Upham v. Brooks

28 F. Cas. 826, 2 Story 623

• Court: U.S. Circuit Court for the District of Maine
• Decided: October 15, 1843
• Status: Published

Opinion

STORY, Circuit Justice.

It is not necessary to consider any part of the argument of the plaintiff, which is properly addressed to the merits of the case, because the objections, which have been urged on behalf of the defendants, at the bar, mainly turn upon considerations of a preliminary nature. Two objections have been urged: (1) Thatthere is a want of the proper parties before the court to sustain the bill. (2) That, upon the plaintiff’s own showing, he has not made out a sufficient ease for relief in equity. The latter objection mainly stands upon this, that the plaintiff has not shown, that, at the time of the commencement of the present suit, the claim on the mortgage, stated in the bill, was extinguished, or otherwise satisfied; and unless it was, he has no title to relief. The argument is, that the plaintiff claims, as owner of the equity of redemption from Boyd; and unless the condition of the mortgage has been fully performed, the plaintiff has no more right to redeem than Boyd; and npon the facts stated in the bill, the condition has not been performed, nor the incum-brance on the lands in Stetson extinguished, if this were a case at law, the objection might well be maintained; for until an actual extinguishment of the incumbrance, the mortgage would stand good, and the mortgagor could not recover the land mortgaged from the mortgagee, or those in possession under him. But this is a case in equity; and although the language of the bill is very loose, and indeterminate on this head, yet it is sufficiently apparent, that the plaintiff means, by the allegations in the bill, to insist, that the mortgage either has been extinguished or satisfied, or that he is now ready and willing to satisfy whatever may be due thereon. And, besides; admitting that at the commencement of the suit the plaintiff had not absolutely procured a release of the covenants of warranty in the deeds of the Stetson lands by Mussey, and by his grantees to T. C. Upham, and had not absolutely extinguished the mortgage; still, if he is now ready and able to show that it is extinguished, and that he has procured, or can procure, the proper releases from the proper parties of those covenants, I am not prepared to say, that, if this were satisfactorily made out, upon a reference t-o a master, the plaintiff might not, under the present bill, be entitled to relief. This is often done in cases of bills for specific performance, where the plaintiff could not make a good title at the time of filing the bill; but is able to do so before, or at the hearing. At least, I should hesitate to decide this point upon the present demurrer. And at all events, I should give the plaintiff leave to amend the bill, so as to bring all the facts more completely before the court.

[See Case No. 16,797.]

But the other objection is fatal to the bill in its present shape. It is manifest from the bill, that Thomas C. Upham is the legal owner of the Stetson lands under the conveyance to him; and admitting, that he holds the lands, partly in trust for the plaintiff, and partly for himself, as security for advances made by him on account of the purchase, it is plain, that he is a necessary and proper party to the bill. He would be a proper party, as trustee, to a bill brought by his cestui que trust. And he is also a proper party to represent' and protect his own personal interest in the Stetson lands. Until his demands are satisfied, he is not compellable to surrender the lands to the plaintiff, nor can the covenants of warranty in the deed to him be deemed extinguished. And if not extinguished, how can the present bill be maintained? It appears to me, therefore, that before this court can proceed further in this case, Thomas O. Upham must be made a party thereto.

There are some other deficiencies in the structure of the bill, which may require to be examined and considered by counsel. But at present, I shall do no more than declare, that the demurrer be allowed, with costs to the defendant, for the want of proper parties; and if the plaintiff wishes, he may have leave to amend; otherwise the bill will be dismissed. Demurrer allowed.