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descends to his heirs, if other of the co-owners were indebted to him for rents and profits of the land, his administrator should be joined as a party defendant with his heirs, since the sum due for these rents and profits, and which would be ascertained by an accounting and determined by the decree, would go to his personal estate in the hands of the administrator, and not to his heirs.1 § 274. 377. In Indiana and California. In Indiana, the widow takes an undivided portion of the husband's land in fee, as his statutory heir. In an action of partition, brought by the widow against the other heirs of her deceased husband in that State, his creditors, it is held, cannot be made defendants for any purpose.2 Under the California homestead laws, the wife is a necessary codefendant with her husband in the partition of lands which they claim or she claims to be a homestead. The general rule is laid down in that State that "all persons having or claiming any interest in the land are not only proper but necessary parties to a suit for partition." 4

(1897), 148 Ind. 625, 48 N. E. 366, that the wife of a tenant in common is not a necessary party. And in Cochran ". Thomas (1895), 131 Mo. 258, 33 S. W. 6, the husband of a co-tenant was held not to be a necessary party, under G. S., 1865, chap. 152. Same rule stated in Estes v. Nell (1897), 140 Mo. 639, 41 S. W. 940. In Chalmers v. Trent (1894), 11 Utah, 88, 39 Pac. 488, the wife of a cotenant was held a necessary party.]

1 Scott v. Guernsey, 60 Barb. 163, 181; s. c. on app. 48 N. Y. 106. [In Budde v. Rebenack (1896), 137 Mo. 179, 38 S. W. 910, it was held that in an action for partition of lands devised to minors, brought before the settlement of the estate, the executor is a proper party defendant. In such a proceeding against infants, it was held in Bogart v. Bogart (1896), 138 Mo. 419, 40 S. W. 91, they must be represented by a legal guardian and curator, otherwise the purchaser at the sale under the decree obtains no title as to them.]

2 Gregory v. High, 29 Ind. 527. The court said: Any decree of partition between the widow and heirs could not conclude the rights of the creditors against the estate of the deceased; nor could creditors prove their claims in such a

proceeding to which the administrator was not a party."

8 De Uprey v. De Uprey, 27 Cal. 329. Ibid. p. 332, per Sanderson J. See Gates v. Salmon, 35 Cal. 576.

[In Hiles v. Rule (1893), 121 Mo. 248, 25 S. W. 959, the court said: "No judgment in partition should be made when it appears that the parties, who are not before the court, have an existing vested interest in the subject-matter of the suit. In such case the parties interested should be brought in, or partition should be denied." And it was held that the general rule that defect of parties, appearing on the face of the petition and not objected to by demurrer, is waived, does not apply to partition suits. So, in Lilly v. Menke (1894), 126 Mo. 190, 28 S. W. 643, it was held that a petition in partition which discloses the interests of persons not made parties does not state a cause of action.

In Campbell v. Stokes (1894), 142 N. Y. 23, 36 N. E. 811, it was held that in an action of partition among a testator's children, they taking as life tenants, grandchildren living at the time of the suit were necessary parties, since they were presumptively entitled to possession on the death of the life tenant. Becker v. Stroeher (1902), 167 Mo. 306, 66 S. W.

$275. *378. X. Actions for Various Miscellaneous Objects. Partnership Matters and Accounting. An action by one partner against another for a dissolution and a winding up of the concern, partly based on the ground of a fraudulent transfer of firm property by the defendant partner to a third person, may properly include this assignee as a co-defendant, since the sale may be declared void, and he may be ordered to account. When two of three partners or any part of the entire firm-entered into a contract with a third person, by which they transferred, or agreed to transfer, to him a certain share of their interest in the concern a mine — and a like share of the profits made by their interest, an action by such assignee to determine his rights, and to obtain his share in the profits, would be properly brought against the two contracting parties alone; the other members would not be necessary defendants. But if the action is to wind up the concern, to dissolve the firm, and to sever the interests of the respective members, all the partners are indispensable parties; if the action is instituted by one, or by his assignee, all the others must be joined as defendants. And, as a general proposition, in an action to compel an accounting growing out of any transactions or relations, all persons interested in obtaining the account, or in the result thereof, are necessary parties, and should be made defendants, if not plaintiffs.3

1083: Where a deed of trust is executed after a partition suit has been instituted, the beneficiary and trustee, while they may be made parties to the partition if they so desire, are not necessary parties.] 1 Webb v. Helion, 3 Robt. 625; Wade v. Rusher, 4 Bosw. 537.

