Board of Supervisors v. Mineral Point Railroad

24 Wis. 93 | Wis. | 1869

Dixoít, C. J.

This cause was most ably argued on both sides, and, if time permitted, it would be interesting to pursue and consider many of tlie questions presented and so elaborately discussed by counsel. But time does not permit; and we can examine only such questions as arise and must be determined in disposing of tlie case upon a single principle of law, which we deem applicable to it, and which is decisive of the action. That principle is the principle of estoppel by judgment. We are unanimously of opinion that the decree of the district court of the United States for the district of Wisconsin, in the proceeding to foreclose the Martin and Coman mortgage, is conclusive upon the present plaintiffs, and forever debars them, as against the parties to that action who were served with process, and over whom the court acquired jurisdiction, and those claiming under such parties, from raising or litigating any of the questions upon which their right to maintain this action depends. This is an action by the plaintiffs, as cestui que trusts and real parties in interest under the Janssen mortgage, to foreclose that mortgage, and to have the same, according to its date, declared a lien prior and paramount to the lien of the Martin and Coman mortgage.

This question of priority is the great question in the case, out of which arose the numerous other questions argued at the bar, which we shall not consider, since, as already stated, we think this and all of the questions connected with it are conclusively settled against the plaintiff by the decree of the district court in the foreclosure action above referred to. Our examination will therefore be limited to the objections taken to the form and sufficiency of that decree, and of the proceedings in which it was rendered.

1. It is said that it was not charged in the bill, that the Martin and Coman mortgage was paramount- — that in this respect the bill charged as matter of fact what was only a conclusion of law. After pleading the hot of March 23,1853, by its title and the day of its passage, and alleging that the Janssen mortgage was executed in accordance with its provisions, the bill proceeded to charge that that mortgage “was, according to the tenor thereof, subject, among others, to the reservations and conditions following, namely, that the said deed of trust or mortgage .should be deemed taken, considered and held to be subject and subsidiary to another deed of conveyance of all the property, real, personal and mixed, therein mentioned, to be thereafter executed by the said Mineral Point Railroad Company to such other party as the said Mineral Point Railroad Company should elect, which should be called a first mortgage, and should constitute a first lien and incumbrance upon the said railroad of the said Mineral Point Railroad Company, and all of the property mentioned in the said mortgage or trust-deed to the aforesaid Edward H. Janssen, but which said first mortgage * '* * should not be issued to secure the payment of bonds to a greater amount than ten thousand dollars per mile of the whole length of said road, nor bear interest at a rate greater than eight per cent, per annum, payable semiannually.” And, again, having alleged that it was the intention and understanding of all parties in interest in the Janssen mortgage, at the time of its execution and of the execution of the bonds secured by it, that it should be subject to another mortgage on said road for three hundred and twenty thousand dollars; that the ■controlling motive for executing the same was, that the railroad company might comply with the act of March 23,1853; and that the object and intention of the county of Iowa, in exchanging its bonds with the railroad company, was to aid the company in the construction of the road by loaning the credit of the county to the company to the amount of $150,000, and to leave the resources of the company unimpaired for the purpose of completing the road, so that the company should have foil and ample power to create a debt to the amount of $320,000, the railroad being thirty-five miles in length., which, debt, though created subsequently to the mortgage to Janssen, should take precedence of the same, the bill expressly charged the fact to be, “that the said mortgage or trust-deed to the said Edward H. Janssen, and the debt thereby intended to be secured, was and is subject and subsidiary to the mortgage or trust-deed aforesaid to your orators, and to the debt thereby intended to be secured; and that the said mortgage or trust-deed to your orators has, and of right ought to have, precedence to and priority over the trust-deed or mortgage to the said Janssen, and to all other liens and imcumbrances whatsoever on said Mineral Point railroad.” Upon these allegations, it seems clear to us that the objection is not well taken, and cannot be sustained. It may be that the pleading would have been more logical and accurate, and the issue presented more clearly defined, if the bill had charged that the orators’ mortgage was executed under and in pursuance of the power reserved by the act of 1853, and by the mortgage to Janssen, and that, being so executed, it had precedence to and priority over the Janssen mortgage and all other liens whatsoever. But then, if such had been the form of pleading, it is not clear that it would not have been subject to the same objection now urged, for the averment that the mortgage was executed in pursuance of the reserved power seems quite as much a conclusion of law as that it constituted a lien prior and paramount to the lien of the other mortgages. Either form of pleading is liable to the criticisms of counsel, if such averments are to be regarded as altogether unauthorized. But they are not. They are regarded in law as averments of matters of fact, though involving, to some extent, what may in strictness be said to be conclusions of law. They belong to that class of mixed propositions of law and fact, which, for the purpose of pleading, are treated as facts, and examples of which are not unfrequent, especially where the title or ownership of property is alleged. Any other rule would lead to the greatest prolixity and unnecessary particularity of statement, which the law does not require. It is enough that the opposite party is fully and fairly informed of the claim made against him, and of the grounds upon which it is asserted. Such was the pleading here ; and it is difficult to perceive how the defendants could have been benefited by any more minute statement of facts. A like objection was taken in Gillett v. Robbins, 12 Wis. 319, where the charge in the bill was, that the complainants were the heirs at law of a deceased person, to whom his real estate descended by the laws of descent. It was insisted that this was but the statement of a conclusion of law, and that the facts showing the complainants to be such heirs should have been pleaded. The obj ection was overruled, the court holding, that though the averment was in part of a conclusion of law to be deduced from several intermediate facts which must be established in evidence, still it was so much in the nature of a fact, and its statement in that form so fully apprised the opposite party of the foundation of the claim set up against him, that it was by the rules of pleading sufficient. The reasoning of that case applies with equal force to this, and renders further investigation on our part unnecessary.

