unless he consents thereto, cannot be omitted. When a suit is brought to recover the possession of real or personal property the person in possession is not a formal party. Where policy holders sued to enforce their rights against assets transferred to insurance companies, with whom they had not contracted, and the bill also prayed relief against funds deposited by some of the corporation defendants with the State auditor; it was held that his absence would not prevent the grant of the rest of the relief which the complainants sought.8

§ 119. Parties whose interest is separable. The second class is not so easy to define; and it is difficult to mark the limits between this and the third class of parties who are always indispensable. It includes all having an interest in the controversy so far separable from that of those before the court that a decree can be made and enforced which disposes of the matter in dispute between the latter without affecting their rights.1

Thus, a trustee or director or executor beyond the jurisdiction has been held properly omitted in a suit against his colleagues for a breach of trust, or for an accounting. For a trustee's liability is joint and several. One of the next of kin may sue

1015; Walden v. Skinner, 101 U. S. 577, 588, 25 L. ed. 963, 967; Bacon v. Rives, 106 U. S. 99, 27 L. ed. 69; Jackson v. Jackson, C. C. A., 175 Fed. 710, 717.

6 Ward v. Arredondo, 1 Paine, 410; Mills v. Hurd, 32 Fed. 127.

7 Mass. & So. Const. Co. v. Cane Creek Tp., 155 U. S. 283, 39 L. ed. 152.

8 Watson v. National Life & Tr. Co., C. C. A., 162 Fed. 7.

§ 119. 1 Cameron v. McRoberts, 3 Wheat. 591, 4 L. ed. 467; Mallow v. Hinde, 12 Wheat. 193, 6 L. ed. 599; Gridley v. Wynant, 23 How. 500, 16 L. ed. 411; Horn v. Lockhart, 17 Wall. 570, 21 L. ed. 657; Nesmith v. Calvert, 1 Woodb. & M. 34. This section in the fourth edition is cited with approval in Cady v. Barnes, 208 Fed. 350, 369-361, per Killits, J.

2 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatchf. C. C. 345; Hazard v. Durant, 19 Fed. 471, 476; Plume & A. Mfg. Co. v. Baldwin, 87 Fed. 785; Bay State Gas Co. v. Rogers, 147 Fed. 557, where it was not charged that the omitted trustees had shared in the money, as to which an accounting was prayed. Williams v. Brady, 232 Fed. 740. But see Wall v. Thomas, 41 Fed. 620.

3 Parsons v. Howard, 2 Woods, 1, 5; Heath v. Erie Ry. Co., 8 Blatchf. 347.

4 Payne v. Hook, 7 Wall. 425, 19 L. ed. 260. See, however, West v. Randall, 2 Mason, 181; Wisner v. Barnet, 4 Wash. C. C. 631, 642; Greene v. Sisson, 2 Curtis, 171.

an administrator and his sureties; and a legatee,5 at least if not a residuary legatee, may sue an executor to recover his share of a decedent's estate without joining the rest of the class to which he belongs. In a suit by a legatee to enforce an order to an executor to pay a specified sum to him and to reach land which the executor had fraudulently conveyed, it was held that a co-executor was not an indispensable party. It seems that the executor of a dead debtor need not be a party to a bill brought by a creditor of the estate to obtain payment out of assets in the hands of a legatee.

One of several tenants in common is not an indispensable party to a suit by another against a stranger, to establish the plaintiff's interest in the property.9

"In suits to execute the trusts of a will, it shall not be necessary to make the heir at law a party; but the plaintiff shall be at liberty to make the heir at law a party where he desires to have the will established against him." 10

It has been held: that an heir at law, whose presence could oust the jurisdiction, may be omitted from a suit by another heir, to set aside a deed and will by their common ancestor, and to recover the plaintiff's share of the common property.11 In a suit against the trustee to set aside a residuary request to him it was held that the beneficiary of the trust including a legatee whose bequest was conditioned upon the trust fund exceeding a

5 Dandridge v. Washington's Ex'rs, 2 Pet. 377, 7 L. ed. 457. See West v. Randall, 2 Mason, 181.

6 See McArthur v. Scott, 113 U. S. 340, 395, 28 L. ed. 1015; Braduin v. Harpur, Ambler, 374; Hawly v. Harvey, 4 Beav. 215; s. c., 5 Beav. 134.

