Parties to Proceedings in Chancery.

objection ought not to prevail when taken upon | necessary to make the residuary legatees parties, the final hearing of an appeal, except in very in a proceeding the sole object of which was to strong cases; and where the court perceives a ascertain and distribute among the nephews of necessary and indispensable party is wanting. the testatrix, the amount to which they were The Mechanics Bank of Alexandria v. Setons, 1 entitled, for the expenses of education. The Peters, 306. court said:-The residuary legatees have undoubtedly an interest in reducing every demand on the estate. Whatever remains, sinks into the residuum; and that residuum is diminished as well by the claims of creditors and specific legatees, as by this. In all such cases the executors represent the residuary legatees, and guard their interests. It is a part of that duty which requires them to protect the interests of the estate. In such suits, the residuary legatees are never made parties. To require it, would be an intolerable` burden on those who have claims on an estate in the hands of executors. Ibid.

Parties to Proceedings in Chancery.

451. The general rule is, that however numerous the persons interested in the subject of a suit, they must all be made parties, plaintiff or defendant, in order that a complete decree may be made; it being the constant aim of a court of equity to do complete justice, by embracing the whole subject; deciding upon and settling the rights of all persons interested in the subject of the suits; to make the performance of the order perfectly safe to those who have to obey it, and to prevent future litigation. Ibid.

452. The principle has been well established, and generally sanctioned in courts of equity, that, by analogy, the statute of limitations is a bar to an equitable right, when at law it would have operated against a grant. Miller v. M Intyre, 6 Peters, 61.

ordered to execute the mortgage, or whose in- | dismissing the bill as to him. Vattier v. Hinde, terest is to be sold, whatever that may be. But 7 Peters, 252. 454. T. Boon, a citizen and resident of Pennthis we conceive to be an insufficient answer. It is not enough that a court of equity causes no-sylvania, filed a bill in the circuit court of Kenthing but the interest of the proper party to tucky, against W. Chiles and others, praying Its decree should terminate, that the defendant, and such others of the dechange owners. and not instigate litigation. Its sales should fendants as may hold the legal title to certain tempt men to sober investment, and not to wild lands, may be decreed to convey them to him, speculation. Its process should act upon known and for general relief. The bill stated, that and definite interests, and not upon such as ad- Reuben Searcy, being entitled to one moiety of mit of no medium of estimation. It has means a settlement and pre-emption right of fourteen of reducing every right to certainty and preci- hundred acres of land, located in Licking, sold sion; and is, therefore, bound to employ those the same to William Hay, in September, 1781, means in the exercise of its jurisdiction. Cald- and executed a bond for a conveyance. In December following, Hay assigned this bond to well v. Taggart et al., 4 Peters, 190. George Boon, who, in April, 1783, assigned it to the plaintiff. Hay, while he held the bond, obtained an assignment of the plat and certificate of survey, which he caused to be registered; and the patent was issued in his name in 1785. In 1802, the plaintiff made a conditional sale of this land to Hezekiah Boon; but the conditions were not complied with, and the contract was considered by both parties as a nullity. The bill stated that William Chiles, Hezekiah Boon, and George Boon, fraudulently uniting the plaintiff's name with their own, without his consent or knowledge, filed a bill in chancery, praying that the heirs of Hay might be decreed to convey. the legal title to William Chiles, who claimed the right of Searcy through the plaintiff, under his pretended sale to Hezekiah Boon. A decree was obtained, under which a conveyance was made to Chiles, by a commissioner appointed by The plaintiff averred his total ignothe court. rance of these transactions at the time, and disavowed them. While this suit was depending, the decree of the Bourbon court was reversed in the court of appeals of the state, and the cause remanded to that court for farther proceedings. The complainant died, and the suit was revived in the name of his heirs. The complainants in the circuit court amended their bill, showing a reversal of the decree of the Bourbon court, and making the heirs of Hay defendants, and praying a conveyance from them. They also filed an amended bill, making the heirs of George Boon parties, and stating that his heirs disclaimed all title to the property. One of them answered and disclaimed title. It was not stated whether process was, or was not, executed on the other heirs of George Boon. The defendant, William Chiles, in his answer, states that there were other heirs of Hay than those mentioned in the bill, and made defendants, who are not residents of Kentucky. The circuit court of Kentucky were divided in opinion on two questions, which were certified to the supreme court as follows: 1st. This court being divided, and the judges opposed in opinion as to the jurisdiction over the case, and unable, therefore, to render a decree on the merits, they resolve to adjourn that question to the supreme court, to wit: under all the circumstances, appearing as above, can this court entertain cognisance of the case? 2d. The judges were also opposed in opinion on the point, whether the made depersons complainants were entitled to a decree, in the absence of any proof that the

