Davis v. Hemingway

29 Vt. 438

• Court: Supreme Court of Vermont
• Decided: March 15, 1857
• Status: Published

Opinion

The opinion of the court was delivered by

Redfield, Ch. J.

This is a bill to foreclose an equity of redemption. The conveyance of the mortgagee’s interest to the plaintiff, both in the granting part or premises of the deed and in the habendum, is expressed to be to him, as agent of certain other parties. Prima facie, then, it is a conveyance for their benefit, and they are interested in the mortgage. And a more extended examination of the relation of the parties seems to show very clearly that L. F. Davis and Elkanah Smith have all along had an interest or claim in the premises, and the conveyance to the plaintiff seems to have been with a view to the recognition and settlement of their claim. But of this we could no doubt judge with more accuracy if all the conveyances and contracts relative to this property were before us. But upon the face of the deed, and from what we gather from the bill and answer and the argument, we regard the plaintiff as holding the title of this mortgage in part, at least, for the benefit of L. F. Davis and Elkanah Smith. If so he is the trustee and they the cestuis que trust to that extent. If so the law is perfectly well settled that they are necessary parties to a bill to foreclose the equity; Story’s Eq. Pl., sec. 201; Wood v. Williams, 4 Madd. 31; Lowe v. Morgan, 1 Brown’s C. 368; Story’s Eq. Pl., sec. 207.

We think, therefore, that the decree of the chancellor must be reversed and the case remanded to the court of chancery with directions to dismiss the bill for want of necessary parties, unless the objection be removed.