to recover the specific property.100 So if, instead of seeking the annulment of a contract procured through fraudulent misrepresentations, the injured party elects to sue for the damages sustained in consequence of such misrepresentations, his remedy is at law and not in equity.101 And the same applies to an action on a warranty contained in the contract or conveyance. 102 But it is said that an action by the buyer of a warranted machine, brought after he had returned it, against the vendor and his guarantor, claiming a recovery of a greater amount than the selling price, is one for rescission of the contract, and not merely for damages.103 And so, of a suit against the contract vendor of land, alleging a failure of title, and claiming a return of the money deposited, which had been demanded and refused.104

§ 656. Venue of Action.-An action to rescind or cancel a contract for the sale of land is not local but transitory, as it is in personam and not in rem, and therefore is not necessarily to be brought in the county or district where the land lies, but may be brought where the defendant can be found,105 although it is very properly brought in the place where the land is situated if the rescinding purchaser seeks to enforce a lien on the land for the return of his money.1 On the other hand, a vendor and the holders of the various notes given for the price, in an action to rescind the sale by the vendee, are not joint obligors, but must be sued each at his respective domicile.107

100 Crawford v. Hurd, 32 Ky. Law Rep. 636, 106 S. W. 849.

106

101 Polhemus v. Holland Trust Co., 61 N. J. Eq. 654, 47 Atl. 417. 102 Carter v. Walker, 2 Rich. (S. C.) 40.

108 Clarke v. McGetchie, 49 Iowa, 437.

104 Kister v. Pollak, 125 App. Div. 226, 109 N. Y. Supp. 204.

105 Jones v. Byrne (C. C.) 149 Fed. 457; Lewis v. Morton, 5 T. B. Mon. (Ky.) 1; Kendrick v. Wheatley, 3 Dana (Ky.) 34; Thompson v. Elmore, 13 Ky. Law Rep. 692, 18 S. W. 235; Morris v. Runnells, 12 Tex. 175; Ely v. Lowenstein, 9 Abb. Prac. N. S. (N. Y.) 42; Slator v. Trostel (Tex. Civ. App.) 21 S. W. 285.

106 Bullitt v. Eastern Kentucky Land Co., 99 Ky. 324, 36 S. W. 16; Landrum v. Farmer, 7 Bush (Ky.) 46.

107 Amis v. Bank of Louisiana, 9 Rob. (La.) 348.

CHAPTER XXXVII

PARTIES TO ACTIONS

§ 657. General Rule; All Parties in Interest.

660. Persons Against Whom Relief is Not Sought. Subsequent and Intermediate Purchasers.

661.

662.

Trustees and Beneficiaries.

663. Heirs and Personal Representatives.

§ 657. General Rule; All Parties in Interest.-In order to obtain a decree in equity for the rescission of a contract or the cancellation of a written instrument, it is necessary to bring before the court, as parties to the action, all those having interests in the subject-matter, or whose rights or claims must be adjudicated and concluded in order to do complete equity in the premises.1 An exception may perhaps be found in the case where the interests of various parties are severable, so that the case can be completely decided as between the immediate parties, though there may be an outstanding interest in one whom the court cannot reach by process.2 In pursuance of the general rule, it is held that, in a suit by purchasers of lots in a tract divid ed into lots, streets, and parks, to set aside a subsequent conveyance of a parcel located in one of the reservations designated as a park, the present owner of the unsold part

1 Coy v. Mason, 17 How. 580, 15 L. Ed. 125; Bowen v. Christian (C. C.) 16 Fed. 729; Kehr v. Floyd, 132 Ga. 626, 64 S. E. 673; Pierce v. Middle Georgia Land & Lumber Co., 131 Ga. 99, 61 S. E. 1114; Abernathie v. Rich, 229 Ill. 412, 82 N. E. 308; Barrett v. Geisinger, 148 Ill. 98, 35 N. E. 354; Fletcher v. Mansur, 5 Ind. 267; Constant v. Lehman, 52 Kan. 227, 34 Pac. 745; Kinnard v. Daniel, 13 B. Mon. (Ky.) 496; Cummins v. Boyle, 1 J. J. Marsh. (Ky.) 480; Owings v. Brown, 5 T. B. Mon. (Ky.) 462; Lacroix v. Hibernia Bank & Trust Co., 135 La. 263, 65 South. 237; State v. Recorder of Mortgages, 32 La. Ann. 1306; Dockray v. Thurston, 43 Me. 216; Burroughs v. Jones, 78 Miss. 235, 28 South. 944; Ladner v. Ogden, 31 Miss. 332; Smith v. Irvin, 108 App. Div. 218, 95 N. Y. Supp. 731; Dale v. Roosevelt, 6 Johns. Ch. (N. Y.) 255; Hartley v. Langkamp, 243 Pa. 550, 90 Atl. 402; Gugel v. Hiscox, 216 N. Y. 145, 110 N. E. 499.

