#### Debell *vs*Foxworthy’s heirs.

Appeal prom the Fleming Circuit.

*Purchaser pendente lite. Bills of review.*

*Chancery. Case*57.

*January*27.

Case stated in the original bill anddeeree therein.

Bill of review by Marshall's heirs and decree therein.

Judge Simpson

delivered tlie opinion of the Coart. — Chief Justice Marshall did not sit in this case.

William Marshall, of Virginia, having executed his bond to James Edmonson, for 5,000 acres of land, containing a stipulation, in the event any of the land was lost by a better title, to refund at the rate of twenty shillings an acre; Edmonson brought a suit in equity on the bond, and in 1817 obtained a decree against the heirs of William Marshall, he having died, for the conveyance of 5,559 acres. The decree required, and the commissioner’s deed executed in pursuance thereof, covenanted for the return of twenty shillings an acre, for the whole quantity conveyed, in the event of its loss by a better title.

In 1826, Marshall’s heirs filed a bill of review to correct the errors apparent in the record, in decreeing the conveyance of 5,559 acres, instead of 5,000, the quantity demanded by the bond, and .requiring a covenant of warranty eo-extensive with the quantity decreed to be conveyed. Edmonson tendered an answer'to this bill, *229alleging that the value of the land had been misrepresented by Marshall at the time he sold to him, and that to remove his objections arising out of this misrepresentation, by an arrangement made between them, more land was, by consent, decreed to be conveyed, than had been purchased by the original contract. The answer was rejected, and a decree rendered annulling so much of the first decree as directed a conveyance of the excess over five thousand acres, and ordering a re-convey.ance of such excess to Marshall’s heirs. This last decree was affirmed by this Court: (6 *J. J. 'Marshall,*450.)

Ejectment by Marshall’s heirs and the decree on them.

In the opinion then given, it was decided that in a bill of review to correct errors apparent on the face of the record, only questions of law arising on the record, were presented; and that no, new extraneous matter existing at the time of the decree, was admissible. That if any thing had occurred since the decree was pronounced which would bar a review, such as a release, or other matters of a similar character, they should be presented and relied upon by plea.

After the first decree was rendered in favor of Edmo'nson, and before the filing of the bill of .review to correct that decree by Marshall’s heirs, Edmonson sold and-conveyed to William Foxworthy, one hundred acres of the land decreed to him. This one hundred acres was included in the excess decreed on the bill of review to b e re-conveyed to Marshall’s heirs.

Marshall’s heirs afterwards brought an action of ejectment against Foxworty and the other tenants in possession of the 559 acres, the excess over the 5,000 acres, and recovered a judgment against them for the land. The persons in possession brought the case to this Court, and it was here decided that Foxworthy’s title was derivative, and that he acquired no other or better title than Edmonson had when he sold to him. That he took it subject to all the contingencies to which it was subject in the hands of Edmonson. The title of the latter was defeasible and Foxworthy was presumed to have'known it, and being a purchaser *pendente lite,*was as much bound as Edmonson by the proceed*230ings under the bill of review. The judgment of the Court below was, consequently, affirmed: (4 *Dana,*95.)

before ihe^óiíiT

A puchase after a final decree, & before a writ of ted°,r purchases finaf0t decree6 which may be cause. (2 *Dana,*^

Foxworthy having died, this suit in equity was brought by his heirs. They attempt to show an equity in Edmonson, to the land sold and conveyed by him to their ancestor, as part of the 5,000 acres to which he w7as entitled from Marshall. They insist that Edmonson had a right in equity, to have had this land assigned to him, as part of the 5,000 acres purchased by him from Marshall; and as their ancestor was a purchaser from Edmonson before the bill of review was filed by Marshall’s heirs, and was not made a party to it, that he was not bound by the proceedings under it, and that they have a right still to assert this equity. Their right to do so in this suit, is the question we have to determine.

It has been already decided in the case referred to in 4 *Dana,*95, that Foxworthy was a purchaser *pendente lite,*and bound by the decree subsequently rendered on the bill of review.

It is, however, now contended, that a final decree having been rendered in the original suit, at the time he made his purchase, and the bill of review having been subsequently brought, that there was no suit pending at the time he acquired his title, and that therefore, he cannot, with any propriety, be regarded as. a purchaser *pendente lite.*

A purchase made during an abatement of the suit, afterwards revived and prosecuted to a decree with-*1*out culpable negligence, or after a final disposition of the cause in the Court below, and before a writ of error prosecuted, is subject to the final disposition of the cause, and the purchaser is considered as having purchased *pendente lite: Watson vs Wilson,*(2 *Dana,*406,) We can see nothing more incongruous, in regarding Foxworthy as a purchaser *pendente lite,*than there is in s.o. regarding the purchaser in the cases just mentioned. But it is immaterial whether he he treated as a purchaser *pendente lite,*or as a privy to the decree; the consequences are the same, and the only difference is in name.

