#### *Cosby v. Lambert.

August, 1842,

Lewisburg.

(Absent Brooke and Baldwin,* J.)

Joint Tenants—Interest Inter Se of Joint Purchasers of Land.—A tract of land is purchased by a bricklayer and carpenter, who are to pay part of the price in money at stipulated times, and the rest in a house to be erected by them. The work to be done by each is agreed upon between them, and they commence its execution: but the carpenter, from misfortune in business, becomes unable to comply with his portion of the agreement. Thereupon a new agreement is made, that the carpenter shall cover in the house, and that for the work he has done, and for covering the house, he shall be allowed the value thereof, and receive that amount in land out of the tract. The carpenter nevertheless fails to cover in the house, and the bricklayer has this part of the work done. Held, 1. that by the new agreement, the carpenter’s interest in the land is such proportion thereof, as the amount of work then done, and under that agreement to be done by him, was of the original price of the land; and 2. that this proportion is charged to the bricklayer with the value of the work which under that agreement ought to have been, but was not, done by the carpenter.

Same—Redemption—Purchase by One Tenant of Other Tenant’s Interest.—The carpenter makes a deed of trust conveying his interest in the land to secure two persons, sureties for him in a bond, one of whom is the bricklayer. Being afterwards taken in execution at the suit of other creditors, the carpenter is discharged as an insolvent debtor, and his interest in the land is sold by the sheriff, and purchased, at the price of 50 cents, for the bricklayer. The bricklayer afterwards declares that the carpenter shall have such benefit from the land as his work entitles him to, and upon applying to his cosurety in the bond to contribute *139to tile satisfaction thereof, states that he does not mean to keep the land for what it sold for; that he wants no advantage of that kind. The cosurety makes contribution. Eleven years afterwards, npon a hill in equity being filed by the carpenter, the bricklayer insists that the sale by the sheriff is valid. Hur.D, the carpenter is entitled to redeem the interest sold by the sheriff; and a decree should be made for partition of the land, so as to assign him his due proportion, holding the same chargeable with such amount ';-as may be ascertained to be due the bricklayer, after crediting him for the value ot the work done by him that ought to have been done by the carpenter, the sum paid by him in discharge of his suretyship, and the 50 cents paid the sheriff, and debiting him with such portion of the rents and profits as the interest of the carpenter in the land entitles him to.

On the 28th of February 1818, articles of agreement were entered into between James M’Dowell Moffett of the one part and Dabney Cosby and William Lambert of the other part, whereby it was witnessed that Moffett had bargained and sold to Cosby and Lambert a tract of land in Augusta county. Possession of the land was to be immediately delivered, and Moffett bound himself to convey the land to Cosby and Lambert on demand. In consideration of which, Cosby and Lambert bound themselves to pay to Moffett the sum of 5600 dollars in manner following, to wit: 4455 dollars as full consideration for certain building agreed to be done by Cosby and Lambert for Moffett; and the residue to be paid in six equal instalments, commencing on the first day of October 1820; the payment of the said instalments, and the performance of the said contract on the part of Cosby and Lambert, to be secured by a lien on the land sold.

About the same time, to wit, in March 1818, articles were entered into between Cosby and Lambert, the former of whom was a bricklayer and the latter a carpenter, by which, after reciting the purchase of land from Moffett for 5600 dollars, for part of which they were to do work and for the residue whereof they had given their joint bonds, it was set forth, that Lambert was to find all his own materials, locks, nails, glass &c. and do his part, for 2055 dollars, and that Cosby was to do the brick work and plaistering, and find his own materials &c. for 2000 dollars, and that the painting, which was estimated at 400 dollars, was to be done at their joint expense. *>*

*On the 12th of November 1819, a new agreement was made between Cosby and Lambert, whereby, after reciting the preceding contracts, and setting forth, that from unexpected misfortune in business, Lambert had become unable to comply with his portion of the agreement, it was agreed that Lambert should proceed forthwith to cover in the dwelling house mentioned in the contract, in the true spirit of the contract, and then be released from any further obligations imposed on him thereby; and that, for the work he had -theretofore done agreeably to contract, materials furnished, and covering in the dwelling house, he Lambert should be allowed their value, and receive that amount in land, out of the tract before mentioned. Cosby agreed, on his part, to perform all the covenants of Lambert in the agreement aforesaid, except as before excepted, and to receive, as full compensation therefor, the residue of the land.

