Williamson v. Field.

"The question of parties is usually more or less fluctuating and open for discussion. It is governed, in some degree, by circum stances; whereas, the principle that those persons who are interested in the subject, and are not made parties to the suit, are not bound by the decree, is more steady in its operation, for it is founded on natural right."

The defendants contend however that this case is an exception to the general rule. That the circumstance that the trustee was a party, and represented the legal estate as well as the ultimate remainder, was sufficient to bring the rights of the children before the court, and enable it to dispose of the whole subject intelligibly. And this was especially the case, it is said, because the infants were quasi wards of court by reason of the acts of the legislature and the orders of the court thereupon; and the master in chancery, who under those orders was bound to protect their interests, was also a party to the foreclosure.

It is conceded to be the general rule, that if the equity of redemption is vested in a trustee in trust, the cestuis que trust must be made parties to the foreclosure. All the books agree in this. (Story's Eq. Pl. § 193, 197, 207. Calvert on Parties, 181, 182. Gore v. Stackpoole, 1 Dow's P. C. 18, 31, per Lord Eldon.) The only established exception, is in cases of remote limitations of the equity of redemption; in which, on account of the impossibility of bringing in parties not in esse or not ascertained, but who ultimately may become entitled, it is held sufficient to bring before the court the persons in esse who have the first estate of inheritance, together with the persons having all the precedent estates and prior interests.

In this case no person was made a party who had a vested estate of inheritance, or who had the first estate of inheritance in the mortgaged premises. I speak now of the substance, not forgetting that the trustee had the naked legal title.

The case of Nodine v. Greenfield, before cited, (7 Paige, 544,) shows the rule where there are successive estates in the equity of redemption; but in that case there was no trust. The Eagle Fire Insurance Company v. Cammet, (2 Edw. Ch. R. 127,) was a similar case.

In Calverley v. Phelp, (6 Madd. 229,) the general rule was en

Williamson v. Field.

forced in a case falling far short of this in the necessity of its application. The equity of redemption had been conveyed to trustees to sell and divide the surplus among persons specified, and the receipt of the trustees was to discharge the purchasers. It was held that the cestuis que trust were necessary parties to a bill brought to foreclose the mortgage. (And see Holland v. Baker, 3 Hare's Ch. R. 68; Barkley v. Lord Reay, 2 ibid. 306; Wilton v. Jones, 2 Y. & C. Chy. Cases, 244.) (a)

In Yates v. Hambly, 2 Atk. 238, (cited by the defendants,) on a bill to redeem, which presents an analogous case, Lord Hardwicke required the first tenant in tail at least to be brought in; and his language shows he would have required it if the conveyance had been in trust with a plain limitation.

In short, the general rule required that these children of T. B. Clarke should be made parties. No authority has been found which dispenses with the necessity of bringing the beneficiaries before the court under such circumstances. Common sense and common right required it. And in no conceivable case, could it be more important to the ends of justice, than in the one before me, where those intrusted with the care of this property, had exhibited so much looseness, if not recklessness, in regard to the interests of the owners of the inheritance.

The cases and treatises cited in support of the omission of the children, do not come up to the point.

The doctrine of representation stated in Mr. Calvert's Treatise, (p. 19, 20.) has no application; as may be seen by referring to what he says of trustees and cestuis que trust. (Calvert, 207, &c.)

Nor are the extreme cases any guide, in which from the multitude of parties in interest, the courts have hesitatingly and in a

(a) In Anderson v. Stather, June 27, 1845, before Sir Knight Bruce, V. C., where the mortgagor conveyed the equity of redemption to trustees, in settlement for his daughter on her marriage, out of which she was to receive an annuity, and the trustees were to raise out of the same a sum of money for the children of the marriage; it was held that the daughter and her children were necessary parties to a suit for the foreclosure of the mortgage. (9 Lond. Jur. Rep. 806; 14 Law Journal, N. S., Chancery, 377; 2 Eq. Rep. 245.)

Williamson v. Field.

few instances, suffered some of the parties, having the same degree or extent of interest, to prosecute or defend for the whole.

Suits for administration, form a distinct class, in which legatees, creditors, &c., come in after decree, and participate in its fruits. Drew v. Harman, (5 Price, 319,) was suffered to go off on that principle, although a questionable application of it.

It is true that in our practice, we permit a party who assails a deed of trust on the ground of fraud, to proceed against the trustee alone; yet it is not permitted where the complainant is endeavoring to enforce a claim adverse to the interests of the cestuis que trust, but which is founded upon the assumed validity of the deed. (Rogers v. Rogers, 3 Paige, 379.)