*231The voluntary alienation of property during the' pendency of a suit for it, does not affect tile tights of the parties to the suit, ■whether it be an effort to transfer an *equity*or legal estate. *(Story’s Pq., Sec.*156-351; *Milford Pleád.,*73.)'

The same rule prevails where suit is brought and pending by vendee vs vendor and there is a sale.

But if the title pass by operation of law or authority of law, the person' who acquires the title' must be a party. (7 *Paige,*290; *Story’s Pq., sec.*342.)

If onehave claim' to land' in controversy derived1 from a distinct source, he should be party to a bill of review, or if .the bill-of review *232sets up new matter not before in issue. One having an interest even by voluntary alienation, should be made a party.

*231It is further contended on the part of Fox worthy’s heirs, that their ancestor should have been made a party by Marshall’s heirs, to the bill of review, and this not having been done, they are not precluded by the decree in that case, from asserting the equity which they now set up. In support of this principle, reference is made to *Mitford's Pleading, page*90, and to *Story's Equity Pleading, sec.*420, where it is said, in treating upon bills of review, that a “supplemental bill may likewise be added, if any event has happened which requires it, and particularly if any person not a party to the original suit, becomes interested in the subject, he must be made a party to the bill of review by way of supplement.”

The principle thus asserted is correct when properly understood and with certain qualifications.

The voluntary alienation of property, pending a suit, by any party to it, does not affect the rights of the other party, and the purchaser need not be brought before the Court. And it will make no difference whether the purchaser be the claimant of a legal or an equitable interest, or whether he be the assignee of the complainants or defendants: *(Story’s Equity*Pleadings, *sec.*156, 351, *Milford's Eq. Pleading,*73.)

The same rule prevails where a vendee files a bill for a specific performance of a contract for the purchase of land against the vendor, and pending the suit, sells to one or more sub-purchasers. In such a case, the sub-purchasers need not be made parties, but they will be hound by the decree in the suiti *(Same, sec.*351, *a.)*

But there is a distinction between cases of voluntary alienation, and cases of involuntary alienation, or those made by operation of law. In the latter case, the alienee must be made a party *‘,*in the former, he may or not, at the election of the complainantr *(Same,*sec, 342;) *Sedgwick vs Cleaveland, (7 Paige,*290.)

Now, if any person not a party to the original suit, becomes interested in the subject matter in controversy by operation of law or under a distinct claim not derived from one of the parties pending the litigation, he must be made a party to the bill of review, and is not *232bound *by the*proceedings under it, unless he be made a party.

Where a suit is decided in favor of or against trustees, and other trustees are appointed, they are necessary parties to a bill of review.— *(Story's Equity Plead., sec.*350; *Hardr.,*80-93.)

Or if the bill of review sets up and relies upon new matter, not in issue in the original suit, then all persons not parties to the original suit, who have become interested, although the interest may have been acquired by voluntary alienation, as in the case of a sale or assignment in the ordinary course of business, must be made parties to the bill.of review. The reason is obvious. As’to such new matter, there was no *Us pendens*at the time of the sale, and the purchaser has a right to be heard, for the protection of his interest, in opposition to the claim founded upon matter not previously presented or involved in the controversy. The rule, therefore, when correctly understood and properly limited, must be confined in its operation, to the cases mentioned.

That this is the true extent of the rule, is conclusively manifested by the case referred to in support of it. Mitford refers to the case of *Sands*vs *Thorowgood, (Hardr.,*104.) That was a suit brought by trustees, who obtained a decree for a certain sum of money against Sands, the defendant. After the decree, the trustees were superseded, and others legally appointed, and the money decreed was paid to the latter. Sands subsequently filed a bill of review, and was required to make the last named trustees parties to it. They came in by operation of law. They were not voluntary assignees. They represented the trust fund, and could not be regarded as holding under the other trustees. Where a suit is pending in favor of or against trustees, who are removed, and new trustees appointed,"'the latter must be made parties: *(Story’s Equity Pleading, sec.*350;) *Attorney General*vs *Foster,*(2 *Hare’s Rep.*80-93.) Story, in laying down the rule, adopts the language used by Mitford, to whom he refers in suport of it. But we have not been able to find any case which sanctions the rule in the broad sense contended for, which would make it apply to cases of voluntary alienation, and inquire such an alienee to be made a party to the bill of review by way of supplement.

