28 Del. Ch. 54 | New York Court of Chancery | 1944
The real beneficial owners are the essential parties to a suit in equity. Hunter v. McCarthy, ante p. 27, 36 A. 2d 261; 30 C.J.S., Equity, § 135, p. 567. See also Walker v. Caldwell, 8 Del. Ch. 91, 67 A. 1085. But as a general rule, though the complainants have all of the equitable rights in the matters in controversy, the legal owners should also be made parties in order that they may be bound by the decree and to prevent any possible annoyance to the defendant by subsequent actions at law. 1 Daniell’s Ch. Pl. & Pr. (6 Amer. Ed.) *p. 193; Cutler v. Tuttle, 19 N.J. Eq. 549; see also President, etc., of Farmers’, etc., Bank v. Polk, 1 Del. Ch. 167; Bay. Newfoundland Co. v. Wilson & Co., 24 Del. Ch. 288, 11 A. 2d 278. It is under this theory that the trustee of either an express or implied trust is usually required to be made a party to an action brought by the cestui que trust. 1 Daniell’s, supra; 30 C.J.S., Equity, § 135, p. 567. The complainants concede this general rule, but deny its application to this case.
When the lack of essential parties is not disclosed to the defendant until the final hearing, and there is no lack of diligence, that defect can usually be taken advantage of then. Hunter v. McCarthy, supra; Van Doren v. Robinson, 16 N.J. Eq. 256; 21 C.J. 329, 330; 30 C.J.S., Equity, § 155. But unnecessary delay in raising a question relating to parties is not favored, and, if made at the final hearing, can seldom be taken advantage of, unless the absent parties are clearly indispensable to the prosecution of the action. Voorhees’ Ex’x. v. Melick, 25 N.J. Eq. 523. Cutler v. Tuttle, supra; 21 C.J., supra; 30 C.J.S., supra. When, therefore, the failure to join some appropriate but not indispensable parties may render the defendant liable to a possible subsequent revival of the litigation in some form, as a general rule that defect cannot be taken advantage of at the final
Out of abundant caution that suggestion will be adopted.
The defendant’s motion for leave to amend its answer is denied, and an order will be entered accordingly.
Note. Upon appeal from an order appointing appraisers after filing the. foregoing opinion, the appointment was reversed and the case remanded. See post p. 433, 41 A. 2d 583.
At the hearing the statement was made that Guido Pantaleoni, Jr., was a prisoner of war.