2 Bonsal v. Camp, 111 Va. 595, 69 S. E. 978.

.

5

of the tract and also the municipality should be made parties. So where suit is brought on a note secured by a deed of trust, and recovery is denied because it is held as collateral security for a corporation note which is void, cancellation of the note and deed of trust cannot be ordered in the absence of the corporation as a party. On this ground also a bill to set aside a deed or a mortgage cannot be sustained without the presence of the grantor or mortgagor, as well as of the grantee or mortgagee. So, if there are several parties arrayed on one side of a contract or grant, all of them must be joined in an action to rescind or vacate it, unless one of them has in the mean time acquired all the interests of the others." Thus, if remaindermen joined with the life tenant in a conveyance of the property, they are necessary parties, without whose appearance the court cannot decree a rescission in favor of the purchaser for misrepresentations as to the title. So one who unites with the vendee in notes made for the purchase money, and who is sued with him thereon, should join with him in a bill to enjoin proceedings in the action and to rescind the contract. And where a husband and wife join in a conveyance or mortgage of lands, both are necessary parties to a proceeding to cancel it or set it aside.10

§ 658. Joinder of Defendants. It is proper, if not necessary, to join as defendants in an action for rescission or cancellation all the parties who participated in the fraud

3 Calkins v. Westervelt (D. C.) 214 Fed. 415.

4 Jones v. Nix (Tex. Civ. App.) 174 S. W. 685.

5 Oakes v. Yonah Land & Mining Co. (C. C.) 89 Fed. 243; Abernathie v. Rich, 229 Ill. 412, 82 N. E. 308; Mattair v. Payne, 15 Fla. 682.

6 Troxel v. Thomas, 155 Ind. 519, 58 N. E. 725; Crump v. Ingersoll, 44 Mind. 84, 46 N. W. 141; Robinson v. Kind, 23 Nev. 330, 47 Pac. 1, 977; Merriman v. Norman, 9 Heisk. (Tenn.) 269.

7 Smith v. Roseboom, 10 Ind. App. 126, 37 N. E. 559.

8 Hurst v. Knight (Tex. Civ. App.) 164 S. W. 1072.

9 Elliott v. Boaz, 9 Ala. 772.

10 Van Gundy v. Steele, 261 Ill. 206, 103 N. E. 754; Eyster v. Hatheway, 50 Ill. 521, 99 Am. Dec. 537; Hill v. Lewis, 45 Kan. 162, 25 Pac. 589; Bowman v. Germy, 23 Kan. 306; Robbins v. Wyman, Partridge & Co., 75 Wash. 617, 135 Pac. 656; Borchert v. Borchert, 141 Wis. 142, 123 N. W. 628.

which is the basis of complaint, or who conspired or colluded together to defraud the complainant, though the several defendants may have different interests in the result of the fraud.11 Thus, where certain defendants fraudulently induced a third person to execute to them a deed to land which was really owned by the plaintiff, such person is a necessary party to an action to cancel the deed.12 And one charged with participation in the forgery of a deed, and with making a false notarial certificate of acknowledgment in order to defraud the true owners to his own advantage, should be made a party to a bill to cancel the deed. 18 Again, any person is a proper party defendant who has a right to or interest in the subject-matter of the action, which must be divested if the object of a rescission is to be completely effected, that is, the restoration of the parties to their former situation.14 Thus, an assignee of a note for an installment of the purchase money of land is a necessary defendant to a bill against the vendor for rescission.15

