STATE V. KAVANAUGH.

(Supreme Court of Iowa. Oct. 10, 1890.) Appeal from district court, Polk county; W. F. CONRAD, Judge.

Defendant was convicted for keeping intoxicating liquors for illegal sale, upon an information before a magistrate, and upon appeal to the district court was again convicted upon a verdict of a jury. He now appeals to this court.

BECK, J. The transcript, upon which the case was submitted to us for decision, contains nothing but the record of the court proceedings and the judgment. These all appear regular and without error. The judgment of the district court is therefore affirmed.

BILLINGSLY et al. v. HARRIS et al. (Supreme Court of Wisconsin. Feb. 24, 1891.) ATTACHMENT-FORTHCOMING BOND-ESTOPPEL.

1. In an action on an undertaking given in an attachment suit for discharge of the property, defendant and his sureties are estopped to deny the regularity of the attachment.

2. In such undertaking defendants promise, in the sum of $1,000, if the plaintiffs shall recover judgment, to pay the same on demand, together with costs that may be recovered against the defendants therein, not exceeding $250. Held, that the limitation of $250 applies only to the costs.

Appeal from circuit court, Pierce county. Smith & Vannatta, for appellants. A. Combacker and R. H. Start, for respondents.

On the question whether, by the execution of an undertaking given in an attachment suit for discharge of the property attached, defendant and his sureties are estopped from controverting the validity of the attachment, counsel for respondents cite the following cases: Inman v. Strattan, 4 Bush, 445; Hazelrigg v. Donaldson, 2 Metc. (Ky.) 445; 2 Wait, Pr. 190; Delaney v. Brett, 1 Abb. Pr. (N. S.) 421, 4 Rob. (N. | Y.) 712; Drake, Attachm. § 519; Cruyt v. Phillips, 16 How. Pr. 120; Dunn v. Crocker, 22 Ind. 324; Drake, Attachm. (6th Ed.) § 318, note 3; Lumber Co. v. Raymond, (Iowa,) 40 N. W. Rep. 820; Coleman v. Bean, 32 How. Pr. 370, *42 N. Y. 94; affirming 14 Abb. Pr. 38; Onderdonk v. Voorhis, 2 Rob. (N. Y.) 24; Bildersee v. Aden, 62 Barb. 175; McMillan v. Dana, 18 Cal. 339; Bacon v. Daniels, 116 Mass. 474; Birdsall v. Wheeler. (Conn.) 20 Atl. Rep. 607; Gardner v. Donnelly, (Cal.) 24 Pac. Rep. 1072; 1 Amer. & Eng. Enc. Law, 924, and cases cited; Barnes v. Webster, 16 Mo. 258; Wright v. Keyes, 103 Pa. St. 567; Ferguson v. Glidewell, (Ark.) 2 S. W. Rep. 711; Haggart v. Morgan, 5 N. Y. 422; Payne v. Snell, 3 Mo. 409; Paddock v. Matthews, 3 Mich. 18; Kennedy v. Morrison, 31 Tex. 207; Endress v. Ent, 18 Kan. 236; People v. Cameron, 2 Gilman, 468; Bunneman v. Wagner, (Or.) 18 Pac. Rep. 843; Mills Co. v. Stewart, 133 Mass. 462; Kelly v. McCormick, 28 N. Y. 322; Cunningham v. Jacobs, (Ind.) 22 N. E. Rep. 337; Fox v. Mackenzie, (N. D.) 47 N. W. Rep. 386; Carpenter v. Turrell, 100 Mass. 450; Hill v. Harding, 93 111.80; Love v. Rock well, 1 Wis. 382.

