John Townsend, for the appellant.

John S. Davenport, for the respondents.

FINCH, J. We are of opinion that the general term erroneously sustained the demurrer interposed to the plaintiff's complaint. That pleading, it is conceded, stated a good cause of action for a partition as against the defendants who held undivided interests in the land as tenants in common, and none of whom object to its sufficiency. It avers that the property is of such character and so situated as to make an actual partition impossible, except with grave injury to the interests of the owners, and therefore seeks a sale and division of the proceeds. With that relief in view, it further alleges that other parties, naming them, and being those who now demur, "claim some right, title, or interest in said premises, the exact nature of which is unknown to the plaintiff, and which is a cloud upon the title to said premises," and asks that they be adjudged to have no interest in the property.

The demurrants interpose two objections; one, that the complaint states no cause of action against them, and the other, that a cause of action to determine a claim against real estate is improperly united with one in partition. The demurrants themselves demonstrate that there is no force in the second objection, for they show satisfactorily that none of the conditions made necessary by the code for the maintenance of such an action have been heeded, and that neither such cause of action nor one to remove a cloud have been stated in the complaint. We agree with them that neither in purpose nor result were any such causes of action pleaded, and that the complaint states alone a cause of action in partition.

The question, therefore, is, whether, upon the allegations of the complaint, the right to a partition of the property can be said to affect the defendants who demur. It seems to me that it can. Prima facie, and in the absence of a contrary explanation, all persons who either are or claim to be interested in the premises are affected by a demand for a sale and a division of the proceeds, and the cause of action pleaded affects or concerns them, and so becomes a good cause of action for a partition as against them. That the complaint does not show what their interest is, the plaintiff excuses by his ignorance of the nature of their claim, and that is a fault which the defendants can easily repair. That the claim of an interest in the premises may be false or pretended, or unfounded,

we are not to presume in order to sustain the demurrer. It is true that the interest claimed may prove to be of such a character as to be totally unaffected by the partition sought. If that be so, it should be asserted by answer. The presumption raised by the allegations of the complaint is to the contrary; for they are, that the claim is of an interest or right in the property to be sold, and such that it serves to cloud the title. Presumably, that is a claim of right which the partition will affect, and the parties who have made such claim, and by the demurrer admit that they have, must be assumed to have done so in good faith, and not falsely or fraudulently.

The rules of pleading in equity, while the same in form with those in actions at law, are nevertheless broader and more elastic by reason of the inherent character of the relief which may be sought and given. It has always been held as a general rule in equity that all persons materially interested, either legally or beneficially, in the subject-matter of a suit are to be made parties to it, so that there may be a com plete decree which shall bind them all: Caldwell v. Taggart, 4 Pet. 190. In carrying out that rule, it sometimes happen that a plaintiff knows the fact that a third person claims an interest in the subject-matter of the action, but does not know the nature, extent, or merits of the claim, which cannot, nevertheless, be entirely ignored without peril to the complete ness of the remedy sought. In such an emergency, the facto may be stated, the claimant be called in as a party, and required to disclose his alleged interest. While bills of dis covery are abolished, yet in such a case as we have described, a discovery of the defendant's claim is incidental to the relief sought, and essential to its completeness. Indeed it has been said that every bill for relief is in reality a bill of discovery, since it asks from the defendant an answer as to all the matters charged in the bill: Story's Eq. Pl., sec. 311. The Revised Statutes acted upon these principles in framing the specific rules applicable to actions of partition: 2 Rev. Stats., pt. 3, c. 5, tit. 3, sec. 5. The petition was required to set forth the rights and titles of all persons interested, "so far as the same are known to the petitioner," and the rule to appear and answer required the defendants interested, whether their interest was known or unknown, "to show title to the proportions which they may claim" in the premises: Sec. 13. While the code has changed the forms of pleading, it has not destroyed their essential characteristics except in some

minor degree. In providing for actions of partition, section 1542 was ostensibly founded upon section 5 of the Revised Statutes, and, like that section, requires the rights of the parties to be stated, "so far as they are known to the plaintiffs." So far as they are not known, such interest can only be described as "a claim," for it will not do to say that the plaintiff must admit the validity of an asserted interest the nature of which he does not know.

This complaint therefore alleged all that it could to show why the demurrants were made parties, and how the cause of action concerned them. The relief of a sale could only be complete and effective by the ability to give a clear title: Bogardus v. Parker, 7 How. Pr. 305. That result could only be reached by bringing the claimants into court and calling upon them to disclose their interest or disclaim its existence, and so the allegations of the complaint were sufficient prima facie to extend the one cause of action to the demurrants and bring them within its influence. They are either so situated as to be affected by the decree or not affected by it. Presumably, from the averments of the complaint, they will be affected by it. If, however, they insist that their interest may be of such a character that it will not be affected by a possible sale of the property, or that it cannot or ought not to be tried in the suit, it is enough to say that the plaintiff cannot negative, in his complaint, a character of their claim of which he asserts his ignorance.

