
    *Clayton & Tyson v. Henley.
    July Term, 1879,
    Wytheville.
    Absent, Moncure, P.
    i. Deeds — Hiñerais—Construction.—T conveyed to S president of the M mining: company and his successors in office, one-halt of all the minerals in a certain tract of land in P county, except iron ore, upon the consideration that said M Co. are to test the lands for mineral, until $2.000 is expended, if they so desired, one-third of the expense to he paid by T: the tests to be made or abandoned in two years — Held: This deed vested a fee simple m said minerals in the grantees.
    2. Same — Recordation—Subsequent Purchasers. — This deed having beeD duly recorded constituted notice to all subsequent purchasers of the land of the interests of the grantees therein, and those claiming under them.
    3. Same — Same—Same.—Any subsequent deeds made by T conveying- the land in trust for his creditors, or deeds made by commissioners under decrees of court to subject the land to satisfy these creditors, conveyed to the purchasers only such title and interest as T then had, and said purchasers and the persons claiming under them acquired no title to the mineral interests previously conveyed by said T.
    4. Jurisdiction. — Upon a bill filed by a creditor of the M Mining Go. and the persons constituting that company in the circuit court of G county, to subject to the payment of his debt the land of one of them lying in G county, and the minerals conveyed in the deed of T to S lying in S’ county, one of the members resides in G county, and the others are non-residents of the state — Held: The court has jurisdiction of the cause, both on the ground that a part of the subject sought to be subjected lay in the county of C, and that one of the defendants resided in that county.
    *5. Limitations. — In such suit the parties claiming under the deeds made by T and the commissioners under decrees, claiming adversely to the title of the M Co. and its members, said parties thus claiming adversely to M Co. and its members, cannot set up the statute of limitations as a bar to the plaintiff’s claim, the M Co. and its members not relying upon the statute.
    
      6. Same. — But if all the defendants pleaded the statute, and the circuit court decided the case in favor of the plaintiff, and only the said parties claiming adversely take an appeal — Held : That a party appealing must show some error in the decree affecting himself; and as the M Co. and its members have acquiesced in the decree, the adverse claimants cannot rely upon the statute in the appellate court.
    7. Parties — Appeal.—How an objection for want of proper parties should be made, and how such an objection for the first time made in the appellate court will be treated, see the opinion of Staples. J.
    This was a suit in equity in the circuit court of Carro.il county, brought in J anuary, 1874, by Thomas B. Henley against F. h. Hale and seven others, who, with A. V. Brown, deceased, constituted, as the bill stated, the Meigs county Tennessee and Virginia Mining Company, the unknown heirs of said A. V. Brown, and S. S. Clayton and J. E. Tyson. Hale lived in the county of Carroll, and all the other members of the company were residents of the state of Tennessee. The object of the suit was to subject a tract of land in the county of Carroll, and certain copper and mining interests in land in the county of Floyd, which the plaintiff claimed belonged to said company, to satisfy a debt of $2,000, with interest from the 7th of June, 1861, which was due from said company to the plaintiff for services rendered. This debt was evidenced by t-he written acknowledgment of F. E. Hale, superintendent of Meigs County Tennessee and Virginia M, Co., at the foot of a statement made out by him showing the work done at the different mines of the company, and the amount due Henley for his services at each mine.
    It appears that previous to February, 1854, there was *in Tennessee a company styled the Meigs County Tennessee Mining Company, of which John G. Stuart was the president; that by deed bearing date the 10th of February, 1854, Robert E. Toncray sold and transferred to said Stuart, president of Meigs County Mining Company, and his successors in office, one-half of ail the mineral, except the iron ore, iñ and upon the tract of land therein described, together with all necessary mining privileges, including wood and water; and the tract of land is set out as containing about three hundred acres. The consideration stated in the deed is that the president and members of said mining company are to test the above described lands for mineral: the company to control and carry on the work until $3.000 was expended, if they so desired — one-third of the expense to be paid by Toncray. The company was to have entire control and management of the work; to keep an account of expenses of mining operations, of which they should pay two-thirds and Toncray one-third. This deed was admitted to record on the day of its date in the county court of Floyd county. After this deed was made, Stuart, as president, &c., admitted F. E-Hale and another into the company, and the company was known as .the Meigs County Tennessee and Virginia Mining Company; and Hale was the superintendent.
    By deed made in the same month, and recorded on the 27th, Toncray conveyed to Jackson Godbey the tract of land mentioned in his deed to Stuart, with improvements thereon and mining interests in all metals, “with the exception of a copper interest that hath been conveyed to a Tennessee company." in trust to secure his endorsers on a note for $3.500. Tt appears further that Toncray subsequently made three other deeds conveying
    