on

COLE, C. J. This is an action brought an undertaking given under section 2742, Rev. St., in an attachment suit. The undertaking recites that it was given in order that the attached property might be released from the attachment, and be delivered to the defendant in the attachment, who desires to retain it. This was the object and purpose of executing the undertaking. It is not denied but that the property was discharged from the attachment on the delivery of the undertaking to the sheriff, who then delivered the attached property, held by him under his writ, to Goggin, the defendant in the attachment. The defendants, in their answer, admitted the issuing of the writ of attachment, as in the complaint alleged, and also admitted the giving of the undertaking on which the action is brought, but, in avoidance of their obligation, aver that Goggin was a resident of this state, to the knowledge of the plaintiffs, and that the writ of attachment was issued in an action ex delicto, and not in an action founded on contract. The affidavit for the attachment is also made a part of the auswer. In that, one of the plain. tiffs states that Goggin was indebted to his firm in a specified sum, and that the same was due on an implied contract. The trial court gave judgment on the pleadings for the amount claimed in the complaint. There is no bill of exceptions, and it does not appear that any evidence was introduced by either party on the trial. The counsel on both sides have argued the case on the assumption that it appeared that Goggin, in the attachment suit, was charged with having converted to his use certain property belonging to the plaintiffs. No such fact, however, is shown by the record, but, if it were true, the plaintiffs might waive the tort and sue in assumpsit for the value of the property. It has often been decided by this court that where money is held and converted, or property has been wrongfully appropriated and sold, an action for money had and received will lie by the owner to recover it. Assurance Co. v. Towle, 65 Wis. 248, 26 N. W. Rep. 104. True, the attachment law is generally supposed to refer to claims founded upon contract, expressed or implied, but it has not been directly decided that it does not also apply to a claim on which an implied assumpsit will lie. It may be that the reasoning of Judge SMITH, in Elliott v. Jackson, 3 Wis. 649, is opposed to that view, but the point was not involved in the case. In Bank v. Fonda, 65 Mich. 533, 32 N. W. Rep. 664, the court held that a suit in attachment lies upon the implied assumpsit arising out of the embezzlement by a clerk of the money of his employer; that the case came within the language of the attachment law of that state. The attachment law of Michigan is like our own, and requires the affidavit to set forth that the indebtedness sued on is due upon contract, express or implied, or upon judgment. See, also, Assurance Co. v. Towle, supra. In Whereatt v. Ellis, 58 Wis. 625, 17 N. W. Rep. 301, the complaint alleged that the defendant had converted a portion of the crops to his own use,

but it was held that these words did not necessarily show that the cause of action was in tort; but it is not essential in this case to decide whether a party may waive the tort and sue by attachment for money actually held and wrongfully appropriated by another. It will be time to consider that question when fairly presented on the record. It may be that the complaint in the attachment suit alleged that Goggin had wrongfully converted to his use the property of the plaintiffs, and was guilty of a tort; but, as that complaint is not before us, we need not further dwell on what it is assumed to contain. But, where an attachment has in fact been issued, though irregular, and a party has given an undertaking for the value of the property seized on the writ of attachment, and such property has thereapon been delivered up to the defendant, the party executing the undertaking is, on the most obvious principles of law, precluded from disputing the regularity of the attachment or the validity of the seizure. This is the position of plaintiffs' Counsel, that, by the execution of the undertaking in question, the defendants are estopped from controverting the regularity of the attachment, and are absolutely liable on the obligation, whether the attachment was wrongfully or rightfully sued out. This position seems to be founded upon sound reason and good sense, and it is amply fortified by the numerous decisions to which counsel refer. As these cases are cited in their brief, it is not necessary to give them in the opinion. The decision in Love v. Rock. well, 1 Wis. 331, (top paging,) goes upon the ground of estoppel, and there is certainly nothing in Shevlin v. Whelen, 41 Wis 91, in conflict with this view. There the bond was given, and in a proceeding to enforce a lien upon logs where the statute gave no such lien. It was held that, as the attachment was void, the undertaking which was given to release the property from the attachment, and restore it to the owners, was also void. There is a distinction between that case and the present one. As the court says, in Coleman v. Bean, 32 How. Pr. 381: "There is a plain distinction between the present case and one where an undertaking is given to procure the discharge of an attachment which is void for want of jurisdiction of the subject-matter. In the latter case, the whole proceeding being a nullity, the undertaking is of no effect whatever, and the sureties, when sued on it, may defend on that ground." In Shevlin v. Whelen, as the statute gave no lien, the owners of the logs who gave the undertaking were held not estopped by the execution of the instrument to obtain possession of the property, where no authority existed in law for taking it from them. But, in the came before us, the property had been taken by the sheriff under the attachment, and the defendants voluntarily gave the undertaking sued upon. in order that the attachment might be disharged, and the property restored to Goggin. In the language of WHITON, C. J., in Love v. Rockwell, 1 Wis. 331, under such circumstances, "it would be

gross injustice to allow the defendants to avail themselves of the defense set up in their answer. They are clearly estopped from doing so, whether the attachment was valid or not.

