#### Mills and wife, Respondents, vs. Morris and others, Appellants.

*May 16*

June *4, 1912.*

*Parties: Bringing in new defendants: Necessary parties: Executors and administrators: Husband and wife: Menial of successive motions.*

1. A motion to make the “estate” of a decedent a party to an action was properly denied where, at the time, there was no personal representative upon whom service could be made.

2. A note and mortgage given by the purchasers of land for a part of the purchase price were transferred by the vendor prior to her death. After such death the purchasers brought suit against the transferee, alleging a defect in the vendor’s title to the land, that the consideration for the note and mortgage had therefore failed, and that the transfer of the note and mortgage to defendant was a gift and without consideration; and praying that such securities be surrendered up and canceled. It was claimed by defendant and her husband that the securities were taken by her (with his consent) in settlement of an indebtedness of the decedent to them for care and nursing; that if the securities were canceled they would have a claim against decedent’s estate for such services; and that the decedent before her death gave to her relatives considerable sums which it would be the duty of her administrator to collect and apply on such indebtedness. *Held,*that it was not necessary to bring in the administrator of the decedent as a party defendant, either for his protection or in order to a complete determination of the controversy.

3. Although defendant’s husband also claimed that he expected to receive some benefit from the securities assigned with his consent to his wife, yet, there being facts before the trial court from which it might conclude that the moneys due for services rendered to the decedent were the separate property of the wife, there was no error in denying a motion that the husband be made a party.

4. A second and third motion to bring in an additional party may properly be denied where a final order has already been made denying the first motion, which the moving parties have made no attempt to vacate, modify, or set aside.

*278Appeal from orders of tbe municipal court of Outagamie county: Thomas IT. RyaN, Judge.

*Affirmed.*

Tbe complaint in tbis action sets forth that in February, 1910, the plaintiffs purchased two parcels of land from one Icybinda Spaulding, now deceased, for $3,700, paying $1,500 of the purchase price in cash and executing a note secured by a mortgage on the real estate purchased for the balance of the purchase price; that the lands purchased were conveyed by a deed containing the usual covenants of warranty; that at the time said purchase was made the grantor represented that she had good title to the premises conveyed and furnished an abstract showing that she had good title thereto; and that in making the purchase plaintiffs relied on said representations as to title and on said warranty deed. The complaint further set forth that one of the parcels of land so purchased was the homestead of the husband of the grantor, Spaulding, who died intestate in 1904, and that Ms widow, the plaintiffs’ grantor, claimed title to said homestead as the sole heir at law of her husband; that the homestead tract was worth $2,200, and that the other parcel of land, about wMch there is no dispute, was worth $1,500; that plaintiffs’ grantor was appointed administrator of her husband’s estate; that in support of her petition for the assignment of the residue of said estate she represented that her husband had a son *Adalbert Sptmlding*by a former marriage, but that he had disappeared for more than ten years and had not been heard from duilng that time, and when last heard from he was in British Columbia and that she believed him to be dead, and that she was the only heir at law of her deceased husband; that the defendant *Addie*Morris, who is a sister of plaintiffs’ grantor, also gave evidence of a like tenor on the hearing of said petition, and that both of said parties suppressed facts which should have been submitted to the court; that upon the evidence of said parties the plaintiffs’ grantor was adjudged to *279be the sole heir of her husband, and his estate, including the homestead, was assigned to her.

It is further alleged that plaintiffs’ grantor died in October, 1910, and that before her death she assigned and transferred to the defendant *Addie Morris*the note and mortgage referred to, and that said transfer was a gift and was without consideration, and that defendant *Md'frns*had notice of facts which would preclude her from claiming that she was a *bona fide*purchaser for value in due course. It is then alleged that ten days prior to the commencement of the action one *Hiram A. Spaulding*put in an appearance and claimed to be the son of the husband of plaintiffs’ grantor and the identical person referred to in the probate proceedings as *AdeTbert*Spaulding, • .and likewise claimed to be the o’wner of the homestead parcel •of land as sole heir of his father, and that plaintiffs verily believe that said *Hiram A. Spaulding*is the son and heir of Charles Spaulding, deceased. It is further alleged that the defendant *Addie Moms*is wholly”insolvent, and the relief prayed for is that she be enjoined from transferring the note and mortgage, and that the same be surrendered up.and canceled because the consideration therefor has wholly failed.

