§ 369. VIII. Actions to quiet Title. The nature of the action to quiet title is such that it is impossible to lay down any but the most general rule in relation to its parties defendant. The very object of the proceeding assumes that there are other claimants adverse to the plaintiff, setting up titles and interests in the land or other subject-matter hostile to his. Of course all these adverse claimants are proper parties defendant, and if the decree is to accomplish its full effect of putting all litigation to rest, they are necessary defendants. Originally, and independent of statute, this particular jurisdiction of equity was only invoked when either many persons asserted titles adverse to that of the plaintiff, or when one person repeatedly asserted his single title by a succession of legal actions all of which had failed, and in either case the object of the suit was to settle the whole controversy in one proceeding. The action has, however, been greatly extended by statute, especially in the Western States, and is there an ordinary means of trying a disputed title between two opposite claimants. The general scope of these statutes is as follows: The plaintiff must be in possession claiming an estate in the lands. The adverse claimant or claimants must be out of possession, and must assert a hostile title or interest. In this condition the possessor of the land, without waiting for any proceeding legal or equitable to be instituted against him, may take the initiative, and by commencing an equitable action may compel his adversaries to come into court, assert their titles, and have the controversy put to rest in the single judgment. It is plain, therefore, that this statutory suit is the converse of the legal action of ejectment. The action to quiet title is not, however, confined to the ownership of lands; its use is multiform; it may be invoked to determine conflicting rights over personal property, and even rights growing out of contract where a multiplicity of actions depending upon the same questions will thereby be avoided. I shall now give some illustrations of the action and of its different forms. It the vendee subcontracts, there is a dis- - but if the agreement between B. and C. is that B. will convey the land to C., then B. is the only necessary party in the action against A. Alexander v. Cana, 1 DeG. & Sm. 415; Chadwick v. Maden, 9 Hare, 188; B- - v. Walford, 4 Russ. 872. will be seen that each case must stand mainly upon its own circumstances under the guidance of the general principle which requires all persons whose rights and interests could be affected by the decree to be made parties. § 370. The officers of a railroad company, in violation of their duty and of the charter, and with a fraudulent intent, issued large amounts of spurious stock of the corporation, which had all the appearance on the face of being genuine. These issues had been made at different times, and to various persons, and the stock was actually held by three hundred and twenty-six separate owners who had bought it in the course of business supposing it to be genuine. Most of these holders had commenced suits against the company to compel it to recognize the stock as valid in their hands. Under these circumstances the corporation began an action against all these three hundred and twenty-six persons as defendants, to procure the stock to be declared spurious, to enjoin the suits then pending, and to determine the controversy at one blow. The suit was sustained as a bill of peace and to quiet title, and the defendants were held to have been properly united in the one proceeding; their stock was tainted (if at all) by a common vice, and the same fundamental question disposed of all their claims. On the same principle, the receiver of an insolvent insurance company was permitted to unite all the judgment creditors of the corporation who were separately suing the stockholders on their personal liability, and to enjoin their actions in order that the liability of all the stockholders might be enforced by himself in the same action.2 § 371. In an action to quiet title to lands by correcting mistakes in deeds thereof, all persons having any interest in the land, or having any interests which could be affected by the relief demanded, must be brought before the court as defendants. When 1 N. Y. & N. H. R. R. v. Schuyler, 17 N. Y. 592. The final result was, that the court pronounced the stock valid as against the company, and each defendant obtained a separate judgment against the plaintiff. S. C. 34 N. Y. 30 Bills of peace are sometimes permitted to be brought against a part only of those claiming adversely to the plaintiff when their number is very large; but in all such cases the right must be general among all these claimants. Story's Eq. 2 Osgood v. Laytin, 5 Abb. Pr. x. s. 1 (Ct. of App.). the land has passed through several owners by a succession of conveyances, all the series of grantors, or their heirs if they themselves are dead, are necessary defendants.1 In another case involving the same principle, a sale had been made under a power of sale contained in a mortgage of land, and a deed of the land executed by or on behalf of the mortgagee to the purchaser. In the description of the premises contained in this mortgage there was an important mistake, which was repeated in the deed to the purchaser who took the conveyance in ignorance thereof. On discovery of this error he brought an action to reform the mortgage and his deed by correcting the mistake, and made the mortgagor the only defendant. The Supreme Court of Missouri held upon these facts the mortgagee was a necessary defendant, and must be brought in before any judgment could be rendered.2 § 372. The general rule governing actions to quiet and determine title to lands brought by the one in possession against the persons who set up adverse claims, was clearly and accurately stated by the New York Court of Appeals in a recent case. The proceeding was instituted under a statute which corresponds in its important features with the description of that class of enactments given in a preceding paragraph (§ 369). The party in possession had united all the adverse claimants as defendants in his suit, and this was objected to as a misjoinder. The court stated the doctrine in the following manner: "It is claimed on the part of the respondents that the plaintiff could not unite all the claimants as defendants in the action. I cannot doubt that this claim is entirely unfounded. Here are twenty-four persons. claiming title to this real estate. They all denied the plaintiff's right upon the same ground, and claimed title from the same source, and therefore had the same defence to the action. It cannot be that under the Revised Statutes it would have been necessary for the plaintiff to have instituted in such a case twentyfour special proceedings. Under the Revised Statutes these 1 Flanders v. McClanahan, 24 Iowa, 486. See this case for a very elaborate discussion of the doctrine stated in the text; but see Thomas v. Kennedy, 24 Iowa, 397; and see Beckwith v. Darges, 18 Iowa, 303. In an action to reform a deed, both the grantor and the grantee are necessary parties. Pierce v. Faunce, 47 Me. 507. As to necessary or proper defendants in actions to correct mistakes in instruments, see Newman v. Home Ins. Co., 20 Minn. 422, 424; Durham v. Bischoff, 47 Ind. 211. 