Woodward v. Wood, 19 Ala. 213

Woodward v. Wood

19 Ala. 213 | Ala. | 1851

DABGAN, C. J.

We can consider this bill in no other light than as one to redeem, filed by the assignee of the equity of redemption ; and the first question made by the assignment of errors is, whether the complainant has brought before the court all persons whom it was necessary to make parties defendants. The complainant, however, insists that the objection for the want of parties was neither taken by demurrer, plea or answer, and therefore it should not bo allowed, even if the bill was defective in this respect. The general rule is, that a defect for the want of parties defendants must be taken advantage of either by demurrer or plea, or it should be insisted upon in the answer.— Story Eq. Pl., § 541; 1 Dan. Ch. Pr. 334. And if the objection be not taken in one of these modes, the court may proceed to a final decree, unless the rights of the absent parties would be thereby affected. But in some cases the defect is fatal to the *215character of the bill, or to the relief sought by it, and the Court could not proceed to a final hearing and render a decree in conformity with the prayer of the bill, even if the defendant brought before the court made no objection to the want of proper parties. — Story Eq. PI. § 236. In England, there is a rule adopted upon the subject, which authorizes the court to make a decree saving the rights of absent defendants, if the court shall see fit, when the objection is not taken either by plea or demui" rer, or by the answer. — Dan. Ch. Pr. 338. But even under this rule, the court will not proceed to a final decree if the rights of those not made parties can be affected thereby. — Dan. Ch. Pr. 339, and authorities there cited. It is then only in those cases where relief may be granted without the probability of injury to the absent defendants, that the court will proceed to a final decree without making all persons interested parties defendants, unless the failure or omission to do so is justified by pome special reason. Even under these general rules, we think the court erred in proceeding to a final decree. By the deeds of mortgage, the legal title to the land was vested in the securities, Henry G. Woodward, Matthew Wood and John Casey, and before the party complainant can obtain a decree to redeem, he should bring before the court all the mortgagees in whom is vested the legal title. — Story Eq. PI. § 188. But if a special authority is vested in one or more of the mortgagees for the benefit of the whole, then it is apparent that they all have an interest in the exercise of this authority, and a decree taking it away must affect the interest of all, and therefore all must be made parties, or the bill will be so defective that the court should not proceed to a final decree, notwithstanding the objection was not taken until the hearing ; and if it does, the decree may be reversed by appeal or by writ of error. Again, if the mortgagee be but a trustee for another, the cestui que trust should be brought before the court as a defendant, unless some special reason bo shown why it is not necessary. Under this rule we think the Branch Bank at Montgomery should have been made a party defendant, for although the mortgage was intended to protect the securities, yet the debt was due to the Bank, and consequently they were but trustees in equity for the benefit of the Bank, or rather trustees to pay the debt, whether that was due to the Bank or to any one else. Thus it is a principle of equity that *216if A and B be bound for a debt to C, A as principal, and B as security, and A give B a mortgage to secure him, C, the creditor of both, may resort to the mortgage for the satisfaction of his debt.—McMahon vs. Fawcett et al. 2 Rand. § 514, and cases there cited. Now the bill as framed does not show that the -debt due to the Bank has been paid, and to render the Bank an unnecessary party, that should be alleged. From the fact that the Branch Bank at Montgomery is a necessary party, it follows that Mitchell should also be made a party. He is but the security of Willis Wood, and therefore interested in taking the accounts, and may resort to all the securities for his indemnity, that the Bank has from the principal debtor for the payment of the debt. To supersede the necessity of making the Bank or Mitchell parties, some reason should have been alleged in the bill; but none is, and the court erred in proceeding to a final decree without them. Without, therefore, examining any other question, we must reverse the decree of the chancellor and remand the cause, that the bill may be amended if the complainant sees fit to do so; for as the bill now stands, not only Casey, one of the mortgagees, but the Branch Bank at Montgomery and Mitchell, are all necessary parties as defendants.

Let the decree be reversed, and the cause remanded.

ChiutoN, J., not sitting.