Lewis v. Alston

DOWDELL, C. J. This appeal is taken from a decree of the chancellor sustaining a demurrer to the bill as amended. Under the averments of paragraph 5 of the bill, the deed assailed was void, and no title passed thereby from the grantor to the grantee, who is the respondent here. Upon the death of the grantor, the legal title descended to her heirs at law. Mrs. Hildreth Avas an heir at laAV, and acquired title by descent. Upon her death, her husband, L. A. Hildreth, became a life tenant as to her interest under the statute, and Avas entitled to possession. He, however, Avas not in possession, the respondent being in possession and holding adversely; and, being out of possession, he could not maintain the bill to remove cloud from the title. This being true, he could not properly be joined as a co-complainant with [276] tlie remaindermen in such a bill. The remaindermen in such a bill might well have made him a respondent to their bill, as being' a necessary party to the suit. This is the point taken by the demurrer, which the court sustained, to the bill as amended, and the decree of the court is free from error. Counsel for appellants is mistaken in his contention that he was forced by the demurrer of respondent to the original bill, and the decree of the court thereon, to amend his bill by making L. A. Hildreth a co-complainant. The demurrer to the original bill, and the decree thereon, only determined that under the averments of the bill L. A. Hildreth was a necessary party to the suit, and not that he was a necessary complainant. Simpson, Anderson, McClellan, and Somerville, JJ., concur. Sayre, J., concurs in the conclusion, but is of the opinion that L. A. Hildreth is not a necessary party. »