On the 16th of November 1819, William Lambert made a deed of trust to Erasmus Stribling, conveying his interest in the land to indemnify Cosby and Abraham Lambert in consequence of their having become bound, on the 9th of November 1819, as sureties for William Lambert in a bond to Silas H. Smith for 585 dollars 20 cents, payable one half on the 9th of November 1820, and the residue one year thereafter, with interest from the date of the bond. This deed was admitted to record in the office of Augusta county, on the 27th of February 1821.

Before it was admitted to record, judgments had been obtained against Lambert, and he had been compelled to take the oath of insolvency. At the time of his being discharged as an insolvent debtor, to wit, on the 27th of December 1820, Lambert made a deed to J. M’Nutt sheriff of Augusta county, conveying, besides a moiety of another tract of land in Augusta, his interest in the tract conveyed by Moffett. This deed was admitted to record a few days after its date.

*On the 26th of February 1821, a deed was made, purporting to be between James M’Nutt sheriff of Augusta county, of the one part, and Henry J. Tapp of the other part, wherein it was set forth that John Churchman, a deputy for M’Nutt, had, on a court day, advertised the lands conveyed by Lambert to the sheriff, and had after-wards. pursuant to the advertisement and to the act of assembly, proceeded to sell the same, and that Henry J. Tapp became the purchaser of Lambert’s interest in the second tract conveyed by the deed, at 50 cents, (the other tract, to wit, that first named in the deed, not being sold for want of bidders). Thereupon the deed witnessed that M’Nutt sheriff as aforesaid, by his said deputy, in consideration of the said sum of 50 cents, conveyed to Tapp the said Lambert’s interest in the said tract of land acquired by Cosby and Lambert from Moffett. The deed stated in the conclusion thereof, that M’Nutt sheriff as aforesaid, by Churchman his deputy, had thereunto set his hand and seal. And it was accordingly signed, “James M’Nutt S. A. C. by John Churchman deputy.”

The purchase at the sheriff’s sale, though in the name of Tapp, was for Cosby.

Some months after the sale by the sheriff, in a conversation between Cosby and another person, the latter remarked that he thought Lambert was badly treated at the sale; to which Cosby replied that the land *140was bought in with the intention that Lambert should have the benefit of it, so far as his work and materials would entitle him thereto. He said it was not intended to take any advantage of Lambert.

In 1822, judgment was entered in the county court of Augusta against Cosby on the bond to Smith, wherein Cosby and Abraham Lambert were co-obligors with William Lambert. An execution having issued the 8th of April 1822, returnable to May court following, Cosby, on the 15th of May, addressed a letter to Abraham *Lambert, urging him to contribute promptly to the satisfaction of the judgment, and concluding in these terms: “William has sent word to me to know if I meant to keep his part of the land for the amount sold for. I have said, no, I did not. I repeat the same to you. I want no pitiful advantage of that kind, and I request you not to let me suffer.”

For part of the bond to Smith, to wit, 100 dollars, Cosby was principal debtor. For the residue thereof, he and Abraham Lambert were cosureties. The latter contributed, on the 5th of August 1822, on account of the debt, the sum of 229 dollars 39 cents.

On the 20th of January 1823, Cosby addressed a letter to Lambert, commencing thus: “lam endeavouring to prepare my Moffett accounts for a general settlement, and I wish you to say how long you consider me bound for the hire' of your boys, whether from the time they quit Moffett’s work, or whether until they were free.” After some other remarks, he says, “I shall have the painting done this spring, and endeavour to settle as shortly thereafter as possible.”

