There have been relaxations of this general rule. An action by three out of forty-seven tenants in common, brought to restrain the defendants from quarrying stone upon the land which was owned in common by the whole number, has been sustained, notwithstanding an objection on the ground of the non-joinder was interposed. And where one tenant in common had leased his share for a long period of years, the lessee was permitted to maintain a partition against the other tenants in common, without making the reversioner of his own share the lessor - a party. And generally a tenant for life may institute a partition without bringing in the remainder-men.3 When land is held by tenants in common for life, or when there are future contingent interests which may finally vest in persons not yet in being, a partition may be had between those who possess the present estates; but it will only be binding upon the parties who are before the court and those who are virtually represented by such parties. In an action brought to determine boundaries, all persons interested, whether their estates are present or future, remainder-men and reversioners, must be parties, although of course all need not be plaintiffs. It is not necessary, as a general rule, to make the actual occupying tenants or lessees parties in suits relating to real property. They must, however, be parties in special cases where they are directly interested and their concurrence is necessary; as, for example, in a partition suit where a tenant in common has leased his share, and in a suit brought to restrain an ejectment which was instituted against the tenants themselves instead of against their lessor. If, on the other hand, lessees, or any persons holding limited interests, sue to establish some general right, that is, some right belonging to or affecting the whole estate and not merely their own temporary possession and user, rather as a defendant than as a plaintiff. Rosekrans v. White, 7 Lans. 486. The administrator of a deceased tenant in common may, under certain circumstances, be a proper party, together with his heirs, in a partition. Scott v. Guernsey, 60 Barb. 163, 181. Ackroyd v. Briggs, 14 W. R. 25. 2 Baring v. Nash, 1 Ves. & B. 551; Heaton v. Dearden, 16 Beav. 147. Wills v. Slade, 6 Ves. 498; Brassey v. Chalmers, 4 DeG., M. & G. 528. 140; Striker v. Mott, 2 Paige, 387, 389; Woodworth v. Campbell, 5 Paige, 518; Gaskell v. Gaskell, 6 Sim. 643. 51 Daniell's, p. 209; Story Eq. Pl. § 165; Bayley v. Best, 1 Russ. & My. 659; Miller v. Warmington, 1 Jac. & Walk. 484; Speer v. Crawter, 2 Meriv. 410; Attorney-General v. Stephens, 1 K. & J. 724; 6 DeG., M. & G. 111; Pope v. Melone, 2 A. K. Marsh. 239. ∙ 1 Daniell's, p. 209; Story Eq. Pl. § 151; Lawley v. Walden, 3 Swanst. 142; 4 Wotten v. Copeland, 7 Johns. Ch. Poole v. Marsh, 8 Sim. 528. the ultimate owners of the inheritance must also be made parties, so that they may be bound by the decree, but the requirement will be satisfied by making them defendants. Thus, where a lessee brought an action to establish a right of way against a person who had erected an obstruction, it was held that his lessor should have been joined as a party to the suit.2 § 255. The doctrine that persons having or claiming a joint interest or estate must unite, extends to actions which relate to personal property as well as to those which relate to real property. The following particular instances will illustrate this application. If a legacy is given to two jointly, both must sue for it; but if legacies are given separately, there being no common interest in any particular one, each legatee may sue for his own. Where two or more persons are jointly interested in the money secured by a mortgage, that is, according to the law prevailing in this country, when they are joint mortgagees or joint assignees of a mortgage, they must all unite in a foreclosure. And it is not even necessary that they should be joint holders of the debt secured by the mortgage. All persons who are entitled to share in the proceeds, whether their interest is joint or in common, or several, must be made coplaintiffs, or at least must be brought into the action as defendants. When, however, the mortgage has been assigned to trustees in trust for the benefit of creditors, the trustees are the only necessary parties plaintiff in a foreclosure suit, and the creditors being represented by them. need not be joined. Actions to foreclose mortgages upon land, and those to enforce and foreclose the vendor's lien upon land for the purchase price thereof, are in all respects based upon the same principles. The equitable doctrine prevailing in by far the 11 Daniell's, pp. 209, 210. 