7 Fraser v. Cole, C. C. A., 214 Fed. 556.

8 Mulligan v. Milledge, 3 Cranch, 220, 2 L. ed. 417.

9 Martin v. Fort, 83 Fed. 19, 27 C. C. A. 428; Williams v. Crabb, 117 Fed. 193, 54 C. C. A. 213, 59 L.R.A. 425; North Carolina Mining Co. v. Westfeldt, 151 Fed. 290, 296; Allred v. Smith, 135 N. C. 443, 452,

47 S. E. 597, 65 L.R.A. 924; Browne v. Browne, Fed. Cas. No. 2,035 (1 Wash. C. C. 429).

10 Eq. Rule 41, copied from Eq. Rule 50 of 1842. It has been held: that the heirs of a decedent, who hold a beneficial life interest in, and a power of testamentary appointment over, certain property, are not indispensable parties to a suit against the representatives of the trustees to enforce the rights of the complainants to the same. Martin v. Fort, 83 Fed. 19, 27 C. C. A. 428.

11 Williams v. Crabb, 117 Fed. 193, 54 C. C. A. 213, 59 L.R.A. 425. See Jennings v. Smith, 242 Fed. 561.

certain sum, were proper but not indispensable parties.12 The mortgagor is not an indispensable, although he is a proper, party to a bill to collect a mortgage from a purchaser who has assumed it, when, before the bill is filed, the mortgaged property was sold upon the foreclosure of a prior mortgage; 13 nor are the heirs of the mortgagor indispensable parties to a foreclosure suit, when the bill and answer show that the entire interest in the premises has passed to the defendant; although the bill alleges that it passed by descent at the death of the mortgagor, and the answer that the defendant had acquired it by purchase.14 Subsequent lienors are not indispensable parties to a foreclosure. 15 Where the title to part of the mortgaged premises had passed to a sovereign, who could not be sued, and all the other parties in interest were joined; it was held, that the court could except the land so conveyed, decree a sale of the balance and enter a deficiency judgment, if the proceeds of the sale were insufficient.16 Persons in possession of the property, as agents of a defendant, are not indispensable parties to a foreclosure suit.17

It has been held: that the pledgee of corporate stock is not an indispensable party to a suit to determine the title to the same; provided that its citizenship would defeat the jurisdiction; and that the court may, in its decree, protect the interests of the pledgee, by declaring the stock to be subject to the same lien, if any, that it had at the beginning of the suit.18 It has been held that neither a State, nor any of its officers, is a necessary party to a suit by an executor to compel a corporation to transfer to him stock standing in the testator's name, with a claim for

12 Atwood v. Rhode Island Hospital Trust Co., 255 Fed. 162.

13 Kelly v. Ashford, 133 Fed. 610, 626. But see Skinner v. Harker, 23 Colo. 333. Supra, § 112.

14 Cooper v. Johnson, 157 Fed. 104.

15 Brewster v. Wakefield, 22 How. 118, 129, 16 L. ed. 301; Union Bank of Louisiana v. Stafford, 12 How. 327, 13 L. ed. 1008; New Orleans C. & B. Co. v. Stafford, 12 How. 343, 13 L. Ed. 1015; Howard v. Rail

way Co., 101 U. S. 837, 25 L. ed. 1081; Nalle v. Young, 160 U. S. 624, 40 L. ed. 560. See supra, § 112; Continental & C. T. & S. Bank v. Corey Bros. Const. Co., C. C. A., 208 Fed. 976.

16 Kawananakoa v. Polyblank, 205 U. S. 349.

17 Golden Cross Min. & Mill. Co. v. Free Gold Min, Co., C. C. A., 154 Fed. 441.

18 Edwards v. Mercantile Trust Co., 124 Fed. 381, 389.

damages because of the delay, although the stock is subject to a lien for an inheritance tax.19

It has been held that the mortgagor is not an indispensable party to a suit by the mortgagee to enjoin the enforcement against the mortgaged property of unconstitutional legislation,2 20 or to enjoin a municipality from repealing a mortgage franchise,21 or to a suit by the mortgagee, 22 or by the bondholders, 28 to enjoin trespasses on the mortgaged property by striking employees of the mortgagor, and even that such bondholders need not allege a previous demand for the institution of such a suit by the mortgagor or by their trustee.24 To a bill to enjoin trespass upon land, the person under a contract with whom the trespassers claim the right to use the land is not an indispensable party.25

The early English cases hold: that in a suit against a firm, by strangers, a partner beyond the jurisdiction may be omitted if no injustice will be done him by a decree in his absence; 26 but the American authorities do not support this in all cases.27 It has been held that in a suit by one partner against another for an account of money received by the defendant in excess of his share of the firm assets, partners beyond the jurisdiction may be omitted if it appears that each has received his full share of the joint property, 28 and that a partner, whose sole interest is

19 Jessup v. Chicago & N. W. Ry. Co., 188 Fed. 931.

20 Knickerbocker Tr. Co. v. City of Kalamazoo, 182 Fed. 865; City and County of Denver v. N. Y. Tr. Co., C. C. A., 187 Fed. 890.