In the undertaking the defendants, jointly and severally, promise and agree, in the sum of $1,000, if the plaintiffs in the attachment suit shall recover judgment in the action, to pay the same on demand, together with costs that may be recovered against the defendants therein, not exceeding $250, with interest. It is contended that the liability of the defendants is limited to the sum of $250, and interest. We think this is an erroneous view of the undertaking. The limitation only applies to the costs, and does not qualify the undertaking to pay $1,000. Of course, the $1,000 is the extent of the defendants' liability, but the judgment and costs do not exceed that amount. We see no error in the record which should reverse, and the judgment of the circuit court is affirmed.

MORGAN V. LOOMIS et al. (Supreme Court of Wisconsin. Feb. 3, 1891.) EQUITY-RESCISSION OF Contracts.

Plaintiff, a widow 59 years of age, and so crippled as to be hardly able to walk, conveyed land to her nephew, L., and as part of the same transaction the latter executed an instrument purporting to lease the land to plaintiff, "her heirs, executors, administrators, and assigns" during her natural life, wherein plaintiff agreed to be of no expense to L. while absent from his family, and to demand only the necessaries of life. It was provided that in case L. should die before plaintiff the latter should not be bound to live with his heirs, but should have the same control over the premises as if L. were living. L. went into immediate possession and exclusive control, and so remained until his death, when session. Held, that the transaction was a conveyhis legal representatives took control and posance on condition that L., his heirs or assigns, should support plaintiff during her life; and, where L.'s heirs had neglected and refused to provide plaintiff with necessaries, a court of equity would annul the conveyance and agreement, and do equity between the parties as to rents and improvements.

Appeal from circuit court, Fond du Lac county.

December 21, 1882, the plaintiff, being a widow, 59 years of age, and the owner of 40 acres of land described, executed and delivered to her nephew, George R. Loomis, a warranty deed of the same, duly witnessed and acknowledged. On the same day, and as a part of the same transaction, Loomis and wife and the plaintiff executed an agreement whereby Loomis and wife leased said premises to the plaintiff for and during the term of her natural life, and the plaintiff therein agreed to be of no expense to said Loomis while absent from the family, and to demand only the necessaries of life, such as good, wholesome food, suitable clothing, washing, ironing, good care in sickness and in health and until death, and, after death, a Christian burial. And Loomis and wife therein agreed to erect upon the grave of the plaintiff a suitable tombstone. That, in case George R. Loomis should die before the plaintiff, then she was not bound to reside with his heirs, but should

have the same control over the premises as though both parties were living. May 13, 1889, George R. Loomis and wife both died. August 28, 1889, the plaintiff commenced this action against the defendants as the legal representatives of George R. Loomis and wife, for the purpose of rescinding said deed and annulling all the rights and interests of George R. Loomis and wife and the defendants in and to said lands, and for such other and further relief as might be just and equitable in the premises, and costs. The answer consisted of denials, and, in effect, alleged that the defendants were willing and ready to comply with the terms of said lease so far as they were under obligations to do so; that said lands, at the time of said conveyance, were not worth to exceed $800; that George R. Loomis had improved the same to the extent of $500. Upon the trial of the issues so made the court decided that said deed should be canceled and set aside, but upon the condition that the plaintiff should pay to the heirs of George R. Loomis the costs or expenses of maintaining the plaintiff during the time she had lived with George R. Loomis, less the rents and profits of the premises received by him, and should also pay for such permanent improvements, if any, as had been placed upon the premises by said George R. Loomis; that the defendants should file their claim for such sums, or, in case of failure, such judgment should be absolute. Thereupon the defendants filed a claim for board, clothing, washing, and ironing,-381 weeks, at $4 a week, amounting to $1,524,-and also other charges to the amount of $247.76, and alleged that the rental value of said lands was $50 per year, and claimed that the plaintiff was indebted to the defendants in the sum of $1,371.76 over and above all legal set-offs. The plaintiff took issue on such claims, and also set up a counterclaim thereto of $227.74. At the close of the trial of the issue so formed, the court found, in addition to the facts above stated, that the plaintiff made her home with the family of George R. Loomis and wife from the date of the deed to May 10, 1889, and during the same time, except when absent, received her board and necessary care and attention from said George R. Loomis, and some clothing, the balance of which she furnished herself; that George R. Loomis went into the possession of said premises at the date of the deed, and remained therein up to the time of his death, and had the exclusive use and control of the same; that the defendant Edwin P. Loomis had been in the possession of said premises from May 13, 1889, to December 22, 1889, and had received all the crops raised or grown upon said premises and all the income thereof, and had neglected or refused to pay or deliver to the plaintiff the rents or profits of said premises for said time; that the plaintiff has resided in another county ever since the death of George R. Loomis and wife; that the defendants, and each of them, had neglected and refused to furnish the plaintiff with a home, care, and attention and suitable clothing since the death of George R. Loomis, or to furnish

