where the assignment did not convey a legal title, and especially where an accounting or other settlement of matters in dispute between the assignor and the defendant was necessary in order to ascertain the amount of the plaintiff's demand.1 § 365. In an action virtually of accounting by one partner against another to recover the plaintiff's share of the assets or profits, and, a fortiori, when the action is confessedly one for accounting, all the partners must be defendants.2 This special rule assumes that there has been no settlement, no balance ascertained and agreed upon, so that a simple action at law could be maintained therefor by one partner against another, but the situation is such that an action for an accounting is the only relief given by the law. In such equitable action all the partners are necessary parties. A partnership being engaged in the business of buying and selling lands, for purposes of convenience had all the titles taken in the name of one member of the firm. He died, being at the time thus the apparent owner of lands which were actually firm property. An action by the survivor for an account and settlement was properly brought against the heirs, widow, and administrator of the deceased; these persons were all held to be necessary parties.3 § 366. VII. Actions for a Specific Performance. It is the established rule of equity procedure that, in the ordinary and direct action to compel the specific performance of a contract for the sale of lands, the parties to the contract themselves, or the persons who have become substituted in their place, as the heirs and, under certain circumstances, the executors or administrators, are the only proper parties plaintiff or defendant. A suit for the purpose of obtaining this special relief cannot be combined with a cause of action for relief against other persons claiming an interest in the same land; in other words, this action cannot be made to determine the titles of other claimants, nor to foreclose the liens of subsequent incumbrancers. 1 Story's Eq. Pl., § 153, and notes; 1 Dan. Ch. Pl. (4th Am. ed.), pp. 197199, and notes; Miller v. Bear, 3 Paige, 467, 468; Whitney v. McKinney, 7 Johns. Ch. 144; Trecothick v. Austin, 4 Mason, 41-44. This well-settled rule 3 Gray v. Palmer, 9 Cal. 616. 4 Tasker v. Small, 8 My. & Cr. 63, 68, per Lord Cottenham, Chan.; Mole v. Smith, Jacob, 490, 494, per Lord Eldon, Chan.; Wood v. White, 4 My. & Cr. 470; Robertson v. Great Western R. R. Co., 2 Duck v. Abbott, 24 Ind. 349; Set- 10 Sim. 314; Fagan v. Barnes, 14 Flor. tembre v. Putnam, 30 Cal. 490. 53, 57; Knott v. Stephens, 3 Oregon, 269. has, however, been departed from by some State courts. Thus, in a case decided by the Supreme Court of Minnesota, a contract to convey land had been given, and the vendee had gone into possession. Subsequently to the execution of the agreement and the change of possession, certain persons had recovered judgments against the vendor, which they claimed to be liens upon the land. These judgment creditors were held to be proper defendants in the suit for a specific performance brought by the vendee for the purpose of cutting off their rights of redemption, it being assumed that their liens were subordinate to the vendee's rights.1 And it was held by a recent case in California that, in an action to compel the specific performance of such a contract, the land being an undivided share of a specific tract, all persons subject to the vendee's equities, and holding adversely to him, must be made defendants.2 - - § 367. In a somewhat peculiar case recently decided by the Supreme Court of New York, a person holding a subsequent and adverse claim to the plaintiff was declared to be a necessary defendant to a complete determination of the issues. The action being brought to procure the specific performance of a land contract made between the plaintiff and the defendant, the complaint alleged that the defendant had made a subsequent contract to convey the same land to F., and prayed an injunction restraining defendant from making a conveyance to F. Upon this allegation and prayer for relief, it was held that such subsequent vendee was a necessary party.3 Where the vendor has died, and the In Tasker v. Small, mortgagees of the land were held to be improper defendants. In another case, a tenant of the vendor in possession was declared an improper party. All persons interested in the subjectmatter of the action as holders of the legal or equitable titles to the premises in question were declared to be necessary parties, plaintiff or defendant, in McCotter v. Lawrence, 6 N. Y. Sup. Ct. 392, 395. 1 Seager v. Burns, 4 Minn. 141, 145, per Emmett J. The judge made no suggestion of a doubt whether these creditors were proper parties. The whole discussion turned upon the question whether the general allegation of the plaintiff, that they "claimed an interest," &c., was enough. They were likened by the court to junior incumbrancers in a mortgage foreclosure. None of the authorities last cited were mentioned. 