Noyes v. Sawyer

The facts in this case sufficiently appear from the following opinion of the Court, delivered by Paddock, J. Breed Noyes, Charles Hubbard and Elisha Jewett, being joint partners in trade, and Willis C. White and Abel White, being indebted to them in sundry promissory notes, for the purpose of securing the ultimate payment of them, and to give security to the said Noyes, Hubbard and Jewett, for such further sums as the said Willis and Abel mightbe indebted to them, the said Willis C. White executed to the said Breed Noyes, a mortgage deed of certain real estate therein described. After-wards, Willis C. White deeded his equity of redemption to William P. Sawyer, the present defendant, against whom Breed Noyes brought this bill in his own name, to foreclose the equity of redemption. To the bill thus brought, the defendant demurred, for that Hubbard and Jewett were not joined as orators in the bill. In order that this Court may be enabled to do complete justice by deciding upon and settling the rights of all persons interested in the subject of the suit, it is necessary that all such persons should be parties to the bill, whether plaintiffs or defendants ; otherwise, the Court may not be able to make such a decree as will do complete justice between them or those interested in the subject matter of the bill.—1 Har. Ch. 76; Mitford, 133. In this case Hubbard and Jewett ought to have been joined, they having a joint interest with the orator in the sum which shall be found due on the mortgage by the master. It is no reason for not joining them that the mortgage was executed to Noyes alone : it was taken for the benefit of all, and the money ought to be decreed to all of them. However, we never send a plaintiff out of Court when his bill may be made good by amendment; therefore, the orator may amend by joining Hubbard and Jewett with him, and paying the defendant’s fees of this term.