2 Poore v. Clarke, 2 Atk. 515. 1 Daniell's, p. 211. 4 Haycock v. Hay cock, 2 Ch. Cas. 124; Hughsen v. Cookson, 3 Y. & C. 578. Story Eq. Pl, § 201; Stucker v. Stucker, 3 J. J. Marsh. 301; Wing v. Davis, 7 Greenl. 31; Noyes v. Sawyer, 3 Vt. 160; Woodward v. Wood, 19 Ala. 213; Palmer v. Earl of Carlisle, 1 S. & S. 423; Lowe v. Morgan, 1 Bro. C. C. 368; Stansfield v. Hobson, 16 Beav. 189. For an example of misjoinder, because there was no community of interest, see Ferris v. Dick erson, 47 Ind. 382. 6 Story Eq. Pl., § 201; Goodall v. Mopley, 45 Ind. 355, 358. In this case a mortgage had been executed to several different mortgagees. All but one joined in a foreclosure, and he was afterwards permitted to foreclose for his own behalf, making the other mortgagees, as well as all other persons interested, defendants. See, per contra, Montgomerie v. Marquis of Bath, 3 Ves. 560, -a case which has been severely criticised. 7 Morley v. Morley, 25 Beav. 253; Thomas v. Dunning, 5 DeG. & S. 618; Knight v. Pocock, 24 Beav. 436. greater part of the States, and which has entirely displaced the legal notion, regards the debt as the essential fact, and the mortgage as a mere incident thereto. The holder of the mortgage has therefore no estate in the mortgaged premises. Whoever is interested in the debt as one of the creditors, is therefore interested in the mortgage or in the vendor's lien, and, upon the wellsettled rules of equity procedure, all must be made parties in order to avoid a division of the claim and a multiplicity of actions. In the western States it is very common, on the sale of land, for the vendor to take the vendee's notes payable at successive dates for the price, and either to receive back a mortgage given to secure such notes, or to rely upon the equitable lien arising from the sale as the security. All the holders of such notes must join as plaintiffs in an action to foreclose, whether the security be a mortgage or the mere vendor's lien. A note and mortgage having been given to a husband and wife as security for money of the wife loaned to the mortgagor, and the husband dying, the wife was held to be the proper party to sue in her own name, either as the surviving promisee and mortgagee, or because the contract concerned her separate estate.2 § 256. The rule which regulates actions to foreclose, prevails also in those brought to redeem. As all the persons entitled to share in the mortgage debt must unite in a foreclosure suit, so in a suit to redeem, the mortgagor, and all others who have a common right with him to redeem, must be made parties; in strict theory they should be coplaintiffs, but it is sufficient if the one 1 Pettibone v. Edwards, 15 Wisc. 95; Jenkins v. Smith, 4 Metc. (Ky.) 380; Merritt v. Wells, 18 Ind. 171; Goodall v. Mopley, 45 Ind. 355, 358. See, however, Rankin v. Major, 9 Iowa, 297. Upon the death of a vendor, it is held, in Kentucky, that his heirs must be joined as plaintiffs in a suit to enforce the lien for purchasemoney, that the administrator cannot maintain the action alone. Anderson v. Sutton, 2 Duv. 480, 486; Smith v. West's Executors, 5 Litt. 48; Edwards v. Bohannon, 2 Dana, 98; Thornton v. Knox's Executors, 6 B. Mon. 74. This ruling must, I think, be confined to the case of a contract to sell, where the legal title remains in the heirs and they must convey to the vendee. If the land has already been conveyed, the heirs cannot be necessary parties. As the debt due for who for his own purposes institutes the action adds the others as defendants. Where a judgment of foreclosure had been obtained on a mortgage, and, with the authority or knowledge of the mortgagee, the sheriff sold the premises in the usual manner, but at a merely nominal price, it was held, in Indiana, that the mortgagor and the mortgagee might unite in an action to set the sale aside, and to redeem the land from the purchaser, the mortgagor by virtue of his ownership, and the mortgagee by virtue of his interest in having a price produced at the sale large enough to pay his entire claim. The general doctrine above stated is strictly enforced in redemption suits of all varieties, the underlying principle being that a redemption must be complete and total, that the creditor shall not be compelled to accept a partial payment of his claim, or to make a partial surrender of his securities. When two tracts of land are mortgaged