party to the suit.100 All persons who are concerned in some of the matters involved in a suit may properly be joined as parties, and it is not essential that all the parties shall have an interest in all the matters contained in the suit.101 In a suit to obtain a reconveyance of certain lands, brought against the grantee of complainant and purchasers of the land from him, on the ground that the grantee held the lands at first only as security, and afterwards obtained a deed by fraud, it was held that the grantee was, though perhaps not a necessary, yet a proper, party.102 One whose interest in a bill does not appear is not a proper party.103 If a bill is brought to compel parties to indemnify certain of the complainants against liabilities assumed for the common benefit, one who is bound merely as a guarantor may be joined as complainant. So may a party with whom the contract of indemnity is made, by name, though he is not otherwise interested.1 104

§ 43. Suits must be brought in the name of real party in interest.

In equity, a party in interest must always institute a suit in his own name, although the legal title is not vested in him.105 A suit cannot be brought in the name of one person for the use of another.106 Equity treats the assignee of a contract not assignable at law as a party in interest, and will afford him relief in a proceeding instituted in his own name.107 A suit cannot

100 Thomas v. Boswell, 37 Leg. Int. (Pa.) 147.

101 Walters v. Farmers' Bank of Virginia, 76 Va. 12, citing Story, Eq. Pl. § 271a.

102 Buchoz v. Lecour, 9 Mich. 234.

103 Beall v. Blake, 16 Ga. 119.

104 Batchelder v. Wendell, 36 N. H. 204. See, also, Ritchie v. Sayers, 100 Fed. 520.

105 Elder v. Jones, 85 Ill. 384; Field v. Maghee, 5 Paige (N. Y.) 539; Marsh v. Wells, 89 Ill. App. 485; Press v. Woodley, 160 Ill. 433, 43 N. E. 718.

106 Kellam v. Sayre, 30 W. Va. 198, 3 S. E. 589; Elder v. Jones, 85 Ill. 384.

107 Dixon v. Buell, 21 Ill. 203; Rogers v. Traders' Ins. Co., 6 Paige (N. Y.) 583.

be maintained in the name of an agent, for it must be prosecuted in the name of the real party in interest.108 A party beneficially interested in a contract may sue in equity in his own name to enforce his rights, although he be not a party to the instrument creating them.109

§ 44. Parties in cases of assignments.

As a general rule, the person having the legal title in the subject-matter of the bill must be made a party, either as complainant or defendant, although he has no beneficial interest therein, so that the legal title may be bound by the decree of the court. In cases, therefore, where an assignment does not pass the legal title, but only the equitable title, to the property, as, for example, an assignment of a chose in action, it is usual, if not indispensable, to make the assignor holding the legal title a party to the suit. The true principle would seem to be that in all cases where the assignment is absolute and unconditional, leaving no equitable interest whatever in the assignor, and the extent and validity of the assignment is not doubted or denied, and there is no remaining liability in the assignor to be affected by the decree, it is not necessary to make the latter a party.110 It is a very different question whether he may not properly be made a party as the legal owner, although no decree is sought against him; for, in many cases, a person may be made a party although he is not an indispensable party. Where, however, the assignment is not absolute and unconditional, or the extent or validity of the assignment is disputed or denied, or there are remaining rights or liabilities of the assignor which may be af

108 Calvert, Parties, 229; Oakey v. Bend, 3 Edw. Ch. (N. Y.) 482; Jones v. Hart's Ex'rs, 1 Hen. & M. (Va.) 471; Clarkson v. De Peyster, 3 Paige (N. Y.) 337; Leigh v. Thomas, 2 Ves. Sr. 313. 109 Burlew v. Hillman, 16 N. J. Eq. 23.

110 Story, Eq. Pl. § 153; Mills v. Hoag, 7 Paige (N. Y.) 18; Trecothick v. Austin, 4 Mason, 44, Fed. Cas. No. 14,164; McClintock v. Helberg, 168 Ill. 384, 48 N. E. 145; Hobart v. Andrews, 21 Pick. (Mass.) 526; Miller v. Bear, 3 Paige (N. Y.) 466; Whitney v. McKinney, 7 Johns. Ch (N. Y.) 148.

fected by the decree, he is not only a proper, but a necessary, party.111 As a rule, to a bill to enforce or to set aside rights of an assignee under an equitable assignment, such assignee, as the person having a beneficial interest, is a necessary party, and a bill brought by or in the name of the assignor alone would not be maintainable.112

As a general rule, an assignee pendente lite need not be made a party to a bill, or be brought before the court, for every person purchasing pendente lite is treated as a purchaser with notice, and is subject to all the equities of the persons under whom he claims in privity. It makes no difference whether the assignee pendente lite be the claimant of a legal or of an equitable interest, or whether he be the assignee of the complainants or of the defendants.113 Where a person having an interest in real estate commences a suit in respect thereto, and, before any hearing or disposition of the cause upon the merits, voluntarily transfers all his interest to another, and the same is made to appear of record, the whole proceeding will become so defective for want of proper parties that no valid decree can be entered in the cause, unless the complainant's assignee, by supplemental bill or otherwise, is made a party complainant to the suit.114 Where complainant sells his whole right to the subject-matter of the suit, either before or after a decree, the purchaser cannot carry on the suit for his own benefit in the name of the vendor, if there is to be further litigation therein.115 A distinction is made between voluntary assignments and involuntary assignments, or assignments by mere operation of law. Where a party becomes insolvent or a bankrupt, his assignees must be

111 Story, Eq. Pl. § 153.

112 Story, Eq. Pl. § 154; Bromley v. Holland, 7 Ves. 2; Movan v. Hays, 1 Johns. Ch. (N. Y.) 339.

113 Story, Eq. Pl. § 156; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287; Eades v. Harris, 1 Younge & C. Ch. 230.

