#### THOMAS HOWERTON vs. JOHN WIMBISH, ADM’R.

The wife of one claiming a part of a fund raised by a sale of land, under a decree of a Court of Equity, of winch land, it is alleged, she is a tenant in common, is a necessary party.

Where land has been sold under a decree of a Court of Equity, and on a petition by one of the parties, the fund has been ordered to be paid to him, it is not competent for one who was a party to the original petition, and who acted as a commissioner to- make the sale, to file a bill in the nature of a petition, in the Court of Equity of another County, praying that a part of the fund may he paid to him, on the ground that he had no notice of the interlocutory petition.

Cause removed from the Court of Equity of Orange County.

The bill, which professes to he in the nature of a petition, alleges that James Vaughan died in the County of Granville, in the year 1816, having made and published his last will and testament, which was duly proved in the County Court of that County, and that he therein bequeathed and devised as follows:

£{ I lend to my beloved wife, Ann Vaughan, my whole estate, real and personal, in manner and form as hereafter to be stated and directed, with some exceptions hereinafter to be *329made, during widow-hood. Item. I give and bequeath to my beloved wife, Ann Yaughan, one third of my estate, real and personal, my carriage and two best horses, four beds and furniture, all the curtains and toilets of every description, to her and her heirs forever. Item. In case it should be more convenient to my beloved wife to have the hTutbush land and my manor-house and land, and even the negroes, sold, (the latter, however, I suppose she ought to keep, as she will have two-thirds during widow-hood, and one-third in fee,) she is at liberty to do so, as she will have ample ¿money to purchase elsewhere.”

That Mrs. Yaughan was seized and possessed of the property thus devised and bequeathed, from the death of her husband till her own death, which occurred in January, 1833» That before her death, she made and published her will, which bears date 14th of September, 1832, with a codicil which bears date 9th of December, 1832, which was also proved in the County Court of Granville, and recorded; in which last mentioned will she devised and bequeathed to her granddaughter, Maria Howerton, her heirs and assigns forever, the Mutbusli tract of land and plantation, also the house and lot in the town of Williamsborough, where she resided. That at the time of making the last mentioned will, Maria Howerton was the wife of the plaintiff, Thomas Howerton, and has continued such to the present time. That the plaintiff and his wife, Maria, had children born alive at the time of the making of the said will, and he entered into possession of the real estate so devised by the said Ann to his wife, and became seized of the same. That a bill in Equity was filed in the Court of Granville County, at the September Term thereof, in favor of Osborn Yaughan and others, against Samuel Dickens, the executor of James Yaughan, Thomas Yaughan, and Thomas Howerton, executors of Mrs. Ann Yaughan, praying, among other things, for a sale and division of the Nutbush land and manor-house and lot, in the town of Williamsborough, as devised by James Yaughan to Anne Yaughan, and by her to Mrs. Howerton. That a decree upon said bill was made at *330September term, 1836, of the said Court of Equity, appointing Thomas Howerton, the plaintiff, commissioner to sell the land in question ; that plaintiff did make sale of the said land according to the terms of the decree. That bonds for the purchase-money were taken, and by him filed in the office of the clerk and master, and approved by the Court; and the money subsequently collected by the clerk and master. That, in tiie year 1848, the defendant, as the administrator with the will annexed of James Yaughan, filed a petition in the Court of Equity aforesaid, praying that the fund in the office of the clerk and master might be paid to him, which, at the March, term, 1849, was accordingly ordered and decreed ; but that the plaintiff was not made a party to this petition, and that he had no notice of the proceeding, nor of the decree, before it was made. That in pursuance of this decree the money was paid to the defendant.

The plaintiff insists that, under the will of Mrs. Yaughan, lie is entitled to a part of the said fund. He alleges that he has applied to the defendant for the same, and that he has refused and still refuses to pay him any part thereof.

The prayer of the bill is, that the defendant account and pay over to plaintiff such part of the fund as he may be entitled to, and for general relief.

The defendant demurred to the bill specially, for that Maria Howerton, the wife of the plaintiff, should have been made a party to the same; also, generally, for the want of equity.

The cause was set down for argument on the bill and demurrer, and sent to this Court under the act of Assembly.

Bailey, for plaintiff.

Graham, for defendant.

PeaRsok, J.

There are so many difficulties in the way of the plaintiff, any one of which is a good ground for sustaining the demurrer, that we hardly know upon which to put our opinion.

