1827.

Mallow

V.

Hinde

propriated it by his entry, survey, and grant; he neither admits nor denies the execution of the contracts alleged between Langham and the Beards, and puts the complainants upon proof; and he further insists that such contracts, if made, conferred upon Langham no equitable title: first, because the Beards had no power to sell, without the concurrence of Taylor, the trustee; and, secondly, because Langham had obtained the contracts by fraud, and had not paid the consideration stipulated.

Neither Taylor, the trustee, nor the cestuis que trust, with whom the complainants allege Langham contracted for the land, are made defendants, they being out of the limits of the jurisdiction of the Court.

No attempt has been made in the argument to support the validity of the tax sale, and it may be laid out of the case.

For the appellees it is insisted, that the proper parties are not before the Court, so as to enable the Court to decree upon the merits of the conflicting claims. And we are all of that opinion. It is plain, that the appellants cannot set up the survey No. 537, against the appellees' title, without first showing themselves entitled to that survey. They claim that survey, not by any assignment, or other instrument, investing them with a legal right to it, but by executory agreements, the validity and obligation of which the parties to them have a right to contest.

We cannot try their validity, and decide upon their efficacy, by affirming they confer upon the appellants an equitable right, without manifest prejudice to the rights of those not before the Court. The complainants can derive no claim in equity to the survey, under, or through Langham's executory contracts with the Beards, unless these contracts be such as ought to be decreed against them specifically by a Court of equity. How can a Court of equity decide that these contracts ought to be specifically decreed, without hearing the parties to them? Such a proceeding would be contrary to all the rules which govern Courts of equity, and against the principles of natural justice. Taylor, too, is the legal proprietor of the warrant, by virtue of which the entry and survey No. 537 was made, and in general the right of removal is incidental to the right of property. But it is al

leged he has parted with that incidental right, although the general legal title of ownership remains in him; or that he has exercised this incidental right fraudulently and improperly, to the prejudice of the appellants.

Can any Court justly strip him of this incidental right, or convict him of fraud unheard? Besides, if the Court should, by its decree, compel Hinde to release his legal title to the complainants, upon the grounds, that the entry and survey No. 537 are superior to his title, it would be giving to the complainants that which belongs to Taylor as trustee, and to his cestuis que trust, unless by their acts and agreements they have parted with their right to the survey. If the Courts of the United States were Courts of general jurisdiction, it could not be doubted, that Taylor, William and Joseph Beard, and Mr. M.Gowan and wife, would be necessary and indispensable parties, without whom no decree upon the merits could be made. But it is contended, that the rule which prevails in Courts of equity generally, that all the parties in interest shall be brought before the Court, that the matter in controversy may be finally settled, ought not to be adopted by the Courts of the United States, because from the peculiar structure of their limited jurisdiction over persons, the application of the rule in its full extent would often oust the Court of its acknowledged jurisdiction over the persons and subject before it.

It is true, this equitable rule is framed by the Court of equity itself, and is subject to its sound discretion. It is not, like the description of parties, an inflexible rule, the failure to observe which turns the party out of Court, merely because it has no jurisdiction over his cause; but being introduced for the purposes of justice, is susceptible of considerable modifications for the promotion of these purposes. Accordingly, this Court, in the case of Elmendorf v. Taylor, (10 Wheat. 167.) has said, "That the rule which requires that all persons concerned in interest, however remotely, should be made parties to the suit, though applicable to most cases in the Courts of the United States, is not applicable to all. In the exercise of its discretion, the Court will require the plaintiff to do all in his power to bring every person concerned in interest before the Court. But if the case may

1827.

Mallow

V.

Hinde

1827.

Mallow

V.

Hinde.

be completely decided, as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the Court cannot reach, as if such party be the resident of some other State, ought not to prevent a decree upon its merits."

This doctrine was applied to the case where a small interest was outstanding in one not before the Court, as tenant in common.

In that case, the right of the party before the Court did not depend upon the right of the party not before the Court; each of their rights stood upon its own independent basis; and the ground upon which it was necessary, according to the general principle, to have both before the Court, was to avoid multiplicity of suits, and to have the whole matter settled at once.

In this case, the complainants have no rights separable from, and independent of, the rights of persons not made parties. The rights of those not before the Court lie at the very foundation of the claim of right by the plaintiffs, and a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties.

