Wiser v. Blachly

The Chancellor

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 *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.