
    Wilson v. Holt.
    
      Application for Mandamus io Chancellor, in matter of adding Parties.
    
    1. Non-joinder of parlies. — The non-joinder of necessary parties is available on demurrer, motion to dismiss, or by plea or answer, as the defect may appear on the face of the bill, or be made to appear ex-trinsicallv; and when the absent parties are indispensably necessarj^, so that the cause can not be properly disposed of on the merits because of their absence, the objection may be taken at the hearing, or on error, or by the court ex mero motv.
    
    2. Heirs or devisees, as holders of legal title to land; when necessary parties to hill. — The heirs or devisees of the deceased wife are necessary parties to a bill filed bv the heir at law of the deceased husband, seeking to establish his equitable interest, under an ante-nuptial contract, in lands which had belonged to the wife, and which had been sold under a probate decree on the petition of her administrator, with an account of rents and profits against the purchaser, when it appears that the order of sale was void for want of jurisdiction, on account of defects in the administrator’s petition.
    3. Striking out parlies on demurrer, and afterwards introducing them by amendment. — When necessary parties to the bill have been erroneously struck out on demurrer, they may he again introduced by amendment, after theremandmentof the cause on reversal by this court; and this may be ordered by the court ex mero moiu, or at the instance of the former demurring defendant.
    
      This was an application by Waldo P. Wilson, by petition and motion, for a mandamus to tbe Hón. JOHN A. Fostbe, presiding in the Chancery Court at Mongomery, commanding him to strike out an order made at the April term, 1888, in a certain cause pending in said court, wherein said Wilson was complainant, and Jas. L. Holt and others were defendants ; by which order, at the instance of the defendants, and against the objection of the complainant, he was required to bring in, as parties to the bill, the devisees under the will of Mrs. Emeline S. Wilson, deceased. The bill was filed by said Wilson, on the 29th day of January, 1883, for the purpose of establishing and enforcing his rights, under an alleged ante-nuptial contract between his deceased father and Mrs. Emeline S. Chambliss, then the widow of David Chambliss, deceased, in and to a large tract of land near the city of Montgomery; also, for a partition of the lands, and an account of the rents and profits from the several defendants, who were in possession as purchasers and sub-purchasers at a sale made by Mrs. Wilson’s administrator with the will annexed, under a probate decree rendered on his own petition. The devisees under the will of Mrs. Wilson were made defendants to the bill, but a demurrer was sustained on account of it as a misjoinder, and their names were struck out. The demurrer was overruled on other grounds, and also a motion to dismiss the bill for want of equity; and the decree of the chancellor was affirmed by this court, on appeal sued out by the defendants. — Holt v. Wilson, 75 Ala. 58. Afterwards, on final hearing on pleadings and proof, the chancellor dismissed the bill; but his decree was reversed by this court, and the cause was remanded.— Wilson v. Holt, 83 Ala. 528. At the April term, 1888, after the reversal and remandment, the defendants amended their answer, by leave of the court, and insisted that the devisees under the will of Mrs. Wilson were necessary parties; and they moved to dismiss the bill on that ground. The cause being submitted, as the chancellor’s decree recites, “on objections to the bill for the want of necessary parties,” he held that said devisees were necessary parties, and ordered that they should be brought in. The complainant now asks a mandamus from this court, commanding the chancellor to vacate this order, and also to strike the amended answer from the files.
    Tompkins, LONDON & Teoy, and Watts & Son, for the petitioner.
    In legal proceedings, a party can not take advantage of bis own mispleading, nor complain of any action of tbe court bad or taken at bis instance. — Hill v. Huclcabee, 70 Ala. 183; Caldwell v. Smith, 77 Ala. 157; Jones v. McPhiilips, 82 Ala. 116. If tbe chancellor deemed tbe devisees necessary parties, be might have rendered a decree saving their rights. — Code, § 3453. By requiring new parties to be brought in at this stage of tbe cause, tbe defendants secure tbe right to take additional testimony, tbe complainant is compelled to retake depositions, and may eventually lose tbe fruits of this long litigation by tbe death or removal of bis witnesses; and it may at last appear that tbe new parties are barred by tbe statute of limitations, or are equitably estopped by having received their share of tbe purchase-money.
    Beickell, Semple & Guntee, and Geaves & Blakey, contra,
    
    insisted that a mandamus was not tbe proper remedy, citing cases in 3 Brick. Digest, 625, § 6; also, Ex, parte Elston, 25 Ala. 72; 98 Amer. Dec. 378.
   SOMEBYILLE, J.

This case has heretofore twice been before this court on appeal. — Holt v. Wilson, 75 Ala. 58; Wilson v. Holt, 83 Ala. 528. Tbe application is now for tbe writ of mandamus, to compel tbe chancellor to strike out an order requiring an amendment of tbe bill so as to make tbe devisees of Mrs. Emeline Wilson parties to tbe suit, on the ground that, as holders of tbe legal title to tbe property in controversy, they are indispensable parties.

It is manifest from tbe last decision made in tbe cause (83 Ala. 528), which resulted in tbe reversal and remandment of tbe cause, that tbe legal title was never divested out of such devisees, by reason of tbe fact that tbe order for tbe sale made by tbe Probate Court was held to be absolutely void.

Tbe question as to tbe introduction of necessary parties, is one which may.be raised by demurrer, motion to dismiss, plea, or answer, according as tbe defect may appear on tbe face of tbe bill, or be made to appear extrinsically. If tbe absent parties are indispensably necessary — so that tbe cause can not properly be disposed of on tbe merits without their presence — tbe objection may be made at tbe bearing, or on error, or it may be taken by tbe court ex mero motu. 3 Brick. Dig. p. 373, § 98.

Tbe record shows that these parties were at one stage of tbe proceeding introduced in tbe bill by tbe complainant, and, on demurrer by tbe defendants, making tbe objection tbat there was a misjoinder, were ordered to be stricken out by tbe court. Tbe sustaining of this demurrer was an interlocutory ruling, liable to be reviewed by tbe chancellor at any time before final judgment. — Brock v. S. & N. Ala. R. R. Co., 65 Ala. 79. When tbe decree was reversed and tbe cause remanded, tbe decision of this court made tbe error of tbe ruling obvious, and tbe chancellor could properly have ordered tbe amendment to be made, ex mero motu, upon tbe facts appearing in tbe averments of tbe amendment originally proposed and ordered to be stricken out. If be bad failed to take this step, tbe decree would probably have been reversed by this court on appeal, as was done in Lawson v. Ala. Warehouse Co., 73 Ala. 289, because of tbe absence of parties whose presence is necessary to quiet litigation.

The ruling sustaining tbe demurrer for uprd of proper parties was erroneous for two reasons: First, when parties who have no interest in a suit (admitting tbat tbe devisees of Mrs. Wilson bad none, as claimed) are improperly joined as defendants, tbe other defendants can not take advantage of tbe misjoinder. — Horton v. Sledge, 29 Ala. 479. Second, tbe devisees were not only proper but necessary parties, on tbe ground, as we have above said, tbat tbe legal title of tbe land devised was vested in them, and was not affected by tbe void sale attempted to be made by tbe Probate Court. Wilson v. Holt, 83 Ala. 528.

No element of estoppel enters into this case. And tbe case is clearly distinguishable from Ex parte Cresswell, 60 Ala. 378, where tbe chancellor bad made an order setting aside and vacating a final decree rendered by him at a former, or adjourned term.

Tbe applicant fails in showing a specific legal right, and tbe writ prayed for will be refused on tbat ground, without deciding tbe question of tbe appropriateness of tbe remedy in this case.

Application denied.

CloptoN, J., not sitting.  