Lemmon v. Dunn

Campbell, C. J., delivered the opinion of the court. The question in dispute is whether J. W. Fowler is a necessary party to the suit, without whom a decree cannot be made. It is true, as counsel for appellants contend, that the court will not require a party to be brought into the suit merely to enable the defendant to exhibit a cross-bill against him, but if a necessary party is omitted the court will decline to proceed until he is joined as a party to the suit. This is a bill by the trustee and beneficiaries in a junior deed of trust to enjoin the trustee in a senior deed of trust from selling [212] land by virtue of tbe power conferred by it, on the allegation that the senior deed is void for an insufficient description of the land. The trustee and beneficiary in the senior deed are made defendants. The grantor in both the deeds of trust (Fowler) is not a party to the suit, and the court declined to proceed without making him a party. This was right. It is by virtue of a deed of trust alleged to have been executed by Fowler that complainants assert a right to relief, and the relief sought is against a sale by the trustee under a deed of trust executed by him. He has an interest in the subject-matter and object of the suit, and although the only relief sought is to prevent a sale by the trustee under the senior incumbrance, all parties in interest should be brought before the court, with a view to a settlement: of all controversy in this suit. The object of the bill is to arrest the execution of the power of sale by the agent of the grantor without giving that grantor an opportunity to contest the matter. This is not allowable. We pretermit any expression of opinion on the manner in which the question of the necessity of making Fowler a party was presented, since he is so necessary a party that, even at the hearing, the court might refuse to proceed with the cause until he was made a party. Decree affirmed.