11 Alexander v. Horner, 1 McCrary, 634, Fed. Cas. No. 169; Hartley v. Frederick (Ala.) 67 South. 983; Moon v. Benton (Ala. App.) 68 South. 589; Williams v. Nicholson, 25 Ga. 560; Port Royal & A. Ry. Co. v. Branch, 78 Ga. 113; Bowden v. Achor, 95 Ga. 243, 22 S. E. 254; Williams v. Hawthorn, 14 La. Ann. 615; Nichols v. Randall, 5 Minn. 304 (Gil. 240); Fairchild v. Fairchild (N. J. Ch.) 44 Atl. 944; American Cotton Co. v. Collier, 30 Tex. Civ. App. 105, 69 S. W. 1021; Foix v. Moeller (Tex. Civ. App.) 159 S. W. 1048; Young v. Barcroft (Tex. Civ. App.) 168 S. W. 392. It has been held that one of several persons interested in effecting a sale of real estate through the organization of a syndicate for its purchase should not be held liable to the subscribers to the syndicate, who acted upon the representation of another of such interested persons that the syndicate would obtain the land for a named price, which was in fact greater than that paid, where it does not appear that the person sought to be held participated in obtaining subscriptions to the syndicate or derived any profit from the transaction. Lansburgh v. Parker, 41 App. D. C. 549. But compare Hewey v. Fouts, 92 Kan. 268, 140 Pac. 894. And see Antoszewski v. City Plumbing Co. (Mich.) 151 N. W. 635.

12 Hannibal & St. J. R. Co. v. Nortoni, 154 Mo. 142, 55 S. W. 220. 13 Alexander v. Davis, 42 W. Va. 465, 26 S. E. 291. 14 St. John v. Freeman, 1 Ind. 84; Wickliffe v. Lee, 4 Dana (Ky.) 30; Gilkeson v. Thompson, 210 Pa. 355, 59 Atl. 1114; Morse v. Larkin, 46 Vt. 371; Stimson v. Thorn, 25 Grat. (Va.) 278. rison v. Waggy, 43 W. Va. 405, 27 S. E. 314. 15 Pollock v. Wilson, 3 Dana (Ky.) 25.

But see Mor

And in an action to rescind a sale of mortgaged lands, the mortgagee should be made a party, where the vendee has executed a contract with the mortgagee binding himself to pay the mortgage.16 So, where a bill in equity is filed against one of the members of a partnership, to set aside partnership transactions and to vacate a conveyance of real estate which was assets of the firm, but was held in the name of one of the partners for the benefit of the firm, all the partners are indispensable parties defendant.1 Again, all persons who claim under the instrument in question, or who must rely upon it as the foundation of their own title, are properly made defendants.18 Thus, where an owner of land executes a deed as security and remains in possession, and the grantee conveys to one who has no actual notice of the nature of the deed, but who makes no inquiry of the occupant, the latter may tender the amount of the secured debt to the first grantee, and then sue both grantees for cancellation of both deeds.19 But it is said that contingent remaindermen are not necessary parties to a suit to set aside the deed creating the remainder.20 Further, all parties should be made defendants against whom any specific relief is demanded as a part of the general adjustment necessary to free the complainant from the fraud or wrong complained of and restore him to his former situation.2: Thus, where a bill in equity seeks not only the surrender and cancellation of a fraudulent assignment of a patent, but also to expunge it from the records of the patent office, the commissioner of patents is a necessary party defendant.22

16 Hoover v. Binkley, 66 Ark. 645, 51 S. W. 73.

17 Bell v. Donohoe (C. C.) 17 Fed. 710.

18 House v. Mullen, 22 Wall. 42, 22 L. Ed. 838; Trustees of Schools v. Braner, 71 Ill. 546; Davis v. Hall, 4 T. B. Mon. (Ky.) 23; Walker v. Smith, 8 Yerg. (Tenn.) 238.

19 Berry v. Williams, 141 Ga. 642, 81 S. E. 881.

20 Temple v. Scott, 143 Ill. 290, 32 N. E. 366.

21 Smith v. Smith, 106 Ala. 298, 17 South. 680; Parker v. Cochran, 97 Ga. 249, 22 S. E. 961; Paulk v. Ensign-Oskamp Co., 123 Ga. 467, 51 S. E. 344; Thompson v. Shoemaker, 68 Ill. 256; Pruyn v. McCreary, 182 N. Y. 568, 75 N. E. 1133; Jones v. Abernathy (Tex. Civ. App.) 174 S. W. 682.

22 Backus Portable Steam Heater Co. v. Simonds, 2 App. D. C.