| Ark. | Apr 16, 1906
(after stating the facts.) All the owners of the land against whom a decree for specific performance of the contract of sale was sought were necessary parties to the suit. The relief could not be granted against one of the owners only, though he was agent and attorney in fact for the others. Such a decree has no binding force against the other owners. An agent, though properly authorized by his principals to execute a deed of conveyance, can not be compelled by a court of equity to execute a conveyance in specific performance of a contract to convey. The legal title being in the principals, the decree of the court must be directed against them, and they must, of course, be parties to the suit before they can be affected by the decree. Aiken v. Gill, 23 Ark. 477" date_filed="1861-12-15" court="Ark." case_name="Aiken v. Gill">23 Ark. 477; Kiernan v. Blackwell, 27 Ark. 235" date_filed="1871-12-15" court="Ark." case_name="Kiernan v. Blackwell">27 Ark. 235.
Appellee might have defended the replevin suit by showing that he was the equitable owner of the land, and in possession with the right to cut timber. He did not content himself with this, but asked affirmative relief in the specific performance of the contract to convey, and also in adjusting the payments made by the lumber company for timber.’ It was therefore ’ incumbent upon him to bring in the necesáary parties affected by that relief. The court was absolutely powerless to grant that relief without the presence of all the owners of the land who, through their agent, had contracted to convey it.
It is true that no objection was made, by demurrer or otherwise, to the nonjoinder of parties, and, ordinarily, the defect of parties would thereby be waived; but not so in a case like this where the court is without power to grant the relief except as against persons who are not parties to the record. Without their presence as parties to the suit, no cause of action is stated. Under such circumstances the court must deny the relief, or cause the necessary parties to be brought in.
Kirby’s Digest, § 6011, is as follows: “The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights. But where a determination of the controversy between the parties before the court can not be made without the presence of other parties, the court must order them to be brought in.”
We deem it unnecessary to determine whether or not the testimony would justify the decree for specific performance, inasmuch as the other parties, when brought in, may adduce other proof, or may tender other defenses to the cross-complaint.
The decree is therefore reversed, and the cause remanded for further proceedings in accordance with this opinion.