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Johns. Ch. (N. Y.) 441, where, at page 443, | necessary for the complainant to follow all Chancellor Kent says:

"There is no principle better established, nor one founded on more indispensable necessity, than that the purchase of the subject-matter in controversy, pendente lite, does not vary the rights of the parties in that suit, who are not to receive any prejudice from the alienation." Story, Eq. Pl. § 156; 1 Dan. Ch. Pl. & Pr.

280.

An assignee under a voluntary assignment may be made a party, when desirable, at the election of the plaintiff. Story, Eq. Pl. § 156. [2] Purchasers pendente lite cannot be made parties without the complainant's consent. Steele v. Taylor, 1 Minn. 274 (Gil. 210).

"The rule is that it is proper to make parties all incumbrancers whose claims arose before the commencement of the suit, but not those who purchased pendente lite." Miller v. Kershaw, Bailey, Eq. (S. C.) 469, 471, 23 Am. Dec. 183.

In this state the law as to purchasers pendente lite has, however, been modified by chapter 315, P. L. § 2, passed April 21, 1882. The provision has remained the same in the revisions since its passage, and is now section 13 of chapter 294, Gen. Laws 1909, which reads as follows:

"Sec. 13. No proceeding in court, hereafter taken, whether by filing bill, petition, declaration, or other complaint, or rule of court, or otherwise, and no final order, decree, or judgment, concerning the title to any real estate, in this state, or to any interest or easement therein, shall affect such title (excepting as to parties thereto and their heirs and devisees, and those having actual notice thereof) as to any rights acquired before notice of the filing, or entry, of the same shall be recorded in the records of land evidence in the town or city where such real estate is situated; such notice to be copied in a book duly indexed and kept for that purpose. The notice shall briefly state the names of all the parties, the court wherein filed, the date of filing, and the substance of the bill, petition, declaration, or other complaint, rule, order, decree, or judgment, and a description of the real estate thereby affected, so far as may be necessary to warn any person subsequently dealing with the title to the land."

[3] Therefore, by the terms of the statute, the title of purchasers pendente lite of the lands prior to the recording of the notice provided in the statute, and not having actual notice, cannot be affected by any proceeding in the suit. No reason appears, therefore, for making them parties to the suit, as such a proceeding would avail nothing. They would not be affected by the decree. Those having actual notice are excepted by the statute, and are therefore left in the same position as though the statute had not been passed. They are not necessary parties. They take cum onere, and would be bound by the decree.

The necessity of making heirs or devisees of a deceased respondent parties to the suit, before the suit can proceed, is argued by respondents' counsel, as follows:

"It may be contended that all that the statute requires is that all of the owners of the lands ont of which dower is sought should be joined when the bill is brought, but that it is not

the changes in ownership that may occur while would be untenable. the bill is pending. Clearly this contention The same necessity which requires that all of the owners should be joined to begin with requires that all the owners should be kept continually before the court. Otherwise it might be possible for the widow the time of filing of the bill, and then subseto bring her bill against all of the owners at quently to discontinue as to some of them. Such discontinuance would, of course, relieve those as to whom the bill is discontinued of any liability for dower, and thus the widow might maintain a bill for dower against certain ones while at the same time relieving others who were just as liable. She would thus be able to accomplish by indirection the result which the statute plainly prohibits, that is, the choice of certain persons out of whom dower is to be collected and the release of others.

"This court has already decided that all of the owners of all the land out of which dower is sought must be joined. To allow the owners of a part of the land out of which dower is sought to be unrepresented because of alienation of the land, or because of the death of the parties against whom the bill is brought, would obviously leave matters in the same position as if the bill were brought against all to begin with and then were discontinued as to some. We have already seen that that would enable the widow to accomplish by indirection what the statute forbids. Since the allowing of alienees or heirs at law and devisees to be unrepresented accomplishes the same result as would a discontinuance as to certain of the parties, and that course must be held to be forbidden because it would work a circumvention of the statute, it must follow that the cause cannot proceed while alienees or heirs at law and devisees are not represented before the court."

It does not seem clear that a discontinuance as to any respondent or the failure to make the alienee or heir at law or devisee of a respondent a party would enable the complainant, as counsel says:

which the statute plainly prohibits, that is, the "To accomplish by indirection the result choice of certain persons out of whom dower is to be collected and the release of others."

The statute makes no such prohibition. It provides that the widow may bring a suit in equity against all of the persons owning the said lands. She could have brought separate suits against all the several owners or against any of them, leaving out any that she saw fit to leave out. She could thus have accomplished exactly what respondents' counsel say is prohibited by the statute permitting her to bring a suit against all the persons owning the said lands.

