50 So. 361 | Ala. | 1909
This case was before this court at a previous term, and a full statement of the case as it then stood will be found in Bentley et al. v. Barnes, 155 Ala. 659, 47 South. 159. In that case the bill was held to be multifarious.
According to the original bill it was alleged that said Bentley, being the owner of certain real estate, agreed with the complainant, to convey the same to him, if complainant Avould take up certain mortgages thereon; that complainant did take up said mortgages, and was placed
The first insistence of appellee is that said Naval Stores Company is a necessary party complainant, and that the making of it a party defendant does not satisfy that requirement. A party cannot be made a party complainant without his consent, and when he is a necessary party, and refuses to be made a party complainant, the proper course is to make him a party defendant.— 15 Ency. PI. & Pr. 672, 673, 989, 990; 1 Dan. Oh. Pr. 273.
It is next insisted that the bill as amended is an entire departure from the original- bill, because .the main purpose of-.that, bill was to.settle the.partnership of W.
• It is next insisted that the bill is without equity, because the contract which it seeks to enforce has been executed. This position is not tenable. The contract related to land, and the fact that, in enforcing his contract, the complainant seeks also to require the defendants to account for that part of the property which has been converted into personal property and disposed of, does not change the nature of the contract. While the payment of the purchase money and the delivery of possession of the property relieves the contract of the statute of frauds, yet the contract is not fully executed, and the complainant has a right to have it- completely executed by the conveyance of the legal title. — Brewer v. Brewer & Sagen, 19 Ala. 481, 488; Arrington v. Porter, 47 Ala. 714, 721; Breitling’s Adm’r v. Clarke & Co., 49 Ala. 450, 452.
Without rehearsing the rules with regard to multifariousness, which were stated in this case when it was before this court at a previous term, Ave hold that the bill as it now appears is not multifarious. The Ash-Oarson Company, by taking an interest in the property with Bentley AAdth full notice, occupies the same position as a trustee in invitum as said Bentley, and it is proper to make all persons through whose hands the proceeds of the property has passed parties defendant. — 22 Encyc. Pl. & Pr. 199; Decatur Land Co. v. Cook, 27 South. 559.
The decree of the chancellor is affirmed.
Affirmed.