2. It is also said that the charges of the bill, conceding them to have been sufficient as allegations of matter of fact, did not raise or put in issue the question of the priority of the Martin and Qoman mortgage over the Janssen mortgage, nor of its priority- over the mortgage executed to Schuyler, and, therefore, the decree is not res adjudícala upon those questions. In support of this objection we are referred to Lewis v. Smith, 9 N. Y. 502; Strobe v. Downer, 13 Wis. 10; Straight v. Harris, 14 id. 509, and Williamson v. Probasco, 4 Halst. Ch. 471. The pleadings under consideration in those cases differed so widely from those which we are now considering, that comment or discrimination seems hardly to be required. It would be sufficient to say that in none of them were there any allegations contesting, or tending to contest or impeach, the validity or priority of the claims sought to be barred by the judgments. The question as to the effect of the judgments, in case there had been such allegations, though alluded to, was of course not decided; but it is fairly to be implied, from the language and' reasoning of each opinion, that, if such allegations had been made, the judgments or decrees, though in the ordinary form in foreclosure actions, would have been conclusive. In Lewis v. Smith the question was as to a widow’s paramount right of dower. She had been made a party to a bill to foreclose a subsequent mortgage, and a decree pro eonfesso rendered against her, where the only averment in the bill was the general one authorized by the old chancery rule, that she, with other defendants, had or claimed some interest in the mortgaged premises as subsequent purchaser or incumbrancer, or otherwise. The court held that the rule authorizing such averment was made and adopted with sole reference to such interests and incumbrances as were in fact subsequent and subject to the mortgage being foreclosed, and concerning which there was no claim in opposition; that the averment did not and could not raise the question of' priority of right as between the plaintiff and any defendant actually having such priority; and, consequently, that the question had not been decided, and the decree was not conclusive. It was furthermore said, in the course of the opinion, that, in the special case of a title to mortgaged premises, and a bona fide controversy as to priority between it and the mortgage, the complainant in the foreclosure bill must state the facts upon which the question arises, as he insists, they exist, according to the rules of equity pleading which prevailed antecedently to the rule referred to. In Strobe v. Downer there was still less ground for insisting on the bar, for there the general averment that the interest of the defendant accrued subsequently to the mortgage being foreclosed, had been stricken out of the printed form of complaint, so that the complaint contained nothing whatever from which any intention to charge that the defendant’s prior mortgage was subsequent or for any reason subject to that to the plaintiff, could be inferred. Straight v. Harris was in ail respects like Lewis v. Smith, the complaint containing only the usual allegation to cut off subsequent claims, but not prior ones; while in Williamson v. Probasco the priority of the first mortgage, the mortgagee being a party, was expressly stated in the bill. It will be readily seen, from this brief examination, that those cases bear no resemblance to the present, but that, on the contrary, the pleadings here contain the very allegations which were there held to be wanting in order to make the judgments conclusive. The issue of priority, with a sufficient statement of the facts out of which it arose, was distinctly made upon the face of the pleadings here presented, and this objection must be overruled.