2 Settembre v. Putnam, 30 Cal. 490. See Blood v. Fairbanks, 48 Cal. 171, 174, 175; and Skidmore v. Collins, 8 Hun, 50. Where a bill is filed against one partner to set aside partnership transactions, and vacate a conveyance of real estate, assets of the partnership, but held in the name of one of the partners for the benefit of the firm, and for an account, all the partners are necessary parties. Bell v. Donohoe, 8 Sawyer, 435; s. c. 17 Fed. Rep. 710. 3 Petrie v. Petrie, 7 Lans. 90, 95. The general doctrine is, that all persons interested in resisting the plaintiff's demands must be made defendants. As an example, all joint debtors, and all persons liable

to contribute towards satisfying the plaintiff's claim, should be joined. Story's Eq. Pl. § 169; Madox v. Jackson, 3 Atk. 406; Bland v. Winter, 1 Sim. & S. 246; Jackson v. Rawlins, 2 Vern. 195; Ferrer v. Barrett, 4 Jones Eq. 455; Hart v. Coffee, 4 Jones Eq. 321; Dunham v. Ramsey, 37 N. J. Eq. 388. When a debt is joint, all the joint debtors must be made defendants; as, for example, if the suit is to enforce a demand against a firm, all the partners must be joined; and if the action is brought against the personal representatives of a deceased partner, the survivors must also be co-defendants. Story's Eq. Pl. §§ 166-168; Pierson v. Robinson, 3 Swanst. 139 (n.); Scholefield v. Heafield, 7 Sim. 667; Hills v. McRae, 9 Hare, 297; Butts v. Genung, 5 Paige, 254. Re McRae, 25 Ch. D. 16; Re Hodgson, 31 Ch. D. 177; Re Barnard, 32 Ch. D. 447. See also Littell v. Sayre, 7 Hun, 485; Southal v. Shields, 81 N. C. 28; Getty v. Develin, 70

In actions to obtain

§ 276.379. Rescission and Cancellation. this remedy, each case must to a great extent stand upon its own circumstances. There is one general principle which is generally applicable, and which regulates the selection of parties in all causes of this nature, whatever be the particular facts upon which each depends. It is the simple but comprehensive rule that all persons whose rights, interests, or relations with or through the subject-matter of the suit, would be affected by the cancellation or rescission, should be brought before the court as defendants, so that they can be heard in their own behalf. This general principle is assumed or expressly announced by all the decided cases, and those which are quoted are intended simply as illustrations.1

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§ 277. *380. Same Subject. In an action to set aside an award, even for the misconduct of the arbitrators, the arbitrators themselves cannot properly be made defendants, as they have no interest in the subject-matter, nor are they legally affected by the relief if granted.2 For the same reason, a sheriff is neither a necessary nor a proper defendant in an action to set aside a deed of land given by him upon a sale under an execution against the plaintiff. The owner of land who had been induced to sell by the fraud and collusion of his own agent, and of the purchaser, conveyed the entire tract to such purchaser, who took the apparent ownership in fee of the whole; but, in fact, by a secret arrangement between himself and the vendor's agent, the latter was entitled to one half of the land so sold and conveyed, and actually advanced to that end one half of the purchase price. An action by the grantor to set aside this conveyance was held to be properly brought against the ostensible purchaser of the whole, who took the deed in his own name, and the agent jointly, because the latter was in reality one of the purchasers, and his equitable interest would be affected by the decree of cancellation.4

N. Y. 509; Fulkerson v. Davenport, 70
Mo. 541 (equitable set-off).

1 Morse v. Morse, 42 Ind. 365; Zimmerman v. Schoenfeldt, 6 N. Y. Sup. Ct. 142. See also Sanders v. Yonkers Vill., 63 N. Y. 489, 493; Hammond v. Pennock, 61 id. 145; Potter v. Phillips, 44 Iowa, 353; Watkins v. Wilcox, 4 Hun, 220; Hill v. Lewis, 45 Kan. 162; Dailey v. Kinsler (Neb.), 47 N. W. 1045.

2 Knowlton v. Mickles, 29 Barb. 465. 8 Draper v. Van Horn, 15 Ind. 155. See, however, Colorado Man. Co. v. McDonald, 15 Colo. 516, to the effect that it is a matter for the discretion of the trial court whether the sheriff in such a case should be made a party. See also Gilbert v. James, 86 N. C. 244.

4 Roy v. Haviland, 12 Ind. 364

§ 278. *381. Same Subject. — In an action against a trustee to cancel a mortgage given to him as such, or to set aside a deed to him absolute on the face, which it was alleged was in fact a mortgage, all the persons interested in the mortgage debt and the security thereof, and particularly the beneficiaries for whose benefit the trustee held the security, are necessary parties defendant, and their absence would be fatal to the recovery of the relief demanded. When the lands of a deceased testator or intestate have been sold in pursuance of an order of the surrogate, on the application of the administrator or executor, for the alleged purpose of paying the debts of the deceased, an action to set aside such sale must be brought not only against the persons to whom the land was sold, and the present owners thereof, but also against the personal representatives of the deceased, so that the question whether there were debts of such a nature and extent as to render the sale necessary may be determined.2 Bonds having been issued in the name of a town in aid of a railroad under color of legal authority, and the town subsequently bringing an action to set aside the entire proceedings on the ground of illegality and to procure the bonds to be delivered up and cancelled, all the holders of such bonds, it was held, could be united as defendants therein, so that their rights could be determined in one proceeding; it was not considered requisite to such joinder that any common interest in respect to their ownership of the securities should exist among the defendants; it was enough that their rights as holders all depended upon the one question involved in the suit. If a judgment has been recovered against two or more jointly, and one of them afterwards institutes an action to set aside such judgment or to restrain its enforcement on the ground of want of jurisdiction in the court which rendered it, or on the ground of fraud, his co-judgment-debtors must be made parties to the proceeding, either as plaintiffs, or, upon their refusal to join, as defendants; their presence before the court is necessary to any adjudication upon the merits.1

1 Clemons v. Elder, 9 Iowa, 272, 275. 2 Silsbee v. Smith, 60 Barb. 372. In such an action all persons who participated in the fraudulent transaction, and who claim a present interest in the property affected by it, should be made defendants. Howse v. Moody, 14 Fla. 59, 63, 64.

