Huter v. Gallagher and others, 4 Mo. 364

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*