Opinion
March 27, 1935.
April 22, 1935.
Equity — Parties — Person with interest affected by decree — Joinder — Equity Rule 17 — Contract for benefit of third person — Easement for benefit of adjoining land — Parties in proceeding concerning status of easement — Amendment.
1. Where a contract is made for the benefit of a third person, both the third person and the promisee may enforce the promise of the other party to the contract. [495]
2. Where, in a proceeding in equity, a final decree cannot be entered without substantially affecting the interest of a third person, such person should be made a party to the proceeding. [495]
3. Where a bill is filed by the grantor of land against his grantee for a decree concerning the status of an easement on the land granted, which, it is alleged, it was agreed to create for the benefit of the owner of adjoining land, and the evidence indicates that the adjoining owner might be entitled to the relief asked, the bill should not be dismissed, nor should a decree be entered in favor of the adjoining owner, but the latter should be made a party to the action, pursuant to Equity Rule 17, with leave to amend, if necessary. [495-6]
Argued March 27, 1935.
Before FRAZER, C. J., SIMPSON, KEPHART, SCHAFFER, MAXEY, DREW and LINN, JJ.
Appeal, No. 76, March T., 1935, by defendants, from decree of Superior Court, April T., 1934, No. 92, reversing decree of C. P. Allegheny Co., Jan. T., 1932, No. 4189, in case of James F. Fitzgerald et ux. v. Leonard Kwaterski et ux. Judgment reversed and record remanded for retrial.
Bill in equity. Before EGAN, J.
The opinion of the Supreme Court states the facts.
Bill dismissed. Plaintiffs appealed to Superior Court. Judgment reversed and decree entered in favor of third party beneficiaries. Appeal by defendants allowed to Supreme Court.
Errors assigned were to the judgment of the Superior Court.
William S. Doty, with him Thomas A. Thornton, of Doty Thornton, and Alexander J. Bielski, for appellants.
Thomas L. Kane, for appellees.
This appeal is from a judgment of the Superior Court, reported in 115 Pa. Super. 53, 174 A. 596.
Fitzgerald and wife filed a bill against Kwaterski and wife for a decree concerning the status of an easement on lot No. 29, for the benefit of which, plaintiffs alleged, it was agreed by defendants that an easement would be created. The trial court dismissed the bill. The Superior Court reversed, and remanded the record with instructions to enter a decree in favor of the Dukovics, "their heirs and assigns, tenants and occupiers of the adjoining premises." The Dukovics were not parties to the suit. Under the contract as alleged they are third party beneficiaries and both they and plaintiffs would have the right to enforce defendants' promise: Restatement, Contracts, section 138. In the common pleas, the learned chancellor said: "If Dukovic had brought this action on the theory that Kwaterski purchased Lot 28 from Fitzgerald subject to an open, visible right of way in favor of Dukovic, there would be some reason for seriously considering relief to Dukovic . . . . Mr. and Mrs. Dukovic were necessary parties to this action, as they are the ones actually interested in the disposition of the case. The rights of Mr. and Mrs. Dukovic are involved, and a decree in favor of the defendants would be prejudicial to their interests as owners of the land to be benefited by the right of way. They are necessary parties to this action and should have been joined as such: Hanna v. Chester Times, 303 Pa. 252, 154 A. 591; Hartley v. Langkamp, 243 Pa. 550, 90 A. 402."
See the opinion of the Superior Court for a fuller statement of the facts.
With that view of the merits, the chancellor should have ordered that the Dukovics be made parties pursuant to Equity Rule 17, with leave to amend, if necessary. The rule provides: "At any stage of the suit, the court may direct the joinder of additional parties, if this is deemed essential in order that justice and equity may be done; and may stay all proceedings until compliance with this requirement." See Hartley v. Langkamp, supra, at page 556.
It was obvious to the Superior Court that the record (which did not contain the evidence, but only the findings of the chancellor) indicated that the Dukovics might be entitled to the relief asked. But it may turn out that they have reasons of their own for not desiring a decree in their favor. Of that, of course, they must decide. According to the opinion of the chancellor, the case was not tried as it might have been, if the Dukovics's interests had been represented on the record. We cannot judge of that, because the evidence is not printed. In such circumstances, instead of ordering a decree in favor of the Dukovics, who were not parties, the court should have directed the application of Rule 17, leaving the subject for further consideration of the court below.
The judgment of the Superior Court is reversed and the record remitted to the common pleas for retrial, costs to abide the result.