyment. The life tenant died before the expiration of the term, and the remainder-man thereupon entered and took possession. The lessee brought an action upon the broken covenant against both the executors of the life tenant and the remainder Fosgate v. Herkimer Man. Co., 12 Barb. 352. See also Finnegan v. Carraher, 47 N. Y. 493, which was very similar to Abeel v. Van Gelder, supra, in all the facts. The landlord alone was sued. Court held the tenant was also a proper and perhaps a necessary party, but objection to his nonjoinder had been waived by not demurring or answering. See, further, Clason v. Baldwin, 129 N. Y. 183; City of Napa v. Howland, 87 Cal. 84. In Iowa, it is held that, when the defendant is only a tenant, the landlord may be substituted; but this is not necessary. If substituted or notified, he is bound by the judgment; otherwise he is not. State v. Orwig, 34 Iowa, 112, 115. [Where an owner of land brings an action to recover possession against a railroad company which had acquired it by condemnation proceedings, the lessee of such land is a necessary party: Roby v. N. Y. C. & H. R. R. R. Co. (1894), 142 N. Y. 176, 36 N. E. 1053. The tenant in possession is the only necessary party to an action of ejectment, even though he may set up that there are tenants in common with him: Raymond v. Morrison (1894), 9 Wash. 156, 37 Pac. 318. See also Danihee v. Hyatt (1897), 151 N. Y. 493; 45 N. E. 939. All the occupants of land need not be joined; one is sufficient: Hennessey v. Paulsen (1895), 147 N. Y. 255, 41 N. E. 516.] 1 Allen v. Ranson, 44 Mo. 263. |