14 performance would amount to a nuisance,13 to enjoin a person from carrying it into effect; even, it has been held in a case at Circuit, when the other parties are co-trustees beyond the jurisdiction of the court.15 Thus, a railway company is an indispensable party to a suit to enjoin another railway company from constructing a road under a lease by it.16 The assignors and assignees of a patent are necessary parties to a bill against the Commissioner to expunge it from the records of the Patent Office.17 To a bill against the administrator with the will annexed of Kosciuszko, claiming a legacy under an alleged codicil to the will, foreigners claiming the assets of the deceased as heirs at law were held necessary parties.18 To a bill between parties for an accounting, all the surviving partners and the representatives of a deceased partner, even when alleged to be insolvent, are, it seems, indispensable parties,19 unless it can be shown that each of those omitted has received his full share of the assets, and that no claim is made against him.20 All the partners must be joined as plaintiffs and defendants in a suit to recover money due the firm. To a partition suit all of the tenants in common are indispensable parties. A person in possession under a claim of a title or interest in property is a necessary party to a suit affecting it.23 The mortgagor is a necessary party to a suit by the mortgagee against a third person to re Blatchf. C. C. 113; Chadbourne v. Coe, 13 Miss. & Mo. R. Co. v. Ward, 2 Black, 485. 14 Northern Ind. R. Co. v. Michigan C. R. Co., 15 How. 233. But see Heriot v. Davis, 2 Woodb. & M. 229; Boon's Heirs v. Chiles, 8 Pet. 532. 15 Wall v. Thomas, 41 Fed. R. 620. 16 Northern Ind. R. Co. v. Mich. C. R. Co., 15 How. 233. 17 Backus P. S. H. Co. v. Simonds, 2 App. D. C. 290. 18 Armstrong v. Lear, 8 Pet. 52. 19 Bank v. Carrollton R. Co., 11 Wall. 624; Bartle v. Coleman, 3 Cranch, C. C. 283; Gray v. Larrimore, 2 Abb. C. C. 542. 20 Towle v. Pierce 12 Met. (Mass.) 829; Kilbourn v. Sunderland, 130 U. S. 505. 21 Edgell v. Felder, 84 Fed. R. 69. 22 Barney v. Baltimore City, 6 Wall. 280. 23 Williams v. Bankhead, 19 Wall. 563; Young v. Cushing, 4 Biss. 456. But see Ringo v. Binns, 10 Pet. 269, 281; Metropolitan Bank v. St. Louis Dispatch Co., 149 U. S. 436, 450; Hicklin v. Marco (C. C. A.), 56 Fed. R. 549. 27 24 move a cloud upon the title; " or to prevent an injury to the property when the decree must necessarily adjudicate unsettled rights of the mortgagor.25 It is the safer practice to join the mortgagor as a party defendant to a bill by the mortgagee of a patent seeking an injunction against its infringement with damages or an account of profits.26 The mortgagor is not an indispensable, although he is a proper, party to a bill to collect a mortgage from a purchaser who has assumed it, when before the bill is filed the mortgaged property was sold upon the foreclosure of a prior mortgage. To a bill to enforce specific performance of a contract, providing for the sale of land the title to which was in one party, and its distribution between both parties to the contract, when filed, after the death of each, by the personal representatives of the one as complainants, against the heirs-at-law of the other as defendants, the executors of the defendants' ancestor are necessary if not indispensable parties defendant, and the heirs-at-law of the complainants' decedent are not.29 All a man's heirs-at-law are indispensable parties to a bill by one of them to set aside a sale of his property under a decree; and to such a bill the party to the former suit at whose instance the sale was made is also an indispensable party.29 All a woman's heirs have been held necessary parties to a bill to set aside a marriage settlement.30 To a bill by a stockholder to set aside the foreclosure of a railroad mortgage, the trustees of the mortgage foreclosed, the mortgagor, the purchaser, and enough of the stockholders and bondholders as consented to the foreclosure to represent the remainder, are indispensable parties. A corporation or its receiver 22 must be a party to a suit to enforce a right against a third person which the corporation refuses to assert, or to prevent the waste of corporate assets." 