I do not perceive that the complainants rights could be any more affected by a decree of the Court of Chancery to which they were not parties, because the court had previously interfered with their property in obedience to the special acts of the legislature; or because a master of the court, who acted in that behalf under the orders stated in the pleadings, happened to be vested with T. B. Clarke's life estate, and was for that cause made a defendant in the foreclosure suit.

Nor does it aid the defendant's case, that T. B. Clarke was the natural guardian of these children, or that he was in effect their special guardian for the management of the estate. Their case is presented in all its strength, by the fact that he was their trustee and vested with the whole legal title; and this as I have shown, does not suffice.

It is said also that Mr. Field was a purchaser in good faith under the decree, without notice, and the court having compelled him to take the purchase, ought to protect him.

Assuming that he was such a purchaser, it does not affect the question. A decree had been made, which was a nullity as to the complainants. The court, knowing nothing of this, and Mr. Field's counsel having failed to discover it and present it to the consideration of the court, made an order to complete the sale. Such order was indeed a matter of course upon the case presented by the master's report, under the Chancellor's view of the authority of T. B. Clarke. If the court guaranteed the titles made under its sales, or undertook to the public that none but good

Williamson v. Field.

titles should be sold under its decrees, the argument would have force. But the court holds out no such inducements to purchasers. At most, it will refrain from compelling a bidder to take a defective ti le, on his pointing out the defect or impediment.

It becomes my duty to hold that the rights of the complainants were not foreclosed or affected by the decree in favor of Mapes and Oakley.

III. The validity of the mortgage is the next point in the cause. The complainants insist that it is invalid and entirely void because, 1. the acts of the legislature on which it was based were unconstitutional, 2. the orders of the Court of Chancery were not in conformity with the acts, and 3. the mortgage was not in pursuance of the orders of the court.

The first of these objections has been overruled in our court of last resort, and my conclusion upon the others relieves me in a great measure from the painful responsibility of examining them at large.

When Mr. Field refused to complete his purchase, Chancellor Kent decided distinctly, that T. B. Clarke was authorized to mortgage the premises in question, for the debt and under the circumstances set forth in Mapes and Oakley's bill. Although this decision is not conclusive upon the complainants, it is binding upon me as the judgment of the then head of the court, and no less as the judicial opinion of one of the purest and ablest chancellors that ever administered the principles of equity.

The bill of Mapes and Oakley states that they were merchant tailors, and that T. B. Clarke became indebted to them in $1000 for wearing apparel furnished by them to and for Clarke and his children from the 15th of January, 1815, to October 16th, 1818, which is the date of the mortgage; and that the mortgage was given to secure its payment.

So far as the facts proved in this suit sustain that statement, I must hold the mortgage to be valid under Chancellor Kent's decision, without any examination of the soundness of his conclusion. As to the other consideration proved, it will depend upon its own merits, unless it be within the principle of that decision.

Williamson v. Field.

At the date of the mortgage, as I construe the testimony, Clarke owed to Oakley, on an account commencing January 20, 1815, $171; and $150 25, besides interest, on a note given January 10, 1815, for a previous account, running from May, 1813. And he then owed to Mapes and Oakley a balance of book account of $273 77. All these accounts were for wearing apparel for Clarke and his children, although but a small proportion was for the latter. As to the orders for clothing drawn by him in favor of third persons, I will not after this lapse of time, say that they were not given for necessaries obtained for himself and his family. Nor can I perceive any reason why Chancellor Kent's principle does not cover the debt incurred in 1813 and 1814, as well as that in the subsequent years.

These items amount to $595 02, and with the interest on the note after six months, make an aggregate of about $630 for which the mortgage is to be deemed clearly valid.

For the remaining consideration, Mapes and Oakley gave to Clarke on the 19th May, 1819, their note for $158, and in the meantime they had furnished to him clothing amounting to $158 50. There was moreover an account against Clarke, cotemporary with the prior tailor's bills, for cash lent to him in trifling sums; and this account doubtless made up the balance of the $1000.

I will consider Chancellor Kent's decision as extending to the cash thus advanced. But it does not cover the note or the clothing delivered after the mortgage was executed.

As to the latter, it is plain that the orders of the court did not confer upon Clarke an authority to mortgage his children's lands for clothing thereafter to be furnished either to him or them.

Then as to the note, (and in considering it I do not go back of the orders made under the acts of the legislature,) the most favorable view of the transaction is that at the time of giving the mortgage, Mapes and Oakley verbally agreed to advance in cash whatever balance there might be of the $1000, after deducting their old note and book debts; and that seven months afterwards, they gave their note for such balance. I cannot presume that the verbal agreement was for any definite sum in cash, because the balance was only obtained subsequently by deducting the