The answer of *Addie Morris*sets forth that plaintiffs purchased the lands with full knowledge of the fact that there might be a claimant to a part thereof, .and purchased them for a reduced consideration because of the known fact that the title might prove defective. She further alleges that she purchased the note and mortgage in suit for a full and adequate consideration. The defendant' *Hiram A. Spaulding*served an answer and cross-complaint in which he alleged that he was the son of Charles Spaulding, deceased, and asserted ownership to the homestead tract. Thereafter, *L. J. Morris,*the husband of the defendant, made an affidavit setting forth that the note and mortgage in suit were transferred to *Addie Morris*in consideration of services, care and nursing *280of said Icybinda Spaulding, and tbat be consented tbat such,, transfer should be made to bis wife and tbat be expected to-receive a benefit from tbe earnings of bis wife in this regard, and tbat be and bis wife bave a large claim against tbe estate' of said Icybinda Spaulding for tbe services rendered as aforesaid, and tbat be was a necessary and proper party to tbe action, as was tbe estate of said Icybinda Spaulding. His wife-made a like affidavit, and on these affidavits a motion was. made for an order making *L. J. Morris*and tbe aforesaid estate parties defendant. On November 2, 1911, this motion, was denied. On November 4th a second motion was made on. much the same showing, except it was alleged tbat tbe husband, was entitled to tbe compensation earned by bis wife in nursing said Icybinda Spaulding, and that tbe assignment of the-note and mortgage was taken in tbe name of *Addie Morris*with tbe consent of her husband for tbe benefit of both. This-motion was denied on November 9th. In tbe meantime a special administrator was appointed for tbe estate of Icybinda. Spaulding, and one *Dudley II. Pierce*was named as such administrator, and on November 10th a third motion was made-by *Addie Morris*and *L. J. Morris,*her husband, and said *Pierce*as special administrator’, tbat the two latter be made’ parties to tbe action, based on substantially tbe same showing, as tbat made on tbe former motions. This motion was denied on November 13th, and from tbe three orders entered on said1 motions *Addie Morris, L. J. Moms,*and *Dudley H. Pierce-*appeal.

Tbe cause was submitted for tbe appellants on tbe brief of' *Humphrey Pierce,*and for tbe respondents on tbat of *John-Bóllensele.*

Barites, J.

Tbe questions for decision are: (1) Did the-court err in refusing to make “tbe estate of Icybinda Spauld-ing” and tbe special administrator of her estate parties de*281fendant? (2) Did tbe court err in refusing to make *L. J. Morris,*tbe busband of tbe defendant *Addie*Morris, a party defendant ?

We apprehend that there can be no doubt that tbe motions to make tbe “estate” a party defendant were properly denied. When these motions were made there was in existence no executor or administrator or any person on whom service could be made. Tbe theory on which it is claimed that tbe administrator is a necessary party is this: It is averred that Icy-binda Spaulding was indebted to *Mrs.*Morris, or to her and her busband, in a large sum for care and nursing; that such services were worth the amount of the note and mortgage, and that if these are held void and canceled the *Morrises*will have a legitimate claim against the estate for tbe value of such services; that Mrs. Spaulding distributed considerable money in gifts among her relatives before her death which should be used in paying debts if there were any, and in tbe event of tbe note and mortgage being held void it will be the duty of tbe administrator to collect such money from tbe distributees, to tbe end that it may be applied in payment of the debt which was supposed to be paid by the transfer of tbe note and mortgage. It is further claimed that the administrator has a valid defense to this action because tbe plaintiffs assumed the risk of tbe son and heir of Charles Spaulding making claim to tbe property purchased, by paying a reduced consideration therefor because of tbe eventuality which has occurred.

It is not claimed that the administrator has any defense to the plaintiffs’ cause of action that is not available to tbe defendant *Addie*Moms, so she is not injured in this regard by a failure to make tbe administrator a party. Counsel states that a complete determination of .the controversy cannot be had without tbe presence of the estate of Icybinda Spaulding' and that such estate is vitally interested in the controversy. Counsel fails to point out the reasons which support these *282statements. The controversy is over tbe right of the plaintiffs to have a note and mortgage canceled which plaintiffs assert was given without any consideration. The holder and legal owner of that note and mortgage is made a party defendant, and we fail to see why this controversy cannot be settled without the presence of the administrator of the estate of Mrs. Spaulding. Neither do we perceive why it is necessary to make the administrator a party for his protection. Under sec. 2610, Stats. (1898), tire court is required to bring in additional parties when a complete determination of the controversy cannot be made without them or when they have such an interest in the subject matter of the controversy that their due protection requires that they be brought before the court. Neither situation is presented in this case in so far as the administrator is concerned.

The practice pursued in endeavoring to make *L. J. Morris■*a party defendant shows persistency to say the least. After an order was made denying the first motion counsel proceeded to ignore its existence and promptly applied for a second one, and after that application was denied, without asking to vacate either of the existing orders, made a third application. When the first application was before the court, it appeared fi’om the answer of *Addie Morris*and also from her deposition under sec. 4096, Stats., that the note and mortgage in suit were given to her in payment of services rendered by her for Mrs. Spaulding. It appeared from the affidavits filed by her and her husband in support of the motion that the note and mortgage were assigned to the defendant *Addie Morris*with the consent of her husband, and the only claim the latter makes in reference thereto is that he expects to receive some benefit from his wife from the proceeds of the security. There were facts before the court from which it might conclude that the assignment was made in payment of a debt due the wife and which was her separate property, or that if the *283husband had any claim against Mrs. Spaulding he made a gift to his wife of the amount due. Technically the court might have denied the second and third motions on the ground that there was a final order already made which the moving parties had not attempted to vacate, modify, or set aside. But we think the subsequent orders must stand when considered on the merits. The shifting of positions such as was made here should not be encouraged, and the court might well conclude that the one first taken was in accordance with the fact. Even after the shift was made, it is, to say the least, doubtful if the affidavits filed do not show that the money due for the services rendered for Mrs. Spaulding were the separate property of the wife. So approaching the question of the right of *L. J. Morris*to be made a party defendant from several different viewpoints, it is apparent that the order refusing the relief asked should not be disturbed by this court.

*By the Court.*— The orders appealed from are affirmed.