Huber v. Clarke

SANDEESON, J. If we regard the objection to the complaint, on the ground that the Kochs are not made parties, as falling within the provisions of the fortieth section of the Practice Act, in relation to grounds of demurrer, we should be compelled to hold that it was waived by the abandonment of the demurrer. But we do not regard the objection as constituting a ground of demurrer merely. It goes to the power of the court to grant any relief in the absence of the Kochs, and falls directly within the provisions of the seventeenth section, which provides that when a complete determination of the controversy cannot be had without the presence of other parties, the court shall order them to be brought in. Courts will not require equity at the hands of a party without, at the same time, taking care that he shall also receive equity. Hence, if complete equity cannot be done to all the parties before the court, without the presence of other parties, the court will order them to be brought in, or dismiss the action if the plaintiff declines to bring them in, notwithstanding the defendant may not have raised the objection by demurrer or answer: Van Epps v. Van Deusen, 4 Paige, 75, 76; Davis v. Mayor of New York, 2 Duer, 663; State v. Mayor of New York, 3 Duer, 121; Shaver v. Brainard, 29 Barb. 25; Perkins v. Church, 31 Barb. 84. We are, therefore, properly called upon, as we consider, to determine whether the Kochs are necessary parties to a complete determination of the present controversy.

1. The plaintiff claims that, by mistake, the deed from Eobles to the Kochs includes land not intended to be conveyed, and omits land which was intended to be conveyed, [421]and asks that it be reformed, so as to exclude the former and include the latter. If this be so, the defendant, being the grantee of Eobles, with notice of the mistake, is bound in equity to correct the mistake by making a new deed, which will describe the land intended to be conveyed by the first; but he is not bound to do so, unless, at the same time, the land, which was by mistake included in the first deed, is re-conveyed to him. Of this the plaintiff seems to have been aware, for he offers to convey it, in his complaint. But, unfortunately, he is not in a position to do so. The deed from the Kochs to him is not defective. It does not follow the language of the deed from Eobles to the Kochs, but describes the land precisely, as the plaintiff claims, it should have been described in the deed from Eobles to the Kochs. A deed, therefore, from him to the defendant, of the land erroneously included in the deed from Eobles to the Kochs would convey nothing, and would not cure the mistake in favor of the defendant, but would leave his title to that portion of the land as clouded and uncertain as the title of the plaintiff now is to the portion which he seeks. Had the deed from the Kochs to the plaintiff followed the language of the deed from Eobles to the Kochs, the offer of the plaintiff to convey would have been to the point, and its performance would have secured to the defendant all the compensation or protection to which he is entitled, but, as it is, such compensation — so far as the complaint now shows — -can come only from the Kochs.