Person Mak § 265. * 368. Prior Mortgagee. Agent of Vendor. ing Redemption. In an action against the vendor to compel the specific performance of his contract, the plaintiff united with him as co-defendants the holders of two prior mortgages embracing the land agreed to be conveyed, which had been given by the vendor, alleging in his complaint that the vendor had agreed to pay off and remove these mortgages, and that they included other lands in addition to that claimed by the plaintiff, which were sufficient to satisfy the demand secured thereby, and praying that the mortgagees might be compelled to sell such other lands first. The New York Court of Appeals, however, held that these mortgagees could not be joined as co-defendants in the action.1 When in the contract for the sale and conveyance of land the vendor appointed a certain person as his agent to make and deliver a deed in his name to the vendee, and directed the agent to execute and deliver the same, and neither the vendor nor the agent complied with the terms of the agreement, an action brought against the vendor and the agent as co-defendants was held to be improper, and the agent was declared not to be a proper party in any aspect of the case, since he had no interest in the controversy adverse to the plaintiff.2 Land had been sold at execution sale, and afterwards redeemed in alleged compliance with the statute which prescribes the manner of redemption. The purchaser, denying the validity of the redemption, brought an action against the sheriff alone to compel an execution and delivery of the deed, and this action was held insufficient; it should have embraced the person who made the redemption, and who claimed to hold the land by virtue thereof, as a co-defendant with the sheriff.3 § 266. 369. VIII. Actions to quiet Title. herein in Western States. Multiform Use of. Scope of Statute The nature of the action to quiet title is such that it is impossible to lay down any relation to its parties defendant. but the most general rule in 1 Chapman v. West, 17 N. Y. 125. joined with B. in the action, primarily as a plaintiff, but if not, then as a defendant; but if the agreement between B. and C. is that B. will convey the land to C., then B. is the only necessary party in the ac tion against A. Alexander v. Cana, 1 De G. & Sm. 415; Chadwick v. Maden, 9 Hare, 188; B-v. Walford, 4 Russ. 372. The very object of the proceeding assumes that there are other claimants adverse to the plaintiff, setting up titles and interests in the land or other subject-matter hostile to his. Of course all these adverse claimants are proper parties defendant, and if the decree is to accomplish its full effect of putting all litigation to rest, they are necessary defendants.1 Originally, and independent of statute, this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or when one person repeatedly asserted his single title by a succession of legal actions, all of which had failed, and in either case the object of the suit was to settle the whole controversy in one proceeding. The action has, however, been greatly extended by statute, especially in the Western States, and is there an ordinary means of trying a disputed title between two opposite claimants. The general scope of these statutes is as follows: The plaintiff must be in possession claiming an estate in the lands.2 The adverse claimant or claimants must be out of possession, and must assert a hostile title or interest. In this condition the possessor of the land, without waiting for any proceeding, legal or equitable, to be instituted against him, may take the initiative, and, by commencing an equitable action, may compel his adversaries to come into court, assert their titles, and have the controversy put to rest in a single judgment. It is plain, therefore, that this statutory suit is the converse of the legal action of ejectment. The action to quiet title is not, however, confined to the ownership of lands; its use is multiform; it may be invoked to determine conflicting rights over personal property, and even rights growing out of contract where a multiplicity of actions depending upon the same questions will thereby be avoided. I shall now give some illustrations of the action and of its different forms. It will be seen that each case must stand 1 [Browning v. Smith (1894), 139 Ind. 280, 37 N. E. 540: In a suit for quieting title to land, the omission of the holder of an equity of redemption as party defendant does not prevent the decree from operating to bar and foreclose those who were made parties.] 