her with any means for the payment of the same, and had neglected and refused to perform any of the covenants and agreements to be performed by said George R. Loomis as stipulated in said written agreement; that George R. Loomis had made permanent improvements upon said premises of the value of $150, and had paid out for medical treatment for the plaintiff $33, and for taxes on the premises $37.36, and for 12 weeks' board $12; that the plaintiff was absent from the home of George R. Loomis, during the time mentioned, 1 year and 6 months, during which time she was of no expense to said George R. Loomis; that the plaintiff lived with George R. Loomis, during the time mentioned, 4 years, 10 months, and 18 days, during which time he furnished her with her board, necessary care, and some clothing; that the plaintiff's board, care, medicine, and clothing during said time were of the value of $2.75 per week, or $689.05; that the damage to the premises on account of the timber cut and carried off by George R. Loomis was $50; that the use of said premises during the time George R. Loomis worked the same was of the value of $50 per year, amounting to $350; that there was due the defendants from the plaintiff on such accounting the sum of $521.81. And as conclusions of law the court, in effect, found that the defendants were entitled to judgment for said last sum, as the balance due on such accounting; that the plaintiff was entitled to a judgment setting aside and canceling the deed upon the payment of the sum last named for the use and benefit of the defendants within 90 days after the entry of the judgment, but, in case of refusal or failure to pay said amount, said deed should not be canceled, and the plaintiff's action should be dismissed; that neither of the parties were entitled to costs, except the defendants were required to pay the clerk's fees. From the judgment entered thereon accordingly the plaintiff brings this appeal.

B. E. Van Keuren, for appellant. Duffy & McCrory and W. D. Conklin, for respondents.

CASSODAY, J., (after stating the facts as above.) The deed from the plaintiff to George R. Loomis and the agreement back were parts of one transaction, executed at the same time, and must therefore be construed together, as constituting one paper in law, for the purpose of determining the character of the transaction and the intention of the parties. Bogie v. Bogie, 41 Wis. 209. Being one paper in law, they must either stand or fall together in law. Newbegin v. Langley, 63 Amer. Dec. 612. The deed recites a consideration of $200, but it is conceded, and the court in effect finds, that there was no consideration therefor except the agreement back. That instrument is a singular document, and not at all suited to the manifest purpose for which it was drawn. The plaintiff was at the time of its execution a widow, 59 years of age, and so crippled by disease that she had but very little use of her legs, and could only walk a little by means of crutches, and is now

nearly 70; and yet the instrument purports to lease the premises to her, "her heirs, executors, administrators, and assigns, * * * for and during the term of her natural life." Since she could have no heirs, executors, or administrators during her life, and hence during the continuance of the lease, it is very manifest that the parties did not comprehend the nature of the instrument they were executing. Not withstanding the lease to the plaintiff, the court finds, in effect, that upon the execution of the papers George R. Loomis went into the immediate possession of the premises, and remained in such possession up to the time of his death, and during that time had the exclusive use and control of the same; and that the defendants, as his legal representatives, have ever since had such possession, use, and control, as mentioned in the foregoing statement. Manifestly none of the parties ever understood that the old lady was to run and manage the farm as lessee of George R. Loomis, or to be in any way accountable as such lessee. This is apparent from the practical construction which the parties thus put upon the transaction. To construe the papers as so intending, would convict George R. Loomis of the deliberate purpose of defrauding the old lady out of her farm. The instrument is burdened with unnecessary agreements on the part of the plaintiff. She expressly agreed therein to be of no expense to Loomis while absent from the family; "to demand ** only the necessaries of life, such as good, wholesome food, suitable clothing, washing, ironing, done at proper times, good care in sickness and in health and until death,

