The objection that Kidder, as the assignee of the bond and mortgage executed by the appellant to his father, was a necessary party to the suit, was distinctly made, in the answer of the former, and presents the only question necessary to be determined. Respect for the learned court who pronounced the decision in this cause, has induced an examination of a question which otherwise was supposed to involve no difficulty. Kidder has had no day in court. Upon the ordinary principles upon which justice is administered in courts of equity, he could not be convicted of a fraud, or deprived of his property, without actual or constructive notice of the suit, and an opportunity of making his defence. Any exception to a rule, so manifestly just, must be established by the complainant, as the legal presumption would be against it. Kidder resided in Wisconsin when this suit was commenced, during its progress, and *Page 462 when it was decided. Mr. Maddock in his treatise states, it is true, in general terms, that "when parties interested are out of the jurisdiction of the court, and it is so stated in the bill and proved, it is not necessary to make them parties." The authority he refers to is Darnent v. Walton, (2 Atkyns, 510.) The question there was, as stated by the reporter, "if a bill is brought against one partner, for a joint demand, and the other is not amenable to the court, being out of the kingdom, whether the partner before the court shall pay the whole or a moiety of the debt." It was held that he should pay the whole. Each debtor, it will be perceived, sustained the same relation to the creditor. The obligation of each extended to the whole demand. The party in court could make, and was interested to make, any defence going to the discharge of the joint indebtedness. His only interest in the appearance of the other joint debtor, was for the purpose of enforcing contribution. This right was subordinate to, and should yield to the right of the creditor to his demand. This is all that was decided in that case.
The Commercial Bank v. Meach, (7 Paige, 449,) was the case of joint debtors against whom judgment was recovered; and inJermain v. Langdon, (8 Paige, 41,) and Evarts v.Banker, (id. 507,) the proceedings were under the statute relative to absent defendants. These are all the authorities to which reference is made by the supreme court. Mr. Maddock, however, at the same page referred to, in the opinion before us, observes, "that if the absent parties have rights wholly distinct from those of the other parties, the court can not proceed to a determination against them." "Hence," he adds, "there sometimes arises an absolute defect of justice, which seems to require the interposition of the legislature." And Story remarks, that under such circumstances the court can not properly proceed to the determination of the suit without their being made parties. (Story's Eq. § 81, and cases.)
In this case the rights of Kidder were not only distinct from both the defendants, but adverse to that of the judgment debtor. And our legislature have remedied the inconvenience alluded to by Maddock, by providing a mode in which the absentee may *Page 463 be made a defendant, and the rights of all parties effectually secured. (2 R.S. 186.) The complainant therefore can not alledge necessity to justify a departure from principle. Nor is he supported by any adjudged case which has been brought to our notice. Kidder was then a necessary party; the law enabled the complainant to bring him into court, so as to bind him by the decree, after the time and in the manner prescribed in the statute. Having neglected to do this, the decree of the supreme court, so far as it affects his rights, is a nullity, and consequently affords no protection to the mortgagor; who would thus be subjected to a double payment, without indemnity. (Cowen Hill's Notes, 918, 919; Story, § 81, supra.) This was not the design of the supreme court, although it would be the effect of their decision. It must therefore be reversed.
Decree reversed.