or more creditors against the debtor and his assignee in trust for all the creditors, to set aside the assignment on the ground of fraud, or for any other reason, is properly brought without joining all or any of the other creditors, who are the beneficiaries, either as defendants or as plaintiffs.1 § 255. 358. Same Subject. On the other hand, if an action is brought based upon the assignment or other deed as a valid transaction, seeking to enforce the trust, to obtain an accounting, to procure a final settlement, or for any other similar relief which recognizes and adopts the trust, and which, when obtained, would alike beneficially affect all the persons similarly situated, all the creditors or other cestuis que trustent must either unite as plaintiffs, or, if the suit is instituted by one or by some, the others must be joined as defendants. The court will not permit the same question to be litigated in separate suits at the instance of each person who has a demand identical in its nature with that held by all the others. An action by distributees against their administrator, or by any beneficiaries against their trustee, to open an account once settled, on the ground of an alleged fraud, and for a new accounting and distribution of the shares 54 S. W. 19, real estate was conveyed to a trustee, his heirs and assigns. After his death the cestui que trust brought suit to vest the title in a new trustee, on the ground that the trustee in his lifetime had illegally conveyed the same. It was held that the heirs of the trustee were necessary parties, although the trustee by will had conveyed all his property to another as trustee, since the title on the trustee's death descends to his heirs.] 1 Bank of British North America v. Suydam, 6 How. Pr. 379; Hancock v. Wooten, 107 N. C. 9. See, however, Hudson v. Eisenmayer Milling, &c. Co., 79 Tex. 401. See also Mitchell v. Bank of St. Paul, 7 Minn. 252, which was an action by a stockholder to set aside proceedings of the officers, and particularly an assignment in trust for creditors; also, French v. Gifford, 30 Iowa, 148, 159. 2 Bank of British North America v. Suydam, 6 How. Pr. 379; Garner v. Wright, 24 How. Pr. 144, 28 id. 92. Generally, when a demand is payable out of a trust fund, the trustees and the beneficiaries must be joined as defend Emmert ants in the action to recover it. claimed to be due, is plainly controlled by the same rule. It is entirely analogous to the suit above mentioned by creditors to procure an accounting from their assignee; it adopts and seeks to carry out the trust. All the distributees or beneficiaries must therefore be made parties, if not as plaintiffs, then as defendants.1 § 256. * 359. Implied Trustee Necessary Party in Actions to reach Property Impressed with Implied Trust or to enforce a Lien thereon. Examples. In actions to reach property impressed with an implied trust, or to enforce a lien thereon, the person in whom the legal title is vested, and who is an implied trustee, is, of course, a necessary defendant. Some examples will illustrate this rule. A husband purchased land with his own funds, but procured the deed to be made to his wife; he afterwards employed a person to erect a dwelling-house upon the land, who obtained a mechanic's lien on the premises for the price of his labor and materials. An action to enforce the lien was held to be properly brought against the wife and the husband; the legal title was held by her in trust for her husband, as this title was to be divested by the judgment which was based upon a demand against the cestui que trust, both were necessary parties.2 Land was purchased by a husband, but by arrangement was conveyed to his wife, the sale and conveyance being procured, as was alleged, by the fraudulent representations of both. The grantor, alleging the fraud and the non-payment of the price, brought an action against the husband and wife to establish his debt and to 1 Dillon v. Bates, 39 Mo. 292. This rule is general. Whenever an action is brought for an accounting and settlement of a trust estate, all persons interested in the estate must be parties. Devaynes v. Robinson, 24 Beav. 86; Coppard v. Allen, 2 De G., J. & S. 173; Hall v. Austin, 2 Coll. 570; Biggs v. Penn, 4 Hare, 469; Chancellor v. Morecraft, 11 Beav. 262; Penny v. Penny, 9 Hare, 39. If several trustees have been guilty of a breach of trust, all must [may] be joined in a suit by the cestui que trust brought to obtain relief against such breach. The liability of the defaulting trustees in such a case is joint and several. See 2 Pom. Eq. Jur. § 1081, and numerous cases cited; Stockton v. Anderson, 40 N. J. Eq. 486; Walker v. Symonds, 3 Swanst. 75; Munch v. Cockerell, 8 Sim. 219, 231; Perry v. Knott, 4 Beav. 179, 181; Shipton v. Rawlins, 4 Hare, 619. And in an action by one trustee against a co-trustee for a breach of the trust, all the beneficiaries who have concurred in such breach are necessary defendants. Jesse v. Bennett, 6 De G., M. & G. 609; Williams v. Allen, 29 Beav. 292; Roberts v. Tunstall, 4 Hare, 257, 261. 