and, after death, a Christian burial;" while Loomis and wife therein only expressly agree to erect upon the plaintiff's grave "a suitable tombstone," and do not expressly agree to furnish the plaintiff with such necessaries during her life; and yet, by necessary implication from the negatives so imposed upon the plaintiff, they do in effect agree to furnish such necessaries during such period, and, after death, give such Christian burial. Such implied agreements are also strengthened by the provision therein to the effect that in case Loomis and wife should die before the plaintiff, then she was not to be bound to reside with their heirs, but should have the same control over the premises as though both parties were living. By the two instruments, taken together, the plaintiff in effect conveyed the premises to George R. Loomis, his heirs and assigns forever, on condition that he or they would during her natural life (except when she should be voluntarily absent) furnish her with the necessaries of life, such as good, wholesome food, suitable clothing, washing, ironing, done at proper times, good care in sickness and in health and until death, and, upon her death, a Christian burial, and then erect a suitable tombstone upon her grave. That such was the intent of the parties is plain from the parol testimony, which is admissible in evidence in such cases. The trial court found that there had been a breach of such conditions by the defend

ants' neglecting and refusing to furnish such necessaries; and to that finding there is no exception. Besides, it seems to be supported by the testimony. This court has by a long line of adjudications settled the rule that for such breach of conditions a court of equity will, upon proper pleadings, set aside such conveyance and agreement, and do equity between the parties, especially in favor of an aged woman in the condition of the plaintiff at the time of the execution of the papers in question. Bogie v. Bogie, 41 Wis. 209; Bresnahan v. Bresnahan, 46 Wis. 385, 1 N. W. Rep. 39; Blake v. Blake, 56 Wis. 392, 14 N. W. Rep. 173; De Long v. De Long, 56 Wis. 514, 14 N. W. Rep. 591; Divan v. Loomis, 68 Wis. 150, 31 N. W. Rep. 760; Stoel v. Flanders, 68 Wis. 256, 32 N. W. Rep. 114; Hartstein v. Hartstein, 74 Wis. 1, 41 N. W. Rep. 721; Dickson v. Field, 46 N. W. Rep. 668, 77 Wis. 439. See, also, Martin v. Martin, (Kan.) 24 Pac. Rep. 418. The principles upon which the rule is based are exhaustively considered in the cases cited, and need no repetition. It is enough to say that they go upon the theory that property thus conveyed shall remain intact for the security of the conditions thus annexed to the grant. The decision of the trial court, however, seems to have been based upon the theory that the property thus conveyed should be held, and the same or its equivalent should from time to time, as circumstances required, be expended, for the support, maintenance, etc., of the grantor, with the right to permanently retain all not so expended; but that in case such grantee at any time found it for his advantage, interest, or convenience not to further execute such trust, then he should be at liberty to refuse further performance, and reclaim all he had expended, less rents and profits actually received. This would not only be unjust to confiding age, but contrary to the rule thus established by this court. We are inclined to think, however, that it is no violation of that rule to allow the defendants for the $150 expended in making permanent improvements on the land, less the $50 damage to the premises by reason of timber cut and removed therefrom. Blake v. Blake, supra; De Long v. De Long, supra. The judgment of the circuit court is reversed, and the cause is remanded, with direction to enter judgment setting aside said deed and agreement, and adjudging title to the land in the plaintiff, subject to the payment, at her death, or sooner, at her option, of the sum of $100.

GILMAN et al. v. SHEBOYGAN COUNTY et al. (Supreme Court of Wisconsin. Feb. 3, 1891.) ERRONEOUS TAXATION-REMEDIES-PARTIES-PRO

CEDURE.

1. In an action to set aside a tax assessment in the names of other persons on lands alleged to belong to plaintiffs, and on which they have already paid taxes, and the proceedings to enforce such assessment, as clouds on plaintiffs' title, a refusal to make such other persons, who claim to own the land, and between whom and plaintiff an action to determine title is pending, parties defendant, is proper, as they are not necessary parties to a determination of the questions involved, and have no interest in the controversy

adverse to plaintiffs, within the meaning of Rev. St. Wis. § 2603, allowing such persons to be made defendants.

2. As it appears that defendants are seeking to enforce a double assessment on the lands, their motion to stay proceedings until the determination of the action to determine title is properly denied.

Appeal from circuit court, Sheboygan county; N. S. GILSON, Judge.