The right of the complainant to bring a separate suit against each of the owners of the several parcels into which the lands of her husband have been divided, and to obtain her dower from each, if she shows that she is dowable out of the land held by such owner, is not disputed. In the absence of a statute permitting her to bring a suit against all the owners, she would have been confined to such separate suits against the several owners, as a suit against all would have been open to the objection of being multifarious. To relieve this situation, the statute was passed providing that:

"Whenever a widow shall be entitled to dow- | have been passed for the purpose of facilier in several parcels of land, whether the fee tating the recovery of dower rather than of of the same be in the heir at law, devisee, impeding it. grantee or a subsequent holder, she may bring a suit in equity against all the persons owning the said lands."

Having brought suit under the statute against all the owners, how is the right which she before had to recover her dower from the owner of each of said parcels affect ed? When this case was formerly before this court, 32 R. I. 361, 79 Atl. 972, in answer to the sixteenth question then submitted, the court held, that suit being brought under said statute, it "must be brought against all persons owning the land out of which dower is sought." The court, however, said:

"We do not mean by this that it is necessary to include in the suit all the land out of which the widow was originally entitled to be endowed. It may well have happened that before this suit was brought some of the owners of the land did set off the widow's dower therein, or agreed with her upon some substantial equivalent in lieu thereof. In such a case there would be no necessity for the widow to include those with whom settlements had been made as parties respondent in her bill."

In 5 Ency. Pl. & Pr. 840, h. Suits in Equity (1) Generally, it is said:

"The death of one of several defendants to a suit in equity abates the suit as to him; but the surviving defendants when there are such the suit may proceed without revivor against persons before the court as make it possible to render a final decree in the cause. But where the deceased defendant was a necessary party to the determination of the controversy, his death abates the suit."

[5] In this state Gen. Laws 1909, c. 285, § 5, provides:

"In any case where there are two or more plaintiffs or defendants, if one or more of them shall die, and the cause of action shall survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated, but the death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants."

Gen. Laws 1909, c. 289, § 11, provides:

"No supplemental bill, or bill of revivor, shall be necessary in equity, but the superior court, Would this right of the widow to effect a by general rule or by special order, may provide settlement with any of the respondents and for the introduction of any supplemental matthus obtain her dower or a satisfactory equiv-ment of the bill, and for entering upon the recter into the suit by way of addition to or amendalent therefor cease upon her bringing a suit ord the decease of any party, and for bringing against all? Her dower in each of said in the heirs, personal representatives, and othparcels is still the object of her suit, although ers interested." it is brought under the statute, against all the owners of the several parcels out of which she is seeking dower.

[4] Is her right to the recovery of dower from the owners of the several parcels affected by the bringing of the suit against all? In effect, does the statute do anything more than enable her to bring suit, upon her several rights to have dower out of the several parcels against the several owners of said parcels together, in form, one suit, but in reality, so far as her right to recover dower from the owners of the several parcels is concerned, an aggregation of the several suits against the several owners? Are the rights of dower which she had before suit against each owner so tied together upon her bringing one suit against all, under the permission given by the statute, that thereafter she cannot recover her dower against any owner, unless all persons who may have acquired an interest in any of the several parcels of land as heir, devisee, or alienee of any respondent are brought in and kept before the court? Have the rights to have dower out of each parcel been fused by the suit brought against all the owners into one right recoverable against all or none? That appears to be the effect of the contention of counsel for respondents. Is this a necessary conclusion? Such a conclusion would render it necessary to decide that the right which she had before suit to recover her dower from the owners severally of each of the parcels of land was destroyed the moment that she brought suit against all under a statute which it would seem must

And Gen. Laws 1909, c. 329, § 14, provides: "No action of dower shall abate by the death of the defendant named therein, where the defendant is tenant of the freehold, if the property passes by devise or descent from him; but such death being suggested, the heir or devisee shall be summoned to appear within a certain time, to be prescribed in the discretion of the court in which the action is pending, and take upon him the defense of the suit, and the suit shall proceed against him in the same ner as if he had been the original defendant."