Having paid off the creditors at whose suit he took the oath of insolvency, Lambert, in November 1833, exhibited a bill in the circuit court of Augusta against Cosby, wherein, after setting forth the contracts of February and March 1818 and of November 1819, he stated, that his affairs requiring him to remove to Shenandoah county, he found it inconvenient to cover in the dwelling house, and Cosby consented to relieve him from that part of his engagement, and employed a person to do that part of the work. That the work done and materials furnished by the complainant amounted to a considerable sum; and he exhibits an account of the same. That the complainant had been under the necessity of taking the oath of insolvency, and his interest in the land had been sold by the sheriff. That the complainant had no notice of the sale, and was not present when *it occurred. That he does not know whether it was conducted in the mode prescribed by law, and he requires evidence on the subject. That Cosby became the purchaser of the complainant’s interest for the paltry sum of 50 cents, though no one knew its real value better than himself. That since the sale, Cosby has disclaimed all intention of keeping said property from the complainant, but has never made him any compensation. That the complainant was for a considerable time prevented from seeking redress against Cosby in a court of justice, by his the complainant’s embarrassed circumstances, the distant residence of Cosby, and the hope, encouraged by his repeated declarations, that he would adjust the matter amicably. The prayer of the bill was, that the complainant’s account for his work, materials, and other advances about the buildings, might be stated and settled before a commissioner; that the last contract between him and Cosby might be specifically executed; that Cosby might be compelled to surrender and convey to him a due proportion of the land, if to be had, and if not, to pay in money what is due the complainant, with interest thereon ; and for general relief.

The cause coming on to be heard upon the bill taken for confessed, and exhibits, the court made an order referring the accounts between the parties to a commissioner.

Cosby afterwards filed his answer, denying that he ever consented to release the plaintiff from the contract of the 12th of November 1819, and stating on the contrary, that the plaintiff, without his consent, violated it, and left him to have the building covered and the work completed in the best manner he could, whereby he was subjected to great disappointment and loss. The answer controverted the correctness of the plaintiff’s account, and stated the conviction of the defendant that on a fair and full settlement the plaintiff would be *largely his debtor. The lapse of time and loss of evidence, the defendant feared, would render it impossible to make such a settlement; and he insisted upon the statute of limitations. The plaintiff, he contended, could not claim under the contract, but only on a quantum meruit, so much as his work &c. were worth ; and such a claim, the defendant insisted, was clearly barred. He further objected to the jurisdiction of equity, insisting that the plaintiff could only proceed at law. The answer did not admit that the plaintiff was prevented from sooner impeaching the sale by any of the causes mentioned in the bill, but required proof of the same. The defendant averred that the sale was fair; alleged that the interest of Lambert sold for its full value; and insisted that the sale was in every respect legal and valid, and that after such a lapse of time, it ought not to be disturbed. He stated, that he had long been under the impression that he was the purchaser at the sale; but it appeared by the records that Henry J. Tapp became the purchaser, and that the sheriff conveyed to him; and the heirs of Tapp, he said, should therefore be made parties. The defendant acknowledged that he had hitherto claimed and possessed the land, and stated that he was sure Tapp never intended to claim any interest in it. He supposed that Tapp, being a friend and near connexion of his, happening to be at the sale, bought the land to protect his the defendant’s interest. The defendant denied *141having disclaimed to hold under the .purchase without settlement or remuneration. He supposed that he might have said, that if the complainant would settle fairly and pay the money due, he was willing the complainant should take a fair proportion of the land. But no such declaration, he urged, could give the complainant any right, since he declined acting upon it when a fair settlement was practicable.

*The commissioner made a report, stating a balance due the plaintiff of 425 dollars 35 cents, with interest from the 5th of August 1822, and that if the plaintiff should be considered entitled to interest on his claim anterior to the 5th of August 1822, then the balance on that day would be 548 dollars 59 cents, bearing interest from that time.

It appeared by a certificate of the clerk of Augusta county court, that Cosby and wife, on the 5th of May 1824, conveyed to Samuel Todd 100 acres, part of the tract conveyed by Moffett.

The cause came on to be heard the 26th of November 1836 ; and there being no exception to the report of the commissioner, the court affirmed the same, declared that the plaintiff was entitled to recover agreeably to the second statement therein, and further declared that as the defendant has sold and conveyed the land, or part thereof, the said plaintiff had a right to receive compensation in money. Thereupon the court decreed that the defendant pay to the plaintiff the sum of 548 dollars 59 cents, with interest thereon from the 5th of August 1822 till paid, and the costs of suit ; subject however to a deduction of 50 cents, the price at which the land was sold by the sheriff of Augusta county, with interest thereon from the 4th monday in January 1821, which sum of 50 cents was to be retained by the defendant without prejudice to any claim thereto on the part of the representatives of Tapp. And the court declared that the decree was without prejudice to any claim on the part of the plaintiff to subject the land in the hands of the purchaser or any other person, if payment could not be coerced from the defendant.

On the petition of Cosby, an appeal was allowed.

Michie for appellant.