2 Lindley v. Cross, 31 Ind. 106. [National German-American Bank v. Lawrence (1899), 77 Minn. 282, 79 N. W. 1016: In an action by a judgment creditor of the husband to enforce a resulting trust against the land of the wife for the payment of the judgment, on the ground that the consideration for the grant to the wife was paid by the husband, the husband is a proper though not a necessary party.] enforce a lien for the same upon the land. Pending the suit the wife died, and her heirs were substituted as defendants in her place. The Supreme Court of Iowa, conceding that the heirs were necessary parties, held that the wife's administrator was a proper and, under certain aspects of the case, a necessary defendant, and ordered him to be brought in. If the action was simply to recover a pecuniary demand from the defendant, he was clearly a necessary party; but if it was only to establish a specific lien, he was only a proper party.1 A railroad company having placed certain of its bonds in the hands of a trustee upon trust to pay therefrom a debt due to a certain creditor of the company, and the trustee having, in violation of his duty, surrendered up the bonds to the company, and permitted them to be cancelled, whereby the security was utterly lost, it was held, in an action by the creditor against the trustee for a breach of his trust, that the railroad company was not a necessary defendant.2 The owner of bonds and other securities deposited them with his agent for a specific purpose. The agent, in violation of his fiduciary capacity, disposed of them to divers persons at different times and in different amounts. The owner brought an action against the agent and all the transferees for the purpose of setting aside the sales and reaching his property or its proceeds. It was held that this common action was improperly brought; that there was no community of interest among the defendants; and that a separate suit should have been instituted against the agent and each assignee.3 1 Parshall v. Moody, 24 Iowa, 314 2 Ridenour v. Wherritt, 30 Ind. 485. 3 Lexington & B. S. R. Co. v. Goodman, 5 Abb. Pr. 493, per Peabody J. This decision, as it seems to me, is in direct conflict with the well-settled principle which has been stated in the text, and which is fully sustained by the authorities. [Guardians: "The administrator of a guardian is a necessary party to a suit involving an account of the guardianship": Brassell v. Silva (1897), 50 S. C. 181, 27 S. E. 622. In a proceeding to determine whether certain additional credits should be allowed to a removed guardian, the guardian is not a necessary party: Wilson's Guardianship (1902), 40 Ore. 353, 68 Pac. 393. In an action against an incompetent person, the guardian is neither a necessary nor proper party: Redmond v. Peterson (1894), 102 Cal. 595, 36 Pac. 923. See also Leavitt v. Bell (1898), 55 Neb. 57, 75 N. W. 524. Administrators and Executors: An administrator cannot be sued in the same action in his individual and in his representative capacity, nor can a complaint against him as a representative be amended so as to constitute an action against him as an individual: Sterrett v. Barker (1897), 119 Cal. 492, 51 Pac. 695. In an action against executors de son tort, the complaint should be against them as executors generally: First Nat. Bank v. Lewis (1895), 12 Utah, 84, 41 Pac. 712.] § 257. *360. VI. Actions against Corporations and Stockholders and between Partners. Introductory. Actions to wind up the affairs of corporations, and those permitted by creditors against stockholders to enforce a personal liability of the latter, depend so entirely upon special statutory provisions, and these are so different in different States, that no general rule can be laid down concerning them which shall be a part of the common procedure. In fact, the subject does not strictly belong to a treatise upon the principles of the codes. I have collected some cases, however, which indicate the tendencies of the courts in the various States.1 § 258. * 361. Receivers. Creditors. Directors. An insurance company became insolvent, and a receiver was appointed to wind up its affairs. While it was in an insolvent condition, the directors had declared dividends which had been paid to stockholders. Certain creditors brought separate actions against individual stockholders to recover back the dividends so paid and received, which actions were pending. In this condition of affairs the receiver instituted a suit against all the stockholders to compel a repayment of all the illegal dividends, and made the above-men 2 1 As examples, see Chase v. Vanderbilt, 62 N. Y. 307; Osgood v. Maguire, 61 id. 524; Westcott v. Fargo, 61 id. 542; Hackley v. Draper, 60 id. 88; Hun v. Cary, 82 id. 65; People v. Albany & Vt. R. Co., 77 id. 232; Watkins v. Wilcox, 4 Hun, 220; Pierce