      this land in trust to secure debts, in which no exemption of the mining interest conveyed to the Meigs company is made. And it appears that in 1857, in a suit in the circuit court of Floyd county, in which Toncray was plaintiff and the trustees in *the said four deeds of trust and the parties secured were defendants, the said tract of three hundred acres of land was sold and purchased by Harvey Deskins, Andrew J. Ki.rby, and nine others, and was conveyed to them in December, 1858. And it appears further that in another suit in the same court, in which A. J. Kirby was plaintiff and Harvey Deskins and others were defendants, the said land was sold by J. D. Tomptó-ns as commissioner, and by deed bearing date the 2d of November, 1872, Tompkins, commissioner, conveyed the same to F. A. Winston, the purchaser at the sale. The defendants, Clayton and Tyson, claim as purchasers from Winston.
    The plaintiff in his bill charged that all these parties had both constructive and actual notice of the deed to Stuart; and in fact that all of them, until the sale to Winston, recognized the rightof theMeigsCountyTennessee and Virginia Mining Company to the mining interest conveyed by said deed to Stuart. And the prayer of the bill was that the land in Carroll belonging to the heir's of the said A. V. Brown, and the said mining interest in the land in Floyd county might be sold and applied to the payment of his debt. And he sued out an attachment upon the land and mining interest in March, 1874. The bill was taken for confessed, as to the absent defendants by publication, and as to the defendants Toncray and Hale by service of process; but at the August term of the court Clayton and Tyson appeared and had leave to answer. They demur to the bill on several grounds, which it is not necessary to state. After expressing their ignorance as to the plaintiff’s debt and from whom it is due, they deny that the Meigs County Tennessee and Virginia Mining Company, or its predecessor, has interest. either vested or contingent, in the land, which they call the Toncray property; and insist that they are the fee simple owners of the entire property, including land and minerals. They deny that any interest in said property was *ever conveyed to either of said companies. They admit the deed from Toncray to Stuart, which they insisted only vested any interest in said minerals upon the performance in two years of the conditions precedent, that the company should test the land for minerals, and that they never struck a lick towards complying with the condition. They refer to the fact of the sale under the deeds of trust, and say that they and those under whom they claim have held possession of the land from 1861.
    At the October term, 1874, of the court there is an entry which states — This day came the defendants and .filed pleas of the statute of limitations, and S. S. Clayton and J. E. Tyson filed a special plea in writing.
    In the progress of the cause the land in Carroll county belonging to Brown’s heirs was sold under a decree in this and another case, and the plaintiff received $928.68 as his portion of the purchase money.
    The cause came on again to be heard on the 12th of August, 1876. when the court made a decree against the Meigs County Tennessee and Virginia Mining Company in favor of the plaintiff for the sum of $2,000, with interest from the 7th day of June, 1861, and the costs of suit, subject to a credit of $1,023.18, as of the 18th of October, 1875. And holding that the deed from Toncray to Stuart conveyed a fee simple estate in one-half the mineral interest in and upon said land, except the iron ore therein, and that the subsequent sales, deeds, decrees and judgments referred to in the proceedings in the cause had not in any manner affected the rights or title of the parties legally claiming under that deed, decreed that unless the defendants, or some one for them, should within sixty days pay off and discharge the plaintiff’s debt and costs of the suit, a commissioner named should proceed to sell at public auction, &c., the one undivided half in fee simple of the mineral in and upon said land, together with the mining privileges, including wood and water and other *appurtenances, except the iron ore, upon a credit, &c. And thereupon Clayton and Tyson applied to a judge of this court for an appeal; which was allowed. The facts are sufficiently stated in the opinion of Staples, J.
    A. A. Phlegar, for the appellants.
    J. A. Walker, for the appellees.
    
      
       Statute of Limitations. — This defense is a personal privilege and may be asserted or waived by the debtor at his election. McCartney v. Tyrer, 94 Va. 202; Smith v. Hutchinson, 78 Va. 683.
      The principal case is quoted in Welton v. Boggs, 45 W. Va. 624, to the effect that a plea of the statute of limitations is a personal defence.
    