3. But it is again said, that the question of priority, though presented and in form decided, is not one which a court of chancery cam adjudicate in a proceeding to foreclose a mortgage. It is freely admitted that a foreclosure suit is not an appropriate proceeding in which to litigate the rights of a party claiming title to the mortgaged premises in hostility to the mortgagor, and that, if such rights be so litigated, and be determined upon pleadings and proofs, the decree will'be erroneous, and will be reversed. Roche v. Knight, 21 Wis. 324; Corning v. Smith, 6 N. Y. 82. But whether, until reversed, such decree is coram non jiodice and void, so that it may be collaterally impeached, is quite another question. The conclusion would seem to follow, from all of the decisions, that it is not. But, be that as it may, the question here presented is of an altogether different character. It is not whether a claim of title in hostility to the mortgagor may be litigated in a foreclosure suit, but whether different mortgagees, claiming under the same mortgagor, and not adversely to him, may, as between themselves, litigate and have tried and determined questions of priority arising as to the liens of their respective mortgages, in an action to foreclose one of the mortgages. It is purely a controversy between the mortgagees, and not one which at all involves the investigation of title paramount or adverse to that of the mortgagor. We feel very confident that such a. question may be litigated in a foreclosure action, and that it is an appropriate proceeding in which to present it. It must either be tried in the action to foreclose, .or else a separate action must be instituted for that purpose. The necessity or propriety of two actions in the same court between the same parties, to determine questions arising out of the same subject-matter, which questions may as well be heard and determined in one action, is not perceived, and the authorities do not require them. Beside the case of Lewis v. Smith, and others first above cited, which clearly sanction the practice, we refer to the case of Palmer v. Yager (20 Wis. 91), where the point was directly decided. And even Judge Redbiekd, in his opinion and argument for the plaintiffs in this action, concedes that; upon proper pleadings, the question of priority may be so litigated.

4. It is furthermore insisted that the priority of the Martin and doman mortgage was not adjudged, because there was no such specific prayer, and no prayer for general relief. If the force or validity of the decree depended on the presence of such prayer in the bill, or if without it no decree could be rendered, then, undoubtedly, this objection would be fatal to the proceeding,. The bill contained no prayer for general or special relief, but only the prayer for process according to the established practice of the court of chancery. Farren’s Bill in Chancery, 34, 38 ; Story’s Eq. Pl. § 40, note 1, and § 44, note 1. But the want of such prayer was not a defect involving the power or jurisdiction of the court to render a decree. It was a defect in the form of the bill merely, of which advantage might have been taken by demurrer. Story’s Eq. Pl. §§ 453, 454, 528; Mitford’s Pl. 107, 108. Or it may be that the objection could have been taken at the hearing, and a decree refused ; or the court might have allowed an amendment, and directed a decree; but in no event was it a defect going to the jurisdiction of the court. It was competent for the court to proceed to judgment upon the case made by the bill, without such prayer; and though it may have been irregular to do so, still the decree is in all respects as valid and binding, when collaterally called in question, as if the relief granted by it had been formally prayed for in the bill. That such is the power of courts of equity is illustrated by those cases of bills for charities, and of bills on behalf of infants, where relief will be granted upon any matter arising upon the state of the case, though it be not particularly mentioned and ■ insisted on, or prayed, by the bill. Story’s Eq. Pl. §40, note 2, and cases cited.

