estate in the land to be sold under the decree, and those who, either originally or by assignment, are liable on the mortgage debt, are necessary parties. It is proper, however, to join as defendants all persons materially interested in the subjectmatter of the controversy.* 42 Thus the owner of the equity of redemption is a necessary party to a foreclosure suit.43 And the same is true of the grantee of the mortgagor." But where the payment of the mortgage debt is assumed by the grantee, as between himself and the mortgagor, although the grantee is a necessary party, the grantor is not.45 In New York and other states, the wife of the mortgagor, or of the subsequent grantee, is a necessary party, in order to cut off her equity of redemption, and also in case the property is community property, or if it is a homestead." The wife is a necessary party defendant in an action to foreclose a mortgage on the homestead executed by the husband. A subsequent lienor may apply to be made a party in intervention in the former suit, and if he does not he cannot be made a party defendant, or at all. An assignee in bankruptcy of the mortgagor is a necessary party,

46

48

42 Luning v. Brady, 10 Cal. 265; Montgomery v. Tutt, 11 Cal. 307; Tyler v. Yreka Water Co., 14 Cal. 212; De Leon v. Higuera, 15 Cal. 483; Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; McDermott v. Burke, 16 Cal. 580; Burton v. Lies, 21 Cal. 87; Horn v. Jones, 28 Cal. 194; Anthony v. Nye, 30 Cal. 401; Carpenter v. Brenham, 40 Cal. 221; Brainard v. Cooper, 10 N. Y. 356; Peck v. Mallams, 10 N. Y. 509; Walsh v. Rutgers Fire Ins. Co., 13 Abb. Pr. 33; Case v. Price, 17 How. Pr. 348, 9 Abb. Pr. 111.

43 Reed v. Marble, 10 Paige, 409; Dexter v. Arnold, 1 Sumn. 109, Fed. Cas. No. 3857; Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5613; Griswold v. Fowler, 6 Abb. Pr. 120; New York Life Ins. etc. Co. v. Bailey, 3 Edw. Ch. 417; Crooke v. O'Higgins, 14 How. Pr. 154. See Bank of Orleans v. Flagg, 3 Barb. Ch. 316; Case v. Price, 9 Abb. Pr. 113; Landon v. Townshend, 112 N. Y. 93; 8 Am. St. Rep. 712, 19 N. E. 424; Watts v. Julian, 122 Ind. 124, 23 N. E. 698; Carpenter

49

v. Ingalls, 3 8. Dak. 49, 44 Am. St. Rep. 753, 51 N. W. 948.

44 Skinner v. Buck, 29 Cal. 253; Heyman v. Lowell, 23 Cal. 106; Morrow v. Morrow, 48 Tex. 304.

45 Drury v. Clark, 16 How. Pr. 424; Van Nest v. Latson, 19 Barb. 604; Stebbins v. Hall, 29 Barb. 524; McArthur v. Franklin, 15 Ohio St. 485.

46 Denton v. Nanny, 8 Barb. 618; Dexter v. Arnold, 1 Sumn. 109, Fed. Cas. No. 3857; Gordon v. Lewis, 2 Sumn. 143, Fed. Cas. No. 5613; Wheeler v. Morris, 2 Bosw. 524; Vartie v. Underwood, 18 Barb. 561; Mills v. Van Voorhies, 20 N. Y. 412; Blydenburgh v. Northrop, 13 How. Pr. 289; Brownson v. Gifford, 8 How. Pr. 389; Pinckney v. Wallace, 1 Abb. Pr. 82; Lewis v. Smith, 11 Barb. 152; Union Bank v. Bell, 14 Ohio St. 200. 47 N. W. Bridge Co. v. Tacoma Ship Building Co., 36 Wash. 333, 78 Pac. 996.

48 Mabury v. Ruiz, 58 Cal. 11. 49 Bal. Codes, Wash., § 5910; Lavanway v. Cannon, 37 Wash. 593, 79 Pac. 1117.

and if not joined may sue to redeem.50 But an assigment in bankruptcy pending suit does not make the assignee a necessary party.51

If a mortgage is assigned as a security, the assignor is a necessary party; likewise the assignor of a mortgage who guarantees its payment;53 but otherwise if there is no express covenant to pay, though it forms part of the purchase money.54

In a foreclosure of mortgage given by trustees the cestuis que trust are necessary parties.55 When an action is brought to foreclose a mortgage securing the payment of a promissory note, the maker and indorser of the note may be joined as defendants.56 A writ of entry to foreclose a mortgage may be maintained against a tenant in possession." Where infants having an equitable vested remainder in fee, liable to be defeated by their dying in the lifetime of the equitable tenant for life, were not made parties, they are not bound by the decree.58 And where there are several future and contingent interests, the person who has the first vested estate of inheritance and all other persons having prior rights or interests in the premises must be made parties; though every person having a future or contingent interest is not a necessary party.50 In such suit, where the defendant dies after the commencement of suit, the administrator becomes a necessary party in a petition for decree of sale of mortgaged premises, if it is sought to have a judgment over against the estate for any deficiency."