453. A bill was filed in the circuit court of Ohio, claiming a conveyance of certain real estate in Cincinnati from the defendants; and after a decree in favour of the complainants, and an appeal to the supreme court, the decree of the circuit court was reversed, because a certain Abraham Garrison, through whom one of the defendants claimed to have derived title, had not been made a party to the proceedings, and who was, at the time of the institution of the same, a citizen of the state of Illinois, although the fact of such citizenship did not then appear on the record. Afterwards, a supplemental bill was filed in the circuit court, and Abraham Garrison appeared and answered, and disclaimed all interest in the case: whereupon the circuit court, with the consent of the complainants, dismissed the bill as to him. By the supreme court :-If the defendants have distinct interests, so that substantial justice can be done by decreeing for or against one or more of them, over whom the court has jurisdiction, without affecting the interests of others, its jurisdiction may be exercised as to them. If, when the cause came on in the circuit court for hearing, Abraham Garrison had still been a defendant, a decree might then have been pronounced for or against the other defendants; and the bill have been dismissed as to him, if such decree could have been pronounced as to them, without affecting his interests. No principle of law is perceived, which opposes this course. The incapacity of the court to exercise jurisdiction over Abraham Garrison, could not affect their jurisdiction over other defendants, whose interests were not connected with his; and from whom he was separated, by

Parties to Proceedings in Chancery.

461. The assignees of a bankrupt's complainants are the proper persons to ask relief sought for by a bill, which is to obtain payment of the original debt due by the defendants, for which a mortgage had been given to the bankrupt, but which mortgage was alleged to be worthless: notwithstanding the assignment of the mortgage, the bankrupt need not be made a party to the bill. Pagan et al. v. Sparks et al., 2 Wash. C. C. R. 325.

fendants, in the amended bill, as heirs of George 460. If a decree can be made without affectBoon, were, in fact, his heirs. Both of which ing the rights of one not made a party, or withpoints occurred, and became material in this out his having any thing to perform necessary to case. By the supreme court:-The question the perfection of the decree, the court will probetween the plaintiffs and defendant, William ceed without him; if he be not amenable to the Chiles, is within the jurisdiction of the circuit process of the court, or no beneficial purpose is court for the district of Kentucky, and may be to be effected by making him a party. Ibid. decided by that court, though Hay's heirs were not parties to the suit. That they were not made parties, cannot oust the jurisdiction as between those who are properly before the court. It is not intended to say, that where there are several heirs, some out of the jurisdiction of the court, a decree may not be made for a conveyance of their own shares, from those on whom process has been served; but it is not thought necessary to decide that question in this case as it is stated. The principles settled in the answer to the first question decide the second. George Boon's heirs are not necessarily defendants. They can have no interest in the contest, nor is any decree asked against them. If they are made defendants, and the answer admits that they are heirs, as is admitted by the defendant 463. It is no cause of demurrer for want of who has answered, no further proof can be re-parties, that a lunatic is not made a party; but quired. If they do not answer, and the process is it is a good objection for want of parties. For, executed, so that the bill is taken for confessed, although his committee, if he has one, is made no further proof is necessary. If the process be not executed, they are not before the court. Boone's Heirs v. Chiles et al., 8 Peters, 532.

455. The 22d rule for the regulation of equity practice in the circuit courts, is understood by the supreme court to apply to matters to the merits, and not to mere pleas to the jurisdiction; and especially to those founded on any personal disability, or personal character of the party suing, or to any pleas merely in abatement. Livingston v. Story, 11 Peters, 351.

