1. This being a bill in the nature of, or for, the specific performance of a contract, the complainant must aver and prove the performance of stipulations on his part. 2 Wheat. 336. 1 Rand. 408. 2 Wheat. 299. 2 Story's Eq. Jurisp. §§ 736, 771.
2. The deed from Lassen to Gerkeshould not be set aside. Lassen had a valuable property in the estate mentioned in the agreement; he had the interest of a mortgagee. See 2 S. & M. 294. This interest he could sell and did sell. See 4 S. & M. 594; and Gerke is substituted to Lassen's rights.
3. The contract set up in the complaint is a partnership agreement, and the bill should have prayed a dissolution, an account, and a partition of the property.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The contract set up in the complaint is a contract of partnership, and the bill should have been for dissolution of the partnership, an account, and a partition of the property. As it is, the bill seeks nothing which a Court of Equity can properly grant. It cannot cancel the deed from Lassen to Gerke, because even if all the allegations of the bill are true, Gerke is substituted to certain rights of Lassen, and entitled to have them ascertained and secured. Nor would any such action by the Court have any other effect than to renew litigation by producing more suits, in order to settle and determine finally the rights of all the parties. A Court of Equity will not permit litigation by piecemeal. The whole subject matter and all the parties should be before it, and their respective claims determined once and forever. I have reflected whether the case should be sent back with an order to amend the bill, and try the cause upon proper pleadings; but this would produce an entirely different case from the one here presented, and as this case is no bar to a proper action, such a course would only embarrass it with redundant, superfluous, and unnecessary matter: and also, Palmer ought to be a party to the suit. It is the only proper and legal course to determine this suit, on account of the total want of equity in the bill, therefore to affirm the judgment of the Court below.
Judgment affirmed.
Cited as to the necessity of making all the parties in interest, parties to the suit, 36 Cal. 116.