    
      
       Parties — Objection—Appeal.—Where there can be no final adjudication of the matters in controversy on the account of the absence of a party in interest, an objection for want of parties maybe made for the first time on appeal. Hinton et al. v. Bland’s Adm’r et al., 81 Va. 588, citing Armentrout v. Gibbons, 25 Gratt. 371; Clayton v. Henley, 32 Id. 65; Lynchburg Iron Co. v. Tayloe, 79 Va. 671. See also 4 Min. Inst. (2nd Ed.) 969; Saunders v. Greggs, 81 Va. 506: Sheppard v. Starke, 3 Munf. (Va.) 29; Tayloe v. Spindle, 2 Gratt. (Va.) 44; Thornton v. Gratt, 15 Va. L. J. 102.
      The principal case was cited in Morgan v. Blatchley, 88 W. Va. 158, in support of the proposition that although the defect or lack of parties be not suggested by demurrer, plea, or answer, yet, if it be apparent on the face of the bill, It will prevail at the hearing; and, even though not raised in any way in the lower court, it is competent to make the objection in the court of appeals.
    
   STAPLES, J.,

delivered the opinion of the court.

The court is of opinion that Robert L. Toncray, by his deed bearing date the 10th February, 1854, conveyed to John G. Stuart, president of the_ “Meigs County Mining Company,” and his successors in office, one-half of all the minerals, except the iron ore, in and upon the tract of land now claimed by the appellants, and the interest so conveyed became afterwards vested in the persons composing the “Meigs County Tennessee and Virginia Mining Company;” and further that said deed, being duly recorded in the proper count}', constituted notice to all subsequent purchasers of the interests of the grantees therein and those claiming under them.

The court is further of opinion that the several deeds of trust afterwards executed by the said Robert L. Toncray, for the benefit of his creditors, and the deeds executed by commissioners, under decrees of the circuit court of Floyd county, conveyed to the purchasers under whom the appellants claim, only such title and interest as the said Ton-cray then had; and consequently said purchasers, and the appellants claiming under them, acquired no title to the mineral interests previously conveyed by said Ton-cray to the said John G. Stuart.

It further appears that Deskins & Co., and all the parties claiming under said deeds of trust, and under the deeds of said commissioners, including F. A. Winston, *not only had actual notice of the claim and title of the said mining company and those composing said _ company, but that they repeatedly recognized that claim as valid.

It is not directly proved that the appellants had such notice; but the fact is charged in the bill, and not denied in the answers, and a careful examination of the record leads irresistibly to the conclusion that the appellants at and before the time of their purchase were perfectly well aware of the title of the persons composing the “Meigs County Tennessee and Virginia Mining Company.” As against these latter parlies, then, the appellants acquired no title to the property in controversy. At the time of the institution of this suit it was vested in the persons composing that company, was used as its proper assets, and is justly liable to those having valid claims against it. The justice of the appellee’s claim is fully established by the evidence, and is not seriously controverted by any one.

It further seems to the court that one of the members of said “Mining Company” resided in the county of Carroll at the time of the institution of this suit, whilst 1he others were non-residents of the state of Virginia.

It further appears that the appellee sought by his bill to subject to the payment of his debt, besides the property in controversy, certain mineral interests in the county oi Carroll, and that a decree has been obtained by him for the sale of such interest, and the proceeds applied in part to his debt. Under such circumstances there is no doubt the circuit court of Carroll county had jurisdiction of the case, notwithstanding the property in controversy is situated in the county of Floyd. The residence of one of the defendants was sufficient for all the purposes of such jurisdiction independently of the fact that other real estate justly liable to the debt was within the limits_ of the said county of Carroll. The jurisdiction of the court does not, as seems to be supposed, grow out of the attachment proceedings, which are merely ancillary. The *attachment may be entirely disregarded, and the bill sustained as an ordinary creditor’s bill to obtain satisfaction out of the real estate. Both the residence of one of the defendants and the locality of the realty concurring to give jurisdiction.

The court is further of opinion, that the plea of the statute of limitations is in general a personal defence to be made by the party against whom the demand is asserted, or to be waived by him, if he desires so to do. What are the exceptions under which third persons may insist on the defence, when the debtor fails to do so, is not necessary now to be considered. Dawson v. Callaway. 13 Georgia, 583; Grattan v. Wiggins, 33 Calif. R. 16, 35. It is sufficient to say the present case is not one of them, and it was not competent for the appellants to interpose the bar of the statute against appellee’s demand. They do not claim under the Meigs County Tennessee and Virginia Mining Company, or under any of the persons composing that company. The appellants assert an adversary title to the property in controversy. As the persons composing the “Mining Company” consider the appellee’s claim just, and are willing, notwithstanding the lapse of time, that it shall be paid out of their estate, why should the appellants be permitted to interpose and object to the payment? If a debtor, recognizing the indulgence of his creditor and the justice of his demand, is unwilling to plead the statute, it is difficult to tell upon what ground a third person who merely asserts title to the property can be permitted to do so. The debtor might have waived the benefit of the limitations in writing — he could effect the same object by coming into court and acknowledging the debt, or by permitting the bill to be taken for confessed.

