Greene v. Sisson

10 F. Cas. 1154, 2 Curt. 171

• Court: U.S. Circuit Court for the District of Rhode Island
• Decided: November 15, 1854
• Status: Published

Opinion

CURTIS, Circuit Justice^

It is certainly a general rule that persons having distinct interests in the same security, either jointly or in succession, must unite in a bill to enforce their rights, or if some refuse, they must be joined as defendants. Story, Eq. PI. 272. But it is argued that there is an exception to this rule, when the trust fund is fixed, and eacli cestui que trust is entitled to an aliquot share. This may be, but the exception does not apply to this case, because the bill seeks for an account, and the trust fund is not fixed, but depends on the result of that account. Palk v. Lord Clinton, 12 Ves. 48; Norrish v. Marshall, 5 Madd. 475; Hobart v. Abbot, 2 P. Wms. 643; Wilson v. City Bank [Case No. 17,797); Lenaghan v. Smith, 2 Phil. Ch. 301; Wyllie v. Ellice, 6 Hare, 510.

It was further argued, that the last clause in this contract gives to either of the cestuis que trust a right to call for this conveyance, in order to hold the property for his own benefit, and also for the benefit of the others, and as their trustee. I do not think this is the meaning of the contract. It was contingent whether Mr. Cozzens would be in default in his payments or not; and he might be in default to one only, or to all. To meet this contingency, the agreement is to convey to them, or either of them; that is, to them if all shall have become interested; to either of them if only one shall be interested. Besides, if the agreement was to be construed as the plaintiff insists, I should hesitate to say that an assignee succeeded to the right of Hubbell & Co., to stand as trustee for the others. This must be deemed to involve a personal confidence which cannot be delegated by them.

It was argued that the act of congress of February 2S, 183S) (5 Stat. 321), has enabled tile court to proceed without these parties, because they are out of the jurisdiction. But, as was said by the supreme court in Hagan v. Walker, 14 How. [55 U. S.) 30, the court cannot proceed to take an account in the absence of a necessary party, though he is out of the jurisdiction. And Mr. Justice Story acted on this principle in Wilson v. Gity Bank [supra], and dismissed the bill. There were other objections to the bill in that ease, which could have been removed by amendments; and as counsel, I offer to make them; but the court was of opinion that the case could not proceed without making' Williams a party. See Shields v. Barrow, 17 How. [58 U. S.) 130. If the complainant can truly aver by way of amendment of the bill, that the other cestuis que trust have no interest, or that their interests have passed to the defendants, as was suggested at the bar; I am of opinion this would remove the objection.