*233The 'rule then properly understood, only requires that xi person not a party to the original suit, who becomes Interested in the subject after the decree, shall be made •a party to a bill of 'review, if such person would have been a necessary paity during the pendency of the suit before the decree was pronounced, had the interest been ■•acquired by him during that time. And that all persons interested in the subject are necessary parties to a bill-of review, not filed merely fox the purpose of correcting errors apparent on the face of the record, and to have such a deci’ee rendered as should have been rendered in the first instance upon the recoi’d as it stands, but setting -up and alleging new matter not previously :in issue for the pui’pose of effecting a change in the decree.

If Foxworthy had been a necessary party to the bill of review, not having been made a party, he would not 'have been bound by the proceedings under it, and the decision in (4 *Dana,*97,) could not be sustained on principle. But being a voluntary purchaser during the nexistence-of the litigation, he stood in the attitude of a purchaser *pendente lite,*liable to be affected by the final result >of the suit, in the same manner that his vendor ■would be. So far as a voluntary purchaser is concern■ed, the'litigation is regarded as still continuing, notwithstanding'the final deci’ee in the Court of original jurisdiction, where a writ of error is subsequently prosecuted, ■or where a bill of review is filed to correct errors appairent in- the record, and he is concluded by the decree that may be finally rendered, founded merely .on the ¡same matter .originally in issue between the parties.

In the case of *Clary’s heirs*vs *Marshall,*(5 *B. Monroe,*266,) the doctrine laid down in the case in (4 *Dana,*97,) was recognized as correct, and it was admitted by the Court, that a sale made by Edmonson after he obtained the decree in the original suit, was inoperative against Marshall’s heix's, so far as it passed the legal title, or originated and passed a new equity, being made *pendente lite,*and subject to the revei’sal of the deci’ee upon the bill of l’eview. Clary’s heirs, howevei*, claiming an equity which before the commence-*234men l of the litigation between Edmonson -and Marshall’s heirs were considered not bound or affected by that litigation.

Upon a bill of review lot errors apparent in the record, no extraneous matter can be relied on for a change of the decree. (6 *J, J.*Mar.

If the doctrine in the case of *Edmonson vs Marshall’s heirs,*(6 *J. J. Marshall, supra,)*is correct, that in a bill of review for errors apparent in the record, no extraneous matter can be relied on in defence, which had an existence when the decree sought to be reviewed was rendered, then the equity now relied upon by Foxw-orthy’s heirs would have been unavailing, even had their ancestor been made a party to the bill of review. He most clearly would have had no right to make any other defence than Edmonson, his. vendor, could have made. The equity set up, is derived from Edmonson. ' If it was not a good defence for him, it could not be a good and valid one in favor of his vendee. The fact that the bill of review prayed for a re-division, could make no ■difference. The object of the bill of review, was to ■correct the decree that had been rendered, and to have such a decree rendered in favor of Edmonspñ as he had •manifested his right to in the record. Pie had made his .preparation, brought the suit to a hearing, and obtained a decree. This Court, in the case referred to, decided that he should abide by that preparation, and he was not permitted to introduce any- additional equity, which he might have relied upon originally. To permit the vendee, who became such,'voluntarily after the decree was rendered, to do‘that which his vendor could not legally do, would be inconsistent with welhestab-lished principles on this subject. The bill of reviewfilecf by Marshall’s heirs, was not upon the discovery of new matter or new evidence, it.relied upon nothing *dehors*the record to impeach the decree, but only sought to have the decree corrected, and such a decree rendered in favor of Edmonson, as he was entitled to, according' to the equity manifested by him in the record. It in ef»' feet sought nothing more than Wbuld have resulted from a writ of error to the appellate Court, in which the decree of the Court below would have been reversed, with directions to render such a decree as should have been' rendered In the first instance, if in the latter case,*235Foxworthy would have been bound by the decree as altered, in .conformity with the mandate of the Appellate Court, -no reason is perceived why he should not be equally bound, by a reversal and alteration, on a bill of review, not seeking a re-hearing, but a reversal of the decree for error apparent in the record, and such alteration of the decree, as was necessary for the correction of the error.

*McClung and Taylor*for appellant; *Hord*for appellees.

Our conclusion then is, that Foxworthy was not a necessary party to the hill of review, that he was hound by the decree rendered thereon, and that his heirs caiv not assert their claim in opposition to that decree.

The determination of this point against Foxworthy’s heii's, makes -it unnecessary to consider the question whether Debell was a purchaser from Marshall’s heirs for a valuable consideration, without notice, and thereby protected against the equity that Foxworthy’s heirs attempt to assert.

The Circuit'Court, therefore erred in. rendering a decree in favor of Foxworlhy’s heirs against either Debell or Marshall’s heirs.

Wherefore, the decree is reversed on t-he appeal taken by Debell, and also on. the writ, of error prosecuted by Marshall’s heirs, and cause remanded, that a decree may he rendered, dismissing the complainant’s bill with costs.