462. The representatives of a deceased partner need not be made parties to a bill filed by a surviving partner; as they have no claim until the partnership debts are paid, and then it is upon the surviving partner or his representatives. Ibid.

defendant in another capacity, still the lunatic should be a party, and then he answers by his committee; if he has none, the court will appoint a guardian to answer for him. Ibid.

464. Whenever an objection is made for want of parties, the court gives leave to amend, and make proper parties. Ibid.

465. A suit was instituted against the administrator, pendente lite to the executrix, (charging in the bill, that the administrator had possessed himself of all the securities, in which the out456. A. and B. were indebted to the plaintiff standing debts had been invested, and claimed and others; and A. having been insolvent, and a them as the property of his intestate,) and such commission of bankruptcy having issued against of the next of kin as the bill charges, had rehim, the creditors of A. and B. joined in releas- fused to join in the suit. It is, in such a case, ing A. from all the debts due to them from the no objection for the want of parties, that the firm of A. and B. The commission of bank-legal representative of the testator is no party. ruptcy being superseded, the plaintiffs filed a bill on the equity side of the circuit court, to set aside the release. Held, That all the parties to the release of A. should have joined in the bill; and the demurrer, for want of such parties, was sustained. Joy et al. v. Wirtz et al., 1 Wash. C. C. R. 417.

457. Where creditors are to be paid out of a particular fund, or are all united in the same transaction, so as to produce privity between them, all should join in a bill which may bring their proceedings into the consideration of a court of chancery. Ibid.

458. To set aside a release in such a case, all the parties to it must apply by name to the court, and one cannot act for the whole. Ibid.

459. In chancery there is a distinction between active and passive parties; the former being such as are so involved in the subject in controversy, that no decree can be made without their being in court; the latter are such, that complete relief can be given to those who seek it, without affecting the interests of the passive parties. Ibid.

Wisner v. Barnet, 4 Wash. C. C. R. 631.

466. The executor or administrator of the deceased, next of kin, who might be made a party, must be so made. It is not sufficient to make his devisee, or persons entitled to his estate, parties. Ibid.

467. Courts of equity require that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This rule, however, is framed by the court itself, and is subject to its discre tion; and being introduced for the purpose of justice, is susceptible of modification for the promotion of those purposes. Elmendorf v. Taylor et al., 10 Wheat. 152; 6 Cond. Rep. 47.

468. The rule is not universally applicable to cases in the courts of the United States. Those courts will require of the plaintiff to do all in his power to bring in every person concerned in interest before the court. But if the case be com pletely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the court cannot reach, as if such party be a resident of

Parties to Proceedings in Chancery.

some other state, ought not to prevent a decree | be certainty, or danger of injury, or injustice. upon its merits. Ibid.

Parties to Proceedings in Chancery.-Bill in Chancery.

484. A court of equity will sustain the bill of a married woman, suing by her next friend, to recover a legacy bequeathed to her, where the husband has transferred all his marital rights in the legacy to his wife. Gallego v. Gallego's Ex'r., 2 Brockenb. C. C. R. 285.

485. If one defendant does not appear, and is not compellable to appear, and is a necessary | party to the bill in equity, the other defendants who have appeared and answered the bill, may move for a dismissal of the suit for non-prosecution of the bill, against the non-appearing defendant; and the court will grant a further time for the appearance of such defendant, if it seems reasonable; after which the bill is dismissed, unless such defendant appears and answers. Picquet, Adm'r., v. Swan, 5 Mason's C. C. R. 561. 486. The administrator upon an estate where the personalty is concerned, is, in ordinary cases, a necessary party to a bill in equity, concerning the personal estate. West v. Randall, 2 Mason's C. C. R. 181.

487. It seems the better opinion that an heir or next of kin, suing for a distributive share of an estate, cannot maintain his bill in equity, without making the other heirs or next of kin parties, or showing them to be without the jurisdiction, or within some other exception. But the rule on this subject does not seem to be inflexible. Ibid.

488. A bill cannot be entertained in equity, which is multifarious and embraces distinct matters, affecting distinct parties, who have no common interest in the distinct matters. Ibid.

