L. HAND, Circuit Judge
(after stating the facts as above). The bill is so much made up of charges of evidenc“e and rhetorical nar[172]*172rative that it is nearly impossible tó ascertain from it the “ultimate facts.” • The pleader has wholly disregarded equity rule 25, and ■proceeded as if he were, drafting an ancient bill in equity. However, with this we have nothing to do at present; the only question is whether the Mexican corporation and the plaintiff’s attorneys were indispensable parties to the suit. The defendant’s argument is that no decree can be entered which will not so involve their interests as to prevent justice being done.
Section 50 of the Judicial Code (Comp. St. § 1033) and rule 39 of the Equity Rules, so far as here relevant, are identical in substance; they give discretion to the court to proceed without parties ordinarily necessary under equity practice, but prescribe that the decree must be without prejudice to those who are absent. In many decisions it has been laid down that the test is one of substance; that is, whether the plaintiff can obtain relief which will later leave open to', the absent parties the effective assertion of’ their rights; Shields v. Barrow; 17 How. 129, 15 L. Ed. 158; Mallow v. Hinde, 12 Wheat. 193, 6 L. Ed. 599; Payne v. Hook, 7 Wall. 425, 19 L. Ed; 260;. Gregory v. Stetson, 133 U. S. 579, 10 S. Ct. 422, 33 L. Ed. 792; California v. So. Pac. Co., 157 U. S. 229,15 S. Ct. 591; 39 L. Ed. 683; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Camp v. Gress, 250 U.S. 308, 39 S. Ct. 478, 63 L. Ed. 997; Commonwealth Trust Co. v. Smith, 266 U. S. 152, 45 S. Ct. 26, 69 L. Ed. 219.' The general statement does little to advance matters, until on‘e knows what is the test by- which-to ascertain when such rights can be protected and ¡when not, and this we uhderstand to be an entirely practical question, dependent in each ease upon the facts.
• The decisions are numerous and complicated in the facts; from them it is impossible to extract any generál rule.' Rescission -of a •contract,- or declaration of - its invalidity, as to some of the parties, but hot as to''others, is not generally permitted. Shields v. Barrow, supra; Board of Trustees of Oberlin College v. Blair (C. C.) 70 F. 414; Vincent Oil Co. v. Gulf Refining Co., 195 F. 434 (C. C. A. 5). Williams v. Crabb,. 117, 193, 59 L. R. A. 425 (C. C. A. 7),.seems hardly consistent with these. In partition suits it is plain that , all parties must be present. Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825. So, too, when transfers of possession, or injunctions', are at stake. South Penn Oil Company v. Miller, 175 F. 729 (C. C. A. 4). Possibly Associated Oil Co. v. Miller, 269 F. 16 (C. C. A. 5), might have gone the other way, since the rights of the absent parties would not seem to have been prejudiced by any decree. Óur decision in Cristin v. Leonard, 209 E. 49, was apparently in an action by'two out of three joint obligees, and, as it would have been impossible for the obligees to recover a proportionate part of the damages, the absent obligee was thought indispensable. Not so, however, in the ease of joint obligors. Camp v. Gress, 250 U. S. 308, 39 S. Ct. 478, 63 L. Ed. 997.
On the other hand, it is well settled that a part of the beneficiaries of a trust may sue alone, though the fiduciary may later be subjected to another suit. Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Rogers v. Penobscot Mining Co., 154 F. 606 (C. C. A. 8); Thomas v. Anderson, 223 F. 41 (C. C. A. 8). This was the rationale of Williams v. Cr,abb, in spite of its involving a declaration of the invalidity of a will and deed. In the ease at bar we think that this last rule would be applicable, were it not for the provision charging the whple half with a one-fourth interest therein reserved to the attorneys. Otherwise, the case appears to us indistinguishable from the usual one where the beneficiaries hold in separate rights. Brooks was to pay the attorneys directly, and each party had a separate right of , action,- if both were not within the reach of process. The inconvenience to the trustee from a duplication of suits is not considered a sufficient counterweight to the hardship of denying any relief to a beneficiary .who cannot bring in all. Williams V. Crabb, supra.