By the statute 1 E. C. p. 538, § 34, the interest of Lambert in the land became vested in the sheriff of Augusta county. Being so vested, *whatever sale the debtor could have made, the sheriff might make ; whatever interest the debtor could have passed, the sheriff might pass. The sheriff may do more than the debtor. He may part with an interest which the debtor could not dispose of ; for example, where the debtor has made a deed valid between the parties. Not only does the statute authorize the sheriff to sell and convey, but it requires him to do so, and it provides no other means of making the interest available. The 35th section prescribes, it is true, another remedy for the recovery of money due or personal property *\*belonging to the insolvent, in the possession of another ; but it extends no farther. Other interests in property, the sheriff is compelled by the imperative terms of the statute to sell. He is under no obligation to go into equity to ascertain the extent of liens thereon. Shirley v. Long &c., 6 Rand. 764.

II. The suit is not brought until more than 12 years after the conveyance to Tapp. It is an application to rescind a contract made and executed, which will not be done if the case be clear of fraud. Thompson v. Jackson, 3 Rand. 504; Shelly v. Nash &c., 3 Madd. C. R. 125, Here there is no ground for the imputation of fraud, except the ground of inadequacy of price. But that is no badge of fraud where the sale is by auction. Still less should it be so considered here, where the sale is by a sworn officer. The objection of lapse of time is not obviated by the proof of Cosby’s declarations : they were connected with a settlement Which then might have been easily made, but could not be made now. He had claims then, the evidence of which is now lost.

III. The plaintiff has not convened the heirs of Tapp, who may claim under the sale, nor the sheriff, who, if there be misconduct, is the party that has been guilty.

IV. The effect of the decree is to make Cosby a purchaser of the land in spite of himself. This operates '^'unjustly, because of the great fall in the price of land since 1818. Interest too is allowed from the time the work was done on the estimated value of the work ; whereas the annual rent or value of the land, instead of amounting to six per cent, would not be more than three. The court should at most only have decreed to Lambert land in proportion to his work and materials.

John B Baldwin and Robinson for appellee.

If, according to the agreement of February 1818. Moffett made a conveyance, Cosby and Lambert acquired the legal title to the land, and were joint tenants thereof. If no such conveyance was made, still they had an equitable title, and whenever turned into a legal title, it must necessarily be in the two jointly and equally. Moffett, under his contract, could convey no other. He was not to look to the proportions in which they separately performed. Their performance was to be secured by a lien on the land ; and no matter which failed, the lien equally existed on the whole. If the case had stood on the agreement of February 1818, and Cosby had paid more than half the consideration money, his claim against Lambert would have been for so much money paid and advanced, with an implied lien on Lambert’s part for whatever Cosby had paid exceeding his half. The agreement of March 1818 does not materially change the condition of the parties. Had it been carried out, both parties would still have been equal owners of the land. In respect to the 55 dollars, Lambert would have had a claim against Cosby, and a lien on Cosby’s part of the land. Ór if one paid what was intended to be paid by the other, still it would have been the same case of a claim for so much money paid. *142with an implied lien therefor. But on the 12th of November 1819 a new agreement was made. Lambert, having already done work and furnished materials, was, upon the principle of this last agreement, entitled to a proportion of the land; and if he proceeded to cover *in the dwelling house, that proportion would be increased. He was thus entitled to a proportion of the land, when, on the 16th of November 1819, he made the deed of trust to Stribling. After making that deed, he took the oath of insolvency, and made a deed to the sheriff, who sold his interest in the land. That sale was improper and illegal, being of a contingent interest of uncertain extent. An equitable and contingent interest in goods is not permitted to be sold under a fieri facias. Claytor v. Anthony, 6 Rand. 285. The same reason applies to a sale by a sheriff of an insolvent’s interest: and the statute ought -not to be construed to require the sale of such an interest. ' The construction should be, that the sheriff is to sell that which is a fit subject for sale, not choses in action, nor equitable and contingent interests. It is conceded that choses in action ought not to be sold, and the reason assigned is, that in respect to them a remedy is prescribed by the 35th section. But that section gives no remedy against debtors out of the commonwealth ; and such debts, it would be necessary to contend, are to be sold. This cannot be. Were a merchant to fail, having debts due him from numerous consignees abroad, it could never be endured that such debts should be sold at public auction. The opinions of the judges who went farthest in Shirley v. Long (6 Rand. 747, 753,) only ascertain that the sale and conveyance by the sheriff will pass the legal title, like the sale and conveyance of any other trustee; not that the same will be sanctioned by a court of equity, when the sale ought not to have been made, or has not been made in a proper manner. The difference between the two tribunals has more than once been recognized in this court. Taylor v. King, 6 Munf. 358; Harris v. Harris, 6 Munf. 367. Here, besides that a deed of trust had been made, and the interest in the land might be subject to that deed, that interest was itself of an uncertain extent, depending on the value of *the work done and materials found. That value ought to have been ascertained in a suit against Cosby, before any sale was made. The nature of the interest, and the price for which it was sold, furnish of themselves sufficient reasons for not allowing Lambert’s rights to be diminished by the sale. But however it might be otherwise, there is no room for question after the verbal declaration of Cosby, and his letter of the 15th of May 1822. After buying subject to the lien created by the deed of trust for the amount of the debt due Smith, and getting relieved from part of that debt by saying he would take no advantage of the sale, he cannot be permitted to take that advantage now. If the sale for 50 cents was fair when subject to the whole amount of that debt, it is very different now.

