action to set aside such judgment or to restrain its enforcement on the ground of want of jurisdiction in the court which rendered it, or on the ground of fraud, his co-judgment-debtors must be made parties to the proceeding, either as plaintiffs, or, upon their refusal to join, as defendants; their presence before the court is necessary to any adjudication upon the merits.1

§ 382. Enforcement of Liens. In an action by a subcontractor or material-man to enforce the mechanic's lien given by statute, it is proper to make the contractor a party defendant as well as the owner of the building, so that all the claims may be adjusted in one suit. It is decided, in California, that when the building or other premises upon which the labor was performed is owned by a partnership, all the members of the firm are necessary defendants in an action to enforce a mechanic's lien, even though the plaintiff was employed by one of the partners alone, was ignorant of the other co-owners, and had filed his notice of lien only against the one employing him. It may be stated as a general rule that in all actions to enforce a lien, the person in whose adverse possession the property subject thereto is held, is a necessary defendant, or otherwise the decree would virtually be a nullity.

§ 383. A contract for the sale of lands being pledged or assigned by the vendee as collateral security for the payment of a debt, and the creditor the pledgee, or assignee - bringing an action to foreclose the right of redemption, and to sell the security, and to apply the proceeds in payment of his own demand, the vendor in the contract is held not to be a necessary party

1 Gates v. Lane, 44 Cal. 392.

2 Carney v. La Crosse, &c. R. R., 15 Wisc. 503; Lewis v. Williams, 3 Minn. 151. But it is held in Missouri that the sub-contractor need not bring in all of several joint contractors; the statute requiring the "original contractor" to be made a defendant is satisfied if one of them is joined. Putnam v. Ross, 55 Mo. 116; Horstkotte v. Menier, 50 Mo. 158, does not conflict with this decision, since it merely holds that the original contractor must be a defendant.

3 McDonald v. Backus, 45 Cal. 262. 4 Wingard e. Banning, 39 Cal. 543. A junior incumbrancer should be made a defendant, or his right of redemption will

not be cut off. Evans v. Tripp, 35 Iowa, 371. When the original owner of the premises on which the lien exists has conveyed all his interest by deed, he is no longer a necessary defendant if no personal judgment is asked; the suit must be against the grantee. McCormick v. Lawton, 3 Neb. 449, 451. In an action by the vendor in a land contract against the vendee to foreclose the latter's rights, and to sell his interest in the land for the balance of the purchase-price unpaid, the vendee's wife must be made a codefendant, in North Carolina, in order to cut off her inchoate dower right. Bunting v. Foy, 66 N. C. 193.

defendant in such suit. The same rule must apply to all kinds and forms of securities and things in action which are pledged or assigned for the purpose of collateral security, such as bonds, notes, certificates of stock, and the like. The obligor on the bond, the maker of the note, the corporation which issued the stock certificate, cannot be a necessary defendant in an action to foreclose and sell.

§ 384. A mortgage was foreclosed in a summary manner prescribed by statute in Iowa, and the premises were conveyed to A., the mortgagee. He afterwards assigned the mortgage and the note secured by it to B., and entered into a written agreement to convey to him the land. B. subsequently brought an action to foreclose the same mortgage against the mortgagor and the subsequent incumbrancers, and also made A. a defendant, setting up the former summary proceedings and A.'s agreement to convey, averring that such proceedings were invalid and worked no change in the rights of the parties, and also alleging that there was a mistake in the description of the land contained in the contract made by A., and praying that such mistake might be corrected; that A. might be ordered to convey the proper premises, and that the title might be quieted, or, if the former proceedings should be held invalid, that the usual decree of foreclosure of the mortgage might be rendered and the land sold thereunder. This action was held by the Supreme Court of Iowa to be properly brought; there was no improper joinder of defendants or of causes of action.2

§ 385. Contribution. It is a general rule of the equitable procedure that, in an action to enforce an obligation to contribute and to recover the amounts due from contributors, all the persons liable to make contribution should be joined as defendants, in order that their respective amounts may all be adjusted in a single suit. On the other hand, when several parties are entitled to a share from a common source, and the claims have not been adjusted and made specific and personal, but they all depend upon the same facts and involve the same questions, all the claimants should unite in the action, or at least should be brought