It would seem, however, that all the defendants united in the plea of the statute of limitations — at least the record so states— although there is good reason to beHeve this a * mistake, and that the appellants alone made this defence. Be this as it may, the circuit court overruled the plea, and rendered a decree in favor of the appellee. From that decree neither the “Mining Company” nor any member of it has appealed. Are the appellants entitled to demand a reversal? A party complaining of a decree is required to point out some error prejudicial to his interests. If the proposition already stated be true, that the appellants could not set up the bar of the statute of limitation, it follows they cannot in this court claim a reversal of the decree because the circuit court did not sustain the plea when interposed by the debtor. The latter being satisfied with the decree, the appellants must be held bound by it. They claiming under a hostile title cannot be heard to complain that the court has improperly appropriated the debtor’s property to the satisfaction of the creditor’s claim — the debtor himself making no 'complaint. The court is therefore of opinion, that if there be error in the decree of the circuit court in this particular, it is not the subject of review by this court.

The court is further of opinion, that the objection made in the court below and in this court by the appellants, that the “mineral interests” in controversy have not been subjected to the tests required in the deed from Toncray to John G. Stuart, president, and his successors, is not well founded. The evidence satisfactorily shows that such tests were made.

None of the parties under whom appellants claim ever contended otherwise: so far from it. all of them seem to have recognized the tests as sufficient, ft is proved indeed that Robert L. Toncray long ago brought his suit claiming that such was the fact, and relying upon it as a ground of relief.

court is further of opinion, that the objection for the want of proper parties comes too late, if indeed the objection would have availed at any time. The bill filed *by the appellee avers that certain persons named by him now compose the “Meigs County Tennessee and Virginia Mining Company;” and these persons are made defendants — the home defendants by service of process, and the non-residents by order of publication. None of the defendanls controverted this averment; nor is the want of proper parties suggested in the pleadings. One of the appellee’s witnesses undertakes to say there are two or three interests not represented — persons who were members of the company in 1854. It is very probable the witness is either mistaken upon this point, or the persons alluded to by him have long since transferred their interests to others who are before the court. Be this as it may, it is an all-sufficient answer to the objection-that it is for the first time made in this court.- Where that is the case the objection will not avail unless it is manifest that the absent party is indispensable.

The rule on this subject is, that where the defect in not making proper parties appears on the face of the bill, the objection may, and ought, to be made by demurrer. Where it does not so appear it should be made by plea or answer. 2 Rob. Prac. 276, old ed. When, however, the objection is delayed till the hearing in the appellate court — whether it will avail or not will depend much on the circumstances. If the absent party has an interest in the subject matter of controversy, of such a nature that a final decree cannot be made without affecting that interest, the appellate court, of its own motion, will direct that he be brought before the court, whether the objection was or was not made in the court below. If, on the other hand, the interests of the absent parties are separable from those of the parties before the court, so that the court can proceed to a final decree, and do complete justice -without affecting the absent parties, the latter are not regarded as indispensable. A defendant who claims that certain persons should be made parties to share a common burden ought to make *the objection, as a general rule, in the pleadings; and if the objection be delayed until the case reaches the appellate court, that court will not require it unless it is clear that the absent party is likely to be prejudiced by the decree. Shields v. Barrow, 17 How. U. S. R. 130: Story v. Livingston, 17 Peters R. 359, 375. Here persons, owning more than three-fourths of the interests, are before the court, and the decree is for the sale of those interests only. Such a sale cannot affect the interests, of the absent parties. The purchaser under the decree will occupy the position of tenant in common with the parties whose interests are not sold. The latter will hold their shares exempt from liability until proper proceedings are had against them to enforce contribution. Nor will they be concluded by the decree in this case from making any just and proper defence. It is also to be borne in mitjd that the objection for want of proper parties is not made by the defendants whose interests are decreed to be sold, but by the appellants who, as has been seen, are not in privity with these defendants. but assert an adverse claim.

For the reasons stated, the court is of opinion there is no error in the decree of the circuit court, and the same must therefore be affirmed.

Decree affirmed.  