Heirs or

The provision in chapter 289, § 11, "for entering upon the record the decease of any party, and for bringing in the heirs, personal representatives, and others interested," applies of necessity to the bringing in of persons interested, as well in the case of "heirs,. devisees or personal representatives," as in the case of "others interested." devisees would ordinarily be interested, but in the case at bar it would not be to their interest to be brought in and made subject to the decree, but quite the reverse. If the complainant wanted to subject them to the decree, her interest would be to have them brought in; but, if she was not willing to take the trouble to do so, none of the other parties to the suit would be interested to have them brought in, unless their not being so brought in would injuriously affect such other parties. Outside of that consideration, it would not seem to be necessary to make them parties, and that the suit could proceed against the other parties respondent who are before the court. The provision in chapter 329, § 14, providing that upon the suggestion of the death of a party "the heir

or devisee shall be summoned to appear within a certain time, to be prescribed in the discretion of the court in which the action is pending, and take upon him the defense of the suit, and the suit shall proceed against him in the same manner as if he had been the original defendant," clearly applies to the prosecution of the suit against such heir or devisee in seeking the object of the suit, in the same manner as if he had been the original defendant. The section immediately precedes the section under which this action is brought. Prior to that chapter 329 had dealt only with cases brought against the individual owner of the land. In the case of one defendant, manifestly it would be necessary to have his heir or devisee made a party upon the death of the defendant being suggested, and the complainant would plainly be interested in suggesting the death and having him made a party in order to proceed effectually to a decree against him. The section, however, in our opinion does not affect the question of the prosecution of the suit against the other defendants, if any be

fore the court. Such other defendants would

be interested only where the failure to bring such heir or devisee before the court and subject him to the decree would injuriously affect them. In order to show that such other respondents would be injuriously affected by the failure to make the alienee of a respondent or the heir or devisee of a dea respondent or the heir or devisee of a deceased respondent a party, counsel for respondents cite the provision in said chapter 329, § 15, that in any such suit:

"The court, according to the course of equity in marshaling incumbrances, may cause the dower of such widow in all of the said parcels to be assigned in one parcel or in contiguous parcels out of the lands of the heirs at law or devisee of such deceased husband, or otherwise according to equity."

And they argue as follows:

"Under this statute the court or master to whom the case might be assigned might proceed, if it be found that the widow is dowable, to set off her dower by having transferred to her some one or more of the parcels of land, * * * and charge the owners of other parcels so as to cause them to bear their proportion of the burden. But, if all of the owners were not represented before the court, the decree could not be binding upon them, and thus it might and inevitably would follow that at the conclusion of the action numerous claims would still remain unadjusted."

In this case, all the owners of the several parcels of land were joined as parties under the statute. This having been done, and all having been brought before the court the right of the complainant to dower out of the parcel of each owner, we think, must be concluded by this suit. If a party respondent conveys the parcel owned by him, then if such conveyance is made before the record of notice of lis pendens required by Gen. Laws 1909, c. 294, § 13, the title of the alienee is not affected by any proceeding in this suit, unless the alienee had actual notice. If he had actual notice, he takes the land cum

Con

onere, and need not be made a party. sequently no necessity exists, so far as his rights are concerned, of making him a party. If he acquired the land with actual notice, he will be bound by the decree, and, if he acquired it without actual notice, he will not be affected by the decree. In case of the death of a party respondent, if the complainant causes the heir or devisee to be made a party, then the cause proceeds against such heir or devisee. If the complainant does not cause the heir or devisee to be made a party, then she can have no decree affecting him. The decree, therefore, can cause no injustice to him.

It is true that upon the entry of decree there might be some parcels of the land held by alienees of respondents not having actual notice, and by heirs or devisees of deceased respondents who had not been brought in and made parties. Such alienees, heirs, or devisees would not be affected by the decree. The complainant, however, would be concluded by the decree, and such alienees, heirs at law, or devisees would not be injured.

Would the other respondents, those who remained parties to the suit at the entry of decree, be prejudiced by the decree?

The court, in proceeding to "cause the dower of the complainant in all of the said parcels to be assigned in one parcel or in contiguous parcels out of the lands," could not well include in such parcel or parcels, so assigned, the lands out of which dower or

ed by the complainant before suit, as the a satisfactory equivalent had been securowners of such lands were not required to be made parties. Sprague v. Stevens, 32 R. I. 361, 376, 79 Atl. 972. If any respondent has, after suit brought, conveyed his parcel to one not having actual notice, or if the heir or devisee of any deceased respondent has not been brought in and made a party to the suit, no dower can be recovered by the complainant from the parcels so conveyed, descended to the heir, or devised. Therefore no dower from such parcels could be charged upon the owners of the other parcels. If dower should be assigned by the court in one parcel or in contiguous parcels, it could be so assigned out of the parcels of the parties respondent at the time of the decree. statute, after providing that the dower may be assigned in a contiguous parcel or parcels, out of the lands of the heirs at law or devisee of such deceased husband, adds the words "or otherwise according to equity," indicating clearly that the court is to be free to assign the dower in such way as under the circumstances will do equity. Is it to be sup posed that under such circumstances a court of equity would proceed to cause the dower of the widow to be assigned in one parcel or in contiguous parcels out of those lands from which, by failure to make such alienees, heirs, or devisees parties, she had failed to secure her dower, or, on the other hand, that the court would in such assignment charge upon