8 Venice v. Breed, 65 Barb. 597.

4 Gates v. Lane, 44 Cal. 392. [All the parties to a judgment should be made parties to the proceeding to annul it: Day v. Goodwin (1898), 104 Ia. 374, 73 N. W. 864.

Land was conveyed to two sons of the

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§ 279.382. Enforcement of Liens. In an action by a sub-contractor or materialman to enforce the mechanic's lien given by statute, it is proper to make the contractor a party defendant as well as the owner of the building, so that all the claims may be adjusted in one suit. It is decided, in California, that when the building or other premises upon which the labor was performed is owned by a partnership, all the members of the firm are necessary defendants in an action to enforce a mechanic's lien, even though the plaintiff was employed by one of the partners alone,

grantor in consideration of their agreement to support their mother during her natural life. Soon afterwards the grantor died, the sons failed to keep their contract, and the mother, together with the children of the grantor other than the grantees, brought suit for rescission of the contract. Held that the heirs of the grantor were proper parties: Lane v. Lane (1899), 106 Ky. 530, 50 S. W. 857.

Reformation. Grigsby v. Barton County (1902), 169 Mo. 221, 69 S. W. 296: All persons who will be affected by the reformation of an instrument should be made parties. See also Horner v. Bramwell (1896), 23 Colo. 238, 47 Pac. 462. If a party necessary to the suit is not brought in, the case will be dismissed on motion at the close of the evidence: Steinbach v. Prudential Ins. Co. (1902), 172 N. Y. 471, 65 N. E. 281.]

1 Carney v. La Crosse & M. R. Co., 15 Wis. 503; Lewis v. Williams, 3 Minn. 151; Lookout Lumber Co. v. Mansion Hotel & B. Ry. Co., 109 N. C. 568; Davis ». John Mouat Lumber Co. (Colo. App. 1892), 31 Pac. R. 187; Northwestern Cement, etc. Co. v. Norwegian-Dan. Ev. L. A. Sem., 43 Minn. 449. Compare Hubbard v. Moore, 132 Ind. 178; Green v. Clifford, 94 Cal. 49. But it is held in Missouri that the sub-contractor need not bring in all of several joint contractors; the statute requiring the "original contractor" to be made a defendant is satisfied if one of them is joined. Putnam v. Ross, 55 Mo. 116; Steinmann v. Strimple, 29 Mo. App. 478; Horstkotte v. Menier, 50 Mo. 158, does not conflict with this decision, since it merely holds that the original contractor must be a defendant.

party in suit by materialman: Wood v.
Oakland, etc. Transit Co. (1895), 107 Cal.
500, 40 Pac. 806. Contractor is necessary
party in suit by sub-contractor: Union
Pac. Ry. Co. v. Davidson (1895), 21 Colo.
93, 39 Pac. 1095; Charles v. Hallack Lum-
ber Co. (1896), 22 Colo. 283, 43 Pac. 548;
H. B. C. Co. v. N. Y. C., etc. R. R. Co.
Con-
(1895), 145 N. Y. 390, 40 N. E. 86.
tractor is not necessary party in suit by
materialman: Bethune v. Cleveland, etc.
Ry. Co. (1899), 149 Mo. 587, 51 S. W.
465. Contractor is a necessary party in
suit by materialman: Castleberry v. John-
ston (1893), 92 Ga. 499, 17 S. E. 772.
The person with whom the plaintiff con-
tracted is a necessary party: Gilliam v.
Black (1895), 16 Mont. 217, 40 Pac. 303.
The person to whom the premises are sold
during the life of the lien is a necessary
party Pickens v. Polk (1894), 42 Neb.
267, 60 N. W. 566.

In Blanshard v. Schwartz (1898), 7 Okla. 23, 54 Pac. 303, the court, quoting with approval the case of Johnson v. Keeler, 46 Kan. 304, said: "In an action to foreclose a mechanic's lien, all lien holders and encumbrancers should be made parties, and a lien holder who is not made a party in the first instance is entitled, upon application, to come in at any time before final judgment, and, by answer in the nature of a cross petition, set forth his claim of lien, and ask to have the same foreclosed."

An attorney who has a lien on the judg ment recovered for his client, who secures an affirmation of the judgment on appeal, may properly make the sureties on the appeal bond parties to a suit to enforce the lien: Coombe r. Knox (1903), 28 [Contractor is proper but not necessary Mont. 202, 72 Pac. 641.]

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