In general, all incumbrancers prior and subsequent are proper parties defendant, and should be joined if it is desired to secure a judgment binding them. But an incumbrancer who becomes

61

50 Winslow v. Clark, 47 N. Y. 261. 51 Cleveland v. Boerum, 24 N. Y. 613; Daly v. Burchell, 13 Abb. Pr. (N. S.) 264.

52 Kittle v. Van Dyck, 1 Sandf. Ch. 76.

53 Bristol v. Morgan, 3 Edw. Ch. 142.

54 Lockwood v. Benedict, 3 Edw. Ch. 472.

55 Piatt v. Oliver, 2 McLean, 267, Fed. Cas. No. 11115; Woolner v. Wilson, 5 Ill. App. 439.

56 Eastman v. Turman, 24 Cal. 382.

57 Fales v. Gibbs, 5 Mason, C. C. 462, Fed. Cas. No. 4621.

58 Williamson v. Field, 2 Sandf. Ch.

533.

59 Nodine v. Greenfield, 7 Paige, 544, 34 Am. Dec. 363.

60 Belloc v. Rogers, 9 Cal. 123. See Fallon v. Butler, 21 Cal. 24, 81 Am. Dec. 140.

61 Finley v. Bank of United States, 11 Wheat. 304, 6 L. Ed. 480; Matcalm v. Smith, 6 McLean, 416, Fed. Cas. No. 9272; Ensworth v. Lambert, 4 Johns. Ch. 605; Haines v. Beach, 3 Johns. Ch. 461.

such pending suit is not entitled to redeem, and, therefore, need not be made a party."2

63

But in California, no person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, need be made a party to such action; and the judgment therein rendered and the proceedings therein had are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action." Suits for the foreclosure of a mechanic's lien are in many respects analogous to those in ordinary foreclosure. All parties necessary to enable the court to do complete justice may be joined. In a suit to foreclose a lien by a materialman or subcontractor, the contractor or original promisor, against whom a debt must be established as the foundation of a decree, is an indispensable party.65

68

64

Ordinarily, in an action to foreclose a mortgage, it is not necessary to make prior mortgagees or incumbrancers parties ;66 but all subsequent lienors by judgment must be made parties."7 It is held in some of the states that the heirs of a deceased mortgagor are necessary parties in a suit to foreclose the mortgage. But in California the heirs are not necessary parties in an action against an administrator to foreclose a mortgage."9 The surviving partner is a proper party to an action to foreclose a mortgage made by a deceased partner of his individual property to secure the firm indebtedness, but is not a necessary or indispensable party thereto.70

62 Cook v. Mancius, 5 Johns. Ch. 89; Loomis v. Stuyvesant, 10 Paige, 490; People's Bank v. Hamilton Mfg. Co., 10 Paige, 481. See Bishop of Winchester v. Paine, 11 Ves. 194.

63 Code Civ. Proc., § 726.

64 Sullivan v. Decker, 1 E. D. Smith, 699; Lowber v. Childs, 2 E. D. Smith 577; Foster v. Skidmore, 1 E. D. Smith 719; Kaylor v. O'Connor, 1 E. D. Smith 672.

65 Davis v. Mouat Lumber Co., 2 Colo. App. 381, 31 Pac. 187; Estey v. Hallack etc. Lumber Co., 4 Colo. App. 165, 34 Pac. 1113; Sayre-Newton Lumber Co. v. Park, 4 Colo. App. 482, 36 Pac. 445.

66 White v. Holman, 32 Ark. 753; Evans v. MeLucas, 12 S. C. 56; Hague v. Jackson, 71 Tex. 761, 12 S. W. 63; Crawford v. Munford, 29 Ill. App.

445.

67 De Lashmutt v. Sellwood, 10 Or.

319.

68 Pillow v. Sentella, 39 Ark. 61; Hill v. Townley, 45 Minn. 167, 47 N. W. 653; Trapier v. Waldo, 16 S. C. 276; Renshaw v. Taylor, 7 Or. 315.

