46 So. 49 | Miss. | 1908
delivered the opinion of the court.
The only deed sought to be canceled is the deed of W. B. Beason to Henry M. and P. E. Coleman to the N. W. ¿ of the S. W. ¿, section 13, township 1, range 15 E., of date December 18, 1889, which it is claimed was made by a mutual mistake of the parties. The demurrer admits this fact, and, if so, the deed is a cloud on the title of the property. This being the case, and because neither the rights of Mrs. Elizabeth Beason, nor those of D. C. and M. Torrence, are to be affected in any way, it was not necessary to make them parties- to this proceeding. It is true that Mrs. Elizabeth Beason, by deed of date September 21, 1903, attempted to and did convey to Henry M. and P. E. Coleman this identical property; but it is not sought to cancel any interest conveyed by this deed from her to them, nor is this deed to be affected in any way by this suit, that not being the purpose of the suit. The deed of Mrs. Beason purports to convey a fee simple; but under the terms of the will she has no right to make title to anything but a life interest in this property, since her estate is limited to 'that. But with this we have no concern in this suit.
The only other question in the case is whether or not John G. Beason, as executor, could institute this suit and remove the cloud upon this title by canceling the - deed executed by W. K. Beason, by mistake, to Henry M. and P. E. Coleman. In the
We think the court erred in sustaining the demurrer. Gerard v. Bates, 124 Ill., 150, 16 N. E., 258, 7 Am. St. Rep., 350; McDonald v. St. Paul, 82 Minn., 308, 84 N. W. 1022, 83 Am. St. Rep., 428; Fly v. King, 71 Miss., 537, 14 South., 465.
Reversed and remanded.