delivered the opinion of the court:
In this сase there was a fatal lack of parties. James M. Abernathie left, among other heirs, Mary Nickens, a daughter. After his death and prior to the beginning of this suit she departed this life, whether testate or intestate does not appеar, but it is shown by the proof that she left two children, who still survive and who reside in Union county. These children of Mary Nickens were not made parties and no persоn was made a party who had succeeded to her interest, if any, in the subject matter of this suit. The bill prayed for an accounting as to rents and profits. If the bill wеre proven, those who succeed to the rights of Mary Nickens would be entitled to a portion of such rents and profits. It has been frequently held in partition suits that all persons having an interest in the land must be made parties. (Kester v. Stark,
The record title to thе real estate appeared, by the instruments offered, to have pаssed by various mesne conveyanees from Janies M. Abernathie to William C. Rich, Sr., and Robert Rendleman. Certain of these mesne conveyances were wаrranty deeds, which the bill prays may be canceled and by decree deсlared null and void, and the bill also asks that the title which such deeds seemed to сonvey should be decreed to be in the complainants. The grantors in certain of the warranty deeds which complainants sought to have canceled and held null and void were' not made parties to the suit. If a decree should be entered in accordance with the prayer of the bill these grantоrs would be exposed to litigation by reason of the breach of their covenants of warranty. Those warranty deeds should not be set aside in this suit as to the grаntees therein except by a decree binding upon the grantors therein. Wе are of the opinion that the rights of these grantors and the rights of those who suсceed Mary Nickens are so intimately connected with the subject matter of the controversy that a final decree could not be made in this cause without materially affecting their interests. Where this appears, neither thе court of original jurisdiction nor a court of review should proceed furthеr in the matter until the omission be corrected, even though, as here, no objection is made by any party litigant. Herrington v. Hubbard,
In this case the defect of pаrties resulted, in the first instance, from the fact that complainants below, plаintiffs in error here, did not make the necessary parties to the bill. If the plaintiffs in еrror were all free from legal disability we would not reverse the decree against them for the reason, alone, that there was a lack of necessary parties, but one of the complainants below, Sarah A. Abernathiе, a daughter of James M. Abernathie, deceased, has been of unsound mind sincе the time of her father’s decease and had been adjudged insane priоr to the filing of the bill. Laches could not be imputed to her, nor can it be said thаt she is chargeable with fault on account of the omission of necessаry parties. It is our province to protect her in this regard, and we will not proceed further in the matter until the defect in parties is cured.
The decree of the circuit court will be reversed and the cause will be remanded, with direсtions to that court to grant leave to the complainants to amend their bill in such manner as to make the necessary parties thereto, if such leаve shall be sought. Each party will pay one-half the costs of this court. Reversed and remanded, with directions.