The case made by the bill is one of fraud, and its leading object is to set aside the release fraudulently obtained by the defendant Cowell. It avers that the release was obtained by George, as the agent of Cowell, so that Cowell would be bound by the fraudulent acts of George, or that Cowell holds the estate under a secret trust for George. Under this alternative averment, Cowell, and the Wrentham Bank, which holds a mortgage as an innocent purchaser in good faith, are the only necessary parties defendant, because if George was merely an agent, he has no interest in the decree although he was active in the fraud. If on the answer and proofs it should appear that Cowell holds the title in trust for George, it may then be necessary to make George a defendant.
Upon the case made by the bill, the plaintiffs would be entitled to relief: 1. An injunction against Cowell from making any further conveyance of the estate; 2. Satisfaction from the estate for the injury occasioned by the fraud, so far as that should be practicable after satisfying any prior equities of the Wrentham Bank; and 3. Compensation for any deficiency which might remain.
The bank, not being charged with complicity in the fraud, is made a party only for the purpose of ascertaining and protecting its equitable and legal rights; and the settlement with the bank is prayed only as auxiliary and subordinate to the principal relief sought; and any delay that may be necessary to determine the rights of the bank, or difficulty in fixing the mode of satisfying its claims, does not make the bill subject to demurrer.
Demurrer overruled.