Stockwell v. Wager , 30 How. Pr. 271 ( 1865 )

By the court, Ingalls, J.

Under the Code, pleadings are to be construed favorably to the pleader. In the complaint it is substantially alleged that the assignment and foreclosure of the mortgage, and the purchase of the premises by Calvin Wager, were all at the instance of and for the benefit of the defendant, and for the fraudulent purpose of divesting the title of the plaintiffs,- and that Abram Wager and Calvin Wager were in fact merely instruments by which the defendant-accomplished the result. Such is a fair construction of the complaint. Hence the real controversy is between the plaintiffs and defendant, and the title to the premises alone is involved. The relief may-consist in a direction that the defendant convey the premises to the plaintiffs, subject to the Ensign mortgage, and upon such further condition as the court may interpose. Or the court may set aside as fraudulent the foreclosure proceedings. I fail to perceive how Abram Wager or Ensign can be necessary parties in any event. If it be assumed that Abram Wager purchased the mortgage in good faith, he has parted with all his interest and received his pay, and is bound by no covenant, and should not be embarrassed by the controversy. If on the other hand, as is alleged, he was a mere instrument of the defendant to perpetuate the fraud, then surely the plaintiffs should not be compelled to make him a party where the only relief is claimed against the defendant. As to Ensign, his rights are expressly protected, as the relief claimed is subject to his mortgage,.which is his only claim. The Code (§ 122) provides: “The court may determine any controversy,

between the parties before it when it can be done without prejudice to the rights of others, or by saving their rights." This controversy can be determined without making Abram Wager or Ensign parties. If the defendant purchased in good faith, and the transaction is free from fraud, he will be protected, and it is wholly, .unnecessary that any other persons should be made parties to enable the defendant to establish the defence,-if it exists. If on the other hand, the defendant has been guilty of fraud which should, invalidate the transaction, he alone is called'upon to answer, and the premises which are the subject of the controversy are in his possession, and neither Abram Wager or Ensign claim any interest therein save the mortgage of Ensign, which is protected.. '

In Hillman agt. Hillman (14 How. 459),' decided by this court, Justice Harris remarks: “A party sued, may undoubtedly insist that another party ought also to be sued with him. - But to sustain a demurrer on this ground, it must appear. that .the party demurring has,-.an interest in having such other party made defendant. Asa general'rule. the plaintiff may choose for himself what persons he will make defendants. So far as it can, without prejudice to, the rights of others, the court will detei’mine the controversy between the parties before it, and when it cannot be done it will take measures to have the necessary parties brought in. It is not often that a demurrer will lie for a nonjoinder of defendants ” (same page). “ Before the defendant can sustain a demurrer on account of a non-joinder of a defendant, he must show that his interest requires that he should, be made a party to the litigation.”-

Newbold agt. Warren (14 Abb. 85), Mason, J., sajrs : “It ’ is only where the defendant has an interest himself in another’s being made a defendant that he can demur for want of parties. It must appear that his interest requires that such other party should be made defendants before he can demur.” It is clearly settled that although the court perceives that there are persons who should be made parties in order to a complete determination of the controversy, yet unless it is made affirmatively to appear that the party demurring is to be prejudiced by the omission to make such parties defendants, the demurrer must be overruled. The remedy is not by demurrer, but by motion, or the court can voluntarily order such parties joined in the action, where the necessity arises. Now in this case, what possible interest has the defendant in having either Abram Wager or Ensign made parties ? . His case cannot be improved thereby, and if not, then upon this ground alone the demurrer fails. The defendant is in possession of the premises, claiming title which he has not derived from Abram Wager, to whom he has not paid a farthing, and from whom in no event can he receive a farthing. His title comes from Calvin Wager, who, it' is not pretended by the defendant, is a necessary party.

It is barely possible when the defendant answers, it may be discovered that other persons should be joined as defendants, in which event section 122 prescribes the remedy, which is the order of the court, and not a demurrer. The difficulty with the defendant’s case arises from an attempt by demurrer to compel the joining of parties defendant, when it is apparent that his right in this litigation cannot be affected by their absence from the record. Why should Abram Wager, be made a party ? He claims nothing, and no relief is demanded against him. And there is nothing in the complaint to show that the defendant pretends that he has any claim against him which can be the subject of investigation in this action. Assume that to grant adequate relief the foreclosure proceedings must be set aside, it certainly does not follow that the defendant has any interest in having Abram Wager made a party defendant, as he has no possible claim against him. It is not the province of the defendant to protect Wager; that belongs to the court, and when it becomes necessary can order him made a party.

I therefore conclude that the order overruling the demurrer should be affirmed, with costs.

Peckham, J., concurred.

Hogeboom, J., dissented.