24 S.D. 499 | S.D. | 1910
On July go, 1906, the plaintiff, Riggs Land Company, entered into a written contract with one David Blankenhorn for the purchase of certain lands owned by Blankcnhorn. The contract as found by the court, contained a clause providing that time should be of the essence of the contract. Thereafter Blankcnhorn, claiming that the Riggs Land Company had failed to comply with the terms of said contract, and that he was no longer bound thereby, sold the land to the defendant Motley, who paid full value therefor, and went into possession thereof. In February, 1907, the Riggs Land Company began an action, naming as defendants both Blankenhorn and Motley, alleging that by mutual mistake of the parties the written instrument did not express the true contract, and asking that the same be reformed, and that the court thereupon decree a specific performance thereof. The summons was duly served on Motley on
Numerous assignments of error appear in the record; but, in the view we take of this case, the same need not be considered. It is urged by respondent that Blankenhorn was an absolutely necessary party to this action, and with this view we must agree. Upon appellant’s own theory of the case there could be no decree awarding specific performance against Motley until the contract made by Blankenhorn was reformed so as to express the real intention of the parties thereto. That a contract may be reformed and specific performance thereof decreed in the same- action, when all the necessary parties are before the court, is not controverted. Tossini v. Donahoe, 22 S. D. 277, 117 N. W. 148. That such relief cannot be granted unless all the necessary parties are before the court is equally well settled.
Nor does the failure of a party to make an objection on the ground of the absence of necessary parties affect the rule. In Osterhoudt et al. v. Bd. Sup’rs et al., 98 N. Y. 239, the court says: “The distinction is between those who are necessary parties and those who are proper parties merely. When persons who are necessary parties are not joined, the court will not proceed until they are brought in. It will not render a fruitless judgment, nor will it undertake to' decide a single right in the absence of persons who are entitled to be heard in respect to it, and who may be prejudiced by the decision. It was the practice in chancery to permit the objection for defect of parties to be taken by demurrer or answer, or at the hearing. Story’s Eq.
The judgment and order-of the trial court are affirmed.