5. Another objection is, that the decree did not find the facts, and specifically adjudge as a legal result that the Martin and Goman mortgage was prior and paramount. The decree, with one unimportant exception, was in the usual form in foreclosure suits, and, among other things, “ordered, adjndge’d and decreed that the defendants, the Mineral Point Railroad Company, Samuel D. Hastings, treasurer of the state of Wisconsin, and John M. Keep, and all persons claiming or to claim from or under them, or either of them, since the commencement of this cause, be forever barred and foreclosed of and from all equity or equities of redemption, and claim of, in and to said mortgaged premises, property, franchises, income and effects, and every part and parcel thereof.” The inquiry therefore is, whether the decree in these words was sufficient to adjudicate and determine, as between the parlies to the suit, the question of priority raised by the facts stated in the bill; or was it necessary that it should go further, and expressly find the facts, and declare, as the result, that the complainants’ mortgage was prior and paramount ? It is obvious, from an examination of the pleadings and decree, that the question of priority must have been considered, and the fact found and decided by the court in favor of the mortgage in suit; for otherwise no decree barring and foreclosing the defendants from all equity of redemption, and from all claim of, in or to the mortgaged premises, could have been rendered. The fact of such priority constituted, on the state of case made by the bill, the very foundation and only ground upon which the complainants’ right to the relief granted could have been based; and it cannot be supposed that the relief was granted unless the fact was so found. Was it then necessary that such finding and adjudication should have been set- forth at length in the decree, in order that the parties should be bound thereby? We know of no authority for this position; but, on the contrary, the rules universally applied in the construction both of decrees in equity and judgments at law, seem to be directly opposed to it. The decree is the response of the law to the facts charged in the pleadings ; and to ascertain what those facts were and how they were decided, recourse must be had to the pleadings. It is interpreted by the pleadings, and is understood as necessarily affirming every fact requisite to its correctness and validity. It is therefore res adjudieata, and an estop-pel, upon every such fact. In the language of the brief of counsel in this case, every point which has been, either expressly or by necessary implication, in issue, and has been decided, or which must necessarily have been decided, in order to support the judgment or decree, is concluded. The correctness of this principle is so well established, and the authorities in support of it so numerous, that it seems to be unnecessary to add to the cases found in the briefs of counsel; but the following, among others in this state, show that the decisions here are in harmony with the current of adjudications elsewhere: Wanzer v. Howland, 10 Wis. 8; Tallman v. McCarty, 11 id. 40; Driscoll v. Damp, 16 id. 106; Arnold v. Booth, 14 id. 180; Nash v. Church, 10 id. 303; Hungerford v. Cushing, 8 id. 324; State of Wisconsin v. Waupacca Bank, 20 id. 640; Pierce v. Kneeland, 9 id. 23; Borngesser v. Harrison, 12 id. 544; Van Pelt v. Kimball, 18 id. 362; Heath v. Frackleton, 20 id. 320. And the case of Emmons v. Dowe, 2 id. 322, cited and relied upon by counsel for the plaintiffs, is not in conflict with the general rule. The pleadings and judgment there under consideration were in the action of replevin given by statute, which authorized the maintenance of the action by a person having a special property in' the goods, or the temporary and present right of possession, as well as by the general owner. The declaration, in.the form prescribed by the statute, was for unlawful detention, and the plea was non detinet, accompanied by a notice that the goods were the property of the defendant; The verdict for the plaintiffs, which was in the nature of a special verdict, found that the defendant unlawfully detained the goods, but was silent as to the issue of property in them tendered by the notice. The judgment was, that the plaintiffs have and retain the goods. The court held, and very correctly, that the judgment was not conclusive upon the question of title or property in the goods, in the. first place, because there was. no evidence in the record that that question had been passed upon; and, secondly, because it was not a question which must necessarily have been decided in order to support the judgment or verdict. The mere right of possession alone being sufficient to sustain the action of the plaintiffs, and the verdict and judgment, the court would not extend the estoppel beyond that; but in so doing it was governed by the general principle, that, whatever was necessarily thus decided was conclusive, and that, in determining this, and the consequent effect of the judgment, reference must be had to the pleadings, and, where the trial was by jury, also to the verdict.

