Felch v. Hooper , 20 Me. 159 ( 1841 )

The opinion of the Court was by

Shurley J..

The case is not presented in such a manner as to entitle the plaintiffs to a decree in their favor. If the necessary parties were before the Court, they might perhaps by competent proof show, that the defendant, Cobb, procured the mortgage from Blanchard to Felch to be made, and that he was present and consented that Blanchard should thus convey the title to the land, and made no communication, that he had not conveyed to Blanchard, or that Blanchard’s title was not good ; and thus lay the foundation of a decree, that Cobb should not set up his title against that conveyed by Blanchard. But no such decree can be made between the present parties, or on the present proofs. The testimony of the widow must be excluded. She is apparently entitled to a distributive share of the personal estate of her late husband composed in part of these notes, and therefore interested to establish the validity of the mortgage, by which they are secured.

Hooper, one of the defendants, was irregularly examined as a witness without any order of the Court therefor ; and having fathed to answer, the counsel agreed, that his deposition should be regarded as his answer. It cannot be considered under these circumstances as before the Court in any other character than as an answer. And the answer of one defendant is not evidence against another. Morse v. Royal, 12 Ves. 355; Leeds v. Marine Ins. Co. 2 Wheat. 380.

There is also a defect of parties. The executor or administrator is by our law entitled to control the notes and the mortgage, by which their payment is secured; and is therefore a necessary party to a bill, that will operate upon the security, which it is his duty to protect and enforce.

But as the objection for want of proper parties was not taken till the hearing; the Court may order the case to stand over on terms with liberty for plaintiffs to amend by adding new'parties. Jones v. Jones, 3 Atk. 110.

Such an order may be obtained, if desired, and if pot, the bil] is to be dismissed.