Wardlaw v. Hammond

Beck, J. (After stating the facts.) We are of the opinion that the demurrer in this case was properly overruled. The petitioner is.not seeking to have the deed from Warthen to P. 0. Wardlaw and the plaintiff’s intestate canceled. He is seeking specific performance at the hands of P. C. Wardlaw, — performance of a contract which is consistent with the deed of Warthen to the Ward-laws. If the administrator had prayed that the deed from Warthen be canceled, and that Warthen execute two deeds, one conveying to him as administrator of Mrs. M. C. Wardlaw the two northern lots and the two other lots to P. C. Wardlaw, then Warthen would be a necessary party; but he is not such as the case now stands. The evidence authorized the auditor’s findings of fact; and no material errors are shown in the exceptions to his report. Judgment affirmed. All the Justices concur.