Rogers v. Rogers

3 Paige Ch. 379

Opinion

The Chancellor.

This bill is filed by the complainants to protect their rights as judgment creditors, upon a judgment recovered by them in this state in their representative character. That recovery is conclusive#vidence of their right to sue as executors so far as respects that debt; and it was not necessary for them in the present suit to show how they became entitled to sue as the representatives of the testator, to whom the demand was originally due.

Neither was it necessary to .make the Bank of New-York, or any other of the creditors for whose benefit the assignment was made, parties defendants. As a general rule, the cestui que trust, as well as the trustee, must be parties ; especially where the object is to enforce a claim consistent with the validity of the trust. But where the complainant claims in opposition to the assignment or deed of trust, and seeks to set the same aside on the ground that it is fraudulent and void, he is at liberty to proceed against the fraudulent assignee or trustee, who is the holder of the legal estate in the property, without joining the cestui que trust. Such has been the uniform practice of this court in relation to cases of this description, and I see no good reason for adopting a different rule. Lord Redesdale lays it down as a principle of equity pleading, that persons having demands prior to the creation of the trust and not claiming under the same, may enforce their claims against the trustees without bringing the persons interested in the trust before the court. (Mitf. 4 Lond. ed. 175.) Although there are some exceptions to the rule thus laid down by this distinguished equity pleader, the case now under consideration does not come within the principles upon which those exceptions to the rule have been maintained.

The decision of the vice chancellor in overruling the demurrer was therefore right; and the order appealed from must be affirmed, with costs.