Harlow v. Mister

Cooper, C, J., delivered the opinion of the court. This is a bill filed by the appellee against the appellant to foreclose in equity a deed of trust in which the property sought to be subjected was conveyed to M. K. Mister, trustee, with authority to sell in default of the payment of the debt secured. The trustee is not made a party to the cause, and this was made ground of demurrer in the court below. This demurrer was overruled, and further proceedings having resulted in a final decree, the defendant appeals and assigns for error the action of the court in overruling the demurrer. The demurrer should have been sustained. Catlett v. Bacon, 33 Miss. 269 ; Hill v. Boylan, 40 Miss. 618. In Green v. Gaston, 56 Miss. 752, where no exception had been taken in the court below to the failure to make the trustee a party, this court upon that ground and because the legal title of the trustee had probably become barred by limitation and complete justice had been done to those beneficially interested, refused to reverse the decree of the lower court. But here the objection was taken in the court below, and the complainant should have amended his bill. The decree will he reversed, the demmrer sustained, and the complainant directed to amend his hill by maldng the trustee a party thereto, otherwise the hill shall he dismissed.