Blair v. Shelby County Agricultural & Joint Stock Ass'n

28 Ind. 175 | Ind. | 1867

Gregory, J.

— Blair, on behalf of himself and numerous other citizens of Shelby county, filed a complaint against the appellees, in which it is averred that on the 11th of June, 1859, the Shelby County Agricultural and, Joint Stock Association, by its officers, executed to Susan Worlancl a mortgage on a tract of land, which, is described,to secure the payment of two notes therein specified; that the mortgage was recorded on the 11th of August, 1859; that on the 26th of April, 1865, the mortgage remained due and wholly unpaid, and that there was then due thereon $1,036 30; that on that day the complainants purchased from Susan Worlancl the mortgage, and before the payment of the money therefor, elected Vanpelt, Devol and Arnold trustees, to take the assignment of, and hold the same in trust for them. A list _ of the names of the persons on whose behalf the purchase was made, and the sum advanced by each, is set forth in an exhibit; that Vanpelt, Devol and Arnold accepted the trust, and received the assignment, and paid therefor $1,036 30, furnished and advanced by the complainants. Copies of the mortgage and assignment are made parts of the complaint. That in 1867, the Shelby County Agricultural and Joint Stock Association sold and conveyed the land embraced in the mortgage to Stewart, for $2,000, and received a portion thereof; that no part of the purchase money had been applied to the payment of the mortgage; that the same remained due and wholly unpaid; that the lands mortgaged arc the only property of which the Agricultural and Joint Stock Association. were or are possessed; that the trustees had wholly neglected to prosecute and foreclose the mortgage, or to collect any part of the mortgage debt, but, on the contrary, had colluded with the mortgagor, through her officers, to defraud the complainants out of the money due to them upon the mortgage, and had received large sums of the purchase money, and applied the same to the payment of junior incumbrances upon the lands, in violation of their trust, and to the injury of the complainants, in the sum of $1,500. That the complainants had no knowledge or belief of the exact amount of the purchase money paid by Stewart, or the amount remaining unpaid, or of the amount received by the trustees, and misapplied. That the complainants had not the possession of the notes secured by the mortgage, and therefore could not make copies thereof a part of the complaint. That the notes were in the possession of the trustees.' Prayer: That the trustees be severally required to answer under oath as to the amount by them received upon the mortgage from or on account of the sale of the lands, or otherwise, and that for such amount the complainants have judgment against the trustees individually, and for the residue of the mortgage debt, that the mortgage be foi’eclosed, and the premises sold, or so much thereof as might be necessary to pay the same, and the money, when realized, be paid into court for the use of the complainants, the sundry citizens who advanced the sums of money and purchased the mortgage, pro rata on the amounts so advanced, or to the assignees of such as had assigned and transferred their interest in and to the mortgage. A schedule of the names of the parties and the amounts of their interest then held in the mortgage by each and every person entitled to contribution in the fund is filed in an exhibit, showing, among other things, that a number of the original contributors to the fund had assigned their respective claims to Blair.

The trustees, Stewart and the Agricultural Association were-made defendants.

The appellees demurred to the complaint on the ground’, of a defect of parties defendants, in that the persons-who assigned to Blair (setting out their names) are not made defendants to answer as. to their interest, and that the-complaint does not state facts sufficient to constitute-a cause of action against the defendants. The demurrer was sustained by the court below; this is assigned for error, and presents the question in the case.

The question of parties is the only one argued. The code provides that “ of the parties in the action, those who are-united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff' cannot be obtained, he may be- made- a- defendant, the reason thereof being stated in the complaint; and when the question is one of a common or general interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole.” 2 G. & H., § 19, p. 47. One hundred and thirty-eight persons contributed to the fund, one hundred and three of whom had, by a written instrument, assigned their respective claims to Blair. But it is claimed that Blair coul'd only sue for those having a common interest with him, and could not sue for those who had assigned to him. That as to them, they were necessary parties. Blair was one of the original contributors, and as such ho brings this suit for himself and those having with him a common interest in the trust fund. The provision of the code that “ when any action is brought by the assignee of a claim arising out of contract, and not assigned by indorsement in writing, the assignor shall be made a defendant, to answer as to the assignment or his interest in the subject of the action;” does not apply. The action is not “brought by the assignee of a claim,” but is brought by Blair for himself and all those who have with him a common interest. If a part of the original contributors have assigned, they have ceased to have an interest in the subject matter of the suit; if they have not assigned, then they are represented by Blair. The defendants, have no interest to bo protected by the settlement of the question of the alleged .assignment. The money can be paid into court, and the rights of the parties having an interest in the fund can be settled. That is a matter in which the defendants have no interest whatever. The court below erred in sustaining the demurrer.

B. F. Davis, for appellant. E. H. Davis and C. Wright, for appellees.

The judgment is reversed, with costs, and the cause remanded to said court, with directions to overrule the demurrer to the complaint, and for further proceedings.