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Hickock v. Scribner.

creed to be paid by the appellants to the respondent; but that the same be so modified and altered as to dispense with the security thereby required.

Judgment of affirmance.(a)

Ezra HICKOCK, Appellant, against THOMAS SCRIBNER,

Respondent.

A. being indebted to B. on the 230 March, 1787, assigned to him, as security

for the payment of the debt, certain lands and a lease in see, for the same. B. executed a bond to A., conditioned, that in case the debt and interest were paid on or before the first of June, 1788, he would reassign the lease and premises to A. and give him a receipt for the debt. The debt not being paid at the time, B. took possession of the premises under the assignment, in July, 1792, and assigned his interest in the lease and prenuises to C. and D., who touk possession thereof. A. afterwards brought a bill to redeem the premises, on the ground that the transaction between him and B. amounted to a mortgage, and on appeal from the decree of the court of chancery, it was held, that C. and D. ought to have been made parties to the suit, and that the decree of the court below, for that reason, was reversed, with liberty to the respondent to have his bill dismissed in the court below, or to aniend it, by adding all proper parties; and in that case, the evidence taken to stand, as between the present parties, saving all just exe

ceptions, and that each party, in this court, pay his own costs. In a suit in equity, the bill must call all necessary parties, who may be affected

by the demand, before the court. If, upon the face of the bill, it is apparent, that any whose rights may be affected are not made parties, the defendant may demur, or if the want of parties do not appear, he may plead it. If it be disclosed by the answer, the complainant m.y immediately amend, by adding the proper parties. Per Radcliff, J.

(a) A party holding money against the will of the owner is chargeable with interest, though he has a set-off, and the amount due from bim was not liquidated before bringing the action. (Greenly v. Hopkins, 10 Wend. 96.) See also, in support of the rule of the principal case, Williams y. Sherman, 7 id. 109; People v. Gusherie, 9 Johns. 71; Board of Justices v. Fennimore, Coxe, 242; Rapelje v. Emory, 1 Dallas, 349; Wood v. Robbins, 11 Mass. 501; Dickenson v. Legare, 1 Desaussure, 537 ; Stoughton v. Lynch, 1 Johns, Ch. 167

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Hickock v. Scribner.

The court is, at all times, vigilant in requiring proper parties against whom

its decrees are to operate. It will arrest the proceedings in any stage of the cause, in order to obtain them, and will not finally decree, if the want of parties appear on the hearing of the cause. If it does, the decree may be reversed, and if not reversed, yet none but such as were parties to the suit, and their representatives, can be bound by it. Per Radcliff, J.

This case came before the court, on appeal from the de

cree of the court of chancery. [*312) *A preliminary question was raised, and to which

the arguments of the counsel and the decision of the court were confined, namely, whether all proper parties to the suit were before the court below?

It is unnecessary, therefore, to state the facts in the case, further than may be sufficient to understand the point decided.

Thomas Scribner, the respondent, being indebted to Ezra Hickock, the appellant, in the sum of 1431. 18s. 9d. on the 23d of March, 1787, assigned to him, as a security for the payment of that debt, certain lands in the patent of Kayaderosseras, together with a lease in fee, which he held for the same. Hickock thereupon executed to Scribner a bond, in the penalty of 4001., conditioned, that, in case the debt, with interest, was paid, on or before the first day of June, 1788, he would reassign the lease to Scribner, and pass his receipt for the debt. On the 19th of January, 1789, the debt and interest being unpaid, the parties in this cause, and John Mahony, who was then in possession of the premises, entered into articles of agreement, by which the parties to this suit, Hickock and Scribner, jointly covenanted, that Mahony should keep and remain in quiet possession, until the 15th of November, then next ensuing, of a certain saw-mill, (part of the premises,) and which is described in the covenant as lately the property of Scribner, and then the property of Hickock; and Mahony, on his part, covenanted, among other things, to allow Scribner the liberty of sawing logs until the time above mentioned, when he was to deliver the saw-mill to Hickock. Hickock, by his agent, accordingly received

Hickock v. Scribner.

possession of the mill, and, on the 9th day of July, 1792, in consideration of the sum of 2001., released his right in the premises to Darling Hickock and Daniel Boardman. Great improvements had been made upon the premises, since the date of the articles of agreement, the extent or effect of which it is not necessary here to state. The respondent brought his bill *in the court below, to redeem the (*313] lands, on the ground that the original transaction was to be deemed a mortgage, and that no subsequent transaction had taken away his right of redemption.