The complaint alleges, in effect, that the plaintiffs are tenants in common and owners in fee-simple of the lands described therein; that the first four parties named are the heirs at law of W. W. Gilman, deceased, and, as such heirs, are the owners in fee-simple of one-third of the said land; that the plaintiff railway company is owner in fee-simple of the other two-thirds of said land; that for the purposes of taxation for the years 1886, 1887, and 1888, the assessors of the city of Sheboygan, in said county, assessed all the interests of the first four plaintiffs to their intestate, W. W. Gilman, and that the taxes for said several years were properly carried out in the tax-rolls, and were fully paid by the intestate, his agent, or the said plaintiffs; that said assessors, for the same years, wrongfully entered, as for assessment or taxation, on said assessment rolls, a piece of land, describing it as being embraced within the description of the former tract so owned by the plaintiffs as such tenants in common, and that the same was wrongfully assessed to one George Groh as owner; that the same was so wrongfully carried into the tax-rolls for said years, and placed in the hands of the treasurer for collection, and returned by him as unpaid, and were thereupon advertised for tax-sale, and sold at tax-sales for said years, respectively, to the defendant Detling, who is not otherwise interested than as such purchaser; that all of such proceedings were wholly without the knowledge of the plaintiffs. Said complaint contained other suitable allegations, and prayed, in effect, that said assessments to said Groh, and the tax-sales so made thereon, be declared void, and that the tax certificates issued thereon be respectively declared void, and adjudged to be delivered up for cancellation, and cancelled; that said county and its clerk be perpetually enjoined from issuing taxdeeds on any of said tax certificates, and for a temporary injunction against the same, and for costs. The defendants answered, and in effect conceded said double assessment.

Thereupon the defendants moved the court, upon affidavits and certain other pleadings in another action referred to, for an order directing that George M. Groh and others, claiming to be the owners of said premises, be made defendants in this action, on the ground that they disputed the plaintiffs' title; and upon hearing said motion it was ordered by the court, May 27, 1890, that the same be and was thereby denied, with $10 costs, to be paid by the defendants to the plaintiffs. At the same time the defendants moved said court, upon affidavits, for a stay of proceedings in this ac. tion until a certain action of ejectment brought by these plaintiffs against George

M. Groh and others had determined who is the rightful owner of the lands described in said tax certificates, and, after hearing counsel for the respective parties, it was ordered by the court on May 27, 1890, that said motion be, and the same was, thereby denied. From each and both of said orders the defendant county brings this appeal.

Simon Gillen, for appellant. Seaman & Williams, for respondents.

CASSODAY, J., (after stating the facts as above.) It is, in effect, alleged in the complaint, and conceded, that the lands

described were assessed and taxed to the

plaintiffs as the owners thereof, in each of the years 1886, 1887, and 1888, and that they fully paid the taxes thereon for each of those years. It is therein alleged, in effect, and conceded, that a portion of the same land, by a differently worded description, was assessed and taxed to Groh as the owner thereof, for the same years, and for the same purposes, and by the same municipality; and that the defendants were engaged in forcing the collection thereof against the same land. This action is to set aside such last-named assessment, and the proceedings thereon, as clouds upon the title of the plaintiffs. The contention is that Groh and certain members of his family claim to be the owners of such land, and hence should be made parties defendant. Assuming that the Grohs claim to be such owners, yet, from the very nature of the case, their presence as defendants cannot be sought to confirm and establish such assessment and tax proceedings, since that would only burden and tend to cut off whatever title they might have in the premises. In other words, whatever interest the Grohs may have in the controversy is adverse to the enforcement of said tax proceedings, and hence adverse to the claim of the defendants. Assuming that there is an existing controversy between the plaintiffs and the Grohs in relation to the title to the land, and that there is an action of ejectment pending to determine that controversy, yet that controversy cannot be determined in this action, which is entirely for a different purpose. In other words, such action of ejectment cannot properly be consolidated with this equitable action. The removal of the tax proceedings, as a cloud on such land, would necessarily be beneficial to the owners of the land, whoever they may be, and hence the Grohs have no interest in that controversy adverse to the plaintiffs, within the meaning of section 2603, Rev. St. Nor are they necessary parties to a complete determination of the questions involved in this action, within the meaning of that section.1 It is contended that the plaintiffs have no title to the land covered by such taxes, and hence have no interest in removing the cloud from the title. If that is so, then the defendants can prove such want of title without making the Grohs parties, just as effectually as could be done if they should be made parties. Whatever may be the deter

1 Section 2603 provides that such persons may be made parties defendant.