If either of those conditions exist, the remedy is not by a demurrer. If the actual partition or sale will not affect or disturb the rights of the party, he may safely disregard the action entirely, since no personal judgment is sought against anybody; or he may answer, showing that his presence is unessential, and ask to have the complaint dismissed as to him. If his interest is of a nature not subject to a trial in the partition suit, he may plead the facts in his answer, and again seek a dismissal of the complaint as against himself. And so his rights may be perfectly preserved without leaving the plaintiff to blunder in the dark to an imperfect remedy.

It may be that the complaint asks some relief which cannot be granted, but that does not make the complaint demurrable.

The judgment of the general term should be reversed, and that of the special term affirmed, with leave to the defendants to answer upon payment of costs from the interposition of the

demurrer and within twenty days after notice of the entry of this judgment upon filing the remittitur.

Judgment accordingly.

EQUITY, PROPER PARTIES TO A SUIT IN.-When, for any reason, a court of equity acquires jurisdiction of a controversy, it will require all persons concerned to be brought before the court, in order that their respective interests be charged or protected: Brown v. Buck, 75 Mich. 274; 13 Am. St. Rep. 438; Jones v. Davenport, 45 N. J. Eq. 77; Pratt v. Kindig, 128 Ill. 293; Wallace ▼. Wallace, 63 Mich. 326; Sheppard v. Nixon, 43 N. J. Eq. 627.

BUFFALO LOAN, TRUST, AND SAFE DEPOSIT COMPANY V. KNIGHTS TEMPLAR AND MASONIC MUTUAL AID ASSOCIATION.

[126 NEW YORK, 450.]

INFORMATION AS TO CAUSE OF DEATH OF INSURED CANNOT BE REQUIRED BY INSURER WHEN. Where a contract of life insurance obligates the insurer to pay the amount of the policy to the heirs or legal representa tives of the insured "within sixty days after due notice and satisfactory proof of the death" of the insured, without requiring that the cause of death should be communicated, the insurer has no right to demand information of the cause of the death. All that he can require is, that the fact of death shall be shown with reasonable definiteness and certainty.

PHYSICIAN'S CERTIFICATE OF DEATH ADMISSIBLE AS ADMISSION OF PARTY WHEN. Where a physician's certificate of death of the insured, in which a cause of death is stated, which would, if true, vitiate the policy, is furnished to the insurer as part of the proofs of death, although no cause of death was required to be stated, such certificate, though not admissible as original evidence of the cause of death, is admissible as an admission of the plaintiff in an action against the insurer to recover on the policy, and its reception in evidence does not violate a statutory provision prohibiting a physician from disclosing any necessary information acquired by him in a professional capacity.

ADMISSIONS OF GUARDIAN DO NOT BIND WARD. ·

- Where a guardian makes admissions inconsiderate, unnecessary, and prejudicial to the rights of his ward, the court will not permit the ward's rights to be prejudiced by such admissions.

CERTIFICATE OF ATTENDING PHYSICIAN CANNOT BE REQUIRED AS PART OF PROOFS OF DEATH OF INSURED WHEN. - Where there is no usage known to the insured, nor any provision in the policy requiring that the certificate of the attending physician of the insured shall be furnished as part of the proofs of death, such certificate cannot be required; and an offer to show that by the rules and regulations of the insurer such certificate was required was properly rejected.

RECORDS OF BOARD OF HEALTH NOT EVIDENCE BETWEEN PRIVATE PARTIES OF FACTS RECORDED. The records of a board of health of a city, re

quired by police regulations to be kept for local and specific purposes, are not public records in such sense as makes them evidence in a controversy between private parties of the facts recorded.

ACTION upon a certificate of membership issued by the defendant to John Roberts. The facts appear from the opinion. David F. Day, for the appellant.

John G. Milburn, for the respondent.

ANDREWS, J. By the terms of the certificate of membership the defendant obligated itself to pay to the heirs or legal representatives of the assured the sum payable on the policy "within sixty days after due notice and satisfactory proof of the death (during the continuation of the contract) of the said John Roberts." There is no requirement that the cause of death shall be communicated to the association by a claimant, nor, under the policy, could this be exacted. The beneficiary of the policy performed his entire legal obligation under the contract when he gave the association due notice of the death of the insured, and furnished proof that the death has in fact occurred. The words "satisfactory proof" entitled the association to demand that the fact of death should be shown with reasonable definiteness and certainty, and if the proofs furnished failed to satisfy the association of the fact of the death, the association, acting reasonably and in good faith, could require further evidence. But the insurer cannot, under guise that the requirement that "satisfactory proof" of the death of the assured should be given, demand information of the cause of the death. This would be a different subject. The information, however important it might be in its bearing upon a death from the excepted causes, nevertheless has no relation to the one fact which alone the claimant is bound to embrace in his proofs: See Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281; 36 Am. Rep. 617; Charter Oak L. Ins. Co. v. Rodel, 95 U. S. 232.

The guardian of the infant plaintiff, in furnishing to the defendant, as part of the proofs, the certificate of the attending physician of the insured, did a wholly gratuitous act. it can be treated as an admission by the infant beneficiary that the death was from the cause so certified, it is plain that the act was extremely prejudicial to the interest of his ward, for upon that assumption the infant, the real plaintiff, has, substantially, admitted away his cause of action.

The trial judge, upon the proofs being offered in evidence