Page:Federal Reporter, 1st Series, Volume 2.djvu/355

 w48 FEDERAL REPORTHE. �This agreement was held by Secoiube until tlio latter part of March, 1872, when, at the request of the other parties, he delivered it up to be cancelled, and it was cancelled. It was a mere agreement in the first place, and it required nothing more solemn than a mere agreement to end it. Snch an agree- ment f ully acted upon, is f ully and satisfactorily proved. The conveyances afterwards, until they reached the plaintiff, were of the patent without the interests of Eddy, Shavor and Corse, and their interests remained intact as they were under the assignment of one-third to Eddy in trust, October 23, 1869. It is suggested that this agreement was reeorded, and that the record of it may have misled the plaintiff, but this is not at ail probable, and the resuit is not chargeable to Eddy or his cestuis if it did. That it was reeorded would not make it an instru- ment of title, but would only complete its effect if it was one. If the plaintiff learned of the record, he is to be taken to have learned of it as it was, and to have known that it did not affeet the title. �According to these views the plaintiff is entitled to a decree for the payment by the defendant James to him of two-thirds of the Bum reported by the master, namely, $42,000. �This conclusion would dispose of the whole case as it was originally brought; but when the defendant objected that ail the parties in interest were not before the court, so that com- plete justice could be done, and the whole controversy dis- posed of, he set out the conveyance to Eddy, as trustee for himself, Shavor and Corse, as showing an outstanding inter- est, and prayed that Eddy, as trustee, might be made a party to the cause prior to the final hearing. It was the duty of the defendant, in making that objection, to set forth what parties were wanting, that the plaintiff might supply them. This is required in pleadings at law to give the plaintiff a better writ before abating the one he bas. The same is re- quired in proceedings in equity, although not with the same Btrictness. Story'sEq. PI. § 543. In complying with this requirement the defendant set forth who was lacking, and whose presence, as a party, was desired by him, namely, Eddy, as trustee, and that party was added accordingly, as he ����