Simon v. Ellison, 90 Va. 157

Simon v. Ellison

90 Va. 157 | Va. | 1893

Lacy, J.,

delivered the opinion of the court.

The bill in this case was filed by the appellees against the appellants, H. J. Simon, their debtor, and H. E. Jones, trustee, to set aside a deed in trust by said Simon, conveying his stock *158of goods in Ms store to said Jones, as trustee, to secure certain preferred creditors, as fraudulent and void, because intended to hinder, delay, and defraud Ms creditors, and to set aside a certain homestead deed executed by said Simon, claiming his homestead exemption in certain goods. Aud other bills were Med by other creditors for the same purpose. To these bills Simon answered and demurred, and the said Jones answered.

The court, upon the hearing, set aside the said deeds, and the said H. E. Jones, having made sale of the said goods, decreed in favor of the plaintiffs the payment of their said debts out of the proceeds of the sales of the said goods in the order of their priorities, ascertained by the filing of their several bills in disregard of the claims of the preferred creditors. And the said Simon appealed to this court.

The first question we are to determine here upon the assignment of error is upon the action of the court in decreeing upon the hills, and disposing of the questions involved and setting aside the trust deed, aud disposing of the rights of the beneficiaries under the said deed,- when they are not parties to the suits thus brought to determine their rights. This question is well settled in this State.

Mr. Barton says in his Chancery Practice, vol. 1, sec. 35 : “ It is a general rule in equity that all persons interested in the subject matter of the bill, and which is involved in and to be affected by the proceedings and result of the suit, should be made parties, however numerous they may be.” Citing numerous authorities, the decisions in this State are in an unbroken line; aud upon plain principles he whose rights are to be affected by any proceeding should be before the court, and have an opportunity to be heard. Otherwise he is not bound by the decree. Clark v. Long, 4 Rand., 452; Richardson v. Davis and wife, 21 Gratt., 709; Armentrout's ex’or v. Gibson, 25 Gratt., 375; Barton’s Ch. Pr., p. 219, vol. 1, sec. 74; Collins v. Loften & Co., 10 Leigh, 5; Commonwealth v. Ricks, 1 Gratt., *159416; McDaniell v. Baskerville, 13 Gratt., 228; Story’s Eq. Pl., §§ 207, 210; Fitzgibbon v. Barry, 78 Va., 263; Stovall v. Border Orange Bank, 78 Va., 188.

By the decree in this cause settling the trust deed in question, the rights of the beneficiaries under the said deed were disposed of adversely to their interest in a suit to which they are not parties and by a decree by which they are not bound. This was error, for which the said decree must be reversed and annulled, and the cause be remanded, when the plaintiffs may amend their bill, if they are so advised, and make proper parties, which will be done without deciding any other question in the cause.

DECREE REVERSED.