However, we cannot ignore the ¿barge of the attorneys’ one-fourth interest upon the joint share of themselves and the plaifftiff. This was, of course, meant to have some_eff eet, and we can interpret it in no othetyvay than as giving them a lien upon,'and there'fore a priority in, any payment's madeljhpoh 'that half. We do not forget the plaintiff’s "argument that the two interests were'to be paid' by Brooks directly and pari passu. That, of course, was true, and was indeed practically necessary, since the attorneys’' interest was not measured by a fixed sum, but by án aliquot part. Priority could not mean that they should be paid all their share before the plaintiff got any. Nevertheless the charge did'mean something, and that something some kind of security. What could the security be f It inéans, that, in the event of a default by Brook's in .paying to them their share of any income, actually due, .the attorneys should [173]*173•have a lien upon the whole amount due. Brooks might and should pay both interests in their proportions as the money was earned, but, if he failed, the attorneys had first call upon what could be recovered.
If this be correct, then it is plainly a violation of the contract to allow the plaintiff to recover three-fourths of the moneys due, leaving the attorneys to recover their one-fourth by a separate suit. By hypothesis this money is already due, and the defendant, vice Brooks, has failed to pay it. It should pay both, no doubt; but, there being a default, as between the two the attorneys are preferred. Thus only can their lien be preserved. We have no right to take judicial notice that, if the plaintiff recovers, the defendant must inevitably be responsible for the balance. It leaves the attorneys in a very different position from that stipulated to allow the plaintiff to make off with his share, leaving them to sue the defendant for theirs, and, if they are unsuccessful, to pursue the plaintiff personally. They had a lien on the joint interest and this must be preserved.
It would at first blush seem true that the decree might provide for this by impounding a third of the plaintiff’s recovery in the registry of the court for the attorneys’ benefit, but there are difficulties also in that. The plaintiff might succeed in recovering less than the full amount actually due upon the joint interest. He might even claim less than the attorneys would be content to accept. Certainly in his accounting his proof might fail to establish all that they might prove. To reserve only a third of his recovery would not therefore protect the attorneys.
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L. HAND, Circuit Judge
(after stating the facts as above). The bill is so much made up of charges of evidenc“e and rhetorical nar[172]*172rative that it is nearly impossible tó ascertain from it the “ultimate facts.” • The pleader has wholly disregarded equity rule 25, and ■proceeded as if he were, drafting an ancient bill in equity. However, with this we have nothing to do at present; the only question is whether the Mexican corporation and the plaintiff’s attorneys were indispensable parties to the suit. The defendant’s argument is that no decree can be entered which will not so involve their interests as to prevent justice being done.
Section 50 of the Judicial Code (Comp. St. § 1033) and rule 39 of the Equity Rules, so far as here relevant, are identical in substance; they give discretion to the court to proceed without parties ordinarily necessary under equity practice, but prescribe that the decree must be without prejudice to those who are absent. In many decisions it has been laid down that the test is one of substance; that is, whether the plaintiff can obtain relief which will later leave open to', the absent parties the effective assertion of’ their rights; Shields v. Barrow; 17 How. 129, 15 L. Ed. 158; Mallow v. Hinde, 12 Wheat. 193, 6 L. Ed. 599; Payne v. Hook, 7 Wall. 425, 19 L. Ed; 260;. Gregory v. Stetson, 133 U. S. 579, 10 S. Ct. 422, 33 L. Ed. 792; California v. So. Pac. Co., 157 U. S. 229,15 S. Ct. 591; 39 L. Ed. 683; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Camp v. Gress, 250 U.S. 308, 39 S. Ct. 478, 63 L. Ed. 997; Commonwealth Trust Co. v. Smith, 266 U. S. 152, 45 S. Ct. 26, 69 L. Ed. 219.' The general statement does little to advance matters, until on‘e knows what is the test by- which-to ascertain when such rights can be protected and ¡when not, and this we uhderstand to be an entirely practical question, dependent in each ease upon the facts.
• The decisions are numerous and complicated in the facts; from them it is impossible to extract any generál rule.' Rescission -of a •contract,- or declaration of - its invalidity, as to some of the parties, but hot as to''others, is not generally permitted. Shields v. Barrow, supra; Board of Trustees of Oberlin College v. Blair (C. C.) 70 F. 414; Vincent Oil Co. v. Gulf Refining Co., 195 F. 434 (C. C. A. 5). Williams v. Crabb,. 117, 193, 59 L. R. A. 425 (C. C. A. 7),.seems hardly consistent with these. In partition suits it is plain that , all parties must be present. Barney v. Baltimore, 6 Wall. 280, 18 L. Ed. 825. So, too, when transfers of possession, or injunctions', are at stake. South Penn Oil Company v. Miller, 175 F. 729 (C. C. A. 4). Possibly Associated Oil Co. v. Miller, 269 F. 16 (C. C. A. 5), might have gone the other way, since the rights of the absent parties would not seem to have been prejudiced by any decree. Óur decision in Cristin v. Leonard, 209 E. 49, was apparently in an action by'two out of three joint obligees, and, as it would have been impossible for the obligees to recover a proportionate part of the damages, the absent obligee was thought indispensable. Not so, however, in the ease of joint obligors. Camp v. Gress, 250 U. S. 308, 39 S. Ct. 478, 63 L. Ed. 997.