v. Milwaukee Constr. Co., 38 Wis. 233 2 [Actions by and against Receivers: A corporation which has passed into a receiver's hands is no longer capable of suing or being sued, and should not be joined with the receiver: Idaho Gold Reduction Co. v. Croghan (1899), 6 Idaho, 471, 56 Pac. 164; Ueland v. Haugan (1897), 70 Minn. 349, 73 N. W. 169. A receiver appointed in another State has a right to maintain an action in the courts of Kentucky: Hallam v. Ashford (1902), Ky., 70 S. W. 197. A receiver is a stranger to all proceedings instituted before his appointment, and remains a stranger until made a party by the court, and the action may legally proceed to judgment without his being made a party: St. Louis, etc. Ry. Co. v. Holladay (1895), 131 Mo. 440, 33 S. W. 49. A receiver, being an officer of the court appointing him, cannot be sued in any other court without the consent of the appointing court: Smith v. St. Louis, etc. Ry. Co. (1899), 151 Mo. 391, 52 S. W. 378. A personal tax assessed against the corporation cannot be collected in an action against the receiver personally, instituted under G. S. 1894, § 1569: State v. Red River, etc. Co. (1897), 69 Minn. 131, 72 N. W. 60. A receiver, in order to maintain an action, must allege facts showing his appointment, by what jurisdiction he was appointed, and enough of the proceedings to show that his appointment was legal, and the allegations must be made with sufficient certainty to admit of being traversed: Rhorer v. Middlesboro Co. (1898), 103 Ky. 146, 44 S. W. 448. The failure of a party to obtain leave of the court to sue a receiver appointed by it, does not affect the jurisdiction of the court in which the suit is brought, to hear and determine the matter. The requirement is for the protection of the receiver, and if he makes no objection to the suit being brought without leave, it is difficult to perceive why anyone else should be permitted to do so": Tobias v. Tobias (1894), 51 O. St. 519, 38 N. E. 317.] tioned creditors defendants, asking against them an injunction to restrain the further prosecution of their actions. It was held by the New York Court of Appeals that the receiver could maintain such an action; that the creditors could not; that all the stockholders were properly sued together;1 and that the creditors were properly joined so as to restrain their proceedings and avoid a circuity of action, and settle the whole in one controversy.2 A stockholder, suing on behalf of all the others, instituted an action against a railroad company to compel the declaration of a dividend, alleging that funds were in its hands sufficient and appropriate for that purpose. The action was dismissed because, if sustainable at all, it should have been against the directors, who were the managing trustees, and whose duty it was to declare a dividend, if any such duty existed.3 $259. * 362. Judgment Creditors. Stockholders. In a suit by judgment creditors of a corporation (on behalf of all others who should come in) against the stockholders, who were made liable by statute for the debts of the company in specified contingencies, certain other judgment creditors were united as defendants. Upon a general demurrer interposed by them, they were determined to be neither necessary nor proper defendants. They should have been joined as plaintiffs, if at all; but this was not necessary, and the complaint contained no allegation that they had refused to unite in that manner. In Ohio, under statutes. making stockholders liable to judgment creditors when the ordinary legal remedies against the corporation have been exhausted, it has been held that all the stockholders must be united as defendants, and proceeded against in a single action.5 1 [All properly sued together in action to enforce stock liability, even when resident in different counties: Gainey v. Gilson (1897), 149 Ind. 58, 48 N. E. 633. Contra, in Kell v. Lund (1896), 99 Ia. 153, 68 N. W. 593. Held in Waller v. Hamer (1902), 65 Kan. 168, 69 Pac. 185, that all who were within the jurisdiction of the court must be brought in. See also Ryan v. Jacques (1894), 103 Cal. 280, 37 Pac. 186.] 2 Osgood v. Laytin, 5 Abb. Pr. N. s. 1; [Van Pelt v. Gardner (1898), 54 Neb. 701, 75 N. W. 874; Gianella v. Bigelow (1897), 96 Wis. 185, 71 N. W. 111; Smith v. Dickinson (1898), 100 Wis. 574, 76 N. W. 766.] 8 Karnes v. Rochester & G. Val. R. Co., 4 Abb. Pr. N. s. 107, per T. A. Johnson J. [In an action to compel a corporation to deliver shares of stock, the directors are proper but not necessary parties: Wells v. Green Bay, etc. Canal Co. (1895), 90 Wis. 442, 64 N. W. 69.] 4 Young v. N. Y. & Liv. S. S. Co., 10 Abb. Pr. 229, per Hogeboom J. 6 Umsted v. Buskirk, 17 Ohio St. 113. Contra, Thompson v. Lake, 19 Nev. 103, 115; Hatch v. Dana, 101 U. S. 210; Baines v. Babcock (Cal., Sept. 1891), 27 Pac. R. 674. That the corporation is not a necessary party to such an action, see Flour City Nat. Bk. v. Wechselberg, 45 Fed. |