
    John Gartman et al., Administrators of Zebulon E. Pendleton, deceased, vs. Samuel Pouns and others, Heirs at law of Joseph Pouns, deceased.
    The heirs of P. having filed their bill to set aside a purchase of part of the real estate of their ancestor by Z., his administrator, under a fraudulent judgment against the administrator, to which bill S, the vendee of the administrator, was a party, and charged with notice of the fraud of the administrator, after the cause was argued and submitted to the chancellor for a decree, the administrators of Z., who had died before the institution of the suit, sought by petition to be made parties to the litigation ; held, that the subject matter in controversy, lay between the heirs of P. and S., the vendee of the administrator, and at so late a stage in the cause, it was not error to refuse the representatives of Z., the deceased administrator, to be made parties, since any decree in the suit between the heirs of P. and the vendee of Z. could not prejudice any defence, which Z.’s administrators might legally possess to any action to be brought by S. for the recovery of the purchase money paid by him to Z. for the land.
    On appeal from the southern vice-chancery court at Monticello; Hon. James M. Smiley, vice-chancellor.
    This was a bill in chancery, filed by Samuel Pouns and others, heirs at law of Joseph Pouns, deceased, against the heirs at law of Zebulon E. Pendleton, who, in his lifetime, was co-administrator with Samuel Pouns of Joseph Pouns, and against Henry Sones. After the cause had been submitted in the court below for final decree, John Gartman and E. A. Pendleton, administrators of Zebulon E. Pendleton, deceased, filed their petition to compel the complainants to make them parties to the litigation; this was refused by the vice-chancellor, who decreed in favor of the complainants.
    The objects of the bill are sufficiently stated in the opinion of-the court.
    Zebulon E. Pendleton’s administrators sued out this writ of error; Sones filed a release of error.
    
      Foute, for plaintiffs in error,
    Cited Story, Eq. PI. 194, § 160; lb. 206, § 170, 174, 177, 177 a, 179, 180; lb. § 72, 73, 74, 75, 76, 76 a, 77, 236, 236 a, 540, 541, 885, 905; Mitfi Ch. PL sec. 8, p. 164; Barb. Ch. Pr. 160, 164, 165; 1 How. (Miss.) Rep. 333; Truly v. Lane, 7gS. & M. 325 ; 2 Story, Eq. Jur. § 788, 789,1526; lb. § 1217, 1219, 1227, 1233.
    
      John D. Freeman, for defendant in error.
   Mr. Justice Thacher

delivered the opinion of the court.

The bill charges, that Joseph Pouns died intestate, seized of a tract of land; that Samuel Pouns and Zebulon E. Pendleton administered upon his estate; that Pendleton, while administrator, fraudulently procured one Smith to institute a suit upon a promissory note made by said Joseph Pouns, and held and owned by said Pendleton; that by agreement, no defence was made to said suit, but a judgment by default of appearance suffered ,• that the execution on said judgment was levied by Pendleton’s instructions to the sheriff, upon a particular tract of land, and purchased by said Pendleton at the sale for the sum of $160, which land was really worth the sum of $4000; that said Pen-dleton took the sheriff’s deed, and caused the execution to be credited with but the sum of $160, the judgment being for the sum of $ 1107-07; and that Pendleton subsequently sold the land to one Sones for the sum of $3900.

The vice-chancellor decreed, setting aside the sale, that Sones’s title was void, (fee.

The appellants assign, as error, want of notice to Sones• but this is answered by his admission of notice filed in the cause, with his release of all errors upon this ground.

After the cause had been argued and submitted to the vice-chancellor, a petition was presented by the administrators of Zebulon E. Pendleton, to compel- the complainants to make them defendants to said bill, which was refused and rejected by the vice-chancellor, and is now assigned for error.

The subject matter in controversy lay between the heirs of Pouns and Sones, the purchaser of the land from’ the administrator Pendleton. It was not error to refuse the petition of Pen-dleton’s administrators made at so late a stage of the cause, and which, if granted, must have protracted litigation, especially when any decree between those heirs and Sones will not prejudice any defence which those administrators may legally possess to any action to be brought by Sones for the recovery of the purchase money, paid by him to Pendleton for the land.

Decree affirmed.  