1. Where certain heirs at law seek to set aside a sale of their
ancestor's realty made under a decree of a competent court
ordering, at a creditor's instance, such sale for the payment of a
debt due him, they should make the creditor on whose application
the sale was made a party. All the heirs also should be parties. It
is not enough that those who bring the suit profess to file their
bill "for themselves and the other heirs at law," these last being
known and not numerous.
2. This Court will reverse and remand a case thus defective as
to parties, although this deficiency have not been made a point at
the bar below.
3. It will not consider a case upon documents not in the cause
below, though filed here by consent as if returned under a writ of
diminution.
The decree of the Supreme Court of the District ordering a sale
of Miss Dermott's real estate, which the affirmance in the
preceding case adjudged was rightly made, having been executed and
a sale made, and the property
bought by Wilson, who as
stated in the report of the case had been appointed receiver of its
rents, Hoe, there also mentioned as an heir-at-law of Miss Dermott,
with eight others, her heirs also, who joined with him, filed a
bill against this Wilson to set aside the purchase, the ground of
their bill being that he had purchased below the real value of the
property, and that having been receiver, he was incompetent, with
proper regard to those rules which equity places around all persons
standing in positions of confidence, to purchase at all. The nine
heirs who thus filed the bill professed to file it "for themselves
and the other heirs at law," averring that there were such others,
but not naming them nor saying anything as to their number, nor
indeed anything else about them. The testimony showed the existence
of four, and gave the names of two in full, with a statement that
the full names of the two others were not remembered, but that in
their names occurred, it the one, "O'Neal," and in the other,
"Jane." The
Page 76 U. S. 502
post office address of the first two was given, and of the other
two it was stated that they lived "somewhere in Alabama, post
office address not remembered."
Jones, the creditor at whose instance the property was sold, and
whose debt was to be paid by the proceeds of the sale, was not made
a party either.
The court below heard the case on its merits, and dismissed the
bill; no objection being made there at the bar on the ground of
defect of parties. The complainants brought the case to this Court,
and the record being here the counsel on both sides agreed that
there should be added to the record of the principal case, to have
the same effect as if returned under a writ of diminution, the
following proceedings in that cause, to-wit,
"the final decree of sale, the trustees' report of sale, the
exceptions filed to the ratification of the sale and the order of
the court thereon, the order of ratification of the sale, the deed
of the trustee to the purchaser."
Mr. Justice SWAYNE delivered the opinion of the Court.
The case presented by the record, so far as it is necessary to
state it, is as follows:
The complainants represent themselves to be heirs-at-law of Ann
R. Dermott, deceased, and allege that
Page 76 U. S. 503
they bring their bill against the defendant "for themselves and
the other heirs-at-law of the said Ann R. Dermott." The bill
alleges that by virtue of a decree of sale in the case of
Zephaniah Jones v. Stringfellow, wherein these
complainants and others were defendants, Wilson, the defendant in
this suit, became the purchaser of certain real estate of the said
Ann R. Dermott, deceased, which is particularly described; that
this purchase was made by Wilson on the 2d of January, 1867, from
the trustees named in the decree; that long prior to the purchase,
and prior to the rendition of the decree under which the sale was
made, Wilson was, by order of the court in that case, appointed
receiver of the estate of Ann R. Dermott, with authority to manage
and rent the property, which appointment he accepted, and executed
his bond as such receiver, which was accepted and approved; that he
collected a large amount of rents as such receiver; that he was
receiver down to the time of the purchase in question, and still
continued to be such. It is averred that by reason of his fiduciary
relation to the property in question he was incapacitated to
purchase; that the sale is void at the election of the
complainants; and that they elect to avoid it, and to have the
property resold at the risk of Wilson. The bill prays for
appropriate special, and for general relief. Wilson answered. The
answer admits the decree of sale, the sale by the trustees
appointed to make it, the purchase by Wilson, and that he was
receiver as alleged in the bill. It denies that he was
incapacitated to buy, and insists that the sale was valid. It avers
that he has paid all the purchase money, and received a deed for
the property.
We pass by the questions whether the proper remedy of the
complainants was not by appeal from the order of the court below
confirming the sale, and whether the bill is not fatally defective
on its face in not averring such confirmation before it was filed.
These points have been fully argued, but the view which we take of
the case renders it unnecessary to decide them. The defense that
the validity of the sale is
res judicata by reason of the
proceedings of these complainants, touching the order of
confirmation, is not set up in the answer, and cannot, therefore,
be considered.
But Zephaniah Jones, the complainant in the suit in which the
decree of sale was made, and the other heirs-at-law of Ann
Page 76 U. S. 504
R. Dermott, are indispensable parties. No relief can be given in
the case before us which will not seriously and permanently affect
their rights and interests. According to the settled rules of
equity jurisprudence the case cannot proceed without their presence
before the court. The objection was not taken by the defendant, but
the court should,
sua sponte, have caused the bill to be
properly amended, or have dismissed it, if the amendment were not
made. Instead of this being done the cause was heard and decided
upon its merits. This was a manifest error. The decree must,
therefore, be reversed, and the cause remanded to the court below.
In that court both parties can take leave to amend and can modify
their pleadings so as to exhibit the case as they may desire
respectively to present it. If testimony be necessary that also can
be taken. We do not consider the supplement to the record filed in
this Court as before us. It was not in the case in the court below.
To recognize it here would involve the exercise of original instead
of appellate jurisdiction. Whether it was competent for the
receiver to buy at the sale made by the trustees is a point upon
which we express no opinion. We have not reached it, and have not,
therefore, had occasion to consider the subject.
It is ordered that the decree of the court below be
reversed, and that the cause be remanded, with directions to that
court to proceed in conformity to this opinion.