6. It is further objected, that the trust or agency of Edward EL Janssen in the mortgage executed and delivered to him was personal and not official, and did not devolve upon Samuel D. Hastings, his successor in office, who was treasurer of the state at the time the foreclosure suit was instituted and decree rendered. The mortgage recited that it was made in conformity with the provisions of the act of March 23, 1853, and was to “Edward H. Janssen, treasurer of the state of Wisconsin, and his successors in office, party of the second part.” The act of March 23, 1853, provided that the mortgage should be executed and delivered “to the treasurer of the state and his successors in office, in trust for the use and benefit of the holders of any and all of said bonds.” Under these circumstances, we cannot well see how it can be maintained that Samuel D. Hastings, upon his accession to the office, did not become the lawful trustee and true representative of the cestui que trusts. Unlike the case of Delaplaine v. Lewis, Governor, etc., 19 Wis. 476, it was not a trust created by mere act of the parties in interest, but was one created by authority of a law of the state; and, if the law authorized and required the mortgage to be made to the state treasurer and his successors in office, then the trust was not merely personal, but one pertaining to the officer as such. It is clear to our minds that such was the intention of the legislature, and must have been the intention and understanding of the railroad company and the other parties in interest under the mortgage.

7. A still further objection is, that it was not sufficient to make the trustee alone a party to the bill, but that the cestui que trusts, or holders of the bonds, were necessary parties, without whom there could be no decree affecting or barring their rights. The mortgage to Jans-sen was executed and delivered to secure the payment of one hundred and fifty bonds for the sum of one thousand dollars each, before then issued by the railroad company, and made payable to Janssen,-treasurer of the state, and his successors in office, orto the bearer thereof; and the same were so described in the mortgage, and also asbeing ‘£ transferable by general or special indorsement, or by delivery.” Besides those bonds, the mortgage was likewise made to secure the payment “of such other bonds of a similar description” as should thereafter be executed, part of an issue of bonds which should not exceed, in the aggregate, ten thousand dollars per mile of the whole of the surveyed line of said railroad. The bill charged that bonds of such subsequent issue, amounting to the sum of one hundred and seventy thousand dollars, had been executed and put in circulation by the company; but to whom or when issued, the complainants were not informed. It thus appeared on the face of the bill, that the number of bonds secured by the mortgage, and then outstanding, was three hundred and twenty, which might have been in the hands of an equal number of different persons as the holders thereof. Row, the general rule in equity is undoubted, that, in suits affecting trusts, the parties beneficially interested must be made parties. But this rule is subject to several exceptions, which are as well established as the rule itself; one of which is, that whenever the parties in interest are, or, from the nature of the case, may be, so numerous that it would be difficult or impracticable to bring them all before the court, and their rights are such as may be fairly and fully represented and tried without joining them, the application of the rule will he dispensed with. Shaw v. Railroad Company, 5 Gray, 170; Willink v. Morris Canal Co., 3 Green Ch. 377; Van Vechten v. Terry, 2 Johns. Ch. 197; New Jersey Franklinite Co. v. Ames, 1 Beasley, 507. In the case we are considering, the trustee was a proper person to represent and defend the interests of his cestui que trusts; and to have required the complainants, at their peril, to ascertain and bring in every person holding or beneficially interested in any one of the bonds, would have been to impose upon them a task most difficult, if not actually impossible, to be performed.' It would have been almost equivalent to denying them the aid of the court in the enforcement or foreclosure of their mortgage. The holders of the bonds were not, therefore, necessary parties ; and the proceedings and decree, without them, are as valid as if they had been brought in. The rule, or, rather, the exception, in cases of the kind, is correctly stated in the case last cited, where it is said that the cestui que trusts of a mortgagee are not necessary parties to a bill of foreclosure, whether such mortgage constitutes a prior or a subsequent incumbrance, or whether the mortgagee be complainant or defendant in the suit. A final decree, settling the rights of all parties to the controversy, may be made without bringing such cestui que trusts before the court.