Treating this proceeding as a petition in the cause, we are *331informed that the cause was instituted in the Court of Equity for Granville County; so, this petition cannot he entertained in the Court of Equity for the County of Orange. To avoid this objection, the proceeding is styled “m the natnure of a petition” This is a novelty, hut it does not meet the difficulty. Besides, we are informed that in the cause in Granville, at March term, 1849, a decree was made, directing the clerk and master “ to pay over the fund to John Wimbish, which was accordingly done.” We are not informed whether there has been a final decree or whether the cause is still pending in Granville “ on further directions.” If the former, in order to get rid of the decretal order directing the fund to be paid over to John Wimbish, there' must be a bill of review; if the latter, there must be a petition to rehear in the same Oowrt, and not something “ in the nature of a petition” in another Court, praying a decree directly in the face of a decretal order, which still remains in full force and unreversed.

But if we treat this as an original bill, the difficulties accumulate. It asks the Court of Equity for Orange County, to decree that the defendant shall account with, and pay to, the plaintiff, a portion of a fund which the defendant received by force of a decree of the Court of Equity of Granville County, and is similar to an action of assumpsit for “ money had and received,” when the money has been recovered by a judgment.

Again, according to the plaintiff’s own showing, if he is entitled to a portion of the fund, his wife is entitled to the balance; so, if he recovers his part in this original bill, he will then file another original bill in the name of himself and wife, for her part, making two bills and two accounts in regard to the same fund. This is literally “ taking two bites at a cherry,” an unnecessary splitting up of a cause, which the practice of this Court will not allow; its policy being to discourage a multiplicity of suits; so his wife is a necessary party.

Again, according to the plaintiff’s own showing, his wife acquired title to the land mentioned in the pleadings, under tiie will of Mrs. Ann Yaughan; he entered and was thereof *332seized, had issue, and became entitled to a separate estate in his own right, as tenant by the courtesy initiate; but he does not show that the title of either himself or wife has been divested and passed out of them, so the land still belongs to them: of course, they can have no title to the fund now in question, that being a matter which it concerns the purchasers, under the decree in Granville, to see to.

As a last resort, the plaintiff informs us that, at September term, 1853, of the Court of Equity of Granville County, one Osborn Vaughan, and others, filed a bill against Samuel Dickens, executor of James Yaughan, and Thomas Yaughan and Thomas Howerton, the plaintiff, executors of Ann Yaughan, praying for a sale and division of the land. An order of sale was made, and he, Thomas Howerton, (the plaintiff,) was appointed commissioner, and as such, sold the land. The sale Avas confirmed, the money paid in, and afterwards paid over, by a decree of the Court, to John Wimbish, (the defendant,) who was the administrator, Avith the will annexed, of the original testator, James Yaughan. We are not told Avho this Osborn Yaughan was, but presume he was one of the heirs-at law of James Yaughan, and that “ the others ” Avere the rest of the heirs-at-law. So, it seems they acted upon the assumption that the land belonged to them as heirs-at-law, and asked for a sale, for the purpose of* partition among themselves, as tenants in common. We are unable to conjecture Avhy the executors of James Yaughan, or of Ann Yaughan, were made parties; but there is no suggestion that the bill contained any allegation that the land, or any part thereof, belonged to the plaintiff, or to his wife; so, the land was sold as the property of the heirs-at-law, and the right of the plaintiff and his wife unaffected by the sale.

To the question how can Howerton and his wife make out any title to the fund, the answer is, — true, Mrs. Howerton has no title ; but Howerton, the present plaintiff, is entitled to a portion of it by estoppel; and the argument is this: he is estopped, being a party of record. Estoppels are mutual; therefore, John Wimbish, the administrator with the will an*333nexed, cannot deny liis title to a portion of tlie fund. This is a nonsequitur. It would hit nearer the mark, if aimed at tire heirs-at-law, the land having been sold as their property ; hut it is a singular attempt on the part of the plaintiff, to take advantage of his own wrong, or rather his own folly, as a foundation for his title to a portion of this fund. Being a party to the bill filed by the heirs-at-law, he ought then to have alleged title in himself and wife, so as either to stop the sale, or j oin in and have his own title, as well as that of the heirs, sold, in which event he would have been entitled to a portion of the fund.

This distinguishes our case from Armfield v. Moore, Bus. R. 158, relied on by plaintiff’s counsel. There, the petition alleged that the slaves belonged to James Moore, Elizabeth Carnes and Jane Moore, each being entitled to one-third, as tenants in common. This allegation was acted upon, and partition made; and it was held that James Moore could not gainsay this state of facts, or be heard to say that Jane Moore was not entitled to one-third part, and that it belonged to him, as the administrator of the deceased husband of the said Jane. Here, there was no allegation that the land belonged to the plaintiff, and no action was taken in respect to his title.

If one stands by, and sees his land sold as the property of another, and does not make known his title, he is, in most cases, on the ground of fraud, not permitted to set up his title against the purchaser. The idea that, if there is no fraud, but mere ignorance or folly in not making known this title, and in making sale as commissioner, he can afterwards claim a part of the purchase-money, is of the first impression.

Pee Cueiam. Demurrer sustained, and bill dismissed with costs.