33 24 Bettes v. Dana, 2 Sumner, 383. 25 Consol. Water Co. v. San Diego, 87 Fed. R. 369. 32 But see Alger v. Anderson, 78 Fed. 30 McDonnell v. Eaton, 18 Fed. R. 26 Waterman v. Mackenzie, 138 U.S. 710. 252, 261; quoted supra, § 44. 27 Kelly v. Ashford, 133 U. S. 610, 626. But see Skinner v. Harker, 23 Colo. 335; supra, § 44. 28 Seymour v. Freer, 8 Wall. 202, 218. See Prout v. Roby, 15 Wall. 471. 29 Hoe v. Wilson, 9 Wall. 501; Har wood v. Railroad Co., 17 Wall. 78. 31 Ribon v. Railroad Cos., 16 Wall. 446. 32 Porter v. Sabin, 149 U. S. 473. 33 Davenport v. Dows, 18 Wall. 626; New Jersey Central R. Co. v. Mills, 113 U. S. 249, 256; Bell v. Donohue, 17 Fed. R. 710; Swan L. & C. Co. v. Frank, 148 U. S. 603. 34 Putnam v. Rich, 56 Fed. R. 416 If a receiver has been appointed he is an indispensable party to such a suit, even although the State court which appointed him refuses to authorize the suit against him.35 38 The trustees and county treasurer of an Iowa township are necessary parties to a suit by a taxpayer to prevent payment to the holder of bonds claimed to be invalid.36 It has been said that to a bill by the receiver of a water company to establish his right to fix the water rates, all consumers of the water must be made parties.37 It seems that the principal debtor, or his assignee in bankruptcy or insolvency, is a necessary party to a suit against a surety. To a suit by a creditor to enforce a lien upon property through a trust-deed made for the benefit of a surety, both the trustee and his beneficiary are indispensable parties, although the property is in the possession of neither of them; but if filed in a double aspect, either for the complainant's individual benefit, or on behalf of the other creditors of the principal debtor, a sale may be ordered without having the surety or his trustee before the court.39 So, a debtor, or if a bankrupt or insolvent, his assignee, is a necessary party to a creditor's suit to enforce a lien 40 or to levy upon property in which the debtor has an interest, or to collect 42 a debt due the debtor. A corporation must be joined as a defendant to a bill for a receiver; 43 to a bill filed by a creditor to apply to the 35 Porter v. Sabin, 149 U. S. 473; supra, § 9; infra, § 250. 36 Sully v. Drennan, 113 U. S. 287. Compare Harter v. Kernochan, 103 U. S. 562. In a suit by citizens to restrain the erection of a schoolhouse on land dedicated for a public park, it was held error to refuse to allow an amendment to the bill making the original donors of the land parties complainant. Rowzee v. Pierce, 75 Miss. 846; s. c., 23 S. R. 307; S. C.. 40 L. R. A. 402. 37 Ward v. San Diego L. & W. Co., 79 Fed. R. 656, 667; s. c. in C. C. A., 94 Fed. R. 849. But see Clyde v. Richmond & D. R. Co., 57 Fed. R. 436. 38 Robertson v. Carson, 19 Wall. 94. See also Russell v. Clark, 7 Cranch, 69. But compare Rule 51. 41 39 McRea v. Branch Bank of Alabama, 19 How. 376. 40 Russell v. Clark, 7 Cranch, 69; Robertson v. Carson, 19 Wall. 94. But see Heriot v. Davis, 2 W. & M. 229. It was held that in a suit against a bank for money deposited by complainant's agent, and applied by the bank to debts due from the agent, the latter was a proper and necessary party; but on a decree for complainant, without there appearing any right or liability for or against the agent, it is proper then to dismiss him. Union Stock Yards Nat. Bank v. Moore (C. C. A.), 79 Fed. R. 705. 41 Wilson v. City Bank, 3 Sumner, 422. 42 U. S. v. Howland, 4 Wheat. 108. 43 Elkhart Nat. Bank v. Northwestern G. L. Co., 84 Fed. R. 76. 