to the same person to secure the same debt, and they afterwards come into the hands of different proprietors, one of them cannot be redeemed without the other; the owners of both the parcels, and all persons interested in them, must be parties to the action, if not all as plaintiffs, then at least as defendants. This joinder of the persons interested in the two estates is only necessary, however, while the mortgages are held by the same mortgagee or other holder. If one of them is assigned, or if by any other means they come into the hands of different holders, they being on distinct parcels of land, all connection between them is severed, and the actions to redeem must be separate. If the action to redeem is brought by an incumbrancer, the same rule applies. In a suit by an incumbrancer, who seeks to redeem from a prior incumbrance, the mortgagor or owner of the land subject to the incumbrances, whatever they may be, is an indispensable party, although not necessarily a plaintiff. While a second mortgagee, in an 11 Daniell's, pp. 212, 213; Story Eq. Pl., § 201; Chapman v. Hunt, 1 McCarter, 149; Large v. Van Doren, 1 McCarter, 208. Berkshire v. Shultz, 25 Ind. 523. See also McCulloch's Administrator v. Hollingsworth, 27 Ind. 115; Stringfield, v. Graff, 22 Iowa, 438. 3 Story Eq. Pl., §§ 182, 287; Palk v. Lord Clinton, 12 Ves. 48; Lord Cholmondeley v. Lord Clinton, 2 Jac. & W. 1, 134; Ireson v. Denn, 2 Cox, 425; Jones v. Smith, 2 Ves. 372; 6 Ves. 229 (n.); Watts v. Symes, 1 DeG., M. & G. 240; Tassell v. Smith, 2 DeG. & J. 713; Vint v. Padget, 2 DeG. & J. 611; Selby v. Pomfret, 1 J. & H. 336; 3 DeG., F. & J. 595; Bailey v. Myrick, 36 Me. 50. 4 Willie v. Lugg, 2 Eden, 78. 51 Daniell's, p. 214; Story Eq. Pl., $$ 84, 186, 195; Thomson v. Baskervill, 3 Ch. Rep. 215; Farmer v. Curtis, action to redeem, must thus bring in the mortgagor or his heir or other owner of the land, he may foreclose the mortgagor and a third mortgagee without joining the first mortgagee as a party, since his proceeding does not in the least affect the rights of such first mortgagee, but its effect is merely to put himself in the place of the mortgagor and of the third mortgagee.1 This rule may be stated in a more general form. In suits brought to enforce subsequent claims, interests, or incumbrances, on property subject to prior charges which are to be left unaffected, the holders of such prior liens or interests need not be made parties.2 § 257. The general principle that all persons concurrently interested in the subject-matter of the suit or in its result, whether that relate to real or to personal property, must be parties, is invoked and strictly enforced in all species of actions which are brought to obtain an accounting against the defendant. The remedy of accounting is multiform, and it is often made the basis of some further and ulterior relief, such as rescission and cancellation, redemption, and the like; but wherever an accounting is sought, either for its own sake or as the preliminary step to further judicial action, the rules as to parties are controlling. When several persons are interested in having an account taken, or in its result, one of them cannot be permitted to institute a proceeding for that purpose by himself alone and without joining the others in some manner, so that they shall be bound by the decree, for otherwise the defendant would be exposed to as many actions as there are persons interested, each brought and maintained for the same purpose and upon substantially the same proofs. The actions in which an accounting is necessary are very numerous, and arise out of external circumstances very unlike, but, in all of them, the rule as thus stated must be followed in the selection of the parties. Thus in a partnership, or any other like adventure where there is a sharing of profits or 2 Sim. 466; Hunter v. Macklew, 5 Hare, 238; Fell v. Brown, 2 Bro. C. C. 276; Palk v. Lord Clinton, 12 Ves. 48; Hallock v. Smith, 4 Johns. Ch. 649. 1 Daniell's, p. 214; Story Eq. Pl., § 193; Rose v. Page, 2 Sim. 471; Briscoe v. Kenrick, 1 Coop. temp. Cott. 371; Arnold v. Bainbrigge, 2 DeG., F. & J. 92; Audsley v. Horn, 26 Beav. 195; 1 DeG., F. & J. 226; Person v. Merrick, 5 Wisc. 231; Wright v. Bundy, 11 Ind. 398. In England, if the plaintiff in such an action brings in the prior mortgagee, he must offer to redeem his mortgage. Gordon v. Horsfall, 5 Moore, 393. 21 Daniell's, p. 214; Rose v. Page, 2 Sim. 471; Parker v. Fuller, 1 R. & M. 656. 8 1 Daniell's, p. 216; Petrie v. Petrie, 7 Lans. 90. |