RAILROAD COMPANY

v.

ORR

Mr. Justice HUNT delivered the opinion of the court.

The principal question in the case, and the one upon which the decision is now placed, is whether there are the proper parties present in the suit?

It is a general rule in equity that all parties entitled to litigate the same questions are necessary parties. . All persons having an interest, although remote, in the subject-matter of the-bill must be made parties; or the bill must be so framed as to give them an opportunity to come in and be made parties.* The principle that all must be made parties whose interests may be affected by the decree is only departed from where it becomes extremely difficult or inconvenient to enforce the rule.*

The principle is also well settled that when it appears on the face of the bill that there will be a deficiency in the fund, and that there are other creditors or legatees who are entitled to a ratable distribution with the complainants, and who have a common interest with them, such creditors or legatees should be made parties to the bill, or the suit should be brought by the complainants in behalf of themselves and all others standing in a similar situation, and it should be so stated in the bill.† The rule in the United States courts is thus expressed: “ That all persons who have any material interest in the subject of the litigation should be joined as parties, either as'complainants or defendants.” ;

The frame of the mortgage now sought to be enforced differs from the ordinary trust-deed or mortgage by which the payment of railroad' bonds is secured. A trustee is ordinarily named, to whom the security runs as mortgagee, and the instrument recites that the mortgage is made to him in trust to secure the bonds described to the holders thereof. Here the mortgage is made directly to the persons holding the bonds, who are named, and their several .interests described.

The bill does not distinctly allege the insufficiency of the fund to pay all the debts' secured by it. It does, however, allege that the county of Limestone, the maker of the bonds, has refused to pay them, that the railroad company neglects to make payment, and that the rights' and interests of the bondholders are greatly endangered.

Upon two grounds, therefore, it Would seem to be necessary that the "other bondholders should be parties to this suit: • 1st. The adequacy of the security of the mortgage for the payment of all the bonds purporting to be secured by it is quite doubtful. The fund is, to some extent, “ tabula in naufragio” It is the interest of every bondholder to diminish the debt of every other bondholder. In so far as he succeeds in doing that, he adds to. his own geeurity. Each .holder, therefore, should be .present, both that he may defend his own claims arid that he may attack the other claims should there be just occasion for it. If upon a fair adjustment of the amoutit of the debts there should be a deficiency in the security, real or apprehended,, every one interested should have notice in advance of the time, place, and mode of sale, that he may make timely arrangements to secure a sale of the property at its full value.

2d. It is a rule of general application, both at law and in equity, that a suit upon a written instrument must be brought in the name of all who are formal parties to it, and who retain an interest in it. No reason is shown in this bill to take the case out of the rule. No reason is assigned why the fifteen persons named do not unite in the action. No allegation is made that they have been requested so to unite, and have refused. The general rule is applicable to this action.*

For the cause set forth in the demurrer, to wit, a want of proper parties, the decree must be reversed, and the cause •remanded with directions to

Dismiss the bill without prejudice.

*

Bailey v. Inglee, 2 Paige, 278 ; La Grange v. Merrill, 3 Barbour’s Chancery, 625.

*

Wendell v. Van Rensselaer, 1 Johnson’s Chancery, 344.

†

Egberts v. Wood, 3 Paige, 517; Mitchell v. Lenox, 2 Id. 280; Baldwin v. Lawrence, 2 Simons & Stuart, 18.

*

See Ribon v. Railroad Companies, 16 Wallace, 450; Shields v. Barrow, 17 Howard, 130

‡

Mechanics’ Bank of Alexandria v. Seton, 1 Peters, 299; Story v. Livingston, 13 Id. 359.