Opinion.

pay E. C. Penn's share of this debt, and that, instead of doing this, P. C. Penn had paid only one third of the debts, and had taken an acquittance as to himself.

As to the demurrer for want of parties, the general rule on the subject was stated by Lord Hardwicke, in Madox v. Jackson, 3 Atk. 406, to be: When a debt is joint and several, the plaintiff must bring each of the debtors before the court, because they are entitled to the assistance of each other in taking the account; and for the further reason that the debtors are entitled to a contribution when one pays more than his share of the debt. But exceptions are there stated to this general rule, and that case was an instance of the exception to the rule, that being a case where there were three obligors, and suit was brought only against two, the other being dead, and insolvent, as stated in the bill, and the objection for want of proper parties was overruled.

In Calv. Parties, p. 11, are stated all the principles and many decisions touching this question, stating Lord Hardwicke's rule to be what persons are necessary "to make the determination complete, and to quiet the question." Poore v. Clarke, 2 Atk. 515, (1742,) cites another learned author as saying that "all concerned in the demand ought to be made parties in equity." Not all concerned in the subject-matter respecting which a thing is demanded, but all concerned in the very thing which is demanded--the matter petitioned for in the prayer of the bill; in other words, the object of the suit. The propriety of a person being made a party depends on his interest, not in the subject-matters, but the object of the suit. The word "interest," when used as the criterion of the proper parties of a suit, means interest in the object, not interest in the subject-matter. Upon the combination of all the authorities, the rule is stated thus: "All persons having an interest in the object of the suit ought to be made parties." Mr. Justice Story says: "All persons who are interested

*

Opinion.

in the object of the bill are necessary and proper parties. * *The exceptions will be found to be governed by one and the same principle, which is that, as the object of the general rule is to accomplish the purposes of justice between all the parties in interest, and it is a rule founded in some sort upon public convenience and policy, rather than upon positive principles of municipal or general jurisprudence, courts of equity will not permit it to be so applied as to defeat the very purposes of justice, if they can dispose of the merits of the case before them without prejudice to the rights or interest of other persons who are not parties, or if the circumstances of the case render the application of the rule wholly impracticable." Story, Eq. Pl., § 77. The rule is stated thus by the same author: "It has been said that persons are necessary parties when no decree can be made respecting the subject-matter of the litigation until they are before the court, either as plaintiffs or defendants; or when the defendants already before the court have such an interest in having them made parties as to authorize those defendants to object to proceeding without such parties."

In Lomax on Executors, p. 799, the general rule is stated in the language of Lord Hardwicke, in Madox v. Jackson, supra. There is no conflict, and but little variety, in the discussion of this question in any of the works. But the subject is difficult in application to the various circumstances that arise in the course of human transactions. Long ago the statute law has been so framed in Virginia as to relieve the question of much of its difficulty, and our Code provides that a creditor may compound or compromise with any joint contractor or co-obligor, and release him from any liability on his contract or obligation, without impairing the contract obligation as to the other joint contractors or co-obligors; and that, when this is done, the contract shall be credited with the full share of the party released, except in the case of a surety

Opinion.

or co-surety, when the credit shall be the amount paid; and that this shall not affect or impair the right of contribution between joint contractors and co-obligors. Sections 2856, 2857, 2859, Code Virginia. So that any right to contribution is saved to the co-obligors notwithstanding the release on the part of the creditor.

Now, in this suit, what was the object of the suit? To recover two thirds of this debt only. P. C. Penn had no interest in this. There was no demand or relief sought against him. He had discharged his obligations to the creditor. The creditor had no cause of action against him. Was there any right of contribution which the defendants would lose by his absence from the suit? All these rights are secured to them by the statute, and there was no reason to make him a party. He was not a necessary party, and, under the circumstances of this case, it is not clear that he would have been a proper party. This is the only question of difficulty in the case. As to the usury, this contract was payable in North Carolina, and was a North Carolina contract, and the usury laws of Virginia do not apply to it. And it does not appear to be usurious according to the laws of North Carolina, and is not alleged to be. It is evident that the contract is not a contract to be performed in the state of Virginia, because, upon its face, it is to be performed in North Carolina; and it does not appear to be, and is not alleged to be, illegal by the laws of the latter state. This disposes of Exception No. 1. And Exceptions No. 2 and No. 3 are not passed on by the court in the decree, which is interlocutory, and not final, and the case has been, as to these, recommitted to the commissioner for further inquiry and report.

There is no error in the decree appealed from, and the same must be affirmed.

DECREE AFFIRMED.

VOL. LXXXIX-33

Syllabus-Statement-Opinion.

Wytheville.

COLLUP V. SMITH.

July 6th, 1892.

1. WILLS-Revocation by subsequent conveyance.-By his will, executed in 1872, testator devised his real estate equally to his wife and his three children, in fee. Having been annoyed with law suits by his son-inlaw, he executed a deed in 1887, conveying his real estate to a trustee, in fee, for the sole benefit of his wife.

HELD:

The deed was a revocation of the will.

2. IDEM-Registry.—The deed, having been delivered in the grantor's lifetime, was valid, though not recorded until after his death.

Appeal from decree of circuit court of Smyth county, rendered August 27th, 1890, in the chancery cause wherein Thomas J. Smith and M. J., his wife, were complainants, and Sarah Ann Smith, widow, and Henry Collup and others, children of Adam Collup, deceased, were defendants. The decree being adverse to the defendants, they appealed. Opinion states the case.

A. M. Dickinson and F. S. Blair, for appellants.

John P. Sheffey, for appellees.

LACY, J., delivered the opinion of the court.

The bill was filed by the appellees to annul a deed executed by one Adam Collup to George W. Allison, trustee for Sarah Ann Collup, in words and figures following-to-wit :

"This deed, made this, the 8th day of July, 1887, between

Opinion.

Adam Collup, of the first part, and Sarah Collup, of the second part, and George W. Allison, trustee, of the third part, all of Smyth county, Virginia-witnesseth: That the said Adam Collup, party of the first part, has this day, for and in consideration of the sum of twenty-five hundred dollars, in hand paid by the said Sarah Collup, the receipt whereof is hereby acknowledged, bargained, sold, and conveyed and transferred to George W. Allison, trustee, for the sole use and benefit of the said Sarah Collup, all that tract of land situate in Smyth county, Virginia, on the waters of Holston river, being the tract of land upon which the said Adam Collup now resides, containing about one hundred and sixty-four acres, more or less, adjoining the lands of W. M. Copenhaver, John Fox, Henry Copenhaver, and the lands formerly owned by Jas. W. Sheffey, being a part of the tract of land willed to the said Adam Collup by his father, Adam Collup, the boundary of said land being specifically set out in said will. And it is agreed and covenanted between the said Adam Collup and Sarah Collup, and George W. Allison, trustee as aforesaid, that the said Sarah Collup is to have, enjoy, and receive and control the whole plantation as she may desire, with the aid and assistance of said George W. Allison trustee; and, should the said Sarah Collup desire to make any conveyance of said land, then the said trustee shall join with her in said conveyance; and the said Sarah Collup is to have and hold said tract or parcel of land free from the claims of all persons whomsoever, and the said Adam Collup warrants generally the lands hereby conveyed.

"Witness the following signatures and seals the date above written.

"ADAM COLLUP."

"Virginia, Smyth County-to-wit:

“I, A. M. Dickinson, a commissioner in chancery for the