Patton v. . Bencini , 41 N.C. 204 ( 1849 )

In November, 1843, the defendant Anthony Bencini conveyed to the defendants Adams and McLean several parcels of real estate, slaves, and other personal effects, upon trust to sell and pay his debts. The deed recites that Bencini was indebted to D. A. Davis in the sum of $1,175, on a note, to which the said Joel McLean, Peter Adams, John A. Gilmer, and J. P. Mabry were sureties, to Robert G. Lindsay in the sum of $278.25 by bond, to which the said Adams was surety, and to John E. Patton, the plaintiff, in the sum of $250, or thereabouts, by account, which the said Adams had guaranteed in writing. It also recites divers other debts for certain sums mentioned, for which Adams was bound as surety, and three other specified debts to several persons by name, viz., T. R. Tate, J. and R. Sloan, J. A. Mebane, and divers others upon notes or bonds, for which no one is stated to be bound as surety. And, after the conveying clause and the trust to sell, the deed declares the trusts as to the proceeds as follows: "and out of the money thus (205) raised to pay first the debts herein specified, sureties, indorsers, and guarantors; next the debt of Thomas R. Tate and J. R. Sloan, J. A. Mebane (and sundry others enumerated); thirdly, if there should be any balance, to pay the same on the several debts of the said Bencini, not secured by any other mortgage or deed of trust, including in this class a debt to Dr. Garland, Thomas Gatewood," and upwards of twenty others named.

The bill was filed in March, 1849, and states that on 5 July, 1843, Bencini was indebted to the plaintiff in the sum of $300 upon an unsettled account, and that the defendant Adams guaranteed in writing "the payment to the said John E. Patton of whatever amount might be found due upon a final settlement with Bencini, which settlement is to be made in August next." No payment nor settlement was made of the plaintiff's demand, and the object of the bill is to obtain an account of the trust property and satisfaction of the plaintiff's debts thereout. A copy of the deed is annexed to the bill and referred to therein as Exhibit B. The bill is filed against Anthony Bencini, Joel McLean, and Peter Adams, against whom by name process of subpoena was prayed, issued and served. The bill, at the close of it, adds: "and that all the creditors mentioned in Exhibit B may be made parties and served with process, that they may protect such interest as they may have in the premises." But process was issued to no one but the three persons just named, nor did any other person appear in the cause.

Bencini answered, and the defendants McLean and Adams demurred, and assigned for causes of demurrer that D.A. Davis, John A. Gilmer, J.P. Mabry, Robert G. Lindsay, Tate, Mebane, etc., the creditors named in the deed, were not and neither of them was made party. The demurrer was overruled and Adams and McLean were allowed an appeal. Although as against third persons, who deny the title both of the trustees and cestui que trust, the latter need not be a party, but it is generally sufficient that the trustee alone should be before the court, either as plaintiff or defendant, inasmuch as he represents the cestui quetrust, yet when several persons are cestuis que trustent or have specified charges on a trust fund, under the deed, and a suit is brought to ask the execution of the trusts, and claim an account and distribution of the fund, it is ordinarily proper the plaintiff should bring in all persons entitled equally with or before himself, or should show that it is not necessary because they had been satisfied, or that he could not because they were out of the jurisdiction, or other like excuse. The reasons arising out of the rule of the court of equity to prevent the multiplicity of suits and to secure persons bound to account by requiring all persons in interest to be parties in order definitely to bind them by the decree, apply as forcibly to this case as to any other. Jeremy Eq. Pl., 176. It is not indeed necessary, for example, in this case, to embarrass the suit by the number of parties or the increase of expense, by making parties of those persons who can claim under the provisions of the deed only after the plaintiff shall have been satisfied, for they have no direct interest in the account which he seeks, or, at least, as against him and those who are provided for with or before him. The trustee is charged with the duty of seeing that no unjust recovery is effected by the plaintiff, as to the prior encumbrancer, and therefore such posterior encumbrancer is bound by a decree fairly obtained against the trustee. The case is precisely analogous to a bill by specific legatees, who need not make the residuary legatees parties, but may recover against the executor by himself, in which case, unless there be collusion, (207) the residuary legatee is concluded. In this case, therefore, the second and third class of creditors, Tate, Mebane, Garland, and the others, would be unnecessary parties, and if the plaintiff had brought them in, he would have been liable to them for costs. The causes of demurrer, in respect to those persons, severally, are therefore insufficient. But as no reason is stated in the bill for not doing so, it was indispensable that the plaintiff should have brought in all those who are secured in the same class with himself, just as in a bill, by one residuary legatee or next of kin, he must make the others parties. The inquiry is, then, Who are thus secured? and, next, whether all of them are made parties Now, not only are the creditors designated in the deed entitled to satisfaction of their debts, but also those liable for any of the debts as sureties, indorsers, or guarantors are expressly provided for, and therefore are proper parties, as Gilmer, Mabry, and others. It may well be questioned whether any persons are made technically parties defendant except the three who are mentioned in the bill by name. That is the regular and proper method of making a defendant. Perhaps a bill might be sustained against persons named in a schedule annexed to the bill and referred to in it, as though they were mentioned by name in the bill; but we cannot undertake to say it would, and we are inclined to require pleaders to adhere to the usual form of mentioning in the body of the bill each person by name whom the plaintiff means to make a defendant. But, without deciding upon that point, we think this bill does not make the proper parties, because it does not refer to a schedule, purporting to set forth the names of the defendants, as such, but refers to an annexed exhibit of a deed and prays for process against the creditors therein mentioned. Now, supposing that such a general description of defendants might, in any case, suffice, it will not do here, (208) because other persons, namely, "the sureties, indorsers, or guarantors," upon any of these debts, are as necessary parties as the creditors themselves; and it is plain that they do not even come within the terms of description used in the bill of the creditors mentioned in the exhibit "B," and that the master could not have issued a subpoena for them. Therefore, without deciding at present the more general question, it is sufficient to say that Gilmer and Mabry, for example, ought to be parties, and that they are not; and consequently that the want of them was good cause of demurrer. The plaintiff might, probably, have been allowed, in a court of equity, to amend on paying the costs of the demurrer, as that is often done. But as he would not move it, but contested the sufficiency of the demurrer, and compelled the other side to bring the cause here on appeal, this Court can say nothing less than that the decree must be reversed with costs in this Court. The demurrer must be sustained and the bill dismissed as against McLean and Adams, with costs.

PER CURIAM. Reversed with costs.

Cited: Tomlinson v. Claywell, 57 N.C. 320; Murphy v. Jackson, 58 N.C. 14.

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