The

the respondents remaining and subject to the decree any burden for the dower which the complainant had thus failed to recover? Such assignment could only be made out of the lands of the respondents remaining parties at the time of the decree, and would work no hardship, as such lands would only be subjected to the burden of the dower recovered from such lands.

[6] We therefore do not think that, because the statute permits the complainant to join all the owners of the lands, it therefore follows that it is necessary that every alienee

pendente lite of a respondent and every heir

or devisee of a deceased respondent should

be brought before the court before the suit can proceed. We think the provisions, as to can proceed. We think the provisions, as to parties, of the statutes we have cited, supra, apply to this proceeding as to other suits in

equity. The subject of parties in suits in equity is too broad and the exceptions are

too numerous for extended comment; but, as

illustrative of some of the principles upon the subject under consideration, we quote from Story's Eq. Pl. § 77, as follows:

"Let us, therefore, before entering upon the more particular considerations applicable to this subject, examine into and consider the general nature of the exceptions which have been admitted to the general rule in equity that all persons legally or beneficially interested in the subject-matter of a suit should be made parties, or, if the expression be deemed more exact and satisfactory, that all persons who are interested in the object of the bill are necessary and proper parties. All these exceptions will be found to be governed by one and the same principle, which is that, as the object of the general rule is to accomplish the purposes of justice between all the parties in interest, and it is a rule founded, in some sort, upon public convenience and policy, rather than upon positive principles of municipal or general jurisprudence, courts of equity will not suffer it to be so applied as to defeat the very purposes of justice, if they can dispose of the merits of the case before them without prejudice to the rights or interests of other persons who are not parties, or if the circumstances of the case render the application of the rule wholly impracticable. On the other hand, if complete justice between the parties before the court cannot be done without others being made parties whose rights or interests will be prejudiced by a decree, then the court will altogether stay its proceedings, even though those other parties cannot be brought before the court, for in such cases the court will not, by its endeavors to do justice between the parties before it, risk the doing of positive injustice to other parties not before it whose claims are or may be equally meritorious."

And also the remark in section 76, c, Id.: "And here it may be proper to state the remark of a learned chancellor, speaking upon 91 A.-4

this very subject of parties, as containing a salutary admonition and instructive lesson, that it is the duty of every court of equity to adapt its practice and course of proceeding, as far as possible, to the existing state of society, and to apply its jurisdiction to all new cases which, from the progress daily making in the affairs of strict an adherence to forms and rules estabmen, must continually arise, and not, from too lished under very different circumstances, to decline to administer justice, and to enforce rights, for which there is no other remedy"-citing Lord Cottenham in Mare v. Malachy, 1 Myl. & Cr. 550.

[7] As to the questions relative to the applicability of rules 14 and 15 of the superior

court in the cases cited in the questions cer

tified, we do not think that said rules are applicable. These rules do not refer to or provide for the procedure in case of the death of parties or the alienation by parties of lands in suit. Both rules embody exceptions to the rule as to parties which have been long acted upon by courts of equity.

founded upon the utter impracticability of The exception embodied in rule 14 is making the new proper or necessary parties, as when such new parties are not within the

jurisdiction.

The exception embodied in rule 15 is founded upon the case of exceedingly numerous parties, where it would be impracticable to join them without manifest inconvenience and oppressive delays. Both, however, refer to and provide for the exception of parties, proper and necessary, who would have to be made parties but for the exception. In this case the persons who were necessary and proper parties have been made parties to the suit. When parties respondents convey their lands, or die, then the decision of the question whether the alienees in the one case and the heirs or devisees in the other must be made parties depends, not upon the number of said persons or the difficulty of making them parties, but upon the question whether they are necessary parties without the presence of whom the court will not proceed to a decree; and upon that question said rules 14 and 15 afford no assistance, and are not applicable.

In accordance with the reasons above expressed, said questions 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 are answered in the negative.

Having thus answered the questions certified, the papers in the cause, with our decision certified thereon, are sent back to the superior court for further proceedings.