21 Denver v. Mercantile Trust Co., C. C. A., 201 Fed. 790. But see Consol. Water Co. v. City of San Diego, 89 Fed. 272; s. c., C. C. A., 93 Fed. 849.

22 Ban v. Columbian Southern Ry. Co., C. C. A., 117 Fed. 21; ex parte Haggerty, 124 Fed. 441, infra, § 276.

23 Carter v. Fortney, 170 Fed. 463, where the trustee does not seem to have been a party, although the objection for not joining him appears not to have been raised.

24 Carter v. Fortney, 170 Fed. 463. 25 Paint Creek Co. v. Gallego Coal & Land Co., C. C. A., 166 Fed. 62.

26 Cowslad v. Cely, Prec. Ch. 83; Darwent v. Walton, 2 Atk. 510; Calvert on Parties, Book III, ch. xxiii; Smith v. Consumers' CottonOil Co., 86 Fed. 359; Vose v. Philbrook, 3 Story C. C. 335. Cf. Per kins v. Hendryx, 127 Fed. 448; s. c., 149 Fed. 526, 529; Lawrence v. Rokes, 53 Maine, 110.

27 Raphael v. Trask, 194 U. S. 272, 48 L. ed. 973; Parsons v. Howard, 2 Woods, 1; Bell v. Donoughue, 17 Fed. 710; Mudgett v. Gager, 52 Maine, 541. See § 120, infra.

28 Towle V. Pierce, 21 Met. (Mass.) 329; Kilbourn v. Sunder

a share of the joint profits of a contract, is not an indispensable party to a suit by another member of the firm, to foreclose a mechanic's lien for the gross amount due.29

A subcontractor who has fraudulently collected money from the United States may be sued at law to recover this without the joinder of the contractor, although the latter at the former's instigation made the fraudulent representations.30 "The owners of partial interests in contracts for land, acquired subsequently to their execution, are not necessary parties to bills for their enforcement. The original parties on one side are not to be mixed up in controversies between the parties on the other side, in which they have no concern." 31 An heir may file a bill for the specific performance of a contract entitling his ancestor to purchase land without bringing in the personal representative of his ancestor, provided that he offers himself to provide for the payment of the puchase-money.32 Specific performance of a contract for the sale of land may be enforced against one of several joint tenants without joining the others with him as defendants.33

land, 130 U. S. 505, 32 L. ed. 1005. But see 120, infra.

29 Ex parte Haggerty, 124 Fed. 441. Where the business of the firm was conducted by two houses, and those who managed one house had assigned their interest to the managers of the other; it was held: that the former, who filed a disclaimer, might be made defendants, and that their citizenship, which was the same as that of the principal defendant, did not defeat the jurisdiction. Poole v. West Point Butter & Cheese Ass'n, 30 Fed. 513.

30 U. S. v. Salisbury, 157 U. S. 121, 39 L. ed. 642.

31 Mr. Justice Field in Willard v. Tayloe, 8 Wall. 557, 571, 19 L. ed. 501, 505. But see Hoxie v. Carr, 1 Sumner, 173. It has been held: that, to a suit by an assignee of part of the rights under a contract to compel specific performance of

the same, the owners of the other parts are necessary parties under the old Chancery rule; but not indispensable parties under the rule of the Federal courts, Rogers v. Penobscot Min. Co., C. C. A., 154 Fed. 606, 616. A party to a contract, who has received a release, Dodge v. Frank Waterhouse & Co., 156 Fed. 57; or one who has released his interest, Canal Co. v. Gordon, 6 Wall. 561, 18 L. ed. 894, is not an indispensable party to a suit to enforce the same.

32 Prout v. Roby, 15 Wall. 471, 21 L. ed. 58.

33 Stephen v. Beall, 22 Wall. 329, 22 L. ed. 786. It has been held, that a corporation, which is not a party to a contract for the conveyance of certain property thereto, is not an indispensable party to a suit compel specific performance, Rogers v. Penobscot Min. Co., C. C.

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