But it is said that the county of Iowa ought notwithstanding to have been made a party, because it was apparent from the character of the bonds delivered to the county, constituting the whole of the first issue, that they were not. negotiable, and therefore, as to them, that the county was and must have remained the sole cestui qxoe trust. This argument is founded upon a stipulation in those bonds, by which it was agreed that the company should pay the principal and interest of each and every of the bonds issued by the county, promptly whenever the same should become due and payable, and that the payment by the company of any such sum of principal or interest on any of the bonds issued by the county, should operate as a release and discharge of the company from the payment of the same amount of the principal and interest of the bonds of the company delivered to the county in exchange. The effect of this, it is said, was to convert the bonds of the company into mere bonds of indemnity in the possession of the county, and, to destroy their negotiability. But the stipulation, or that part of it which provided that the payment by the company of any sum of the principal or interest of the county bonds should operate as payment of a like sum of the principal or interest of the bonds of the company, was omitted in the description of the bonds contained in the mortgage, and it is not denied that the bonds, as therein described, were negotiable. Under these circumstances, it is contended for the defendants, that it is immaterial to the question we are now considering whether the bonds were in fact negotiable ; that it is enough that they were so described in the mortgage, which description the plaintiffs cannot now be permitted to dispute. This position, seems to us well taken. The complainants in the foreclosure suit were not parties or privies, but strangers, to the Janssen mortgage, with reference to which it became necessary for them, in the foreclosure of their own mortgage, to make certain allegations in their bill, and to bring in some person or persons as the proper party or parties defendant. In determining these questions, they were governed entirely by the record of the mortgage, to which alone they could look for information with respect to the nature, contents or effect of the bonds. The record of the mortgage was the means appointed by law for that purpose, while the bonds themselves, in the hands of individuals or corporations, were wholly inaccessible, except at the option of the parties holding them. The complainants were not, therefore, required to go further, or to seek information other than that afforded by the record ; and if, by mistake or otherwise, the bonds were misdescribed in the mortgage, and the record wrong, it was in the power of the cestui que trusts, or holders of the bonds, to have had the same corrected; and, not having done so, it is too late for them to raise the objection, as against strangers who, acting on the faith of such record, have incurred expenses and changed their position so that their rights would thereby be seriously and injuriously affected. If not responsible for the negligence or omission of their trustee in this particular, the cestui que trusts are clearly responsible for their own neglect. They knew the nature of the bonds, and must be supposed to have known the contents of the mortgage; and if these differed, and the difference was such as to have misled third persons entitled to act on the strength of the record, the error was one of which the cestui que trusts cannot now complain. They are estopped from denying or calling in question the correctness of the recitals or description contained in the mortgage.