In the bill to redeem, Darling Hickock and Daniel Boardman were not made parties. The appellant, in his answer, disclosed the sale to them, and objected, on the hearing of the cause, in the court below, that they were not made parties, which objection was overruled; and the court below, in its decree, ordered that the appellant deliver up to the respondent the mortgage deed, to be cancelled, and also the possession of the premises; but no notice was taken, in any order or decree in the court below, of the assignees of the appellant.

The cause was argued by
Hoffman, for the appellant, and by
Emott and P. W. Yates, for the respondent.

RADCLIFF, J. The facts necessary to be noticed, in order to decide the preliminary question, which has been discussed, are briefly as follows:

The respondent, on the 23d of March, 1787, being indebted to the appellant, in the sum of 1431. 18s. 9d. assigned to him as a security for the payment of this debt, a certain lease, under which the respondent then held the premises in question ; and the appellant, at the same time, executed to the respondent a bond conditioned, that if the debt, with the interest should be paid by the first of June, 1788, the appellant should reassign the lease to the respondent; that the money not being paid to the appellant, in the year 1789, as stated by the respondent, or in January, 1789, as alleged by him, took possession of the premises under the assignment. The

Hickock v. Scribner.

respondent contends that the assignment and bond must

be considered as one transaction, and as creating a [*314) mortgage *of the estate only. The appellant insists

that it was not a mortgage, and that if it was, he took possession in pursuance of a new agreement, by which the respondent relinquished all title to the equity of redemption, and that he, the appellant, accepted the premises in satisfaction of his debt. This agreement is also denied, and presents a question on the evidence merely, which I think it is unnecessary now to determine. It further appears, that subsequent to the assignment, to wit, on the 16th of July, 1792, he again assigned the lease to his son, Darling Hickock, and his son-in-law, Daniel Boardman, who then were and since have been, in possession of the premises, claiming them under that assignment. I state this fact to appear, independent of its being alleged in the answer of the appellant, because it is admitted that an original assignment of similar import, was agreed by the counsel in writing, to be read in evidence in the court below, and that the copy now produced was afterwards there read, and used before the master and auditors, as a substitute for the original, which was said to be lost or mislaid, and the copy comes up regularly among the other proofs in the cause. It is, therefore, properly in evidence. To this it is answered, that the assignment to Hickock and Boardman was not bona fide ; but accompanied with full notice of the situation of the appellant's title and therefore collusive and void. It was rightly admitted, that if made bona fide, and the assignees received it without such notice, they would stand in the light of innocent purchasers, and ought not to be affected by any secret condition attending the previous assignment to the appellant.

On this state of the case, without entering more minutely into the testimony, I am of opinion that the decree was erroneous and ought to be reversed : 1. Because Hickock and Boardman, and the several other

persons holding an interest derived from the assign*315) ment to them, ought to have been made parties to 'a

Hickock v. Scribner.

suit, in which the complainant claims the redemption and seeks a reconveyance of property vested in them. If they were apprized of the appellant's title, as a mortgagee merely, and a fraud existed, they were parties to the fraud. It is obvious that the decision of this question must immediately affect their rights. If settled in favor of the respondent, it goes to establish a fact which at once delermines their title to the estate. It was, therefore, necessary to make them parties. I am not inclined to look for authorities in support of an opinion on this point. I consider it a maxim of natural justice, and of universal law, an axiom, not now to be proved, that no man ought to be affected in his rights by the judgment or decree of any court, without an opportunity of being previously heard in his defence. Hickock and Boardman, the assignees of the appellant, and the numerous other persons claiming under ther, have not had this opportunity. Hickock and Boardman, at least, are inplicated in the charge of fraud. It is immaterial what may be our opinion as to *this charge, on the evidence now before us. It is sufficient that it is made and litigated between the parties. Hickock and Boardman have an equal right to answer it, to meet it with proofs, and to defend the title for themselves. The case is still stonger, as it respects the other persons claiming under them. I believe they are not immediately charged with a knowledge of the fraud, nor can it be presumed, that at the time of their becoming interested, they were all apprized of the situation of the appellant's title. They, therefore, may be innocent purchasers, and in that case ought not to be disturbed by the decree. If the respondent had not sought to redeem the mortgage, and to obtain a reconveyance and possession of the premises, a decree might probably have been made against the appellant for the value of the premises, deducting the amount of the mortgage, and improvements, &c. on the principle, *that the title [*316] had been conveyed to innocent purchasers, without notice, who could be affected. So also on an assignment of the premises, without the consent of the mortgagor, he Vol. III.

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