The Chancellor:
Whether Cauffiel is or is not a proper party defendant, I am quite clear he has no right to intervene upon his own petition to be admitted as a party defendant against the objection of the complainant. The rule seems to be quite .clear that the complainant may select persons whom he will make defendants to his bill. If it appears that -he has made improper parties, or has failed to make a party defendant a person who is a necessary party, the Court may, even on its own motion, or upon the application of the persons who are parties to the bill, decline to proceed further. In such cases the rule is to give the complainant an opportunity to amend and upon the failure or refusal of the complainant to make new parties, the court may dismiss the bill, but the court cannot make a party without action taken by the complainant.
There arc two exceptions to the rule against intervention by persons as defendants without the consent of the complainant. One exception well established seems to be that of an intervention for the purpose of securing an interest in a fund which is being administered or distributed by the Court, and the other exception seems to be established in the case of cestuis que trust as a matter of indulgence. The case before me does not come under either of these exceptions. When a person, not a party to a pending suit, between whom and the complainant there is no privity, has an interest in the subject-matter of the suit, and desires for his own protection to present his own claim, to assert his independent rights, he must do so by formal bill containing proper allegations, and cannot be made a party defendant on his own application against the objection of the complainant. Beach, Mod. Eq. Pr. § 578; Ex parte Printup, 87 Ala. 148, 6 South. 418; Renfro v. Goetter, 78 Ala.311; Stretch v. Stretch, 2 Tenn. Ch. 140; Drake v. Goodridge, 6 Blatchf. 151, Fed. Cas. No. 4,062; Coleman v. Martin, 6 Blatchf. 119, Fed. Cas. No. 2,985; Searles v. Railroad Co., 2 Woods 621, Fed. Cas. No. 12,586.
The objection of the ñon-joinder of Cauffiel as a co-defendant has not as yet been taken by the defendant, Phillips, and as the solicitor for the defendant did not participate in the argument of the petition for intervention, the position of the defendant on this point is undisclosed. But it sufficiently appears from the allegations of the bill, as well as from the petition for intervention, that Cauffiel has an interest in the suit now pending. Whether or not he be a necessary party I have not concluded. I am clear, however, that he should have an opportunity to protect the rights which he claims to have as against the complainant and defendant, and for this purpose the time for hearing the rule for a preliminary injunction enjoining the defendant from conveying or incumbering the land will be continued. In this way jurisdiction of the cause and the parties thereto will be retained to enable full justice to be done to all persons in interest.
An order will be entered dismissing the petition for intervention and continuing the rule for a preliminary injunction.