DixoN, C. J.
Assuming that tbe grantees of Noonan became assignees of tbe mortgage in proportion to tbe value of tbe land attempted to be conveyed to each, and that tbe actions by Earwell, Boby and others, against Noonan, Boys and others, were properly commenced as well in behalf of all other persons interested and not named as of tbe plaintiffs named, still I think that tbe complaint states no cause of action. I'think tbe plaintiff altogether mistakes tbe true relation of tbe persons not named to tbe actions which were thus commenced in their behalf. He seems to suppose that they were real parties to tbe action, and bound to bear their proportion of tbe expenses of tbe litigation, whether they assented to tbe proceedings and came in under tbe judgment, or not. In other words, be seems to think it competent for tbe plaintiffs named, who commenced and carried on tbe litigation without tbe knowledge or consent of *704those not named, to compel tbe latter, against their will, to accept the benefit of the proceedings, and to share the expenses. This is an entire mistake. The persons not named in such eases are not parties to the suit, unless they afterwards elect to come in and claim as such, and bear their proportion of the expenses. It is optional with them whether they will become parties or not; and until they so elect, they are, in the language of the books, “ in a sense, deemed to be before the court.” Story’s Eq. Pl. (Redfield’s edition), § 99; Adair v. The New River Company, 11 Ves., 444. They are so far before the court that if they neglect, after a reasonable notice to them for that purpose, to come in under the judgment and establish their claims, the court will protect the defendants and parties named from any further litigation in respect to the same fund or subject matter, especially so far as such litigation may .tend to disturb the rights of the parties as fixed by the judgment. The whole doctrine of the court of equity upon the subject is so fully and clearly expounded by Chancellor Walworth in Hallett v. Hallett, 2 Paige, 18, and by Lord Eldon in Good v. Blewit, 19 Ves., 336, that a reference to other authorities is deemed unnecessary. The practice in actions of that kind, of per.mitting,' and, in most cases, of requiring the plaintiff to sue not only in his own behalf but also in behalf of all others interested, was adopted so as to conform as nearly as possible to the general rule in courts of equity as to parties, which is, that all persons materially interested in the subject-matter ought to be made parties to the suit, either as plaintiffs or as defendants, however numerous they may be, in-order that complete justice may be done and multiplicity of suits prevented; but as that rule was sometimes found incapable of application, either because the parties were so numerous as to render it impracticable to bring them all by name before the court, or were unknown, or without the *705jurisdiction of tbe court, exceptions became necessary tbat tbe rule, established for tbe convenient administration of justice, might not destroy tbe very purpose for which it was established. “ The exceptions, therefore,” says Judge Stob,y, supra, § 96, “ turn upon the same principle upon which the rule is founded. They are resolvable into this, either that the court must wholly deny the plaintiff the equitable relief'to which he is entitled, or that the relief must he granted without making other persons parties. The latter is deemed the least evil, whenever the court can proceed to do justice between the parties before it, without disturbing the rights or injuring the interests of the absent parties, who are equally entitled to protection. And even in the cases in which the courts will thus administer relief, so solicitous is it to attain the purposes of substantial justice, that it will generally require the bill to be filed, not only in behalf of the plaintiff, but also in behalf of all other persons interested, toho are not directly made parties (although in ásense they are thus made so), so that they may come in under the decree, and take the benefit of it, or show it to be erroneous, or entitle themselves to a rehearing.” This is the extent of the exceptions to the general rule; so that, instead of being a mode of making the persons not named parties to the suit, unless they come in under the judgment, or before judgment, as they may do, and take the benefit of it, it is in reality a mode of dispensing with the presence of such persons before the court, and of rendering a final judgment without them; and unless they do come in and take the benefits, in which case they become parties and are chargeable like the others, I know of no principle or authority upon which they can be charged with any part of the expenses of. the litigation. I think, therefore, that the complaint is defective in not alleging that the defendant Brooks did come in, and did accept the benefits *706of the proceedings in the two actions named in tbe complaint. "Without some such facts, which of course must be averred, there was no consideration for the promise alleged to have been made by him to the plaintiff.
Besides, the condition of the promise which was made, has never been fulfilled. That condition was, “ that in case he should be protected in his interests correspondingly with the other plaintiffs and parties interested, by the said action and measures begun and taken, he would pay his proportionate share of the outlays and expenses necessary thereto.” Whether the defendant should be protected in his interests or not, depended on whether he should come in and become a party to the action, which was a matter entirely optional with himself. Having refused to come in, he has received no protection, but is debarred from all rights under the judgment; and the condition upon which he was to pay has failed.
I think, therefore, that the demurrer to the complaint should have been sustained, and that the order of the court below must be reversed.
By the Court. — Order reversed.
The plaintiff moved for a rehearing.
DixoN, O. J.
On motion for a rehearing it is contended, First, that it already sufficiently appears by the complaint that the defendant did come in and accept the benefit of the foreclosure judgment before this action was commenced. We do not think so. What is meant by comirig in and accepting the benefit of the judgment, or claiming under it, in such cases ? Obviously, that the person previously unknown or not named shall- appear before the court in which judgment is rendered, and shall connect themselves with the action as actual parties of record. This is done by *707order after judgment, made in pursuance of directions contained in tbe judgment for tbat purpose. Tbe order is obtained upon tbe application of tbe parties so previously unknown or not named. It is usually, and we suppose always, preceded by an order of reference to a master or commissioner to examine and report as to the identity and interest of tbe persons so applying, which is a very important matter yet to be judicially ascertained and settled, notwithstanding formal judgment has already been entered. See Farrell v. Smith, 2 Ball & Beatty, 169; and Anonymous, 9 Price, 210.
Secondly, it is contended, though the facts pleaded are not sufficient to charge the defendant, as a party to the foreclo.-sure action, with a proportion of the-costs and expenses, yet that enough is stated to authorize a recovery, as in ejectment, of that part of the mortgaged premises claimed and occupied by the defendant; or if not that, a redemption from the lien of the mortgage to the extent of the defendant’s interest. As purchaser at the foreclosure sale, the plaintiff claims to have acquired title to the whole mortgaged premises; and as the grantee of Rogers and James, and (through them, by the intermediate conveyances) of Field and Ford, he likewise claims the equity of redemption in so much and such parts of the mortgaged premises as were not affected by the foreclosure proceedings. Upon these propositions it is unnecessary for. us to express any opinion, since it so clearly appears from the entire language of the complaint, that the sole object of this action is to recover from the defendant his alleged share of the costs and expenses of the foreclosure proceedings, and of the other steps taken to perfect the title. It cannot be regarded either as an action of ejectment or as a suit in the nature of a bill to redeem. Whether, as is suggested, the complaint can be so amended as to transform it into one or the other *708of those actions, it would be improper for us now to say. There is no motion before us for that purpose; and if there was, it would probably be rejected, as the uniform practice of this court has been not to entertain such applications. The circuit court has the same power to direct or allow amendments as this court, and the course of proceeding is to remand the cause and let the amendments, if any, be made by direction of that court.
By the Court. — The motion for a rehearing is denied.