II. The suit being for land, no time short of that which would bar an ejectment is a bar here. Besides, it does not lie in the mouth of Cosby to object that the suit has been unreasonably delayed : for it was as much incumbent on him to bring suit for. an adjustment of the accounts with Lambert, and partition between them, as it was incumbent on Lambert. This, too, is not a case in which Cosby has been sleeping in security, and is now surprised with a claim. His verbal declaration, and his letters of May 15, 1822 and January 20, 1823, shew that it is not. The last of the bonds to Moffett did not become payable until the 1st of October 1825, and until those bonds were paid, the due proportion of each could not be ascertained. Add to this the embarrassed circumstances of Lambert, the fact of the schedule creditors being so long the parties in interest, and the other circumstances mentioned in the bill, and all ground of objection because of the lapse of time is removed.

III. Though the conveyance to Tapp is in the name of M’Nutt as grantor, it is not executed by him, nor by any person as his attorney in fact, but by his deputy. It therefore conveys no legal title. Still, if Cosby had *simply stated that Tapp purchased, there might have been some reason for making him a party. But according to the answer of Cosby, Tapp did not acquire either the legal or equitable title : whatever title he acquired was Cosby’s. And the enquiry here should simply be in relation to Lambert’s rights, as between him and Cosby.

There can be no occasion for making the sheriff "a party. He had merely an equity after the deed of trust should be satisfied, and that equity was in him for the benefit of creditors who are now satisfied.

IV. Perhaps, in strictness, Lambert should have had a decree giving him a portion of the land, bearing the same proportion to the whole land as 790 dollars 86 cents to 5600 dollars (which would be about a seventh), and a due proportion of the rents and profits, and compelling him to pay the balance due on the deed of trust. But Cosby has sold part of the land ; and it is because he has gotten into possession, and done acts which interfere with a fair division of the land, that the circuit court considered itself authorized to decree money instead of land. He ought not to be permitted to object that his vendee is not interferred with. And even though his liability shall be held to be for the value of the land, yet that value ought to be shewn by him; and not being shewn to be less than when the contract was made with Moffett, the objection is not open to him that the value is actually less.

C. Johnson in reply.

I. All the estate of the insolvent passing to the sheriff, what is the sheriff to do ? As to debts and personal effects in the possession of another, particular provision is made ; but as to every thing else, there must be a sale. The sheriff is a trustee, as completely as if made so by the contract of the parties, in which case there is no doubt a sale might be *143made. If creditors perceive that injury will be done, they may go into equity within the 60 days, and ask that the sale be enjoined ; *and the court, in any case in which the direction of the law ought not to be followed, will give relief. But where there is no injunction, it is the duty of the sheriff to sell. There is no analogy between this case and that of a fieri facias. That issues against the goods and chattels of the debtor; and the sheriff cannot take goods which are not legally the debtor’s. He cannot take goods in which the interest of the debtor is merely equitable. But here the sheriff is owner of the estate, whether legal or equitable. If the sheriff might have sold, he did sell; and no fraud is alleged. There are no materials even, from which to ascertain that the equity of redemption was worth more than the 50 cents for which it sold. There is no evidence shewing the value of the land, except that which shews the price contracted to be paid for it. That was in 1818, when property was at an inflated value. Since that time, it has never been worth 50 per cent, of what it sold for then.

