Morrison Waite

“ It is claimed, however, that, as Rand holds the legal title, Doane is an unnecessary and merely nominal party, because his interests are represented, for all the purposes of the suit, by Rand as his trustee. It is certainly true, as was said in Kerrison v. Stewart, 93 U.S. 160, that 'under some circumstances a trustee may represent his beneficiaries in all things relating to their common interest in the trust property. He may be invested with such powers and subjected to such obligations that those for whom he holds will be bound by what is done against him, as well as by what is done by him. ”

“ As the suit now stands, it is, so far as Rand and Doane alone are concerned, by a citizen of Illinois against one defendant, a citizen of Illinois, and another defendant, a citizen of New York, to obtain an assignment of dower in property owned by the two defendants jointly, and in which they have a common interest. Both defendants are necessary parties, and consequently there cannot be a removal by one alone, because the controversy is not separable, nor by the two together, because as to them there is not the necessary citizenship. ”

“ If he has been made such a representative, it is well settled that his beneficiaries are not necessary parties to a suit by him against a stranger to enforce the trust, or to one by a stranger against him to defeat it in whole or in part.' But this case has nothing in the pleadings, or elsewhere, to show that Rand was authorized to represent Doane in respect to the property any more than one tenant in common represents another. Having a legal title, a judgment against him in favor of one not chargeable with notice of Doane's equity might bind Doane as well as Rand ”