#### JOSEPH J. WILLIAMS against THOMAS BURNETT AND OTHERS.

Where a bill was filed against the heirs of the grantor, alleging that by a mistake the deed conveyed only a life estate to the complainant, instead of a fee simple, and seeking to have that mistake corrected; to which the defendants demurred:—

Held 1. That the demurrer could not be sustained | because the defendants should have put in a disclaimer of any right *to*the land so conveyed.

2. That the bill cannot be dismissed on the ground that the complainant has a legal title according to the statements of the bill', as he has a right to come into equity wherever there is an outstanding incumbrance, or a cloud resting on the title, to have the cloud removed.

*210*Held*also, That where the bill alleged death of children, it was not incumbent on the complainant to allege further that they died without leaving children of their own, as there is no rule of law or equity which presumes the birth of children.

The bill stated that the grantor at his death “ left many children, all of whom are dead but *the defendants*A., B.,” &c., and prayed “ that to the end therefore that *the defendants33*&c., and prayed process against e< *the defendants —Held,*that these expressions obviated the objection that there were no parties defendant to the bill.

(The case of *Iioyle*v. Moore, 4 Ire. Eq. 175, cited, distinguished and approved.)

The bill in this case was filed to Spring Term, 1852, of the Court of Equity for Martin county. A demurrer to it was put in by the defendants ; and at Spring Term, 1853, the cause was set for hearing, and transmitted to this Court.

The material allegations of the bill were, that in 1827, one Eli Burnett of Martin county conveyed certain lands to the complainant and one *W.*S. Rayner, *forever,*in trust to secure his creditors, and that several years thereafter a part thereof was sold for the purposes of the trust; that after the death of said Eli, his administrator filed a bill against the trustees for an account and settlement, and that under these proceedings the rest of the land was sold, and purchased by the complainant; that the Clerk and Master intended to sell, and the complainant intended to buy the fee simple in these lands, but that owing to the defect in the abovemen-tioned deed in trust he obtained only a life estate *;*that the deed in trust was drawn by the complainant, and that the defect in question is attributable to his unskilfulness, as Burnett intended to convey the fee simple ; *“*that the said Eli left as his heirs at law many children, all of whom are dead except the defendants, Thomas Burnett, who resides in Florida, George Burnett, Simmons Burnett, Sally Savage, a widow, Felicia Burnett and Abby Burnett, who reside in this county.” The bill then prays *“*to the end therefore that the defendants on their corporal oaths full .true,” &c.j “that the defendants be decreed to convey unto your orator all the right, &c., which descended upon them,” &c. “ May it please your Honor to issue a writ of subpoena to the defendants,” *&c.*

*Moore,*for the plaintiff.

*Biggs,*for the defendants, argued :—

1. The bill states, that in the equity suit to close the trust, all the parties were before the Court — a decree of sale was made by *211*consent*— a *fee simple*was sold and conveyed by the Master. And in all cases in equity the deed of the Clerk and Master under-a decree; shall be sufficient to convey t.o the purchaser “ such title; interest and estate, as the party of record owning the same had therein.” Eev. Stat. ch. 32, sec. 18. The parties of record are estopped. *Armfield'j. Moore, ante*15,7.

2. The bill states, that “E. B. left as his heirs at law many children, all of whom are dead intestate, except the defendant T. B.,” *&c-*This is substantially an allegation that E. B. had other children surviving him besides the defendants ; and neither they nor their legal representatives are made parties defendant. It is not necessary that the demurrer should show the *names*of the parties omitted. Story’s Eq. Plead, s. 543. *Attorney General*v. *Corporation of Poole,*18 Eng. Ch. Rep. 17 : *note*page 32.

3. The bill does not pray process against the defendants by name. And though defendants are named in the body of the bill indirectly, that is not sufficient. *Hoyle*v. *Moore,*4 Ire. Eq. 175.

Nash, C. J.

