true of any owner to whom the land or a part thereof has been conveyed, subject to the mortgage, and who remains owner at the time of commencing the action to foreclose.1 It is not necessary to set out the wife's interest in detail in the plaintiff's pleading; it is sufficient to aver in the usual general formula that she has or claims an interest in the land adverse to the plaintiff." A contrary rule prevails in a few States, in which it is held that the wife, under the circumstances mentioned, need not be made a defendant. This ruling must be based upon the local law of dower radically different from the common law.

§ 241.344. Joinder of Wife of Mortgagor in Foreclosure of Purchase-Money Mortgage. There is a marked conflict in the decisions defining the wife's right under a purchase-money mortgage. One theory holds that the legal position of a wife whose husband has executed a purchase-money mortgage in which she did not unite is exactly the same as that of a wife who has united with her husband in executing a mortgage not given for purchasemoney. The lien of the mortgage is, of course, paramount to the dower interest, but she still has a right of redemption, and, in order to cut this off, she must be made a defendant in the foreclosure action. The same rule also applies to the wife of the person to whom the land or a part of it has been conveyed, subject to a purchase-money mortgage, and who is owner at the time of the foreclosure. The other theory denies that the wife whose husband executes a purchase-money mortgage in which she does not join has any interest in the land, or any right of redemption. According to this view, she need not be made a defendant in the action to foreclose, and is cut off by decree and sale, although omitted as a party.

not a necessary party, though she claims an equity in the land on the ground that her funds were used in paying the purchase-money: Flowers v. Barker, 79 Ala. 445. [Wife is a proper, if not a necessary, party: Hausmann Bros. M'f'g Co. v. Kempfert (1896), 93 Wis. 587, 67 N. W. 1136. So is the widow, who joined in the mortgage: Chadbourn v. Johnston (1896), 119 N. C. 282, 25 S. E. 705.]

1 Watt v. Alvord, 25 Ind. 533, and cases last cited.

2 Anthony v. Nye, 30 Cal. 401.

8 Thornton v. Pigg, 24 Mo. 249; Riddick v. Walsh, 15 Mo. 538; Powell v.

When a trustee of a married

Ross, 4 Cal. 197. This last case cannot be reconciled with Anthony v. Nye, supra. [In Morgan v. Wickliffe (1903), Ky.

72 S. W. 1122, under Ky. St., § 2135, restricting the wife's dower right, it was held that the wife was not a necessary party to a suit to foreclose a mortgage in which she had joined.]

Mills v. Van Voorhies, 20 N. Y. 412. Also in Foster v. Hickox, 38 Wis. 408. 5 Fletcher v. Holmes, 32 Ind. 497, per Elliott J.; Etheridge v. Vernoy, 71 N. C. 184-186. [See also, Schaefer v. Purvi ance (1903), Ind., 66 N. E. 154.]

woman purchased lands in trust for her, and gave a purchasemoney mortgage therefor, it was held, in Nevada, that the wife and her husband were both necessary defendants in an action brought to foreclose the mortgage.1

§ 242. *345. Parties in Foreclosure of Mortgage upon Homestead. Adverse Claimant as Party. Other Cases. Under the law of California in respect to homesteads, it is held that the husband and wife must both join in a mortgage of the homestead in order that it should have any validity as against either; and of course the wife is a necessary defendant in an action to foreclose such a mortgage in which she has joined. In an action to foreclose a mortgage, a person who sets up a claim to the land adverse and paramount to the title of the mortgagor, and who therefore denies the efficacy of the mortgage lien, cannot properly be joined as a co-defendant by the plaintiff. Such an adverse claim to the land in opposition to the mortgage cannot be tried in the equitable action to foreclose. So far as mere legal rights are concerned in such an action, the only proper parties are the mortgagor and the mortgagee, and those who have acquired rights under them subsequent to the mortgage. The mortgagee or holder of the mortgage cannot make one who claims prior and adversely to the title of the mortgagor a defendant for the purpose of trying the validity of his adverse claim. In Iowa, a

1 Mavrich v. Grier, 3 Nev. 52. And when mortgaged land is conveyed in trust, or vested in trustees, the cestuis que trustent are necessary defendants in a suit to foreclose. Clark v. Reyburn, 8 Wall. 318; Faithful v. Hunt, 3 Anst. 751; Calverley v. Phelp, 6 Mad. 229; Osbourn v. Fallows, 1 Rus. & M. 741; Newton v. Earl Egmont, 4 Sim. 574, 584, 5 Sim. 130, 135; Coles v Forrest, 10 Beav. 552, 557; Goldsmid v. Stonehewer, 9 Hare App. 38; Story's Eq. Pl. §§ 206, 207; United States Trust Co. of N. Y. v. Roche, 116 N. Y. 120, 130; Kirkpatrick v. Coruing, 38 N. J. Eq. 234.

2 Revalk v. Kraemer, 8 Cal. 66; Marks v. Marsh, 9 Cal. 96; Moss v. Warner, 10 Cal. 296; Sargent v. Wilson, 5 Cal. 504. See also Mabury v. Ruiz, 58 Cal. 11; Hefner v. Urton, 71 Cal. 479. [Held in Spalti v. Blumer (1894), 56 Minn. 523, 58 N. W. 156, that a decree of foreclosure, where the wife is not a party, will not affect her homestead interest. Children

whose homestead rights are not subject to a mortgage, are not proper parties to its foreclosure: Hoppe v. Fountain (1894), 104 Cal. 94, 37 Pac. 894.]

8 [So held in Joslin v. Williams (1901), 61 Neb. 859, 86 N. W. 473.]