69 Bayly v. Muehe, 65 Cal. 345, 3 Pac. 467, 4 Pac. 486.

70 London etc. Bank v. Smith, 101 Cal. 415, 35 Pac. 1027.

§ 40. Action for fraud.-In an action to obtain relief from a judgment fraudulently procured, the attorney at law charged with being a party to the fraud should be joined with the client." So partners may be jointly sued for fraudulently recommending an insolvent person as worthy of credit."2 Or for deceit in a sale, if both knowingly make false representations, though only one was interested in the expected fruits of the fraud.73 So in an action to set aside a conveyance as made without consideration and in fraud of creditors, the fraudulent grantor is a necessary party defendant."4

75

A fraudulent grantor is a proper party defendant in an action to subject to a lien of a judgment the property alleged to have been fraudulently conveyed, but he is not a necessary party. So in an action by a purchaser at an execution sale, to set aside a conveyance alleged to have been made by the judgment debtor in fraud of creditors and purchasers, and to recover possession of the property, the assignee. in insolvency of the judgment debtor is a proper party defendant.7

79

§ 41. In ejectment.-The general rule is that ejectment can be maintained only against the real party in possession although he is not personally on the premises, but may be in possession through servants and employees." A mere party, in charge for others, is not an occupant.78 A railroad company that has simply laid rails on a public highway is not an occupant. But if the landlord be joined with the tenant as defendant in an action of ejectment, judgment, if for the plaintiff, must be against both.80 Complaint in ejectment against several who are in possession, alleging that one holds by virtue of tenancy from the others, sufficiently joins them all as defendants.81

71 Crane v. Hirschfelder, 17 Cal. 467.

72 atten v. Gurney, 17 Mass. 182, 9 Am. Dec. 141.

73 Stiles v. White, 11 Metc. 356, 45 Am. Dec. 214.

74 Gaylords v. Kelshaw, 1 Wall. 81, 17 L. Ed. 612.

75 Blanc v. Paymaster Min. Co., 95 Cal. 524, 29 Am. St. Rep. 149, 30 Pac. 765.

76 Pfister v. Dascey, 65 Cal. 403, 4 Pac. 393.

77 Polack v. Mansfield, 44 Cal. 36, 13 Am. Rep. 151. See, also, Valentine v. Mahoney, 37 Cal. 389, where the question is discussed as to the applicability of section 13 of the Practice Act (Code Civ. Proc., § 379, first clause) to the action of ejectment. 78 Hawkins v. Reichert, 28 Cal. 534; People v. Ambrecht, 11 Abb. Pr. 97. 79 Redfield v. Utica & Syracuse R. R. Co., 25 Barb. 54.

80 Code Civ. Proc., § 379.

81 Murray v. Briggs, 29 Wash. 245, 69 Pac. 762.

In ejectment against mining claims, it is not necessary to include as defendants those holding other undivided interests.82 But a landlord may come in and defend in an action in ejectment, where summons is served on a tenant, by a proper showing, even after a default is taken. The statute should in such cases be construed so as to dispose of actions of this character as nearly on their merits as possible, and without unreasonable delay, regarding mere technicalities as obstacles to be avoided.83 A landlord may defend in the name of the tenant, but not in his own name.8 84 Persons renting different apartments in the same house may be joined as defendants.st And the same is true of parties claiming title, accompanied by acts of ownership, to unoccupied premises.86 And any number may be made defendants, subject to their right to answer separately.87 A mere employee of a defendant in ejectment, who is permitted to reside upon the premises when suit is commenced, and who claims no. rights in the land as tenant or otherwise, is not a necessary party defendant. And where the defendant in ejectment has possession and a life estate in the property, his heirs cannot be made parties defendant with him.89

85

§ 42. Married woman.-In California, where a married woman is a party, her husband must be joined with her, except1. When the action concerns her separate property, or her right or claim to the homestead property, she may sue alone; 2. When the action is between herself and her husband, she may sue or be sued alone; 3. When she is living separate and apart from her husband by reason of his desertion of her, or by agreement

82 Waring v. Crow, 11 Cal. 366. 83 Roland v. Kreyenhagen, 18 Cal. 455. See, also, Reed v. Calderwood, 22 Cal. 465; Barrett v. Graham, 19 Cal. 632; affirmed in Bailey v. Taaffe, 29 Cal. 424.

84 Dimick v. Deringer, 32 Cal. 488. See, also, Valentine v. Mahoney, 37 Cal. 393; Hussman v. Wilke, 50 Cal 250; Garner v. Marshall, 9 Cal. 270.

85 Pearce v. Colden, 8 Barb. 522. 86 Garner v. Marshall, 9 Cal. 268; Taylor v. Crane, 15 How. Pr. 358; Johnston v. Gerry, 34 Wash. 524, 76 Pac. 258, 77 Pac. 503.

87 Winans v. Christy, 4 Cal. 70, 60 Am. Dec. 597; Ritchie v. Dorland, 6 Cal. 33; Ellis v. Jeans, 7 Cal. 417; Curtis v. Sutter, 15 Cal. 264; Morton v. Folger, 15 Cal. 276; Leese v. Clark, 28 Cal. 35; Fosgate v. Herkimer etc. Hyd. Co., 12 Barb. 352; Andrews v. Carlile, 20 Colo. 370, 38 Pac. 465; Walker v. Read, 59 Tex. 187.

88 Shaw v. Hill, 83 Mich. 322, 21 Am. St. Rep. 607, 47 N. W. 247.

89 Allen v. Ranson, 44 Mo. 263, 100 Am. Dec. 282.