489. In a suit demanding the specific performance of a contract, by conveying lands stipulated to be conveyed, as the consideration for other lands sold, or in lieu thereof, requiring indemnification by the payment of money, all the co-heirs of the deceased vendor ought to be made parties to the bill, and if one is omitted, his death ought to be proved. Morgan's Heirs v. Morgan, 2 Wheat. 290; 4 Cond. Rep. 120.

490. In general, all encumbrancers must be made parties to a bill of foreclosure; yet, where a decree of foreclosure and sale was made and executed at the suit of a subsequent mortgagee, and with the consent of the mortgagor, it not appearing to the court that there was any prior encumbrance; the proceedings will not be set aside upon the application of the mortgagor, in order to let in the prior mortgagee, who ought regularly to have been made a party, unless it be necessary to prevent irremediable mischief. Finley v. Bank of the United States, 11 Wheat. 304; 6 Cond. Rep. 319.

491. But in such a case the prior encumbrancers are not bound by the decree in a suit to which they are not parties, and the purchasers under the sale take subject to the prior liens. lbid.

493. In the case of a bill against a banking corporation to account for certain property held by them as collateral security for debts due to them from a third person, and to apply the surplus, after satisfying themselves, to the satisfaction of the plaintiff's debt, the debtor is a necessary party to the bill. Wilson v. The City Bank, 3 Sumner's C. C. R. 423.

Bill in Chancery.

494. Where a bill is filed for the discovery of the defendant's title, and an injunction obtained, the injunction must of course be dissolved as soon as the discovery is obtained. New York v. Connecticut, 4 Dallas, 1; 1 Cond. Rep. 203.

495. A plea in bar to a bill in equity, denying part of the material facts stated in the bill, is not good. A mere denial of facts is proper for an answer, but not for a plea. Milligan v. Milledge, 3 Cranch, 220; 1 Cond. Rep. 503.

496. The want of proper parties is not a good plea, if the bill suggests a sufficient reason for not making other parties, as that they are out of the jurisdiction of the court. Ibid.

497. The want of proper parties is not a sufficient ground for dismissing the bill; it ought to stand over to make new parties. Ibid.

498. A complainant in equity may have relief, even against an admission in his bill. Finley v. Lynn, 6 Cranch, 238; 2 Cond. Rep. 358.

499. A bill in equity to enjoin a judgment at law, is not to be considered as an original bill; and, therefore, in a court of limited jurisdiction, parties will be dispensed with, who, in other circumstances, would be required, where the introduction of those parties may create a doubt as to the jurisdiction of the court. Simms v. Guthrie et al., 9 Cranch, 19; 3 Cond. Rep. 237.

500. If a bill, by the vendor of land, seeking a specific performance of the contract, be dismissed on account of a defect in the title, he cannot again come into equity, notwithstanding he may afterwards have it in his power to make a good title; unless, perhaps, in a case where an original bill, in the nature of a bill of review, might be entertained. Hepburn et al. v. Dunlop et al., 1 Wheat. 179, 195; 3 Cond. Rep. 529.

501. Where the complainant prays for the rescission of a contract specifically, and his bill contains also a prayer for general relief, chancery may decree a specific performance. Ibid.

502. In a proceeding by bill in equity, to sell land for payment of debts, where the heir is the proper party, the executor need not be a party. Milligan v. Milledge, 3 Cranch, 220; 1 Cond. Rep.

503.

503. In a suit demanding the specific performance of a contract, by conveying lands stipulated to be conveyed, as the consideration for other lands sold, or in lieu thereof, requiring indemnification by the payment of money; all the co-heirs of the deceased vendor ought to be made parties to the bill, and if one is omitted, his death ought to be proved. Morgan's Heirs v. Morgan, 2 Wheat. 290; 4 Cond. Rep. 120.

492. A bill in equity to enjoin a judgment at law, is not to be considered as an original bill; and, therefore, it is not necessary in a court of limited jurisdiction to make other parties, if the introduction of those parties should create a 504. Where the complainant filed his bill for doubt as to the jurisdiction of the court. Simms a specific performance of an alleged agreement v. Guthrie et al., 9 Cranch, 19; 3 Cond. Rep. 237. | to convey to him one-third of a certain tract of