
    Officer, et al. vs Murphy.
    Where A agreed to convey land > to B and delivered possession, ancf afterwards the contract is rescinded because of want of title in A, and' the decree of recision does not order the possession of the land to be delivered up by B to A: Held, that A or his heirs could come into a court of equity to have the possession decreed to them, and an account of rents and profits received by B.
    The vendee of land will not be allowed to set up against the vendor’s bill filed to obtain possession thereof in a court of equity, an adverse-title in himself, procured after a decree of recision of the contract be-* tween himself and his \endor, until he has delivered up the possession to the vendor or his heirs.
    Whenever the complainant’s remedy at law is embarrassed, a court of •equity will entertain jurisdiction, and particularly if the statute of limitations could be relied upon by the defendant at law.
    Margaret Officer, mother of complainants, having title to one hundred and seventy acres of land, in Overton county, in December, 1814, sold the same to Murphy, and gave him possession thereof immediately which he has enjoyed ever since; out of which lie* has received issues and profits to the amount of one hundred dollars annually.
    Murphy, when he purchased, gave his bond for the consideration mpney, and being sued thereon judgment was had against him. On the 16th of September, 1823, he filed his bill for relief, alleging a deficiency of title, and praying that the contract be rescinded. On this bill he prevailed, and a decree, rescinding the contract, was pronounced on the 14th of September, 1827. Murphy continued the possession, and entered the land as vacant, took out a title in his own name, instead of surrendering the possession of the land.
    The bill charges, that the possession of Murphy has by force of the statute of limitations under the title made to him by Mrs. Officer, made the title good and available; that lie has never been disturbed; and that the entry and ' . J ■grant are frauds upon complainants. .
    The 'bill prays that Murphy may be compelled to surrender the land to complainants, and that the pretended 'title by entry be decreed to them, and that he account for rents, &c. This bill was filed on the 9th of January, 1829.
    The record, in the case of Murphy against the representatives of Mrs. Officer is appended to the bill. There-is no charge in Murphy’s bill that he, Murphywas evicted; both the bills are consistent with the fact, ^that Murphy has had the land. Murphy’s bill is predicated alone on defect of title; in this, that Mrs. Officer had not had proved and recorded a deed she held from Brown, and that Brown subsequently conveyed to Durant, who purchased without notice, and had his deed first put ón record.
    To this bill there is a demurrer. The circuit judge having sustained the demurrer, the bill was dismissed, and a writ of error prosecuted to this court. •
    
      jy. Haggard, for complainant.
    It is contended for complainants, that inasmuch as defendant did not malee them parties, the relationship 'of landlord and tenant is not so dissolved but that the entry made by defendant inures to their benefit. He having taken -possession under their ancestor, they are not driven to an action of ejectment before they can file a bill and remove his iniquitous ineumbrances, and have an account for rents and profits.' They have a right to this redress if they never sue for possession. If a paper cannot be enforced in law, a court of equity has jurisdiction to compel the delivery of it up, that the party may not be harassed with it. Grover vs. Hugell, 3 Russell, 432, cited in 3 English Ch. Rep. Cond. p. 467. The case decided in the supreme court of Sparta, some years ago, 0f Francis Adams vs. W. Woodfolk, was on that principle and title papers were by the decree removed out of the way. See 2 Hayw. 226, Ward’s executors vs. Ward. Frequently when this salutary jurisdiction is exercised, it saves much litigation and expense. And a court of equity, in few cases, will drive the parties to a court of law, where heirs are concerned and matters of account have ultimately to be settled between them. Complainants contend that at least the bill is good for the matter of account to arrange the rents and improvements.
    
      And. J. Jllarchbanks, for defendants.
    1. The court below properly sustained the demurrer, because from the complainant’s own showing, Andrew Alexander is the owner of the land in controversy, and is not made a party. There is no rule better established than that, all persons interested in the subject matter of the suit must he made parties to enable the court to do complete justice. I need not cite authorities to this.
    2. If the charge in the complainant’s bill, that Murphy having taken possession under a contract with Officer, makes his possession and occupancy his, and that, therefore, he could not enter without giving complainants thirty days notice, the defendant insists, then, that his entry was absolutely void, see the act of assembly, 2 Hayw. and Cobbs. 117, sec. 6, and that therefore, if complainants have any right to the land they have a remedy at law.
    3. Defendant insists, that every charge in the complainant’s bill was at issue, or at least might have been in the former suit, he having made his entry before the determination of it: that the facts set up in this bill should have been urged against the recision of the contract in the former suit, and that, therefore, the demurrer was properly sustained. See Searcy vs. Kirkpatrick, Cook’s Rep. 211.
    
      4: The contract between Murphy and Mrs. Officer being rescinded, the heirs of the latter certainly cannot set up any claim under the rescinded contract; it is to all legal purposes no contract, and the parties stand as they did before. 1
   Peck, J.-

Are the complaina'nts entitled to relief upon the facts’ charged in this bill? We are bound to take the decree' upon Murphy’s bill, as having been made upon correct principles; for no attempt was made to have it reversed. Suppose it to have been correct, on the rescinding of the-contract he was bound to have given up the land, and thoügh the decree did not extend so far aá to order it, still this does not take away from' the heirs the right to have restoration of the possession, upon principles which sháll be equitable. We are not to forget, that he who' asks equity, -shah do it to the person of whom he asks it; and the only question in this case is, have the complainants’ ever waived this principle of equity, so that they shall not now set it up? I am- of opinion, "they have not, and their bill lies to have the possession delivered, and an account for rents and profits.

It is not in the mouth of Murphy to say, that a' court of law is competent to give the relief sought in this case* seeing that he has-affirmed in this court, that the title is a defective one, and one that would not avail the complainants in this bill.

Again, T cannot help seeing Murphy’s title, at this day, may have become complete by the operation of the statute of limitations. So that if he is'permitted to hold the land, and hold on upon the recision of the contract both, then the mere omission to record’the deed, will operate, as a forfeiture of all right to the land and the consideration money.

This consequence the court should avoid, if it he possible; and i think the way a plain one.

But further: Murphy has procured a title from the State, since his purchase from Mrs. Officer, and has been holding under that also. Thus armed at all pomts, with the title of Mrs. Officer, the title from the State, and p.erhaps the statute of limitations upon both, it must be seen that he would be too strong at this day, for the heirs of the deceased vendee, Mrs. Officer, in a court of law.

From the relation in which Murphy stands to these heirs by the purchase from their ancestor, there must exist a remedy, and no court, as to matters not touched in the other suit, is so likely to give it as a court of equity.

The remedy here sought is not inconsistent with the decree pronounced in Murphy’s case; on the other hand it is consistent with it, and this bill may well be taken to save the right, which, by the acts of the adversary in the former case was lost sight of.

From the decree rendered in favor of Murphy, (14th September, 1827,) up to the time of filing this bill, (9th Jan. 1829,) the act of limitations did not operate against the complainants. But if this bill be dismissed, and complainants turned over to law, then it must be seen that in all probability the statute would operate, or at least, leave the right, an extremely embarrassed one; which, under the circumstances in this cause, I think a good ground on which this court may assume jurisdiction. I therefore think the decree should be reversed, and the-cause remanded to be proceeded in.

Catron, Ch. J. concurred.

Green, J. dissented.

Decree reversed.  