Thq demurrer cannot be sustained. The defendants demur, because the plaintiff has not made by his bill such a case as entitles him to any discovery or relief, and that any discovery from the defendants, cannot avail the plaintiff for any of the purposes for which a discovery is sought, nor entitle the complainant to the relief he seeks.

The bill states that the plaintiff claims the land in question,- under a sale made by the Clerk and Master of the Court of Equity of Martin, by virtue of a decree of said Court, and that in the deed of trust executed by the said Eli Burnett, the word heirs in the limitation of the estate to him was accidentally omitted, whereby only a life estate was conveyed. When the Clerk and Master sold, he intended as well to sell, as the said Eli in his conveyance intended and expected to purchase, a fee simple in the land. That in consequence of this mistake, he fears the title in fee has descended.to the defendants, who are the heirs of Eli Burnett, who owned the land, and who is now dead ; and the defendants were parties to the proceedings under which the Master sold. The bill asks that the mistake may be rectified. The demurrer admits the facts set forth in the bill.

*212The deed under which the plaintiff claims, conveyed but a life estate to him, and upon the death of Eli Burnett, the fee .descended to the defendants, his heirs. If the defendants did not intend to avail themselves of the accidental omission of the word heirs in the conveyance to the plaintiff, they ought to have disclaimed all title. If the plaintiff in a bill in Equity untruly states that the defendant has an interest in the matter in dispute, the latter may put in a disclaimer of any right. If this be done all controversy is at an end, and the bill may be dismissed as to him, or a decree made against him according to the interest disclaimed and the-security of the plaintiff may require. This the defendant has not done, but he has chosen to demur ; and as a demurrer is an admission of the facts properly set forth in the bill, and as they in this stage of the pleadings, show a clear equity, the demurrer cannot, for the causes set forth in it, be sustained. Adams on Eq., Ludlow *&*Collins’ ed., 604. Nor is it a sufficient cause to dismiss the bill, that he has a legal title according to the statements of the bill. He has a right, if there be an outstanding incumbrance, or a cloud resting on the title, to come into a Court of Equity to have the cloud removed.

Other causes of demurrer have been assigned, *ore tenus,*on the argument here. The first of these is for the want of parties. The bill alleges, “ that Eli Burnett at his death left as his heirs at law many children, all of whom are dead intestate, except Thomas Burnett,” <fec. It is said that the children that are dead may have left children, and that they ought to have been made parties. If such were the fact that 'they did leave issue, which were within the jurisdiction of the Court, they certainly ought to have been made parties. But there is nothing to show that such was the case, and we are not apprised of any rule of law or equity which presumes the birth of children. If the deceased children left no children, then the other defendants who are their brothers and sisters, are their heirs at law.

The second assigned is, that there are no persons made parties defendant by the bill. The bill after setting out the death of Eli Burnett., states that he left C£ many children, all of whom are dead *but the defendants,*Thomas Burnett, who resides in the State of Florida, George Burnett, Sally Savage, a widow, Feli-*213da Burnett and Abby Burnett, who all reside in this county.” The bill then prays “that to the end therefore, that the defendants on their coporal oaths, full, true and perfect answers make,” &c. It then prays process *against the defendants.*The bill is certainly not drawn with that attention to establish rules and forms so desirable in proceedings in a Court of Equity ; but it is sufficiently so, to avoid the objection urged.

Our attention has been drawn in the argument to the case of *Hoyle*v. Moore, 4 Ire. Eq. 175. We think that case very clearly distinguishable from this. In that, the bill prayed “ that the proper parties may be made defendants,” *&c.*— “ that the clerk may be ordered to issue the State’s writ of subpoena to the proper defendants.” In no part of it does it set forth the names of the defendants, but the Court is called on to direct the clerk to find out who are to be made defendants. The case before us is different. It does set forth, by name, who are the heirs at law of Eli Burnett, alleges that they are the *defendants,*and prays process against the defendants, who are the persons whose names are set forth in a preceding part of the bill, and who are there called defendants.

Per Curiam. . Demurrer overruled.