#### Clark v. Long.*

August, 1826.

Chancery Practice — Who 5hould Be Parties — Want of Parties — How Advantage Taken.† — All persons materially interested in the subject in controversy ought to be made parties in equity: and if they are not, the defect may be taken advantage of, either by demurrer, or by the Court at the hearing.

Same — Bill to Redeem Mortgage — Necessary Parties.— Therefore, the nurchaserof an equity of redemption, cannot file a bill to redeem against the mortgagee, without making the mortgagor a party.

Clark filed a bill in the Chancery Court of Lynchburg, against Long and Crews, stating, that the complainant, to save himself from heavy losses, from debts due to him from Penn, and from endorsements for the said Penn, took a conveyance of an estate, called the Grove, containing 1000 acres: that the complainant has paid the said Long, as executor of Penn, for the said land, leaving a large unsatisfied balance due to him: that at the time of the conveyance, Long, as executor of Brydie, had a claim for $2000, according to his own mode of settlement, but, the complainant was assured, by the said Penn, that if the account was fairly settled, not one farthing would be due; and he also remarked, that this claim was, originally, a,n usurious one, and that some sort of lien had been given on the land; but no further information was given on this point. The complainant expressly charged usury in the transaction bitween Penn and Brydie: that he has paid the said Long $1341 33 cents, on account of the said incumbrance, but declined paying more, until he could be *furnished with a statement of the amount actually and bona fide due: that the land has been advertised for sale, under the deed of trust executed to Crews, for the benefit of the said Long, to secure the debt aforesaid: that the said deed was not recorded in proper time, &c. He, therefore, prayed that the sale might be injoined, &c.

Long denied the usury, and entered into a detail of circumstances, to prove the legality of the contract with Penn, and of the conveyance of the land, to secure the said debt: that it is true that the said deed was not recorded in proper time; but, he submits it to the Court, whether it is not good against the complainant from the time it was recorded : that if he be mistaken in this, then, he conceives that the complainant admits that Penn gave him notice of the trust deed and bond, and he must, therefore, be considered as a purchaser with notice, &c.

The accounts were referred to a Commissioner, a report made, exceptions filed, and evidence taken.

The Chancellor decreed, that the injunction should be dissolved, as to a certain sum, and made perpetual, as to the residue. Prom this decree, the plaintiff appealed.

Leigh, for the appellant.

Johnson, for the appellee.

*

For monographic note on Parties, see end of case.

†

Chancery Practice — Who Should Be Parties — Want of Parties — How Advantage Taken of. — It is a general rule that all parties interested in the subject matter of the suit must be made parties in equity, and this rule is founded on the reason, that courts of equity aim to do complete justice, by deciding upon and settling the rights of all persons interested in the subject matter of the suit, so that the performance of the decree of the court may be perfectly safe to those who are compelled to obey it, and also-that future litigation may be prevented. James River & K. Co. v. Littlejohn, 18 Gratt. 82, citing principal case as authority and in Pappenheimer v. Roberts. 24 W. Va. 708, it is said: “It is a general rule in equity that all persons interested in the subject matter, involved in the suit, who are to be affected by the proceedings and result of the suit, should be made parties however numerous they may be. and if they are not made parties, and their interest appears upon the face of the bill, the defect may be taken advantage of either by demurrer or upon the hearing: and if it appears on the face of the record that the proper parties are wanting, the decree will be reversed by the appellate court unless theobjection was waived in the court below. Hill v. Proctor, 10 W. Va. 59; *Clark v. Long,*4 *Rand.*451; Shepperd v. Starke. 3 Munf. 29; Barton’s Ch. Pr. § 84; Story’s Eq. Pl. § 76.”

To the same effect, the principal case is cited in Buck v. Pennybacker, 4 Leigh 11; James River & K. Co. v. Littlejohn, 18 Gratt. 84; *foot-note*to Taylor v. Spindle, 2 Gratt. 44; *foot-note*to McDaniel v. Baskerville, 13 Gratt. 228; Richardson v. Davis. 21 Gratt. 706, 709; *foot-note*to Sexton v. Crockett, 23 Gratt. 869; Armentrout v. Gibbons. 25 Gratt. 375; Ragland v. Broadnax, 29 Gratt. 422; Echols v. Brennan, 99 Va. 154, 37 S. E. Rep. 786; Hill v. Proctor, 10 W. Va. 78; Sinder v. Brown, 3 W. Va. 146; Hinchman v. Ballard, 7 W. Va. 187; Boggs v. McCoy, 15 W. Va. 347; Burlew v. Quarrier, 16 W. Va. 143; Moore v. Jennings, 47 W. Va. 181, 34 S. E. Rep. 796.

August 9.

JUDGE CARR.

It is the constant object of Courts of Equity to do complete justice, by deciding and settling the rights of all persons interested in the subject of the suit, so as to make the performance of the order of Court perfectly safe to all those who are compelled to obey it, and to prevent future litigation. Por this purpose, all persons materially interested ought to be parties, plaintiffs or defendants, however numerous they may be, that a complete decree may be made between them; Mitf. Pl. 144, 145; and though the defect *of parties be a ground of demurrer, yet if the party fails to demur, the Court may take notice of the defect at the hearing. There are many cases where this Court have reversed the decree and sent the cause back for the want of proper parties. *177In Wilcox v. Calloway, 1 Wash. 38, it is tlecided that where an attempt is made to subject land in the possession of a purchaser with notice, to an equitable lien, the person under whom such purchaser claims, or his legal representatives, ought to be made parties to the suit. In Duval v. Bibb, 4 Hen. *&*Munf. 113, it is said that the vendee or his legal representatives ought to be parties to a suit in Chancery, brought by the vendor against a subsequent purchaser, to recover a balance alleged to be due from the vendee. In Lewis v. Madison, 1 Munf. 303, it is laid down, that in a suit in Chancery to recover land, against a vendee, on the ground that the vendor had previously agreed to convey the same land, in a certain event, to the plaintiff, the vendor or his legal representatives ought to be made parties. Many more cases might be quoted. In Shephard’s ex’r v. Starke, &c. 3 Munf. 29, it is decided that if it appear on the face of the record that proper parties to the suit are wanting, the decree will be reversed, unless the objection was expressly relinquished in the Court below.

In the case before us, it appears that.J. Penn, being indebted to Long, executor of Brydie, executed to trustees a deed of trust conveying his tract of land called the Grove, to secure the payment of the said debt. The bill states, that Penn after-wards sold and conveyed this land, (or the equity of redemption, rather) to the plaintiff, Clark; but even of this, there is no evidence in the record. The deed, said to be executed to Clark, is not filed; nor is there any party before the Court, so authorized to waive the production of that deed, as to bind Penn by the waiver. But, taking it for granted, that the deed actually exists, the plaintiff is the purchaser of an equity of redemption, and files his bill to redeem, impeaching the consideration of the *deed of trust, contesting the amount due under it, and calling for a settlement of all these points. Is not Penn interested in these questions? Suppose we were to decide that the contract was not usurious, and that there was a balance of $2000 due on the deed of trust. Would this decree bind Penn? Suppose he were afterwards to shew, that there was no deed to Clark, or that the deed was naught. Could he not rip up all that we might do in this suit? Could he not try over again the question of usury with Long, and also, the question of the balance really due on the trust? I should think so.

I am, therefore, of opinion, that the decree should be reversed, and the cause sent back for proper parties.

The other Judges concurred, and the decree was reversed, and the cause sent back.*

*

The President and Judge Coalter, absent.