114 Smith v. Brittenham, 109 Ill. 540; Mason v. York & C. R. Co., 52 Me. 82; Laird v. Boyle, 2 Wis. 431.

116 Mills v. Hoag, 7 Paige (N. Y.) 18, citing Mitford, Eq. Pl. 65; Binks v. Binks, 2 Bligh, 593. See post, §§ 825-847, 969-973.

made parties in all cases where any interest in the property does or may vest in them. Thus, an assignee of a bankrupt or insolvent is a necessary party to a bill brought by the bankrupt or insolvent against another person for the delivery up of a bill of exchange which belonged to him prior to his bankruptcy or insolvency, 116

§ 45. Agents and other persons in similar relations.

From the principle that no person shall be made a party who has no interest in the suit, and against whom, if brought to a hearing, no decree can be had, it follows that a person who is a mere agent in the transaction ought not to be made a party.117 Thus, an auctioneer who has sold an estate, the sale being a matter in controversy, should not be made a party defendant;118 nor should a steward or receiver of the rents and profits, where the controversy is between the vendor and vendee, to a bill for specific performance;119 nor, as a rule, should attorneys or solicitors.120

116 Story, Eq. Pl. § 158a; Sedgwick v. Cleveland, 7 Paige (N. Y.) 287. 117 Story, Eq. Pl. § 231; Garr v. Bright, 1 Barb. Ch. (N. Y.) 157; Lyon v. Tevis, 8 Iowa, 79.

118 Story, Eq. Pl. § 231; Cooper, Eq. Pl. 41; Tavenner v. Barrett, 21 W. Va. 656. "According to Lord Eldon, in Fenton v. Hughes, 7 Ves. 289, auctioneers, agents to sell, and persons of that description are frequently made defendants, without objection, from the circumstance of their holding deposits, and which entitles a plaintiff to relief against them, and this, too, even in cases where it is very difficult to say that any relief is to be prayed against them at the hearing." Schmidt v. Dietericht, 1 Edw. Ch. (N. Y.) 119, holding that, where an auctioneer has the avails of a fraudulent sale in his hands, he cannot protect himself from answering by a demurrer upon the ground of his being a witness; that an auctioneer, in such a case, is a mere agent or stakeholder, and he cannot protect himself on the grounds of other parties having a defense. Indemnity is all he can ask, upon bringing the money into court, or paying it under an order.

Where the title to a deposit held by an auctioneer is involved in a suit, the auctioneer is not a proper party, unless the amount involved is very large; but where the deposit is small, it is not proper practice to make the auctioneer a defendant. Egmont v. Smith, 6 Ch. Div. 469. 119 Story, Eq. Pl. § 231.

120 Story, Eq. Pl. §§ 231, 232; Sweet v. Converse, 88 Mich. 1, 49 N. (65)

It is improper to make a defendant's attorney, against whom no relief, and from whom no discovery, is asked, defendant to a bill for an injunction.121 And he is not a proper party to an action to restrain his clients from the prosecution of a suit, where nothing is alleged against him, except that he was discharging his duty as an attorney in prosecuting the action, and no relief but an injunction is demanded as against him.122 On a bill to set aside an annuity on account of a defective memorial, the attorney or solicitor negotiating such annuity ought not to be made a party defendant.123 An arbitrator is not a proper party to a bill to enforce or set aside an award.124 If, however, there is any charge of fraud connected with the transaction in which the agent, or steward, or attorney, or solicitor, or arbitrator participated, and it is so charged in the bill, then he may properly be made a party; for even though no other decree would be warranted by the circumstances of the case against him, he might be decreed to pay the costs of the suit if his principal should happen to be or become insolvent.125 The courts, however, are not disposed to extend the rule relative to making a mere agent a defendant to a suit, and the practice seems to be limited to cases of fraud, as that word is generally understood in a court of equity, and does not apply where, though the agent acts erroneously, he acts openly and avowedly.126

§ 46. Bankrupts and assignees.

Whether or not a bankrupt is a proper party has given rise to some dispute. Mr. Justice Story says that although he ought

W. 899; Hastings v. Belden, 55 Vt. 273; Ely v. Lowenstein, 9 Abb. Pr. (N. S.; N. Y.) 37; Hopson v. Harrell, 56 Miss. 202.

121 Hopson v. Harrell, 56 Miss. 202.

122 Ely v. Lowenstein, 9 Abb. Pr. (N. S.; N. Y.) 37.

123 Story, Eq. Pl. § 231; Cooper, Eq. Pl. 42.

124 Story, Eq. Pl. § 231; Mitford, Eq. Pl. 160, 161.

125 Story, Eq. Pl. § 232; Hastings v. Belden, 55 Vt. 273; Lyon v. Tevis, 8 Iowa, 79; Garr v. Bright, 1 Barb. Ch. (N. Y.) 157; Le Texier v. Anspach, 15 Ves. 164. See Stringfield v. Graff, 22 Iowa, 438.

126 Lyon v. Tevis, 8 Iowa, 79; Marshall v. Sladden, 7 Hare, 428; Attwood v. Small, 6 Clark & F. 352.