2 [See, however, Styer v. Sprague (1896), 63 Minn. 414, 65 N. W. 659, where a grantor who had conveyed land by warranty deed with full covenants, and had delivered possession to the grantee, under an agreement that a portion of the purchase price should be deposited with a third party to be paid over after a cloud on the title should be removed, has sufficient interest to maintain an action to quiet title. See, also, Kruczinski v. Neuendorf (1898), 99 Wis. 264, 74 N. W. 974, where one not in possession was allowed to maintain an action to remove a cloud from his title.] mainly upon its own circumstances under the guidance of the general principle which requires all persons whose rights and interests could be affected by the decree to be made parties. § 267. *370. Illustrations of Action and its Forms. The officers of a railroad company, in violation of their duty and of the charter, and with a fraudulent intent, issued large amounts of spurious stock of the corporation, which had all the appearance on the face of being genuine. These issues had been made at different times, and to various persons, and the stock was actually held by three hundred and twenty-six separate owners, who had bought it in the course of business supposing it to be genuine. Most of these holders had commenced suits against the company to compel it to recognize the stock as valid in their hands. Under these circumstances the corporation began an action against all these three hundred and twenty-six persons as defendants, to procure the stock to be declared spurious, to enjoin the suits then pending, and to determine the controversy at one blow. The suit was sustained as a bill of peace and to quiet title, and the defendants were held to have been properly united in the one proceeding; their stock was tainted (if at all) by a common vice, and the same fundamental question disposed of all their claims.1 On the same principle, the receiver of an insolvent insurance company was permitted to unite all the judgment creditors of the corporation who were separately suing the stockholders on their personal liability, and to enjoin their actions in order that the liability of all the stockholders might be enforced by himself in the same action.2 § 268. * 371. Same Subject. In an action to quiet title to lands by correcting mistakes in deeds thereof, all persons having any interest in the land, or having any interests which could be affected by the relief demanded, must be brought before the 1 N. Y. & N. H. R. Co. v. Schuyler, 17 N. Y. 592. The final result was, that the court pronounced the stock valid as against the company, and each defendant obtained a separate judgment against the plaintiff. s. c. 34 N. Y. 30. Bills of peace are sometimes permitted to be brought against a part only of those claiming adversely to the plaintiff when their number is very large; but in all such cases the right must be general among all these claimants. Story's Eq. Pl. §§ 120, 130 et seq.; London v. Perkins, 4 Bro. P. C. 158; Hardcastle v. Smithson, 3 Atk. 245; Adair v. New River Co., 11 Ves. 429; Newton v. Earl of Egmont, 5 Sim. 130; Harrison . Stewardson, 2 Hare, 530; Holland v. Baker, 3 Hare, 68. See also Supervisors v. Deyoe, 77 N. Y. 219. 2 Osgood v. Laytin, 5 Abb. Pr. N. s. 1 (Ct. of App.). court as defendants. When the land has passed through several owners by a succession of conveyances, all the series of grantors, or their heirs if they themselves are dead, are necessary defendants. In another case involving the same principle, a sale had been made under a power of sale contained in a mortgage of land, and a deed of the land executed by or on behalf of the mortgagee to the purchaser. In the description of the premises contained in this mortgage there was an important mistake, which was repeated in the deed to the purchaser who took the conveyance in ignorance thereof. On discovery of this error he brought an action to reform the mortgage and his deed by correcting the mistake, and made the mortgagor the only defendant. The Supreme Court of Missouri held upon these facts the mortgagee was a necessary defendant, and must be brought in before any judgment could be rendered.3 § 269. *372. Case in New York. The general rule governing actions to quiet and determine title to lands brought by the one in possession against the persons who set up adverse claims was clearly and accurately stated by the New York Court of Appeals in a recent case. The proceeding was instituted under a statute which corresponds in its important features with the description of that class of enactments given in a preceding paragraph (§*369). The party in possession had united all the adverse claimants as defendants in his suit, and this was objected to as a misjoinder. The court stated the doctrine in the following manner: "It is claimed on the part of the respondents that the plaintiff could not unite all the claimants as defendants in the action. I cannot doubt that this claim is entirely unfounded. twenty-four persons claiming title to this real estate. 