1 Vaughn v. Cushing, 23 Ind. 184.

2 Thatcher v. Haun, 12 Iowa, 303. This was, in fact, a suit to reform a contract for the conveyance of land, and to

compel a specific performance as reformed, or, in the alternative, for the foreclosure of a mortgage. If the relief was proper, the parties defendant were clearly so.

before the court as defendants if they are not joined as plaintiffs.1

§ 386. Actions by Tax-payers. In many States tax-payers and freeholders are permitted to maintain actions to set aside proceedings by local authorities, and to restrain the enforcement and collection of the tax which is the result of such proceedings, on the ground of their illegality. In such actions not only the officials themselves whose proceedings are sought to be set aside, and the administrative officers whose function it is to enforce the tax, must be made defendants, but also all other persons whose rights or interests may be adversely affected by a decree granting the relief demanded by the plaintiffs. For example, in such a suit brought to set aside the proceedings of certain municipal authorities, and to restrain the levy and collection of a special tax imposed by them for the purpose of paying certain illegal judgments held by different judgment creditors, all these judgment creditors were declared to be necessarily joined as defendants; they had a common interest among them all, centring in the point at issue in the cause.2

§ 387. Actions to redeem. In an action by a mortgagor or person holding under him to redeem, all those, in general, should be made defendants whose interests will be affected by the decree. If the mortgagee is living, he is, of course, an indispensable defendant; and if he is dead, his personal representatives, according to the theory of mortgages which prevails in this country. As a general rule, all persons who are interested in the mortgage money or debt secured by the mortgage must be joined. Thus, if the mortgage is held by a trustee, the cestui que trust should be a codefendant. If the mortgagee has absolutely as

1 Carr v. Waldron, 44 Mo. 393; Story's Eq. Pl., § 169; Madox v. Jackson, 3 Atk. 406; Bland v. Winter, 1 S. & S. 246; Jackson v. Rawlins, 2 Vern. 195; Hart v. Coffee, 4 Jones Eq. 321. In an action by a surety for contribution, the general rule is that all the co-sureties must be made defendants, and the personal representatives of any that are dead, and also the principal debtor. Story's Eq. Pl., § 169a; Ferrer v. Barrett, 4 Jones Eq. 455; Haywood v. Ovey, 6 Mad. 113; Moore v. Moberly, 7 B. Mon. 299; Trescott . Smyth, 1 McCord Ch. 301.

2 Newcomb v. Horton, 18 Wisc. 566, 570, per Cole J., citing Brinkerhoff v. Brown, 6 Johns. Ch. 139; Fellows v. Fellows, 4 Cow. 682; Story's Eq. Pl., §§ 285 et seq.

3 Story's Eq. Pl., § 188; Palmer v. Earl of Carlisle, 1 S. & S. 423; Osbourn v. Fallows, 1 R. & M. 741; McCall v. Yard, 1 Stockt. 358; Large v. Van Doren, 1 McCarter, 208.

4 Story's Eq. Pl., §§ 192, 208; Drew v. Harman, 5 Price, 319. Where the mortgagee had assigned the mortgage in trust for his family, it was held that, in

signed all his interest in the mortgage, he is no longer a necessary party in the suit to redeem, but the assignee takes his place; and if there are several successive assignments of such a character, the last assignee is the only necessary defendant. But where the mortgagee has made only a partial assignment, and retains any interest in the mortgage or in the debt secured by it, he must be joined with the assignee as a codefendant. When the suit is brought, not by the mortgagor, but by a subsequent mortgagee or other incumbrancer, to redeem from a prior mortgage, all the owners of the equity of redemption are necessary codefendants with the holder of such prior mortgage. If the mortgagor conveys his entire estate in the land, he need not be made a party in an action to redeem by his grantee. Persons having partial interests in the equity of redemption, or subsequent liens or incumbrances upon it or upon a portion of it, may redeem; but in such case they must bring in all other parties who are interested in the land; such other persons are necessary parties to the action either as plaintiffs or defendants, in order that all the rights and claims may be determined in one decree.5

SECTION EIGHTH.

