Beck, J.
We will not undertake to determine whether the petition attempts to charge the heirs of Mary A. Moody as liable on the contract of warranty in the deed made by her and John B. Moody, for the Botlunore lot, or on the original contract of sale, or for fraud in the transaction. It is a difficult matter to determine just what the cause of action is, and it is not important for the proper decision of this case. Neither can we- determine, considering the petition and argument together, whether the plaintiff seeks a judgment against the heirs for the amount sued for, or, as to them, the action is in the nature of a creditor’s bill, seeking to hold the lands, the title of which is in them, subject to John B. Moody’s debt, or whether it seeks on equitable grounds, inasmuch as the lands have never been paid for, to subject them to the judgment for the purchase-money. For the purpose of this decision, it is not necessary to determine these questions.
Mary A. Moody held the title to the lands, and was made a party to this suit, which aimed to subject the lands to a certain debt, either of John B. Moody and herself, or of John B. Moody alone. At her death, pending the suit, whatever was its object, or the actual cause *318of action of the petition, the suit did not abate, but could have been continued against her legal representatives. Laws of Ninth General Assembly (1862), ch. 174, § 4.
1. Raotibs: administrator: substitution, I. Who are the necessary parties that should have been substituted at the death of Mary A. Moody? If the debt was against her, and is attempted to . ... be enforced against her estate, the administrator of her estate is the necessary party, who should have been substituted, and against whom the action survived. Postlewait and Creagan v. Howes et al., 3 Iowa, 377; Reynolds v. May, 4 G. Greene, 286; The Unknown Heirs of Whitney v. Kimball, 4 Ind. 549.
2._eopi. table íeief. II. If the action, being a chancery proceeding, is to be considered in the nature of a creditor’s bill, or upon any equitable grounds it seeks to subject the ian(js 0f estate of Mary A. Moody to plaintiff’s claim against John B. Moody, the administrator is a proper, if not a necessary, party. Courts of equity, as a general rule, require all persons materially interested in the subject-matter of the suit, either legally or beneficially, to be made parties, either as plaintiffs or defendants. Story’s Eq. PL, § 72; 2 Story’s Eq. Jur., §1526.
3. p^ntment*: presumption. III. It does not appear, from the record, whether an administrator of the estate of Mary A. Moody has or has ^een appointed. We cannot presume, that there is no administrator. Postlewait & Creagan v. Howes et al., 3 Clark, 377; The Unknown Heirs of Whitney v. Kimball, 4 Ind. 549. In case an administrator has not been appointed it is competent for the plaintiff to have it done and thus provide a necessary or proper party for his suit.
*3194. - — nonjectiou when of. *318IN. If the view we have suggested, that the cause of action is a claim against the estate of the deceased and *319John B. Moody, be correct, and the administrator, therefore, a necessary party, the obiection of the nonjoinder, though well taken, was first made in this court. This error, therefore, will not operate to dismiss the petition, but to remand the cause to the court below for further proceedings. Kriechbaum v. Bridges & Powers, 1 Iowa, 14; Postlewait et al. v. Howes et al., 3 id. 381.
5. Practice : failure to except. Y. The other questions in the case need not be determined. It will be proper, however, to remark, that, although it may well be doubted whether the petition contains a statement of such an equitable cause of action, that it was properly transferred to the chancery docket, yet, that objection cannot now be made in this court, no exception having been made at the time, to the order transferring the cause to the chancery side of the court (Revision, §§ 2611, 2619).
In view of the fact, that the petition is unintelligible in respect to the cause of action, grounds of relief and nature of remedy required, as well as on account of the errors above pointed out, the cause is reversed and remanded for a new trial, with direction that the parties plead anew, and that the plaintiff make the necessary parties defendants.
Without determining who may be necessary parties, in all possible shapes the case may take upon new pleadings, we may suggest, that the safer course in practice, the one which will most certainly terminate litigation and secure adequate relief, in equitable actions, is to make all persons defendants, that the law recognizes to be proper parties, on account of interest in the subject-matter of the action.
Reversed.