The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-12-04

| collation. Of the title. It IL necessary to
have coupled with II another cause not
OF an equitable nature. the trial of
which Is not controlled by n chan
cellor.
Proceeding to the consideration of the
point raised by the demurrer and rails
ed in the argument. that there Is a ce-
feet In parties. The plaintin. after
naming her co-tenants In the statement
Of the second action. alleges: That by
reason Of the number of said persons
Interested as enants in common with
this plaintiff. and owners as tenants in
common with this plaintiff OF the said
Pacific quartz lode mining claim. the
said tenants in common ave not been
made parties to this action. but plain
tin alleges that this action has been
Instituted for her own benefit, as well
as for the benefit Of each and every OF
said persons. tenants in common with
the said plaintiff in the said real es-
tate"
1t appears from the authorities that
the tendency of the courts is towards
iiberality in entertaining actions and
defences prosecuted by parties for
themselves n as representative OF
others interested. where the facts n
circumstances shown by the pleadings
warrant such procedure, and the code
of civil procedure OF this state. in sec
ton $50 thereof. provides therefor.
From the adjudication of cases, IL
appears, the question whether or not
a cause. or q defense. ought to be pros
ecuted by n representative for others
Interested and not appearing before the
court, depends upon the facts and cir
cumstances of each particular case: and
SO on In this case. the question whether
the court should permit the plaintiff to
prosecute the action. not only for ner-
4 anlf h,. orra.,A o.>
whom she alleges to be ~co-tenants with
her. or to require them to be brought
into court and answer for themselves
personally. X their rights are to be ad-
Indicated. should be decided by a cor
sideration OF the facts involved as
shown by the complaint.
1t appears from the complaint that
plaintiffs interest Is alleged to be hve
one hundred and ffty-fourths (5-15D OF
seventeen thirty-seconds Q7-32) of the
property in question. There are IS or
10 persons alleged to be
thereof. 1t is a mining claim. for which
the estate OF Andrew J. Davis re-
ceived ninety thousand $3.50. 0o0) dollars.
1t is not known. nor is IL necessary
to consider at this stage of the case
what terms Inc conditions the court.
exercising equity powers. should or
would impose pom the plaintiff n her
and the administrator OF
said estate. IL they were mad parties,
as to the return of said purchase price.
or otherwise, as a condition upon which
a decree woul be entered. cancelling
the title of defendant, in case such de-
termination should be reached. except
that II is proper to advert to that mat
ter in considering the question as TO
whether the court SHOULD require all
the parties interested to be brought in.
in person. and appear for themselves,
IL their interests are to be affected
by this adjudication. And in view Of
the facts and conditions presented in
this case. ard considering the compar-
atively small number of persons inter-
ested as tenants in common, the court
holds that IL is not warranted i'm liti-
eating h rights and interests of the
persons alleged to be CO.
tenants through representation
by the plaintiff: and. further.
that the administrator. into whose
hands said purchase price is shown to
have come, ought also to be a party
to such an action. If this were a case
where a ~co-tenant was seeking on her
own behalf. and on behalf OF co-ten-
ants. to protect property against
wrongful invasion or injury by a party
without color of right or title. II would
present an altogether different consii-
Grafton and would undoubtedly call for
a different ruling: but in the case here
a very large sun of money appears,
from the complaint. to have passed to
the estate mentioned. as consideration
for the title and possession alleged 10
be held by the defendant. Unde the
provisions of section $50 OF the code Of
civil procedure, plaintiff, as a tenan in
common, may, IL she choose, prosecute
her independent action OF her alleged
rights in said property. and others may
join. IL they see Mt. or. perhaps, be
made defendants IL they refuse to
join.
The court does not hold that there is
a defect of parties by reason of the
omission 20 make the other co-tenants
parties. AS to them. n attempt of
plaintiff to represent their interests
will be d~isregarded. But the court does
hold that. under the facts and condi-
tons presented In this case. the admin
i~strator OF said estate is a necessary
party. and that there is a defect OF par
ties in the omission to make such ad-
ministratOr a party.