(37 R. I. 141)

"The owner of shares of stock or of bonds or RHODE ISLAND HOSPITAL TRUST CO. of debentures of any corporation liable to a tax

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TAXATION (§ 164*)-CORPORATIONS.

A New Jersey holding company, organized to carry on business without the state and authorized to purchase, hold, and dispose of the securities of any government railroad or public service corporation, acquired the stock of street railway and railroad corporations in Rhode Island. Most of its directors resided in Rhode Island and notices of directors' meetings were sent out from its Rhode Island office. The only business it carried on was the collection of rent from its Rhode Island property. Held, that the holding company was carrying on business within the state, under Tax Act (Laws 1912, c. 769), providing that every corporation carrying on business for profit in the state shall be subject to taxation upon its corporate assets, liable for such taxes, and stockholders, under the direct provisions of section 20, held their shares free from taxes.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 286; Dec. Dig. § 164.*]

Exceptions from Superior Court, Providence and Bristol Counties; Charles F. Stearns, Judge.

Petition by the Rhode Island Hospital Trust Company against Elisha H. Rhodes and others, as assessors of taxes of the city of Providence, for relief from an assessment. Petition was denied, and petitioner excepted. Exceptions sustained.

Claude R. Branch, Edward P. Jastram, and Edwards & Angell, all of Providence (Tillinghast & Collins, of Providence, of counsel), for petitioner. Albert A. Baker, City Sol., and Elmer S. Chace, Asst. City Sol., Sol., and Elmer S. Chace, Asst. City Sol.,

both of Providence, for respondents.

BAKER, J. This is a petition for relief

from an assessment made by the assessors of taxes of the city of Providence. Jury trial was waived, and the case was tried October 15, 1913, before a justice of the superior court, who denied the prayer of the petition. The petitioner excepted to said decision and afterwards duly took the steps necessary to bring the matter before this court on its bill of exceptions.

The petitioner asks for relief from a tax which it, as trustee under the will of Walter A. Peck, paid under protest October 18, 1912, on 350 shares of the capital stock of the United Traction & Electric Company. The assessors assessed the petitioner on account of these shares of stock on a valuation of $37,012 at the rate of $4 a thousand. The United Traction & Electric Company in 1912 made the return required of corporations liable to a tax upon their corporate excess. The petitioner claims that it is entitled to exemption from taxation on these shares of stock under the provisions of the Tax Act of 1912. Section 20 of said act (chapter 769, Pub. Laws 1912) provides that:

upon its corporate excess under the foregoing provisions shall be exempt from taxation in this state thereon."

And section 39 of said chapter, paragraph 8, provides that:

"No person, copartnership or corporation shall be taxed for shares of stock held in, or for bonds or debentures of, any corporation liable under the laws of this state to a tax upon the corporate excess of such corporation."

Corporations liable to a tax upon its corporate excess are pointed out in section 9 of said tax act, which section is preceded by the caption as part of the act: "Taxation of Manufacturing, Mercantile and Miscellaneous Corporations." So much of said section 9 as shows the basis for the claim of exemption from taxation is as follows:

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The meaning of the expression "corporate excess" and the method of determining its value are set forth in said tax act, but their consideration is not involved in the present inquiry.

The parties agree that the sole issue or ques

tion in this case is whether or not the United Traction & Electric Company was during the year 1912 a corporation "carrying on business of said Tax Act of 1912. It is also agreed for profit in this state" within the meaning of said Tax Act of 1912. It is also agreed that the United Traction & Electric Company

is a corporation, and that it was incorporated in New Jersey in May, 1893.

Article 2 of its certificate of incorporation provides that:

be conducted and carried on beyond the limits "A part of the business of said company is to of the state of New Jersey and the places where such part of its business is to be conducted and carried on are the District of Columbia, and states of New York, Connecticut, Rhode Island and Massachusetts, and the principal office or place of business of said company out of this state is to be situated in the city of Providence in the state of Rhode Island."

Article 3 specifies and enumerates the objects for which the company was formed. These objects are numerous, and the company's powers are broad and comprehensive.

Among the enumerated objects for which it is authorized to carry on business are these:

"To purchase, hold, use, dispose of and sell the securities of any government or of any railway or other corporation, private, public or municipal, whether such securities shall be bonds, mortgages, debentures, notes or shares of capital stock and to exercise all the rights of stockholders as to such capital stock. to pledge or mortgage, if necessary, its franto borrow money with or without security and chises and property of every kind whatsoever;

* * *

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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