
    Huter v. Gallagher and others.
    1. In chancery. A. sold his interest as heir to a tract of land to B. who sold to complt. A. afterwards sold the same interest to C. who purchased with full knowledge of the previous sale, and refused to make the necessary deeds to B. though requested to do so by B.— Bill prays, that A. may be compelled to convey to B. or complt. and that the deed from A. to C. may be cancelled. A., B. and C. were made defs. to the bill but the subpoena was not served on B.
    
      2. Held, that A. and C. should be made to answer — that B. should be brought in by an alias subpoena or publication, and that complainant should ask a decree of title to himself.
    Jinkensv. Hill, 6 Mailock v. BulIer 10 sec. 315. ’ ‘ ' 1S'
    Rector v. Price, l •377-
    
    Wa(jswonIl v Wendell, s jT’c. R.
    Sugdtui on Ven, M'acl- Qiy> 329,
    statement of the case.
    ^^“S'estfñ a tract of land to 13. who sold to wards1 sold same interest to c. who purchased Wdle of^the11 pro-vious sale, and refused to make the to^B^thou^h6 quested todo so byB. Bill c'm veytoB. or plainant, and that the deed celled^a.. B. c.- were made b¡!)dbuT the poe’na was not served on B.
    
      IN chancery. — Appeal from the circuit court of Washington county.
    P. Cole for appellant.
    Gallagher, sold his interest as an heir in the land, and covenanted nothing beyond that, but had he sold an estate in fee, when the facts of the cause shewn, he had no such title, yet a specific performance should be decreed, because the vendor may have the means of curing the defect. In the cases in the margin, the court held that when the title is bad, but the defect can be cured, if the vendee is unwilling to stay, the vendor should file a bill in equity, to enforce the performance of the contract. The court also, when a vendor could not make a title, has indulged heirs more than once for getting in the title. The complainant therefore does not ask the court to decree, to be done in this behalf, what cannot be done, cause it were fruitless to do so; but to compel the defendants, to the performance of the contract between Gallagher and Haverstick, which they can very well perform. Again; McCabe, subsequently to the sale to Haverstick, bought the same land of Gallagher with perfect notice of the first sale. In such case, the subsequent purchaser, is considered as purchasing subject to the equity title of the plaintiff under the agreement, and will be decreed to specifically perform the contract. Sugden says that it may be laid down as a general rule, that a purchaser with notice, is in equity bound to the same extent, and in the same manner as the person was of whom he purchased.
   Opinion delivered by

Wash, Judge.

Hunter his in the Washington circuit court. The bill states, that as ■ early as the vear 1803, one Joseph Reed, in virtue of the usages of the then Spanish Government, obtained an inchoate title to a tract of land situate in Washington county aforesaid, containing 640 acres — that said tract of land, had been recommended by the late board of commissioners, for the adjustment of land titles in Missouri, to the Congress of the United States, for final confirmation. That about the year 1820, said Reed sold his title or interest in said land to one David Gallagher, who took possession thereof, and remained in possession under his purchase aforesaid, until his death, which occurred about the year 1825. That said David Gallagher died intestate, a widow and nine children. That no administration has ever been granted upon the estate of said Gallagher &c. That on or about the 21st of February 1835, "^ Gallagher, the defendant and one of the appellees, who is one of the nine children and heirs at law of the said David, sold his interest in said tract of land for a valuable re-cons^era^on’t0 ^ie defendant Jacob Plaverstick, who afterwards, on or about the 6th of July 1835, sold and the interest and title thus acquired to the com? Hunter, for a valuable consideration. That on about'the 21st of March 1835, and after the said James Gallagher had sold to Haverstick as aforesaid, he the said again sold the interest held by him in said tract of the deft. McCabe — that McCabe at the time of purchase, had notice of the 'previous sale to Haver-The bill makes exhibit of the title bonds, eviden-cing the sales from Reed to David Gallagher, from James Gallagher to Haverstick, and from Haverstick to the complainant; as also,of the conveyance of James Gallagher to McCabe. The bill then proceeds to state, that about the month of March 1835, said Haverstick the defendant, had demanded a deed of conveyance from said defendant James Gallagher, of his, said James, interest in and to the said tract of land, purchased of said James as aforesaid, which deed, said James the defendant, refused to give &c. The complainant then proceeds in his bill to ask a specific performance of the contract made by Haverstick with James Gallagher — that the deed from James Gallagher to McCabe, be cancelled, and that the defendant James, be compelled to convey either to Haverstick or to the complainant &c. The subpoena was served upon the defendants Gallagher and McCabe only, the defendant Haverstick, not having been found the Sheriff.

Held that A. and C. should be made to answer — that brought in by an alias subpoena or publication, and that complainant sh°uld a de-himself. to

Gallagher and McCabe demurred generally to the bill for -want of equity, and had judgment, to reverse which, Hunter has appealed to this court.

The circut court erred in dismissing the bill as to the defendants James Gallahger and McCabe. The bill shows equity enough as against them, and they should be made to answer; but the complainant had no right to ask that the title be mnde to Haverstick. Raverstick ought to have been brought in by an alias subpoena or by publication. The decree of the circuit court must be reversed, and the cause remanded, with leave to complainant, to have the proper parties brought in, and to ask a decree oi the title to himself*  