8. The eighth and last objection which we shall consider is, that Gfeorge L. Schuyler was a necessary party defendant, in the absence of whom the court acquired no jurisdiction to pronounce a decree which was valid and binding as against any person. In support of this objection, it is assumed and argued that the mortgage to Schuyler was or might have been the actual first mortgage executed in pursuance of the power reserved by the act of the legislature, and by the mortgage to Jans-sen ; and, if this was so, then that the mortgage to Martin and Coman, instead of constituting a prior lien, was, in fact, subsequent and subject to the lien of both the other mortgages. • To determine this question of priority as between the Martin and Coman and Schuyler mortgages, and the consequent priority of either over the Jans-sen mortgage, it is said that Schuyler was an indispensable party, without whom nothing was or could have been decided which bound or concluded Schuyler or any of the parties in interest. The first part of this proposition is unquestionably correct. Schuyler is not estopped by the decree from asserting and maintaining, if he can, that his was the real first lien. But, because a party not served with process, and not before the court, may ■collaterally dispute the decree, and deny its validity, it does not, we think, follow that other parties, who were served, and over whose persons the court, in fact, acquired jurisdiction, may do the same thing; nor do we know of a decided case in which such a doctrine has been held. The force or efficacy of a decree, as between the parties before the court, does not depend upon the fact that there may be other persons, proper or necessary parties, who are not before it. The absence of such persons is not a defect involving the jurisdiction or power of the court over the parties who are present, or over the subject-matter of the suit, so far as those parties may be concerned. The court may, nevertheless, proceed to a decree, and such decree, though rendered in violation .of the rules and practice of equity in such cases, is not void as between the parties to it. It is irregular, but not void. It binds the parties to it until set aside or reversed in some direct proceeding for that purpose. And the reason of this is obvious. Jurisdiction exists whenever there is a suit, the subject-matter of which is cognizable in a court of chancery, and parties are before the court whose rights in relation to such’subject-matter the court may adjudicate; and the effect of such adjudication between the parties, until reversed or set aside, do,es not depend upon the fact that the power of the court may have been erroneously exercised in making it. If there be necessary parties wanting, whose absence may render the adjudication fruitless or ineffectual, because the rights of such parties cannot be determined, that may be good cause for arresting the proceedings or • dismissing. tbe suit, but it does not deprive tbe court of power to proceed. Tbe question as to wbo may or may not be necessary or proper parties is, and always bas been, in very many cases, a most difficult and perplexing one. It constitutes of itself a title in tbe law of equity jurisprudence, upon wliicb great learning bas been expended, without tbe ascertainment of any rule of general or universal application. Eacli case must still be determined, to a considerable extent, upon its own peculiar facts and circumstances ; tbe object of all rules upon tbe subject being in accordance witb tbe cberisbed principle in equity, that tbe adjudication may be as complete and conclusive as possible. If, in a doubtful case, tbe court should err in this respect, it would be a most extraordinary conclusion that it bad lost all jurisdiction, and its decree was of no effect. And, if it would not be so in a doubtful case, then it can make no difference witb tbe application of tbe principle that tbe question presented was a plain one and easy to be decided. Tbe jurisdiction of tbe court cannot be determined by tbe magnitude of tbe error. Again, there is a class of cases in which tbe bringing in of additional parties may be said to rest in a great measure in tbe sound discretion of tbe court. Should tbe court abuse its discretion, and commit great error in such case, would that oust the j urisdiction % We say, clearly not. And so we might proceed to illustrate tbe proposition in various ways, but we deem it unnecessary. Tbe. rule to be gathered from all tbe authorities may, in few words, be stated to be, that in no case does tbe jurisdiction of tbe court over tbe subject-matter and parties properly before it depend, nor can it be made to depend, on tbe absence of other parties, however tbe right of such other parties 'may be complicated by tbe decree, or however necessary it may be that they should be brought in, in order that a complete and final determination of tbe controversy may be bad. In some cases tbe non-joinder of parties is but matter of abatement, of which advantage can only be taken by plea, answer or demurrer; in others, the objection may be taken at any stage of the action, or the court may itself refuse to decree; but, in all cases, it is matter of mere error, and not of jurisdiction, which may be corrected in the suit, but never out of it. It cannot be collaterally examined. Upon this subject, Judge Stoby says: ‘‘If the proper parties are not made, the defendant may either demur to the bill, or take the objection by way of plea or answer; or (subject to the considerations above suggested), when the cause comes on to a hearing, he may object that the proper parties are wanting; or, the court itself may state the objection, and refuse to proceed to make a decree; or, if a decree is made, it may, for this very defect, be reversed on a rehearing, or on an appeal; or, if it be not reversed, yet it will bind none but the parties to the suit, and those claiming under them. So that all the evils of fruitless and inadequate litigation may sometimes be visited upon the successful party in the original suit, by leaving his title still open to future question and controversy.” Eq. Pl. § 75. And so, in th¿ case under consideration, the objection that Schuyler was a necessary party, not brought in, or who, under the peculiar organization of the courts of the United States, could not be, not having been taken in any of these modes, and the court having proceeded to a decree without him, that decree is as valid and binding upon the parties to it, and those claiming under them, as if no such objection existed, although the title acquired under it may be still open to controversy upon the question of priority claimed in behalf of the mortgage to him. But that is a question which can be raised by him alone, or by the parties whom he represents, and who were not joined in the suit. As between the parties to the suit, it is conclusively settled by the decree, that his was not the first lien.

We deem it unnecessary to refer particularly to the authorities cited by counsel for the plaintiffs upon this point (13 Pet. 359, 376; 12 Wheat. 194), as they contain nothing in conflict with what is here decided. But we do wish to refer to the case of West v. Sanders, 1 Marshall (Ky.), 110, as fully illustrating the power of the court of equity to dispense with the presence of even a necessary party in a case very like that we have been considering, and as showing that the absence of such party cannot be a jurisdictional defect, of which the parties before the court can subsequently take advantage for the purpose of defeating the decree.

It follows from these views, that the judgment of the circuit court must be reversed, and the cause remanded, with directions that it be dismissed.

By the Court. — Ordered accordingly.