defendant; and if the objection be taken for the first time in the appellate court, the cause will be remanded in order that he may be added as a defendant.2 When, however, the debtor conveyed his land to A. for the purpose of a second conveyance to his own. wife in fraud of his creditors, which second conveyance was made, and the debtor afterwards died, it was held that his heirs. were neither necessary nor proper parties to the creditor's action brought to set aside these conveyances. "The conveyance of their ancestor, though fraudulent, concludes them, and effectually cuts off all their interest in the property."

4

§ 245. 318. Assignee of Judgment Debtor a Necessary Party. Where Legal Title is in Third Person and Equitable Ownership in Debtor. If the object of the action be to reach property which has been assigned by the debtor, the assignee is a necessary party defendant, even if he be a non-resident of the State; and on the same principle, if the plaintiff seek to reach property of which the legal title is in a third person, but the equitable ownership of which is alleged to be in the debtor, such holder of the legal title must be a defendant.5 When the debtor conveyed land to a third person with the purpose that such person should at once convey the same to the debtor's wife, which second conveyance was forthwith made, it was held, in an action against the debtor and his wife to reach the land in her hands, that the first grantee was a necessary party defendant.

1 Alexander v. Quigley, 2 Duvall, 300; Postlewaite v. Howes, 3 Iowa, 365; Coates v. Day, 9 Mo. 315; [Prentiss v. Bowden (1895), 145 N. Y. 342, 40 N. E. 13; Sheppard v. Green (1896), 48 S. C. 165, 26 S. E. 224; First Nat. Bank v. Shuler (1897), 153 N. Y. 163, 47 N. E. 262. In the last case the wife of the debtor was one of the alleged fraudulent vendees, and she became his executrix upon his death pending the suit. She was already a party in her individual capacity, and was not made a party in her representative capacity. Held that she was not bound as executrix and the judgment could not be sustained.] 2 Postlewaite v. Howes, 3 Iowa, 365. 3 Harlin v. Stevenson, 30 Iowa, 371, 375.

A debtor fraudulently con

real property, the wife is not a proper party in an action by creditors to set aside the conveyance, but the wife of a fraudulent grantee is a proper party: Tatum v. Roberts (1894), 59 Minn. 52, 60 N. W. 848. See also Stevenson v. Matteson (1893), 13 Mont. 108, 32 Pac. 291.

Where an action is brought by a creditor to set aside a fraudulent confession of judgment by the debtor in favor of H., and a conveyance of land to H. under execution sale, the administrator and heir at law of H. are necessary parties: Sloan v. Hunter (1899), 56 S. C. 385, 34 S. E. 658. If the grantee be dead, his heirs are necessary parties: Bevins v. Eisman (1900), Ky., 56 S. W. 410.]

Ogle r. Clough, 2 Duv. 145.

6 Bennett v. McGuire, 5 Lans. 183, 188. The necessity of making this grantee a defendant is not apparent. It is true, his

veyed land to A., and took back a purchase-money mortgage which he assigned to B. In an action to set aside the conveyance, or to reach the mortgage, it was held that the debtor and both A. and B. were proper and necessary parties defendant.1 § 246. * 349. Assignees of Separate Parcels of Property should be joined. Reason herein. When the action is brought for either of these objects, if the debtor has at different times assigned, in alleged fraud of his creditors, different parcels of his property to different assignees, or if different parcels of property are held by different persons in alleged fraud of the debtor's creditors, so that the equitable ownership is claimed to be vested in him, all of these assignees, or all of these holders of the legal title, may be joined with the debtor as co-defendants in one action.2 The reason given for this rule permitting separate assignees or holders of the legal title to be joined, although they take by different conveyances and at different times, is, "that they all have a common interest centering in the point at issue in the cause; so that, while the title to one piece of property is in one defendant, and the title to some other distinct piece is in another defendant, yet these various titles were taken and are now held for a common purpose, and to accomplish the same fraudulent end. All are privy to have been concerned in acts tending to the same illegal result. The matters are not distinct, but are in truth all connected with the same fraudulent transaction in which all the defendants have participated.3

§ 247. *350. Other Cases. Trustees of an Express Trust. Innocent Third Parties. In an action brought by or on behalf of a judgment creditor, to reach a fund in the hands of an express trustee for the debtor, such debtor is a necessary defendant, and

deed is sought to be set aside, but he has no interest whatever in the result; all title has passed out of him, and he cannot be affected by the judgment. See Spicer v. Hunter, 14 Abb. Pr. 4.