WHEN ONE PERSON MAY SUE OR BE SUED ON BEHALF OF ALL THE PERSONS INTERESTED.

§ 388. IN immediate connection with the general topics treated in the preceding two sections, there are certain special subjects

an action to redeem, the mortgagee, the trustee and the beneficiaries were all necessary defendants. Wetherell v. Collins, 3 Mad. 255.

1 Story Eq. Pl., § 189; Chambers v. Goldwin, 9 Ves. 269; Hill v. Adams, 2 Atk. 39; Whitney v. McKinney, 7 Johns. Ch. 144; Williams e. Smith, 49 Me. 564; Beals v. Cobb, 51 Me. 348; Bryant v. Erskine, 55 Me. 153, 158.

2 Story's Eq. Pl., § 191; Hobart v. Abbott, 2 P. Wms. 643.

3 Story's Eq. Pl., §§ 186, 191; Palk v. Clinton, 12 Ves. 48; Lord Cholmondeley v. Lord Clinton, 2 Jac. & W. 134. As to the necessary defendants in an action for redemption by a subsequent in

cumbrancer when the prior mortgage has been foreclosed without making him a party, see Anson v. Anson, 20 Iowa, 55; Knowles v. Rablin, 20 Iowa, 101; Street v. Beal, 16 Iowa, 68; Burnap v. Cook, 16 Iowa, 149; Winslow v. Clark, 47 N. Y. 261, 263; Dias v. Merle, 4 Paige, 259; Bloomer v. Sturges, 58 N. Y. 168.

4 Williams v. Smith, 49 Me. 564; Hilton v. Lothrop, 46 Me. 297; Bailey v. Myrick, 36 Me. 50.

5 Story's Eq. Pl., §§ 185, 186; Henley v. Stone, 3 Beav. 355; Chappell v. Rees, 1 DeG., M. & G. 393; Fell v. Brown, 2 Bro. C. C. 278; Palk v. Lord Clinton, 12 Ves. 58, 59; Farmer v. Curtis, 2 Sim. 466.

which, though subordinate, are sufficiently important to require a separate notice, and they will therefore be considered in the present and the following two sections. The first of these involves an answer to the questions, When may one person sue as the representative of others who, although not named, are regarded as virtual coplaintiffs in the action? and, When may one person in like manner be sued as the representative of others who are regarded as codefendants? The statutory provision permitting this method of bringing the parties before the court is as follows: "When the question is one of a common or general interest of many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of the whole."1

§ 389. Following the course which has generally been adopted thus far, I shall first examine this provision of the codes by an independent analysis of its language, and shall then state the interpretation which has been put upon it by the courts. It is very evident that it describes two distinct and separate cases in which a plaintiff or defendant may be clothed with the representative character described, and may thus stand in the place of others whose rights and interests are determined together with his own. These two cases depend upon distinct and separate facts and circumstances, and are as follows: (1) There must be a "question of common or general interest" to many persons involved in the action. The two essential elements of this case are, the question of common or general interest to be determined, and the many persons who have this common or general interest in the matter at issue. The "many persons" in this case is opposed to the very numerous parties in the other, and is doubtless satisfied by a number actually less. It is certainly not necessary, in order to fulfil its requirements, that there should be any impracticability of bringing all the persons having the common or general interest before the court. (2) The second case depends entirely upon the number of the persons who should, according to the ordinary rule, be made plaintiffs or defendants. The single essential element is the impracticability of bringing all the

1 New York, § 119; Indiana, § 19; California, § 382; Wisconsin, ch. 123, § 20; Florida, § 70; Ohio, § 37; Kansas, § 38; Iowa, § 2549; Kentucky, § 37; South Carolina, § 142; Oregon, § 381;

Nevada, § 14; Nebraska, § 43; North Carolina, § 62; Dacotah, § 72; Washington, §§ 14, 15; Idaho, § 14; Wyoming, § 42; Montana, § 14.