Wiser v. Blachly — 1 Johns. Ch. 437

Majority

p. 437

Wiser, an infant, by her next friend, against Blachly and the Executors of Vail.

June 16th.

Headnote

The general rule, that all persons whose interests maybe affected by the decree must be made parties, is founded on convenience, and subject to exceptions and modifications, according to the discretion of the court.

Thus, a creditor, or legatee of the personal estate, need only make the personal representatives of the debtor parties to the suit; and, in many cases, where it will be attended with extreme difficulty, or very great inconvenience, the general rule will be dispensed with.

But on a bill against the executors of a guardian, for a breach of his trust, the testator having, by his will, made the timber on his land assets fox the payment of his debts, it was held that the devisee of the real estate ought to be made a party, as the whole estate mi¿.ht become responsible to the plaintiff.

THE bill in this cause was filed against Blachly, the guardian of the plaintifi, and against the executors of Vail, who was a surety for the guardian, for a breach of trust by the guardian, and for an account.

The cause coming on to be heard, the counsel for the defendants objected to the want of proper parties; that as Vail, the testator, vthose, estate might be- made responsible, had, by his will, rendered the timber growing on his land

p. 438

assets for the payment of his debts, the devisee of his real estate ought, therefore, to be made a party. '

Riggs, for the plaintiff.

Baldwin, contra.

suggested some difficulty in deducing, from the books, any precise rule on the question of necessary parties. The general rule,he observed, is, that you must have before the court all parties whose interests the decree may touch, because they are concerned to resist the demand, and to prevent their fund from being exhausted by collusion. In Gifford v. Hart, (1 Schoale & Lefroy, 386.,) it was held, that a decree obtained without making parties those whose rights were affected, was fraudulent and void as to those parties. The same doctrine was declared, in the house of lords, in Gore v. Stacpoole, (1 Dow’s Rep. 18.) in which it was held, that to make a foreclosure of a mortgage valid against all claimants, not only the tenant for life, but the remainder-men for life, and in fee, must be brought before the court, to give them an opportunity of paying off the mortgage if they thought proper. But the general rule is not of universal application. A creditor, or legatee of the personal estate, need not make any but the personal representative of the debtor a party, for the executor is to sustain the person of the testator, and to defend the estate for creditors and legatees. (1 Ves. 105. 131. 1 Bro. 303.) Lord Lough-borough said, this was an anomalous instance, but later cases have created other exceptions to the general rule. On a bill to foreclose a mortgage, Lord Alvanley thought it intolerable to insist that all encumbrancers should be brought in ; (3 Ves. 314.;) and the rule requiring the presence of all parties, is said to be a mere rule of convenience, and to prevent the court from doing business by halves ; and that it is subject to modification and discretion ; and that the court will be

p. 439

satisfied that a sufficient number of the persons interested are before the court to sustain the question. In Adair v. T he New-River Company, (11 Ves. 429.,) this point was much discussed, and it was held that the rule was to be dispensed with when extremely difficult; and that in a suif to establish the right of suit to a mill, the court only requires parties sufficient to secure a fair contest. The same principle governed in Cullen v. Duke of Q-, (15 Ves. 14. n.,) where it was held sufficient to bring in the contractors or directors of a private society; and, in Cockburn v. Thomp son, (16 Ves. 321.,) the subject was very diffusively discussed, and numerous instances given of a relaxation of the strict rule, that all persons materially interested must be parties. The rule is to be dispensed with where it is impracticable, or very inconvenient, as in the case of a very numerous association in a joint concern, which .is, in effect, a partnership, and not a corporation.

The Chancellor, however, inclined to think, that, in this case, the general rule ought to prevail, as there was no necessity pressing against it; and the counsel for the plaintiff readily consented, upon this intimation, to postpone the hearing, in order to bring in the devisee.