
    CHARLESTON
    Thompson v. Hern.
    Submitted June 11, 1907.
    Decided November 12, 1907.
    1. Exmcutohs and Administbatoks — Parties to Actions.
    
    To a bill in equity, seeking the release of a vendor’s lien, reserved in his lifetime by a person wlio has since died, the personal representative of such person is a necessary party, (p. 49S.)
    2. Aiumíad — Defect of Parties — Waiver.
    The defect of want of necessary parties is not waived by failure to assign it specially as a ground of demurrer; and when a demurrer has been interposed and overruled and a decree'entered, without such special assignment either on the demurrer or at the hearing, it may nevertheless be relied upon in the Appellate Court, (p. 499.)
    Appeal from Circuit Court, Monroe County.
    Bill by II. Preston Thompson and others against Cornelia Hern and others. Decree for plaintiffs, and defendants appeal.
    
      Reversed. Remanded.
    
    
      John W. Arbuciclb, fbr appellants.
    Rowan & Meadows, for appellees.
   POEFENBARGER, JUDGE:

H. Preston Thompson and others obtained, in the circuit court of Monroe county, a decree, requiring, from some of the heirs at law of Levi Jones, deceased, the release of a vendor’s lien on a tract of 103 acres of land, conveyed to Thompson by Jones by a deed dated July 21, 1879,- in fulfillment of a prior contract of sale, for and in consideration of the sum of $250.00, of which $25.00 was paid in cash and for the residue of which .Thompson had executed his three promissory notes for $25 ..00, $100.00 and $100.00, to become due, respectively, on the first days of October, 1878, 1879 and 1880; from which decree the defendants below have appealed.

Plaintiffs rely upon long lapse of time, as raising a presumption of payment, and the defendants resist this by production of the notes, claiming them to have been found ■among the papers of the decedent and denying payment, .and by averment of their tender years at the time of their father’s death, and their ignorance of the non-paj^ment of the .notes.

Owing to the failure of the plaintiffs to make the administrator of the decedent a party, the decree will have to be reversed, without reference to the merits of • the cause. As the administrator is the legal representative of the personal estate, the legal title thereof is in him; and the allegation of payment is the assertion of a right against him. Under certain circumstances, distributees may sue a creditor of the estate in equity, as in the case of collusion between the personal representative and creditor, and refusal of the former to sue. Matheny v. Ferguson, 55 W. Va. 656; Wilson v. Straight, 46 W. Va. 651; Poling v. Huffman, 39 W. Va. 320; Tabb v. Cabell, 17 Grat. 160. But this case is not within the exception. The distributees here are defendants, making no complaint of any dereliction on the part of the administrator, and the exception presupposes the appointment of a personal representative and dereliction on his part while this bill does not. It is argued that a decree will not always be reversed for the want of proper parties, but

tliat rule applies only when the court can see that no right of the absent party is affected by it. Sometimes interests are severable, but such is not the nature of the interests involved here. The administrator’s title extends to the entire subject matter of the controversy, the debt and the lien to secure payment thereof, wherefore the case is not within the principle invoked. In this connection, delay in raising the objection is relied upon, it not having been specifically set up in the court below, but there was a demurrer to the bill, clearly covering it, which the court overruled, and , as the objection goes to the very root of the decree and ground for it was so laid in the trial court, we perceive no theory, and know of no authority upon which we can refuse to entertain it. When want of necessary parties is disclosed by the record, as it is here, the defect may be' relied upon in the appellate court, although it was not set up in any way in the court below. Reger v. Gall, 54 W. Va. 373; Gall v. Gall, 50 W. Va. 423; Miller v. Morrison, 47 W. Va. 664; Moore v. Jennings, 47 W. Va. 181; Graves v. Hedrick, 44 W. Va. 550. Whether an administrator was ever appointed is not disclosed by the record. The briefs say administration was, many years ago, cast upon a sheriff of the county whose term of office has expired, and, upon this statement, which in no sense brings the fact into the record, is predicated the untenable claim that, on the expiration of his term, the assets of the estate necessarily went into the hands of his successor, so that he can have no interest in the suit. That the status of such an administration is the same as that of any other has been repeatedly declared. Hutcheson v. Priddy, 12 Grat. 85; Lucas v. Locke, 11 W. Va. 81; Brewer v. Hutton, 45 W. Va. 106; Tunotall's Admr. v. Withers, 86 Va. 892; Dabney's Admr. v. Smith's Legatees, 5 Leigh 13; Douglass' Ex'r v. Sumps, 5 Leigh 392; Tyler v. Nelson's Admr., 14 Grat. 214; Mosby's Admr. v. Moseby's Admr., 9 Grat. 601.

That the administrator is a necessary party when the bill alleges payment of money due the decedent, as the very ground on which relief is sought, admits of no doubt. Hill v. Proctor, 10 W. Va. 59; Nichols v. Nichols, 8 W. Va. 174; Caldwell v. Prindle's Admr., 11 W. Va. 307. The defect of want of necessary parties may sometimes be waived, but there is no waiver here.

For the error aforesaid, the decree will be reversed and the canse remanded, with leave to the plaintiffs to amend, by making the administrator of Levi Jones, deceased, a party defendant.

Heversed. liemanded.  