#### KNIGHT *v.*HERRIMAN.

Equity; Correction of Deeds; Injunction; Multifabiousness.

1. A bill in equity by several lot owners for the correction of a deed, and to enjoin an action of ejectment brought and one threatened, *held*to be' maintainable, where one .of the complainants intended to-sell, and the defendant intended to buy, the unoccupied part only of a tract of land at the rear of the lots, but the scrivener of the deed, through error, described the tract in the deed so as to include a strip of land at the rear of the lots occupied by sheds and fences, and the defendant, taking advantage of such error, brought ejectment for a part of such strip against one of the lot owners, and) threatened to bring a similar action against another of them.

2. Where, in an equity suit by several complainants, the defendant did' not demur or file a plea, and did not raise the question of multifariousness through misjoinder of complainants, in his answer or at the hearing below, this court refused to consider the question for the-first time raised by him here.

No. 2277.

Submitted April 5, 1911.

Decided May 1, 1911.

Hearing on an appeal by the defendant from a decree of the Supreme Court of the District of Columbia, sitting as an equity *237court, granting the relief sought in a bill for the correction of a deed, and an injunction restraining the prosecution of an action of ejectment.

*Affirmed.*

The Court in the opinion stated the facts as follows:

This is an appeal from a decree sustaining a bill by Melvin H. Herriman, Patrick Riordan, and John R. Bradley against Prank T. Knight, for the correction of a deed, and an injunction restraining an action of ejectment begun by Knight against Riordan for recovery of part of the premises in question, as well as restraining him from bringing a like action against Bradley.

It appears from the pleadings and evidence that Melvin H. Herriman formerly owned Square 1,062, which was subdivided into lots as shown by the following plat:



*238The subdivisions 99, 93, and 94 measured 75 feet in depth. Houses were erected by Herriman on said lots, which had sheds; in their rear. These sheds and the fences connecting them extended back over the nearly square lot, marked 99, also covering a space thereon 8.70 feet wide at one end, and 9.40 feet wide at the other. Lot 98 had been previously conveyed to-Knight. Lots 99 and 93, with improvements, passed to Biordan by warranty deed. Lot 94 had passed into Virginia Atzerodt by warranty deed. On February 13th, 1906, she conveyed the-same to Ernest and John T. Bradley, trustees, to hold to the-use of John R. Bradley (one of plaintiffs and an adult). Herriman, and his grantees of lots 99, 93, and 94, all believed that the sheds in the rear thereof were on the lots conveyed, and1 were included in the conveyances. In making deeds to the several lots in the subdivision, Herriman granted a right of way, in general, over the unsold portion designated also as 99. These easements, in Herriman’s opinion, rendered the said unsold' portion virtually valueless, and he proposed to sell it at a nominal sum to avoid paying taxes. Knight offered $25 for a conveyance, which was accepted.

The evidence shows clearly that Herriman intended to sell' and convey only the unoccupied part of lot 99, subject to the-easements aforesaid, and that Knight understood he was buying-only that part of it outside the line of the fences and sheds, in the rear of the improved small lots, 99, 94, 93. The scrivener was informed that this was what was to be conveyed, but not knowing that the sheds extended beyond the bounds of the other-lots, described the lot by calls for distance that carried it to the-true line of small lots 99, 94, and 93, and therefore embraced the ground covered by the sheds. Some time afterwards, Knight, in endeavoring to extinguish the easements encumbering the lot purchased, discovered that the calls of his deed embraced the lot occupied by the sheds. He made claim to the-same, and after some negotiations with the lot owners, and with Herriman, who offered him $40 for a relinquishment of said small strip, he began an action of ejectment against Biordan, and was about to bring one against Bradley.

*239
      *Mr. J. H. Adriaans*for the appellant.

*Mr. A. E. L. Leclcie, Mr. Greed M. Fulton,*and *Mr. Joseph W. Cox*for the appellee.

Mr. Chief Justice Shepakd

delivered the opinion of the-Court:

The evidence, which it is unnecessary to review, made out a’ case of mutual mistake of fact amply justifying the decree for correction. Errors have been assigned raising the question of multifariousness through the misjoinder of plaintiffs. The defendant filed neither demurrer nor plea, nor did he raise the-question in his answer. It was suggested for the first time on. the hearing in this court. As was said in *United States*v. *American Bell Teleph. Co.*128 U. S. 315—352, 32 L. ed. 450-457, 9 Sup. Ct. Rep. 90: “The principle of multifariousness is one very largely of convenience, and is more often applied where two parties are attempted to be brought together by a bill in chancery, who have no common interest in the litigation, whereby one party is compelled to join in the expense and trouble of a suit in which he and his codefendant have no common interest, or in which one party is joined as complainant with another party with whom in like manner he either has no interest at all, or no such interest as requires the defendant to-litigate it in the same action.” In an earlier case it was said' by Mr. Justice Story: “It is impracticable to lay down any rule as to what constitutes multifariousness, as an abstract-proposition; that each case must depend upon its own circumstances ; and much must necessarily be left, where the authorities leave it, to the sound discretion of the court. * * * The-objection of multifariousness cannot, as a matter of right, be taken by the parties except by demurrer or plea or answer; and if not so taken, it is deemed to be waived. It cannot be insisted upon by the parties even at the hearing in the court below, although it may at any time be taken by the court *sua sponte,*whenever it is deemed by the court to be necessary or proper to-*240.assist it in the due administration of justice. And at so late a period as the hearing, so reluctant is the court to countenance The objection, that if it can go on in the cause to a final decree without serious embarrassment, it will do so, disregarding the fault or error, when it has been acquiesced in by the parties up to that time. *A fortiori,*an appellate court would scarcely entertain the objection, if it was not forced upon it by a moral necessity.” *Oliver*v. *Piatt,*3 How. 333—412, 11 L. ed. 622-658. See also *Barney*v. *Latham,*103 U. S. 205—215, 26 L. ed. 514—518; *Hefner*v. *Northwestern Mut. L. Ins. Co.*123 U. S. 747-751, 31 L. ed. 309-311, 8 Sup. Ct. Rep. 337. Clearly the conditions are not such as to require consideration of the question now.

The decree will therefore be affirmed with costs.

*Affirmed.*