1 [In Hannibal, etc. R. R. Co. v. Nortoni (1900), 154 Mo. 142, 55 S. W. 220, it was sought to quiet title by having a deed set aside which was executed by a third party. Held that the grantor and grantee of fraudulent deed were necessary parties.] 2 Flanders v. McClanahan, 24 Iowa, 486. See this case for a very elaborate discussion of the doctrine stated in the text; but see Thomas v. Kennedy, 24 Iowa, 397; and see Beckwith v. Darges, 18 Iowa, 303. In an action to reform a deed, both the grantor and the grantee are necessary parties. Pierce v. Faunce, 47 Here are Me. 507. As to necessary or proper de fendants in actions to correct mistakes in instruments, see Newman v. Home Ins. Co., 20 Minn. 422, 424; Durham v. Bischoff, 47 Ind. 211. Also Bush v. Hicks, 60 N. Y. 298; Mills v. Buttrick, 4 Col. 123; Stevenson v. Polk, 71 Iowa, 278; Coggswell v. Griffith (Neb. 1888), 36 N. W. Rep. 538; Roberts v. Chamberlain, 30 Kan. 677. 8 Haley v. Bagley, 37 Mo. 363. The court finally held that the purchaser could not maintain such an action at all; that he was not in such privity with the mortgagor as to entitle him to the relief. denied the plaintiff's right upon the same ground, and claimed title from the same source, and therefore had the same defence to the action. It cannot be that under the Revised Statutes it would have been necessary for the plaintiff to have instituted in such a case twenty-four special proceedings. Under the Revised Statutes these defendants, if they had all been in possession of this real estate, claiming the same title which they set up as defendants in this action, could all have been united as defendants in an action of ejectment; and they could, if they had chosen to do so, all have united in an action of ejectment against the plaintiff. Hence there was no error in the joinder of these defendants.”1 § 270. * 373. IX. Actions for Partition. Their General Purpose. General Creditors. Holders of Liens on Entire Tract. The action of partition has been made the object of so many special and varying statutory regulations in the different States, that it cannot properly be said to fall within the domain of the general procedure as the same is established by the codes. I shall only attempt, therefore, to point out its general features relating to parties defendant, and such as are common to all or several of the States in which the reformed system prevails. The primary object of the action is to divide the land according to their respective interests among the co-owners. The proceeding may be instituted by any co-owner, and all the other co-owners are of course necessary defendants, and they are in such case the only necessary or even proper defendants, for the rights of no other classes of persons could be affected by the decree 1 Fisher v. Hepburn, 48 N. Y. 41, 55, per Earl J. Goldsmith v. Gilliland, 24 Fed. Rep. 154; Kincaid v. McGowan, 88 Ky. 91; Ellis v. Northern Pac. R. Co., 77 Wis. 114; Keens v. Gaslin, 24 Neb. 310; Johnson v. Robinson, 20 Minn. 170; Story's Eq. Pl. §§ 144, 198; Sutton v. Stone, 2 Atk. 101; Reynoldson v. Perkins, Amb. 564; Mead v. Mitchell, 17 N. Y. 210, 214, 215; Clemens v. Clemens, 37 N. Y. 59. Heckman v. Swett (1893), 99 Cal. 303, 33 Pac. 1099, was an action to quiet title to a fishing privilege. The plaintiff was the owner of certain lands on the north side of the Eel river, and the defendants each severally owned certain lands on the south side of the same river, opposite the plaintiff's lands. The court says: "The court further found that making the division.2 General the defendants claimed and exercised their rights and interests severally and separately, each to a distinct part of the shore. The question of misjoinder of parties defendant was presented by demurrer and answer. The joinder of the several defendants was proper. They severally claimed rights affecting plaintiff's right appurtenant to his land, and their claim, though under different patents, was from the same source, and the injury to the plaintiff, as well as their defence to the action, depended as to each upon the same facts. Pom. Rem. & Rem. Rights, §* 372; Fisher v. Hepburn, 48 N. Y. 41-55."] 2 [Only a joint tenant or a tenant in common can maintain an action for the partition of real estate: Phillips v. Dorris (1898), 56 Neb. 293, 76 N. W. 555. An |