Chamberlain v. Lancey , 60 Me. 230 ( 1872 )

Appleton, C. J.

The bill alleges that the defendant held the real estate, therein described, in trust for George W. Chamberlain, and as security for loans from him to said Chamberlain ; that said Chamberlain has deceased, that this complainant is administrator on his estate and one of his heirs at law, and that he brings this bill for the-benefit of his co-heirs and of the estate. The prayer of the bill is that the defendant may be declared to hold the lands described in the bill in trust, and as security for certain loans therein set forth, and be compelled to release the same to this complainant and his co-heirs' upon being paid or tendered the amount which may be due him for and on account of loans made.

The complainant describes himself as administrator and heir, but there is no allegation in the bill that the estate of George W. Chamberlain is insolvent.

The defendant has demurred to the bill. The demurrer admits the facts set forth in the bill. A trust estate, therefore, for the purpose of this discussion, may be assumed to exist.

Two causes of demurrer only have been argued, which we propose to examine.

1. It is objected that there has been no demand for an account and no tender of the sum due. In other words, that the complainant does not bring himself within the provisions of R. S., c. 90, § 17, which sets forth what a mortgagee is required to do when seeking to redeem his mortgaged estate.

The bill does not. set forth a statute mortgage. None such is pretended to exist. The bill is not brought under the provisions of the revised statutes relating to mortgages. It seeks only the enforcement of an alleged trust, not the redemption of a statutory mortgage. The offer, too, is made to pay whatever there may be due the trustee. This objection cannot avail.

2. It is objected that there are not the proper parties to the bill.

The enforcement of a trust is sought for. George W. Chamberlain was the original cestui que trust. Upon his death, his rights devolved upon his heirs. The defendant, assuming the existence of a trust, holds the estate for the benefit of his heirs. If it is to be enforced, it is to be enforced by them.

One of the heirs only is a party. The general rule is, that all interested in the object of the suit ought to be made parties. There is no reason perceived why the co-heirs of the complainant may not and should not be parties. There is no allegation that the other heirs have declined to become parties complainant. If they had so declined, they might have been made parties defendant.

Nor is the allegation that they are residents without the State a sufficient reason for not making them parties. ‘ It is usual ... to add in the bill the name of the person out of the jurisdiction of the court, so far as may be necessary to connect his case with that of the other parties. But in such case, the bill should not only allege, that the person is out of the jurisdiction, but it should go on to pray process against him, so that he be made amenable to the process of the court, if he should come within the jurisdiction.’ Story’s Eq. PL, § 80.

The trustee should not be liable to but one process. The rights of all those for whose benefit the trust exists should be finally settled in this case. • What may be the relations between the co-heirs we do not know. One heir may have acquired the equitable rights of his co-heirs. In such case, a conveyance to all the heirs might be adverse and prejudicial to the interests of some one of them, and lead to further litigation. The rights of parties not before the court cannot safely be determined in their absence.

jDemurrer sustained.

Cutting, Kent, Walton, and Barrows, JJ., concurred.