2 Agard v. Valencia, 39 Cal. 292. This case is somewhat peculiar, and the facts are exceedingly complicated. The decision certainly seems to conflict with the general rule as established by equity courts, and as stated in the text. 3 Fullerton . McCurdy, 4 Lans. 132. When A. agrees to convey to B., and afterwards conveys to C., who has notice of the prior contract, C. is a necessary defendant in an action by the original vendee to compel a specific performance. Stone v. Buckner, 12 Smedes & M. 73; Daily v. Litchfield, 10 Mich. 29; Spence v. Hogg, 1 Coll, 225. vendee brought his action against the sole heir at law of the deceased, but conceded in his complaint that the entire purchasemoney had not been paid, and averred a tender and a readiness to pay, the administrators of the vendor were held to be necessary defendants in New York. It would appear from the reasoning of this case that its decision is confined to the single case in which the vendor has died before the purchase-money has been entirely paid, and in which the same remains unpaid up to the time of commencing the action. If the purchase price has been paid in full, either to the vendor during his lifetime, or to his administrators after his death, then his heirs would seem to be, in general, the only necessary parties defendant, his personal representatives not then having any interest in the controversy.2 In the face of a statute providing that an action for a specific performance of a land contract may be brought against the executor or administrator of a deceased vendor, and that other parties are not necessary but may at the discretion of the court be brought in, the Supreme Court of Iowa has held that such personal representatives are not necessary but only proper parties; that in the absence of the statute the heirs of the vendor are the only proper or possible parties; and that the language of the statute being permissive, it will not be construed to make the administrators or executors necessary defendants.3 1 Potter v. Ellice, 48 N. Y. 321, 323. Hunt C. J. said: "It is difficult to say that this action is well brought, the administrators of Ellice [the vendor] not being made parties defendant. The heir of Mr. E. holds the legal title in trust to convey the same to the vendee upon performance of the conditions of the contract. He is a mere instrument, having no real interest in the matter in a case where the contract is performed. The administrators are the real parties in interest. Both by the statute and the common law the interest in the contract passes to them. They are the parties to whom the money is to be paid, and who have the entire beneficial interest in the contract. Their discharge or receipt is a necessary muniment to the vendee. They are the parties who not only receive, but who are to settle, or contest, as the case may be, the amount to be paid by the vendee in fulfilment of his contract." 2 All the heirs of a deceased vendor are necessary defendants in the action. House v. Dexter, 9 Mich. 246; Duncan v. Wickliffe, 4 Scam. 452. 3 Judd v. Mosely, 30 Iowa, 423, 427. The action was by the vendee against the heirs only of the deceased vendor. The defendants demurred, relying upon the statute, and claiming that the administrators should have been the defendants, and not the heirs. The court made no allusion to the question discussed in Potter v. Ellice, the payment of the purchase price; nor does the report show whether the price had been paid or not. When a vendee dies, and the vendor sues for a specific performance, the personal representatives are the primary defendants, since they pay the purchase price ; but the heirs are also necessary defendants, since the conveyance by the vendor will be made to them; but if the vendee has devised all his interest under the contract, the devisees § 368. In an action against the vendor to compel the specific performance of his contract, the plaintiff united with him as codefendants the holders of two prior mortgages embracing the land agreed to be conveyed which had been given by the vendor, alleging in his complaint that the vendor had agreed to pay off and remove these mortgages, and that they included other lands in addition to that claimed by the plaintiff which were sufficient to satisfy the demand secured thereby, and praying that the mortgagees might be compelled to sell such other lands first. The New York Court of Appeals, however, held that these mortgagees could not be joined as codefendants in the action. When in the contract for the sale and conveyance of land the vendor appointed a certain person as his agent to make and deliver a deed in his name to the vendee, and directed the agent to