1 Foster v. Townshend, 12 Abb. Pr. N. S. 469. When a debtor had conveyed land in fraud of his creditors, and the grantee had executed a mortgage thereon, the mortgagee was held a necessary defendant in a creditor's suit to set aside the conveyance. Copis v. Middleton, 2 Mad.

410.

Reed v. Stryker, 12 Abb. Pr. 47; Jacot v. Boyle, 18 How. Pr. 106; Hamlin . Wright, 23 Wis. 491; Winslow v. Dousman, 18 Wis. 456; North v. Bradway, 9 Minn. 183.

3 Winslow v. Dousman, 18 Wis. 456, 462, per Cole J.; Hamlin v. Wright, 23 Wis. 491, 494; Brinkerhoff v. Brown, 6 Johns. Ch. R. 139, 157; Fellows v. Fellows, 4 Cow. 682; Boyd v. Hoyt, 5 Paige, 65; N. Y. & N. H. R. Co. v. Schuyler, 17 N. Y. 592; Story's Eq. Pl. §§ 285, 286; Dix v. Briggs, 9 Paige, 595; Sizer v. Miller, 9

2 Morton v. Weil, 11 Abb. Pr. 421; Paige, 605.

should be joined with the trustee; he is the person directly interested in the fund, and the one to be directly affected by the judgment. When a creditor's suit was brought to reach property fraudulently transferred by the debtor, and the alleged fraudulent transfer was consummated through the means of a third person, who in good faith received a conveyance of the property in trust for the alleged fraudulent grantee, and who subsequently conveyed the same to such grantee in accordance with the trust, such third person was held not to be a proper defendant; there was simply no cause of action against him, because he was free from any fraudulent intent.2

sons.

§ 248. * 351. IV. Actions Relating to the Estates of Deceased PerThe "administration suit" in chancery, by means of which the estates of deceased persons are usually settled in England, is uncommon, if not entirely unknown, in the United States. The actions which will fall under the above heading are almost entirely special cases, depending upon special circumstances: suits by judgment creditors to reach the property of deceased debtors, or of beneficiaries to reach trust property held by deceased trustees, or of heirs or next of kin, or legatees, to set aside the fraudulent transactions of administrators and executors, and the like. It is almost impossible, therefore, to collect these various cases into any well-defined groups; each must stand upon its own facts, and will illustrate as far as possible the broad generalities of the equitable doctrine as to parties.3

1 Vanderpoel v. Van Valkenburgh, 6 N. Y. 190.

2 Spicer v. Hunter, 14 Abb. Pr. 4; Bartlett v. Drew, 57 N. Y. 587, 589. For a peculiar case of misjoinder of defendants in a creditor's action, see Gale v. Battin, 16 Minn. 148, 150.

[Receiver as Party. Held in Daisy Roller Mills v. Ward (1897), 6 N. D. 317, 70 N. W. 271, that where judgment creditors brought suit merely to set aside conveyances of real estate as fraudulent, and asked for no accounting for rents and profits, a receiver of the rents and profits appointed after the conveyances were made is not a necessary party.

son of creating preferences, the creditors alleged to have been preferred are not necessary parties: Bradley v. Bailey (1895), 95 Ia. 745, 64 N. W. 758. But where one creditor seeks to be placed ahead of prior creditors such prior creditors must be made parties: State ex rel. v. Hickman (1899), 150 Mo. 626, 51 S. W. 680.]

3 For various examples of such actions see Littell v. Sayre, 7 Hun, 485; Skidmore v. Collier, 8 id. 50; Selover v. Coe, 63 N. Y. 438; Janes v. Williams, 31 Ark. 175; Williams v. Ewing, 31 id. 229; Whitsett v. Kershaw, 4 Col. 419; Wall v. Fairley, 77 N. C. 105; Harris v. Bryant, 83 id. 568; Conolly v. Wells, 33 Fed. Rep. 205 (in an action against executors for an accounting, all must be joined, including one who was outside the jurisdiction of the court); Howth v. Owens, 29 Fed. Rep.

