Wilkson v. Blackwell

4 Mo. 428 | Mo. | 1836

Opinion of the court delivered by

McGirk. Judge.

Wilkson brought a bill in chancery against Blackwell, for a specific performance of an agreement, in regard to a pieee of land. The bill states first, one contract in a particular manner, wherein it charges that the land was paid for in money, then it charges the land was paid for in hogs. The bill charges that Blackwell by collusion with a third person, by a fraudulent judgment got possession of the land, and does not make the third person a party. The defendant Blackwell, demurred to the bill, because the same is multifarious, and because the third person was not made a party. The circuit court of Washington county sustained the demurrer and dismiss-.ed the bill generally.

Opinion of the the court. Bill in equity for specific pe.form-contrae8/,'charg-0 ing that’the land was paid for in that u was for in hogs. Held, to fore°badaon de-le" murrer. The compit. not i- av-anfend^as he°had a right’to do on terms, the court missed die^/u' without It is not necessa-personfwhois a to tho interest involved, and whom a decree would not affect, a party to the bill.

There can be no multifarious and bad on that account. But as to failing to make the third person a party to the bill, that is out of the question.— The rule is, that all parties against whom, or for whom a decree can be made, may be and generally ought to be parties, but as to all others, they ought not to be parties, Now as to this man, who is said to have fraudulently let defendant recover judgment against him for the land,, he has nothing to do with the matter. The possession and the supposed legal right as the bill shews, are both in Blackwell. No decree for any thing could be made against Spellman the third party, he has as the bill shews, no interest in nor possession of the land. But because ^ie bill is double, the demurrer was rightly sustained, but the plaintiff might have amended if he chose on terms, as he did not do that, the bill should have been dismissed, though not generally, but without prejudice, because the decree dismissed the bill generally, it is reversed with COsts, and this oourt order that the bill be dismissed with-prejudice; the costs of the circuit court to be paid by complainant.