The appellants were defendants in the court below. Tucker and Hoskins, the other defendants, declined to appeal
The case was ably argued here by the counsel upon both sides.
It is insisted that the bill is fatally defective for want of parties. It alleges that the complainant was the owner and holder of the ten promissory notes which lie at the foundation of the case. In his testimony, he says he held the legal title to them, and that they were delivered to him by their respective owners, with power to settle and dispose of them at his discretion, and with no condition imposed but the implied one that he should account for the proceeds to those from whom he received them.
The transfer created a trust. Those who transferred them were the cestuis que trust, and Brown was the trustee.
The general rule is, that in suits respecting trust-property, brought either by or against the trustees, the cestuis que trust as well as the trustees are necessary parties. Story's Eq. Pl., sect. 207. To this rule there are several exceptions. One of them is, that where the suit is brought by the trustee to recover the trust-property or to reduce it to possession, and in no wise affects his relation with his cestuis que trust, it is unnecessary to make the latter parties. Horsly v. Fawcett, 11 Beav. 569, was a case of this kind. The objection taken here was taken there. The Master of the Rolls said, 'If the object of the bill were to recover the fund with a view to its administration by the court, the parties interested must be represented. But it merely seeks to recover the trust-moneys, so as to enable the trustee hereafter to distribute them agreeably to the trusts declared. It is, therefore, unnecessary to bring before the court the parties beneficially interested.' Such is now the settled rule of equity pleading and practice. Adams v. Bradley et al., 6 Mich. 346; Ashton v. The Atlantic Bank, 3 Allen, 217; Boyden v. Partridge et al., 2 Gray, 191; Swift and Others v. Stebbins, 4 Stew. & P. 447; The Association, &c. v. Beekman, Adm'r, et al., 21 Barb. 555; Alexander v. Cana, 1 De G. & Sm. Ch. 415; Potts v. The Thames Haven and Dock Co., 7 Eng. Law & Eq. 262; Story v. Livingston's Ex'r, 13 Pet. 359. Where the want of parties appears on the face of the bill, the objection may be taken by demurrer. Where it does not so appear, it must be made by plea or answer. Here the defect, if there was one, did not appear in the bill, and no plea or answer setting it up was filed in the Circuit Court. It was first made here. A formal objection of this kind cannot avail the party making it, when made for the first time in this court. Story v. Livingston's Ex'r, supra.
It is said that Hoskins prescribed a condition precedent; and that Brown, not having complied with it, never acquired any right or title to the property in controversy. We had occasion to consider this head of the law in Davis v. Gray, 16 Wall. 230.
Hoskins executed a deed to Brown, and forwarded it to Parkerson, to be held by him until all the notes of Hoskins given for the purchase-money, still outstanding, were cancelled and delivered to Parkerson. Parkerson was the recorder of the parish where the land was situated. Brown then held ten of the notes. He and Hoskins believed they were all. Upon being advised by Tucker of the deposit of the deed, Brown wrote to have a copy of it forwarded to him for examination, and inquired, as he had done several times before, whether Hoskins had in any way incumbered the property. Parkerson thereupon sent him a copy of the deed, with a certificate, signed himself as recorder, setting forth, that, upon examining the records in his office, he found that 'said Hoskins has not subjected said property to any mortgage except as forfeited taxes to the State.'