II. The lapse of time is a valid objection, under the circumstances. Cosby’s statements only bound him in case Bambert should come forward in a reasonable time and shew the state of the accounts. Bambert shews no good reason for not having then come forward and settled ; and now it would be difficult to settle properly.

III. Tapp’s heirs ought to be parties, to ascertain whether they are interested or not.

IV. Nothing is said in the bill about a sale of any part of the land, and the only evidence on the subject is a certificate of a deed having been made for 100 acres. There being no proof of a sale of the residue, the sale of the 100 acres is no obstacle in the way of doing ample justice. In ascertaining Bambert’s share of the land, we have not merely to look to the value of his work and materials ; but what Cosby had to pay for covering in the house must be added thereto, and after giving Bambert a part of the land in proportion to the*combined amount, there will be an incumbrance on Bambert’s part of the land in favor of Cosby, for the amount paid by the latter for covering in the house, and also for the balance due on the deed of trust.

*

He had been counsel for the appellee.

STANARD, J.,

delivered the opinion of the court.

The court is of opinion that under the agreement of the 12th November 1819, Bambert’s original interest in the land was reduced to such proportion thereof, as the amount of the work then done and under that agreement to be done by him, was of 5600 dollars, the original price of the land ; and had he done the work to be performed by him, the proper partition of the land would have been in the proportions aforesaid.

The court is further of opinion that the failure of Bambert to do the work, did not (at least for his benefit) change the said proportion of the land on the partition thereof; but the effect of that failure, and the doing of the work by Cosby, left Bambert’s proportion of the land unchanged;—chargeable however to Cosby for the amount of the value of said work which Bambert ought to have done, but which, on his failure, was done by Cosby.

The court is further of opinion that notwithstanding the surrender of Bambert’s interest in the land when he took the oath of insolvency, and the sale thereof by the sheriff, and purchase by Tapp for Cosby, the subsequent transaction, especially the demand by Cosby of contribution from his cosurety for the debt to Silas H. Smith, which was an incumbrance on Bambert’s share of the land by virtue of the conveyance of Bambert to Stribling for the indemnity of the sureties for that debt,—coupled with the assurance that the land, notwithstanding the sheriff’s sale, was still redeemable by Bambert, and the receipt of contribution from that surety, entitled Lambert to redeem, on paying all that was justly chargeable thereon in favour of Cosby. *The court is further of opinion that such right of redemption was all that Bambert could justly claim, and the court below had no authority to convert this into a money demand, and by subjecting Cosby to a decree for such money demand, make him a purchaser of the equity of redemption against his will, and that too at a price fixed without enquiry into its value at the time of the decree, or any evidence of such value.

The court is further of opinion that the alleged sale by Cosby of one hundred acres of the land was no effectual impediment to a partition, so as to assign to Bambert his due proportion of the land ; that the proper relief to him would have bepn a decree for such partition, holding the share allotted to him chargeable with the amount that might be ascertained by account to be due Cosbj ; that amount to be ascertained by crediting Cosby for the amount of the work done by him that Bambert ought to have done under the said agreement of the 12th November 1819, and the payments of Cosby in discharge of the said debt to Silas M. Smith, and the 50 cents, the amount of the purchase at the sheriff’s sale, and debiting him with the just proportion of the rents and profits that the interest aforesaid of Bambert in the land entitled him to; and subjecting the said share of Bambert to sale, to satisfy the amount so ascertained to be due Cosby, if the same should not be paid in a reasonable time.

The court is further of opinion that in fixing the value of the work done by Bambert, with a view to the ascertainment of his share as aforesaid of the land, respect should be had, as far as practicable, to the standard furnished by the prices that may have governed the original contract, rather than the current prices of other work of the like kind.

The court is further of opinion that as the sheriff sold to Tapp, and no conveyance appears to have been made by Tapp to Cosby, Tapp’s heirs ought to have been parties. ^Though the record affords *144*strong*ground for the inference that Tapp purchased for Cosby, the proceedings in this case, if Tapp’s.heirs be not parties, would not bind them, or be evidence against *them;*and if the case were to proceed to decree without making them parties, an ostensible title would be left outstanding, to the assertion of which the decree in this cause would be no bar.

Therefore the court doth adjudge, order and decree, that the decree be reversed with costs, and that the cause be remanded for farther proceedings in conformity with the foregoing principles.