46 payment of its indebtedness money due it from its stockholders," or to enforce the individual liability of its stockholders; 45 to a bill to compel a transfer upon its books of stock which stands in the name of another than the complainant, and an unincorporated association to a bill to foreclose a mortgage upon a certificate of membership which cannot be transferred without its consent.47 To a bill for the dissolution of a corporation and an accounting for the benefit of a single stockholder, not on behalf of the rest, the other stockholders or their representatives must be made defendants.48 To a bill by a legatee against the husband of a residuary legatee or devisee to obtain payment of the complantant's legacy from assets in the defendant's possession, the residuary legatee herself, or, if she be dead, her personal representative, is a necessary party, at least when it does not appear that she or her personal representative is without the jurisdiction of the court. To a bill to foreclose a mortgage by an executor, it was held that all devisees of any part of the property were indispensable parties.50 It was held that in a suit to compel the execution and foreclosure of a mortgage, prior incumbrancers and others claiming an interest in the mortgaged property were necessary parties, when it did not appear that their joinder was impossible or would oust the jurisdiction.51 In one case, where a bill was filed to stay proceedings in ejectment, the court required the nominal defendant at law to be joined as a co-plaintiff with the real per 44 Brigham v. Luddington, 12 Blatchf. C. C. 237; First Nat. Bank v. Smith, 6 Fed. R. 215; Dormitzer v. Illinois & St. L. Bridge Co., 6 Fed. R. 217; Walsh v. Memphis, C. & N. W. R. Co., 6 Fed. R. 797. 45 Elkhart Nat. Bank v. Northwestern E. L. Co., 84 Fed. R. 76. 46 Kendig v. Dean, 97 U. S. 423; Rogers v. Nortwick, 45 Fed. R. 513. But see Gould v. Head, 41 Fed. R. 240, 248; Williamson v. Krohn, 66 Fed. R. 655. 47 Metropolitan Nat. Bank v. St. Louis Dispatch Co., 149 U. S. 436. 48 Watson v. U. S. Sugar Refinery Co., 68 Fed. R. 769. Where a corporation had been required to deposit 49 moneys with the treasurer of the 50 Detweiler v. Holderbaum, 42 Fed. R. 337. 51 Caldwell v. Taggart, 4 Pet. 190. son interested, although it did not appear what citizenship he had.52 54. When numerous interests have been created for the purpose of preventing the plaintiff from obtaining equitable relief. When numerous interests had been created for the purpose of preventing a person from obtaining equitable relief, the English courts allowed the persons to whom these interests were thus conveyed to be omitted from the bill, if the original owner of the property thus divided were made a defendant. The rule and the reasons for it are thus stated by Calvert in his valuable work on Parties: "If a party has divided an interest amongst a number of persons for this purpose, the court, in order that the contrivance may be frustrated, and the equitable relief may be obtained, allows the suit to proceed in their absence. Such a division is in reality a fraud; an attempt to defeat justice by converting the general rule of the court into an obstruction to the ordinary proceedings. The court defeats the fraud by refusing to enforce the general rule." Lord Hardwicke said upon this subject: "Where a mortgagee who has a plain redeemable interest makes several conveyances upon trust, in order to entangle the affair, and to render it difficult for a mortgagor or his representatives to redeem, there it is not necessary that the plaintiff should trace out all the persons who have an interest in such trust, to make them parties." This rule might, perhaps, be extended to a case, where an attempt had been made to defeat the jurisdiction of the Federal court by a merely colorable conveyance to a person of the same citizenship as the complainant." § 55. When a person consents to the relief sought.-A person who consents to the relief sought, when it is so stated in 52 Hyde v. Folger, 4 McLean, 255. § 54. Calvert on Parties (2d ed.), Book I, ch. IV, p. 61; Yates v. Hambly, 2 Atk. 237. See also Union Bank of Louisiana v. Stafford, 12 How. 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343. 2 Calvert on Parties (2d ed.), 61. 3 Yates v. Hambly, 2 Atk. 237, 238. 4 See Union Bank of Louisiana v. Stafford, 12 How. 327; New Orleans Canal & Banking Co. v. Stafford, 12 How. 343: Leather Manufacturers' § 55. Mechanics' Bank v. Seton, 1 Pet. 299, 306; Calvert on Parties (2d ed.), Book I, ch. V, 69, 84. 2 Calvert on Parties (2d ed.), Book I, ch. 69; Kirk v. Clarke, Prec. in Ch. 275; Harvey v. Corrie, 4 Russ. 35, 55; Bawtree v. Watson, 3 M. & K. 339, 340. 3 Vattier v. Hinde, 7 Pet. 252, 258. 4 Rylands v. Latouche, 2 Bligh, 579. |