ROBERTSON
v.
CARSON.
Supreme Court of United States.
*99 Mr. Edward McCready and Mr. Edward McCready, Jr., for the appellants.
Messrs. James Lowndes and W.W. Boyce, with whom was Mr. Caleb Cushing, for the appellees.
*103 Mr. Justice SWAYNE delivered the opinion of the court.
We have not found it necessary to come to any conclusion as to the merits of the case. Aside from that subject, there is an insuperable difficulty arising from the want of parties. A brief statement will be sufficient to show the foundation upon which this objection rests.
William Carson by his will, after certain other bequests, directed his executors, Robertson and Blacklock, to sell all *104 his real and personal property, and after paying his just debts, to hold the residue of the proceeds upon the trusts prescribed, for his widow, Caroline Carson, and his two children, William and James Carson. The executors were authorized to invest and reinvest as they should deem best. They sold a plantation known as Dean Hall, to Elias N. Ball, and took his bonds for the purchase-money, secured by a mortgage upon the premises. They sold also a large amount of personal property to the same Elias N. Ball, and took his bonds for the proceeds, with W.J. Ball as his surety. Elias N. Ball sold the Dean Hall property to Hyatt, McBurney & Co. The firm consisted of Hyatt, McBurney, Gillespie, Hazelton, and McGann. The property was conveyed to McBurney and Gillespie, to be held by them for themselves and for such uses as they should appoint for the benefit of the other members of the firm. They paid Ball in Confederate money, and he paid his debt to the estate of Carson in the same medium. Robertson, one of the executors, thereupon gave up his bonds and released the mortgage. The legatees, William and James Carson, after reaching the age of majority, assigned all their rights under the will to the complainant, who is the widow of the testator. The bill charges that the transaction between Hyatt, McBurney & Co., E.N. Ball, and Robertson, the executor, was fraudulent and void. It seeks to charge the Dean Hall property with the amount of the debt secured by the mortgage, and to call Elias N. Ball and his surety to account upon their obligations for the proceeds of the personal property. The parties defendant made by the bill are the executors, Robertson and Blacklock, and McBurney, Elias N. and W.J. Ball, and William and James Carson. Process was returned not found, as to William and James Carson and Elias N. Ball. The two former having assigned all their rights and interest to everything in controversy, it was not necessary to make them parties. Nothing more need be said in regard to them.[*] But as the pleadings stand, the *105 presence of Elias N. Ball was necessary in both aspects of the case.
First. As to the personal property:
The bill does not aver that he is insolvent, and gives no reason why he should not or cannot be brought before the court. The answer of W.J. Ball takes the objection of his absence and alleges that he represents the debt to be paid. The surety is entitled to have him present that he may assist in making this defence, that he may assist in taking the account of what is due if the defence fail, that the decree in that event may be primarily against him for payment, and that the amount may be conclusively fixed for which he will be liable over to the surety, if the latter should be compelled to pay the debt.[*]
Secondly. As to the real estate:
The bill charges fraud and conspiracy, and that he was a party to them. It denies that the mortgage was paid, alleges that the bonds are still in force, avers that the release was a nullity, and seeks to enforce the mortgage.
If these allegations are maintained, the whole amount of the debt will be rehabilitated against him. He is entitled to an opportunity to repel these imputations and to protect himself if he can do so. His vendees are entitled to his aid. His defence is their defence. It does not appear whether his deed to McBurney and Gillespie contains the usual covenants of title. If so, he would be liable over to his grantees in the event of the mortgage being enforced. This would be an additional reason for his being a party when the case is disposed of.
The general rule is that a mortgagor who has parted with his interest in the mortgaged premises need not be a party in a suit for foreclosure, unless he has warranted the title to his assignee. Whether there were such warranty by Ball, *106 or not, we hold him to be an indispensable party by reason of the circumstances of the case.[*]
Gillespie was one of the grantees in the deed of E.N. Ball. The legal title was vested by that instrument in him and McBurney, and there is no averment that they do not yet hold it. This renders Gillespie an indispensable party.[]
It appears that Hyatt has released his interest to his copartners, but it also appears that they have given him a mortgage upon the premises to secure the payment of $40,000. If he shall not be made a party, and the complainant shall be successful, his rights will not be affected by the decree. In such case he can file a new and independent bill and renew the litigation as to all the questions touching the prior mortgage which are involved in this controversy.[]
The complainant has the option to make him a party or to proceed without him and take the hazard of the consequences.
The statute of South Carolina referred to by the counsel for the appellee, does not affect the case.
The act of Congress of June 1, 1872, was passed several years after this bill was filed. The thirteenth section has, therefore, no application to the question of parties in this litigation.
It is competent for a party to make a change of domicile for the purpose of giving jurisdiction to the Federal courts where it could not otherwise exist. With that privilege and the help of this section, there can hardly in any case be an *107 irremediable difficulty as to jurisdiction, however diversified the residence of those necessary to be made defendants.
This record is in a singularly defective and confused condition. The allegations in the bill lack clearness and precision. This has perhaps arisen from the want of full and accurate information until the coming in of the answers. There are important averments on both sides unsupported by evidence. Important papers are referred to, but copies are not given, and there is no proof of their contents. There are many matters of detail of no moment to the rights of the parties which should be expunged. If there were no defect of parties, we should have great difficulty in disposing of the case upon the pleadings and proofs before us. If the case shall be brought here again, these objections, it is to be hoped, will in the meantime be obviated.
DECREE REVERSED, and the cause remanded, with directions to proceed
IN CONFORMITY TO THIS OPINION.
NOTES
[*] Garrett v. Puckett, 15 Indiana, 485; Whitney v. McKinney, 7 Johnson's Chancery, 147.
[*] Story's Equity Pleadings, § 169; Madox v. Jackson, 3 Atkyns, 406; Angerstein v. Clark, 2 Dickens, 738; Cockburn v. Thompson, 16 Vesey, 326; Bland v. Winter, 1 Simons & Stuart, 246
[*] Calvert on Parties, 179; Milroy v. Stockwell, 1 Carter, 35; Haines v. Beach, 3 Johnson's Chancery, 459; Worthington v. Lee, 2 Bland, 682; Ducker v. Belt, 3 Maryland Chancery, 13; Hallock v. Smith, 4 Johnson's Chancery, 649; Bigelow v. Bush, 6 Paige, 343; Drury v. Clark, 16 Howard's Practice Reports, 424.
[] Watson v. Spence, 20 Wendell, 260; Story's Equity Pleading, 192, 197; Barber on Parties, 463, 491; Shaw v. Hoadley, 8 Blackford, 165; Betts v. Starr, 5 Connecticut, 551.
[] Haines v. Beach, 3 Johnson's Chancery, 459; Ensworth v. Lambert, 4 Id. 605; Judson v. Emanuel, 1 Alabama N.S. 598; Brainard v. Cooper, 10 New York, 356; Story's Equity Pleadings, § 192.