#### RICHARD TEN BROECK *v.*WILLIAM H. ORCHARD.

In an action for the recovery of land under the Code of Civil Procedure, the defendant, may set up an equitable defence to the claim of the plaintiff who has the legal title; and till persous interested in such equitable defence, should be made parties, and not driven to assert their rights by a separate action.

Civil ActioN in the nature of ejectment, tried before his Honor, Judge *Schenck,*at Pall Term, 1875, of Cab arrus Superior Court.

*410Tbe plaintiff moved tbe court to strike out a portion of tbe defendant’s answer, setting up a counter-claim as a bondholder of tbe Pbosnix Gold Mining Company.

Tbe motion was allowed and tbe defendant excepted. Tbe defendant then moved tbe court to make all tbe otlier bondholders parties. The motion was overruled and tbe defendant appealed.

All other facts necessary to an understanding of tbe case as decided, are stated in the opinion of tbe court.

*Shipp*& *Bailey*and Montgomery, for appellant.

*Barringer*and *Wilson c& Son,*contra.

RodMAN J.

Tbe plaintiff claims title to certain mineral lands, and that the defendant is in possession, and unlawfully withholds it from the plaintiff after a demand. Defendant admits that plaintiff has tbe legal title, and that be went into possession under plaintiff as his agent or tenant. On this answer, tbe plaintiff would be entitled to judgment in a court of law, and under our former system tbe defendant would have been driven to assert bis equitable rights in a court of equity. Under our present system be can have tbe benefit of any equitable defence in tbe first action. Tbe defendant alleges as an equitable defence, that a company called the Phoenix Gold Mine Company, owned tbe lands. The Company issued bonds to enable them to work the mines, and convoyed all its real estate to Jacobson in trust, to secure tbe bonds and other debts of tbe Company. That defendant became the bolder for value of certain bonds of tbe Company and also otherwise its creditor. It is not distinctly stated that these debts were secured by tbe deed to Jacobson. Jacobson died, Stagg was appointed trustee in bis place, and be sold to tbe plainfiff to bold, as we understand tbe answer, for all the creditors of tbe Company, but certainly in trust to secure the debts to tbe defendant. In part performance of this trust, *411and under an agreement with the plaintiff which it is not material to state fully, the defendant took possession of the lands. The plaintiff denies the particular agreement alleged by the defendant, and that the debts to defendant are secured upon the land, and does not claim to hold on any trust whatever.

Taking the defendant’s answer as true for the present, no doubt a trustee, in trust to sell and pay creditors, is entitled to the possession of the property against any or all of the-creditors, and to its management and the receipt of the rents and pioíits *;*because they *aie ncc.cssmj*to carry out the purposes of the trust, and the creditors have no equitable estate in the land, but only a right to the proceeds. That is the case when lie admits the trust and seeks the aid of the court in executing it. The case, however, is different when he denies the trust and claims the equitable as well as the legal estate for himself. In that case the mere possession of the legal estate will not be conclusive. The action will be considered as between rival claimants to the equitable estate, and the defendant in possession will not in general be ejected, (although he be but one of several equitable claimants,) until the rights of the parties can be determined. This is in analogy to the proceedings in the action of ejectment at law. It is true that defendant docs not claim any equitable title to the land in himself, but he denies any title to the plaintiff except upon a trust which the plaintiff denies. In such case, “ *utelior est conditiopossif/witú.”*If a case exists for the appointment of' a receiver, such as is provided for in sec. 215 of C. C. P., the court in which the action is pending may appoint one.

To refuse to the defendant the benefit of his eqxiity in this action, and thereupon adjudge the possession to the plaintiff' upon his legal title only, would compel the defendant to assert his equity by a separate action, and would be an unnecessary, circuity.

If the defendant can assert his equity in this action, it is-*412•■clear that the otber secured creditors are at least proper parties in order that there may be a complete adjustment of the matters in controversy, and that they may have an opportunity to protect their interests. To this end the case will be remanded.

Property, by analogy to a plea in abatement for want of .parties which must give the plaintiff a better writ, the defendant should have named the creditors whom he desired to be made parties, or given such a description of them as to have enabled the plaintiff to cause service of a summons on them personally, or otherwise as required when the parties are very numerous, or unknown, or non-resident.

If the Judge had refused the defendant’s motion on this .ground, we should have been disposed to concur with him. Rut in his absolute refusal we think he erred.

Let this opinion be certified.

Pee Cueiam. Judgment reversed. Case remanded.