In general, it is only necessary to make those persons parties to a suit for specific performance who were parties to the contract (h): for instance, a purchaser cannot join as co-defendants the receivers or stewards of the owners of the estate, although they are in that capacity possessed of the title deeds delivery of which is sought by the suit (i); nor, it would seem, the wife of the vendor who has possessed herself of the deeds (k); nor a mortgagor, whose mortgagee, or mortgagee's trustee, has entered into the contract under a mortgage power of or trust for sale (l); nor, upon a sale by a mortgagor, the mortgagee, nor any person interested in the equity of redemption (m); nor a person who has joined the vendor in the sale in respect of other property, under conditions, as to laying out roads, etc, affecting the whole estate (n); nor, as a general rule, any person upon the ground of his claiming any adverse interest which was vested in him prior to the contract (o).

Self and his representatives.

Against separate estate of married woman.

Parties to contract are, in general, alone necessary parties to the suit.

Purchaser cannot join as co-defendant, receiver, or steward.

Or parties claiming adverse interests prior to the contract.

(e) 12 & 13 Vict. c. 106, s. 146.

(f) Gabriel v. Sturgis, 5 Ha. 97.

(g) Francis v. Wigzell, 1 Madd. 258; and see Owens v. Dickenson, Cr. & Ph. 48; Muston v. Bradshaw, 10 Jur. 402, V. C. E.; 15 Sim. 192; Gaston v. Frankum, 13 Jur. 739.

(h) Humphreys v. Hollis, Jac. 75; Wood v. White, 4 Myl. & Cr. 460. (i) M'Namara v. Williams, 6 Ves.143

(k) Muston v. Bradshaw, 10 Jur. 402, V. C. E.; 15 Sim. 192.

Nor need a stranger to a contract be made a party to a suit on the ground of his being interested in the contract, or bound to concur in the conveyance; as where, on the sale in two lots of leaseholds held under an entire rent, it was stipulated that the purchaser of each lot should be a party to the assignment of the other lot, for the purpose of entering into the covenants by way of indemnity usual in such cases, it was held, that the purchaser of lot 2 was not a necessary party to the vendor's bill for specific performance of the purchase of lot 1 (p): so, where a landowner agreed to sell land to a Railway Company, and to buy up his tenant's interest, it was held that the tenant was not a necessary party to the vendor's bill for specific performance and to restrain trespass by the Company (g).

Persons having rights adverse to or inconsistent with those of the vendor, or having no rights in the subject-matter of the suit, ought not to be joined with him as co-plaintiffs (r): and if, being infants, they were so joined in respect of adverse or inconsistent rights, the Court would refuse to make a decree, even by consent (s): nor can parties claiming such rights be made defendants to the purchaser's bill (t): but they may, it would appear, (and this seems to form an exception from the above general rule,) be made defendants to the vendor's bill (v).

Person interested in contract, and bound to join in conveyance, not a necessary party to vendor's bill.

Persons having adverse, inconsistent, or no rights, cannot join the vendor as co-plaintiffs;

(l) Clay v. Sharpe, 18 Ves. 346, n.; Corder v. Morgan, ib. 344.

(m) Tasker v. Small, 3 Myl. & Cr. 63.

(n) Peacock v. Penson, 11 Beav.; see p. 359.

(o) Delabere v. Norwood, 3 Sw. 144; Petre v. Buncombe, 7 Ha. 24;

Sug. 252; but see a case of Collett v. Hover, 1 Coll. 227.

(p) Paterson v. Long, 5 Beav. 186.

(q) Robertson v. Great Western Railway Company, 10 Sim. 314, C.

(r) See Fulham v. M'Carthy, 1 H. L. C. 703; Padwick v. Platt, 11 Beav. 503.

However, where, at a sale by auction, it was arranged that a portion of lot A. should be sold as part of lot B., it was, on a bill being filed by the purchaser of lot A. for specific performance according to the particulars, held, that the purchasers of lot B. were necessary parties; upon the special ground, that the vendor ought not to remain exposed to another suit by the purchaser of lot B. for specific performance according to the arrangement at the sale (w).

If the contract were entered into by an agent, and were under seal, the other party may insist upon the agent being included in any suit for specific performance by the principal: inasmuch as the performance of the covenant with the principal would be no defence to an action at law by the agent (x).

Generally, however, the contract is not under seal; but, even then, if the agency be not apparent on the contract, the nominal contractor should, (unless the plaintiff can prove the agency,) be made a party to the suit, as a defendant (y), in order to bind his apparent interest (z); and, although an action at Law might in such a case be maintained by either agent or principal, if a bill be filed, the parties beneficially interested in the contract must be parties to the suit (a). So, an auctioneer is frequently made a co-plaintiff with the vendor, upon the ground either of his having an interest in the contract, or of his liability to an action for the deposit (b). But, if the agent has no interest in the contract or the subject-matter thereof, and is under no liability in respect of the contract, he is an improper party to the suit (c). but may be made defendants (semble).

Purchaser of one lot, when a necessary party to suit in respect of another lot.

Agent must be a party if contract under seal.

When to be made a party, if contract not under seal.

(s) See Wood v. White, 4 Myl. & Cr. 483.

(t) Tasker v. Small, 3 Myl. & Cr. 63.

(v) See Calvert on Parties, 329; Evans v. Jackson, 8 Sim. 217; Sanders v. Richards, 2 Coll. 568; and see Lord Langdale's remark as to the judgment creditors, in Lord Leigh v. Lord Ashburton, 11 Beav. 474.

(w) Mason v. Franklin, 1 Y. & C. C. C. 239.