We do not put this case upon the ground of jurisdiction, but upon a much broader ground, which must equally apply to all Courts of equity, whatever may be their structure as to jurisdiction. We put it on the ground that no Court can adjudicate directly upon a person's right, without the party being either actually or constructivelly before the Court.

We have no doubt the Circuit Court had jurisdiction between the complainants and the defendant, Hinde, so far as to entertain the bill, and grant an injunction against the judgments at law, until the matter could be heard in equity.

And if it had been shown to the Circuit Court, that from the incapacity of that Court to bring all the necessary parties before it, that Court could not decide finally the rights in contest, the Court, in the exercise of a sound discretion, might have retained the cause, and the injunction, on the application of the complainants, until they had reasonable time to litigate the matters of controversy between them, and Taylor and the Beards, in the Courts of the State, or

such other Courts as had jurisdiction over them; and if then it was made to appear by the judgment of a competent tribunal, that the complainants were equitably interest

1827.

Connor

V.

ed with the rights of Taylor, the trustee, and the cestuis que Featherstone trust in the survey No. 537, the Circuit Court could have proceeded to decree upon the merits of the conflicting surveys.

Such a proceeding would seem to be justified by the urgent necessity of the case, in order to prevent a failure of justice; and the cause would have remained under the control of the Circuit Court, so as to have enabled it to prevent unreasonable delay, by the negligence or design of the parties, in litigating their rights before some competent tribunal.

The cause having been brought to a hearing before the Circuit Court in its present imperfect state of preparation, that Court could not do otherwise than dismiss the bill; but as no final decision of the rights of parties could properly be made, the dismission, instead of being general, ought to have been without prejudice. So much of the decree as dismisses the bill generally must be reversed, and the decree, in all things else, affirmed; and the cause is to be remanded to the Circuit Court, with directions to dismiss the bill without prejudice.

[FRAUDULENT AGREEMENT.]

CONNOR and Others, Appellants, against FEATHERSTONE and Others, Respondents.

A question of fact upon a bill filed to set aside the sale and assignment of a land warrant, upon the ground that it was obtained by fraudulent misrepresentation, and taking undue advantage of the party's imbecility of body and mind.

Evidence deemed insufficient, and bill dismissed.

THIS cause was argued by Mr. White, for the appellants, Jan. 15th. and by Mr. Isaacks, for the respondents.

1827.

Mr. Justice TRIMBLE delivered the opinion of the Court. This case comes before the Court by appeal from the decree of the Circuit Court for the Western District of Featherstone Tennessee.

Connor

V.

Feb. 1st.

The bill was instituted by James Hibbits in his lifetime, and after his death the suit was revived in the names of the appellees, his heirs at law, after which the defendants, now appellants, appeared and answered.

The object of the suit was, to have delivered up to the complainant a land warrant of 5,000 acres, which had been. issued in the name of James Hibbits, upon an entry made. by him in John Armstrong's office, No. 394., and to restrain James and Henry W. M. Connor, and each of them, from procuring a grant upon a survey which had been made and returned for the use of James Connor, by virtue of the warrant, under colour of certain assignments alleged by James and Henry Connor to have been made by Hibbits, and to have those assignments set aside.

It appears, that James Connor held a writing under seal, dated the 25th of September, 1796, purporting to be signed and executed by James Hibbits, to the following effect; " I, James Hibbits, of the county of Iredell, and State of North Carolina, for and in consideration of the sum of ninetythree pounds ten shillings, of the State aforesaid, have granted, bargained, and sold, to James Connor, of Mecklenburgh county, and State aforesaid, a 5,000 acre warrant entered in Colonel John Armstrong's office, No. 394, and I do authorise Colonel William Polke, or any of his deputies, or any other surveyor, to issue the returns, when the land is surveyed, in the name of James Connor."

The execution of this assignment is contested by the bill, which suggests, that a mere order for the delivery of the warrant was given, without any terms of transfer; but its due execution is expressly averred by the answer, and clearly sustained by evidence.

It appears, from the statements of the bill and answer of James Connor, that although this assignment purports to be general and absolute, there was a parol agreement and understanding between the parties at the time of its execution, qualifying its general import. But the parties