On the other hand, it is well settled that a part of the beneficiaries of a trust may sue alone, though the fiduciary may later be subjected to another suit. Payne v. Hook, 7 Wall. 425, 19 L. Ed. 260; Waterman v. Canal-Louisiana Bank, 215 U. S. 33, 30 S. Ct. 10, 54 L. Ed. 80; Rogers v. Penobscot Mining Co., 154 F. 606 (C. C. A. 8); Thomas v. Anderson, 223 F. 41 (C. C. A. 8). This was the rationale of Williams v. Cr,abb, in spite of its involving a declaration of the invalidity of a will and deed. In the ease at bar we think that this last rule would be applicable, were it not for the provision charging the whple half with a one-fourth interest therein reserved to the attorneys. Otherwise, the case appears to us indistinguishable from the usual one where the beneficiaries hold in separate rights. Brooks was to pay the attorneys directly, and each party had a separate right of , action,- if both were not within the reach of process. The inconvenience to the trustee from a duplication of suits is not considered a sufficient counterweight to the hardship of denying any relief to a beneficiary .who cannot bring in all. Williams V. Crabb, supra.
However, we cannot ignore the ¿barge of the attorneys’ one-fourth interest upon the joint share of themselves and the plaifftiff. This was, of course, meant to have some_eff eet, and we can interpret it in no othetyvay than as giving them a lien upon,'and there'fore a priority in, any payment's madeljhpoh 'that half. We do not forget the plaintiff’s "argument that the two interests were'to be paid' by Brooks directly and pari passu. That, of course, was true, and was indeed practically necessary, since the attorneys’' interest was not measured by a fixed sum, but by án aliquot part. Priority could not mean that they should be paid all their share before the plaintiff got any. Nevertheless the charge did'mean something, and that something some kind of security. What could the security be f It inéans, that, in the event of a default by Brook's in .paying to them their share of any income, actually due, .the attorneys should [173]*173•have a lien upon the whole amount due. Brooks might and should pay both interests in their proportions as the money was earned, but, if he failed, the attorneys had first call upon what could be recovered.
If this be correct, then it is plainly a violation of the contract to allow the plaintiff to recover three-fourths of the moneys due, leaving the attorneys to recover their one-fourth by a separate suit. By hypothesis this money is already due, and the defendant, vice Brooks, has failed to pay it. It should pay both, no doubt; but, there being a default, as between the two the attorneys are preferred. Thus only can their lien be preserved. We have no right to take judicial notice that, if the plaintiff recovers, the defendant must inevitably be responsible for the balance. It leaves the attorneys in a very different position from that stipulated to allow the plaintiff to make off with his share, leaving them to sue the defendant for theirs, and, if they are unsuccessful, to pursue the plaintiff personally. They had a lien on the joint interest and this must be preserved.
It would at first blush seem true that the decree might provide for this by impounding a third of the plaintiff’s recovery in the registry of the court for the attorneys’ benefit, but there are difficulties also in that. The plaintiff might succeed in recovering less than the full amount actually due upon the joint interest. He might even claim less than the attorneys would be content to accept. Certainly in his accounting his proof might fail to establish all that they might prove. To reserve only a third of his recovery would not therefore protect the attorneys. , On the contrary, their lien extends to one-third, not of what he recovers, but of what is the true unpaid income which he should recover. Only in a suit to which they are parties, and by the decree in which they are estopped, can that be established so as to conclude them. Hence it is impossible to ascertain how much of the plaintiff’s recovery must be impounded, and the whole would have to be retained, which is in substance a denial of any relief at all.
Therefore the case appears to us to be one where the rights of the beneficiaries are so entangled with one another that it is practically impossible in the decree to protect those who are absent. They are indispensable to any dealing with the ease at all. There is no apparent injustice in the result. All the necessary defendants, except the Mexican company, are citizens of Texas, and the plaintiff himself is “temporarily residing” there. Why the suit should be brought here it is difficult to see. At any rate, it may not be so brought, unless justice to the absent parties can be done, and we cannot see how this may be assured.
It is therefore unnecessary to consider whether the Mexican company is also an indispensable party. ,
Decree affirmed.
MANTON, Circuit Judge, took no part in the decision of this case.