§ 249. * 352. Illustrations. A testator left real and personal property in fee to A., but if she should die without issue, $10,000 of it were given over to B. The original executor of this will died leaving the trust fund mingled with his own property, and the whole passed to his executor, C. A. died without issue, and B. brought an action to recover the legacy of $10,000, making C., the then executor of the original executor, the defendant. It was held by the Court of Appeals in New York, that C. was a necessary party, but that the administrator of A. was also a necessary defendant without whom the issues in the cause could not be decided.1 "He [this administrator] is a trustee of the next of kin of A., and they are interested in the fund after satisfying all charges upon it, and have a right to be heard upon any claim which tends to take it away for the benefit of another or to reduce it." In an action brought by one executor against his co-executor for an account, the ground of the proceeding being the breach of his trust by the latter, and the misuse of funds belonging to the estate, the legatees, next of kin, and creditors of the deceased are not necessary defendants unless the accounting is to be final; if it is made the final accounting and settlement of the trust, then all these persons must be brought in as defendants. The administrator, in violation of his trust, fraudulently conveyed lands of the estate to a person who was a participant in the fraud. This grantee died intestate. The children the only heirs and next of kin of the deceased original owner brought an action against the administrator and the heirs of the grantee, to set aside the fraudulent transfer, to compel a re-conveyance of the land, and for an accounting by the administrator. This action was held proper; the heirs of the grantee were held to be necessary defendants, and properly united with the

722 (representative of deceased executor must be joined). For a full discussion of the jurisdiction of equity over administration suits in this country, see 3 Pom. Eq. Jur. §§ 1152-1154, and extended note to § 1154.

[In Payne v. Johnson's Ex'ors (1893), 95 Ky. 175, 24 S. W. 238, the court said that "while all creditors are not necessary parties to an action by an administrator for the settlement of an estate, still they are entitled to be heard; and in a case like

this [where creditors of the testator are claiming contract liens upon property which is charged by the will with the pay ment of debts generally], with no one representing them and their debts a charge upon the realty, they, or some of them, were necessary parties to the action enforcing this lien."]

1 Auburn Theol. Sem. Trs. v. Kellogg, 16 N. Y. 83.

2 Ibid., p. 96, per Denio J.

8 Wood v. Brown, 34 N. Y. 337.

administrator.1 And when in a similar case the fraudulent administrator had at different times conveyed portions of the land to different grantees, an action by the heirs of the deceased owner against the administrator and all of these grantees, was sustained. "If there is a common point of litigation, the decision of which affects the whole number of defendants, and will settle the rights of all, they may all be joined in the same proceeding.” 2

§ 250.

Illustration.

* 353. When Administrator is not a Necessary Party. An administrator is not a necessary party defendant unless some claim is made against the estate which he would have the right to resist, or unless the judgment would be in some manner prejudicial to the estate; a fortiori, he is not a necessary defendant when the immediate object of the action is to increase the amount of assets available to the payment of the debts of the deceased, even though the ultimate purpose of the proceeding may be the benefit of the creditor who prosecutes it. Thus, where the deceased in his lifetime had received an absolute deed of lands, which he did not put upon record, and had subsequently with a fraudulent intent destroyed this deed, and procured the grantor therein to execute another conveyance of the same land without consideration to a third person who took the same with full knowledge and collusively and put the same upon record, a judgment creditor of the deceased, whose judgment was recovered while the deceased held the deed to himself, brought an action against the second grantee and the heirs and widow of the deceased, seeking to set aside the second deed, and to establish

Bassett v. Warner, 23 Wis. 673. This case is plainly the same in principle as the suit by a judgment creditor against a fraudulent debtor and his grantee.

2 Bowers v. Keesecher, 9 Iowa, 422, 424; citing Story's Eq. Pl. §§ 284, 534; Bugbee v. Sargent, 23 Me. 271; Rayner r. Julian, Dickens, 677; Brinkerhoff v. Brown, 6 Johns. Ch. R. 152; Varick v. Smith, 5 Paige, 160.

[See McCabe v. Healy (1902), 138 Cal. 81, 70 Pac. 1008, where it was held that the administrator had no concern or interest in a suit between the plaintiff who claims under a contract to make a will and the heirs of the decedent. And also In re Healy's Estate (1902), 137 Cal.

474, 70 Pac. 455, where the court says: "It is, in effect, a suit to determine a controversy between the different heirs as to their respective rights of inheritance, and in such a controversy it is well settled that the administrator has no interest, but is a mere officer of the court, holding the estate as a stake holder." See also Hall v. Bank (1898), 145 Mo. 418, 46 S. W. 1000, where it was held that an administrator cannot bring a suit in equity to set aside a fraudulent conveyance of land made by the deceased unless an order is first obtained from the probate court directing him to take possession of the land for the payment of debts.]