execute and deliver the same, and neither the vendor nor the agent complied with the terms of the agreement, an action brought against the vendor and the agent as codefendants was held to be improper, and the agent was declared not to be a proper party in any aspect of the case, since he had no interest in the controversy adverse to the plaintiff.2 Land had been sold at execution sale, and afterwards redeemed in alleged compliance with the statute which prescribes the manner of redemption. The purchaser denying the validity of the redemption, brought an action against the sheriff alone to compel an execution and delivery of the deed, and this action was held insufficient; it should have embraced the person who made the redemption, and who claimed to hold the land by virtue. thereof, as a codefendant with the sheriff.3 are the necessary codefendants with the personal representatives. Story's Eq. Pl., §§ 160, 177; Champion v. Brown, 6 Johns. Ch. 402; Townsend v. Champernowne, 9 Price, 130. If the vendor sues the heirs alone of the deceased vendee, the latter can insist upon the administrators being brought in. Story's Eq. Pl., § 177; Cock v. Evans, 9 Yerg. 287. The vendor and the vendee having both died, the heirs and widow of the latter brought a suit against the devisees of the vendor to whom the land had been devised, and the parties were all held to be proper in Peters v. Jones, 35 Iowa, 512, 518. See cases cited by Miller J. at page 518. 1 Chapman v. West, 17 N. Y. 125. It will be seen that here was an attempt to unite two entirely distinct causes of action, one for a specific performance against the vendor, and the other for the marshalling of the securities against the mortgagees. These causes of action were completely independent of each other. If the plaintiff was entitled to the relief he demanded against the mortgagees, he could obtain it as well in a second action after the conveyance to him; and if the vendor had agreed to pay off these incumbrances, their amount could be allowed to the plaintiff in reduction of the purchase price, although the holders of the liens were not parties to the action for a specific performance. 2 Dahoney v. Hall, 20 Ind. 264. 3 Crosby v. Davis, 9 Iowa, 98. Where § 369. VIII. Actions to quiet Title. The nature of the action to quiet title is such that it is impossible to lay down any but the most general rule in relation to its parties defendant. The very object of the proceeding assumes that there are other claimants adverse to the plaintiff, setting up titles and interests in the land or other subject-matter hostile to his. Of course all these adverse claimants are proper parties defendant, and if the decree is to accomplish its full effect of putting all litigation to rest, they are necessary defendants. Originally, and independent of statute, this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or when one person repeatedly asserted his single title by a succession of legal actions all of which had failed, and in either case the object of the suit was to settle the whole controversy in one proceeding. The action has, however, been greatly extended by statute, especially in the Western States, and is there an ordinary means of trying a disputed title between two opposite claimants. The general scope of these statutes is as follows: The plaintiff must be in possession claiming an estate in the lands. The adverse claimant or claimants must be out of possession, and must assert a hostile title or interest. In this condition the possessor of the land, without waiting for any proceeding legal or equitable to be instituted against him, may take the initiative, and by commencing an equitable action may compel his adversaries to come into court, assert their titles, and have the controversy put to rest in the single judgment. It is plain, therefore, that this statutory suit is the converse of the legal action of ejectment. The action to quiet title is not, however, confined to the ownership of lands; its use is multiform; it may be invoked to determine conflicting rights over personal property, and even rights growing out of contract where a multiplicity of actions depending upon the same questions will thereby be avoided. I shall now give some illustrations of the action and of its different forms. It the vendee subcontracts, there is a distinction depending upon the nature of the sub contract. If A. agrees to convey to B., and the latter in turn agrees with C. that the conveyance shall be made by A. directly to him, C., - then C. must be joined with B. in the action, primarily as a plaintiff, but if not, then as a defendant; but if the agreement between B. and C. is that B. will convey the land to C., then B. is the only necessary party in the action against A. Alexander v. Cana, 1 DeG. & Sm. 415; Chadwick v. Maden, 9 Hare, 188; B- v. Walford, 4 Russ. 372. |