2 Haley v. Bagley, 37 Mo. 363. The court finally held that the purchaser could not maintain such an action at all; that he was not in such privity with the mortgagor as to entitle him to the relief. defendants, if they had all been in possession of this real estate, claiming the same title which they set up as defendants in this action, could all have been united as defendants in an action of ejectment; and they could, if they had chosen to do so, all have united in an action of ejectment against the plaintiff. Hence there was no error in the joinder of these defendants."1 owners. § 373. IX. Actions for Partition. The action of partition has been made the object of so many special and varying statutory regulations in the different States, that it cannot properly be said to fall within the domain of the general procedure as the same is established by the codes. I shall only attempt, therefore, to point out its general features relating to parties defendant, and such as are common to all or several of the States in which the reformed system prevails. The primary object of the action is to divide the land according to their respective interests among the coThe proceeding may be instituted by any co-owner, and all the other co-owners are of course necessary defendants, and they are in such case the only necessary, or even proper defendants, for the rights of no other classes of persons could be affected by the decree making the division. General creditors of any coowner, or of any prior owner of the whole tract of land,example, the deceased ancestor of the present co-owners, any prior owner of part of the land, not having obtained judg ment, and not therefore holding any lien upon the premises or a part of them, would not be proper defendants for any purpose, any more than the general creditors of a mortgagor in the case of 1 Fisher . Hepburn, 48 N. Y. 41, 55, per Earl J. In a similar action, brought by the plaintiff to quiet his title and to cut off the adverse claim of the defendant, the latter answered that before the commencement of the action he had conveyed away all his interest in the premises by a warranty deed to one C., and he disclaimed all further interest therein. This fact appearing on the trial, C. was held to be a necessary defendant, and the action was held over by the court in order that he might be brought in by the plaintiff; but, the plaintiff neglecting to bring him in, the action was dismissed. Johnson v. Robinson, 20 Minn 170. Actions to determine title sometimes arise when the land has been "settled," - that is, conveyed to persons having present partial - as, for or of estates, and to others having future estates either vested or contingent, by way of remainder, executory devise, or use, al though such cases are, of course, much more common in England than in this country. In all such actions affecting the inheritance, and in all actions affecting the inheritance where the land is held in the manner described, the rule is well settled that the holders of all the intermediate estates down to and including the holder of the first vested estate of inheritance must be joined as defendants. Story's Eq. Pl., §§ 144, 198; Sutton v. Stone, 2 Atk. 101; Reynoldson v. Perkins, Amb. 564. This rule has been adopted in New York, and applied to partition suits. Mead v. Mitchell, 17 N. Y. 210, 214, 215; Clemens v. Clemens, 37 N. Y. 59. a foreclosure. The holders of liens upon the entire tract to be divided, such as judgment creditors of the former owner, or the holders of mortgages given by a former owner, would not be necessary defendants, nor would they be even proper parties to the action. Their liens would be utterly unaffected by the decree and subsequent division in pursuance thereof. As their judgments or mortgages were incumbrances upon the whole land prior to the titles of the present co-owners, the division of the real estate among these co-owners would leave the same liens undisturbed and effectual upon the same premises in their full force and effect. The transaction would be the same in substance as the conveyance by a mortgagor of the mortgaged premises to a grantee who takes them subject to the existing lien. Such incumbrancers are therefore, according to the doctrines of equity, not even proper parties defendant, when the action is simply for a division of the soil. $374. The case of those who hold liens upon the undivided shares of individual co-owners, may appear at first view to be somewhat different from the one last described, but it really falls within the same principle. As long as the co-owner's share remains undivided, the incumbrance upon it is equally vague; that is, it is not a lien upon any specific and determined part of the whole common tract, but upon an undivided and undistinguished fraction of it. As the single co-owner himself cannot say of any particular spot of the territory in question, "This is mine, I am entitled to the exclusive possession of this," so his judgment creditor or mortgagee cannot say of any particular lot, "I have a lien upon this, and can enforce that lien by selling this specific portion." The sole effect of the decree and the decision in execution thereof is to allot a certain specified and determined piece of land to the co-owner in place of his former undefined share, and to transfer the lien-holder's incumbrance to this specified and determined portion of the soil. The incumbrance itself is neither increased nor diminished in amount; it is merely changed from its floating to a fixed character. It is plain, therefore, that the incumbrancer thus described has no real legal or equitable interest in the partition suit when the same is instituted and carried on to its end for the mere purpose of dividing the land among the co-owners. His rights are unaffected; his lien undisturbed. The only apparent interest which he has, or can |