4 Eagle Fire Ins. Co. v. Lent, 6 Paige, 637, per Walworth Chan.; Corning v. Smith, 6 N. Y. 82; Palmer v. Yager, 20 Wis. 91, 103, per Dixon C. J.; Pelton v. Farmin, 18 Wis. 222. See also Roberts v. Wood, 38 Wis. 60; Crogan v. Spence, 53 Cal. 15; Houghton v. Allen, 75 Cal. 102; McComb v. Spangler, 71 Cal. 418, 423; Farmers' Loan & T. Co. v. San Diego Street-Car Co., 40 Fed. Rep. 105; but may try the validity of a claim which is not thus adverse and paramount, and may make the holder thereof a defendant : Brown v. Volkenning, 64-N. Y. 76, 84; Baas v. Chicago & N. W. Ry. Co. 39 Wis. 296; Lyon v. Powell, 78 Ala. 351.

1

trust deed of land or of chattels intended as security for a debt is by statute regarded as a mortgage, and may be foreclosed by action in the same manner as a mortgage. A subsequent incumbrancer, as, for example, a mortgagee, who has not been made a party to the foreclosure of a prior mortgage, may redeem the land from the sale, and, in his action to compel the redemption, he should make the mortgagor and his prior mortgagee, and the purchaser at the sale and his grantees, if any, the parties defendant. The grantee of the purchaser is an indispensable defendant in such an action; and if his omission is properly objected to by the actual defendant, the action must fail.3

§ 243. *346. III. Parties in Creditors' Actions; and Actions by or on Behalf of Creditors to set aside Fraudulent Transfers by their Debtors. General Remarks. It is not within the scope of this work to inquire into the nature of creditors' suits, nor to discuss the question when and under what circumstances they may be maintained. My only present concern is with respect to the proper selection of parties defendant, whenever the actions themselves may be properly brought. The general purpose of a creditor's suit proper is to reach, at the instance of a judgment creditor whose legal remedies of judgment and execution thereon have been exhausted, the assets of the judgment debtor, which, either by reason of their intrinsic nature, or by reason of their transfer alleged to have been fraudulent as against the creditor, are or have been placed beyond the reach of an execution at law,

1 Darlington v. Effey, 13 Iowa, 177. Trust deeds appear to be used in place of mortgages in several other of the Western States.

2 Anson v. Anson, 20 Iowa, 55; Knowles v. Rablin, 20 Iowa, 101; Street v. Beal, 16 Iowa, 68; Burnap v. Cook, 16 Iowa, 149. So, too, where the prior mortgagee seeks a second time to foreclose his mortgage against a subsequent mortgagee who was not made a party to the first foreclosure suit, all the purchasers at the first foreclosure sale are necessary parties: Moulton v. Cornish, 61 Hun, 438.

3 Winslow v. Clark, 47 N. Y. 221, 263; citing Dias v. Merle, 4 Paige, 259. And in an action to set aside a foreclosure sale for fraud, the purchaser is a necessary defendant: Wilson v. Bell, 17 Minn. 61, 64.

[Where Mortgagee is not Payee of Debt.

It was held in Swenney v. Hill (1902), 65 Kan. 826, 70 Pac. 868, that "if promissory notes be given to one person, and a mortgage securing them is given to another, who by the terms of the latter instrument is given active powers and authority over the subjects of the mortgage relation, the mortgagee is a necessary party to a suit brought by the payee of the notes to foreclose the mortgage." (Syllabus by the court.)

Where the Mortgagee Dies. An action for possession and foreclosure brought by a mortgagee against a mortgagor and others, cannot be continued by the mortgagee's executor when the mortgagee dies pending the suit, without joining the mortgagee's heirs as parties: Hughes v. Gay (1903), 132 N. C. 50, 43 S. E. 539.]

and which are therefore denominated equitable assets. Certain species of property, as, for example, things in action, although in the ownership of the debtor, cannot be seized on execution. The distinctive feature of the action, however, is to reach land, and sometimes chattels, which the debtor, having owned by a legal title, has transferred to some grantee or assignee in fraud of his creditors; or to reach such land, and sometimes personal property, the legal title to which stands, and always has stood, in other parties, while by reason of alleged facts the equitable ownership, at least so far as the creditors are concerned, is held by the debtor himself, and the property is thus, as is alleged, liable to be taken and applied to the discharge of the creditor's demands. Under what circumstances a transfer of property is fraudulent as against the creditors, or the equitable ownership is held by the debtor while the legal title is vested in another, it is not now the place to inquire. Assuming that such circumstances exist, and that when they exist an action may be maintained by the judgment creditor whose legal remedies are exhausted, to reach the property and have it applied in some manner to the payment of his demands, it may be asked, Who should be made parties defendant in such an action? The answer to this question is plain, and the rule has been well established, depending as it does upon the most evident principles of equity jurisprudence. The creditor's suit, properly so called, and which has been thus described in general terms, should not be confounded with actions that creditors may sometimes bring, based upon the law of trusts and the right of a cestui que trust to compel the performance of his duty by a trustee. § 244. * 347. Parties Defendant in Action by Judgment Creditor to reach Equitable Assets; and to reach Property fraudulently Transferred. In an action by a judgment creditor to reach the equitable assets of the debtor in his own hands, or to reach property which has been transferred to other persons, or property which is held by other persons under such a state of facts that the equitable ownership is vested in the debtor, the judgment debtor is himself an indispensable party defendant, and the suit cannot be carried to final judgment without him. In some cases, as when the property has been assigned at different times to different assignees, or is held by different legal owners, who are all made co-defendants, he is the very link which unites them all together,

the common centre to which they are all connected, and it is because he is a party defendant that they can all be joined in one action as co-defendants.1 Even if the objection to his nonjoinder be not taken by the actual defendants, the court will on its own motion order him to be brought in. If the judgment debtor himself is dead, his administrator or executor is an indispensable