Betton vs. Williams, et al.-Opinion of Court. containing nine hundred and sixty acres, which is particularly described in the bill. This sale was also on credit. Hunter having executed and delivered his bonds for the purchase money and interest, received from Nuttall, Braden and Craig the possession of the land contracted for, and their bond to make titles, when the purchase money should be paid. Hunter sold and assigned his contract to one Baker Johnson, from whom, by successive sales and assignments, the right and interest of Hunter in said contract, and the possession of the land thereunder, were passed through divers persons to the appellant, Turbutt R. Betton, who, at the time of filing the bill, was, and for some time previously had been, in possession of the premises, and claiming to hold under the contract of purchase aforesaid. At some time subsequent to the sale to Hunter by Nuttall, Braden and Craig, the time not being set forth in the bill, the latter entered into an arrangement with the Union Bank of Florida, by which, in consideration of the transfer of a sufficient number of the bonds which they had received from their vendees of the said lands, among which were the bonds of Hunter before mentioned, the Union Bank contracted and agreed with Nuttall, Braden and Craig, to pay their debt to General LaFayette, for principal and interest of the original purchase money, as their bonds should respectively fall due, and become payable. The Union Bank failed to pay the debt due to General LaFayette by Messrs. Nuttall, Braden and Craig, and, becoming embarrassed in its affairs, with the view to secure the payment of the said debt, transferred to the respondent, Robert W. Williams, who was the agent and attorney of General LaFayette, amongst other bonds of a similar character, the said bonds of John M. G. Hunter, upon trust, to sue for and collect the same, and apply the proceeds to the payment of the debt due LaFayette, in redemption of the engagement of the bank. The bill in this case was filed to subject the land sold to Betton vs. Williams, et al.-Opinion of Court. Hunter to the payment of the purchase money debt; and although the heirs at law of the original vendor, Gen. LaFayette, join in the suit as parties complainants, yet the suit is substantially a proceeding by Williams, the assignee of the bonds, to enforce the lien on the land, under the contract between Nuttall, Braden and Craig, and Hunter; the heirs of LaFayette join, we presume, as the persons holding the legal title, and who are willing to convey the estate, upon the execution of the sub-contract by the purchaser, or his assignee. Betton demurred to the bill, and the demurrer, upon argument, was overruled, and he was ordered to answer by the first Monday of February, 1849. No answer being filed, the bill was taken for confessed at Rules, at the clerk's office on that day. The cause then proceeded ex parte, and a final decree passed on the 20th June, 1850, and on the next day, Betton entered his appeal to this court. It is contended by respondents that this appeal cannot be sustained, because the appellant, in the court below, suffered the bill to be taken pro confesso, and the final decree passed by default. This is undoubtedly the rule in chancery in England, and which has been recognized and adopted as the correct rule in several of the States of the Union. 2 Smith's Chancery Practice, 22. 1 Bland's Reports, 12, 35. 8 Wendell's Reports, 219. 25 Wendell's Reports, 249. 12 Johnson's Reports, 493; and we think such rule is consonant with reason, and should be enforced here, so far as it can be made applicable to our practice. In New York, as in England, an appeal may be taken from an interlocutory order or decree, and if the party declines to appeal, or omits to do so, within the time limited, he will be considered as acquiescing in the propriety of the decree, and a subsequent default, will debar him from bringing any question in the cause before the appellate tribunal. Sands v. Hildreth, 12 Johnson's Reports, 493. Kane v. Whittick, 8 Wendell's Reports, 219. Under our statute, an appeal may be taken only after a final decree, the consequence of Betton vs. Williams, et al.-Opinion of Court. which is, that the appeal opens every question decided by the chancellor in the Circuit Court during the progress of the cause, and, also, the regularity of the proceedings therein prior to a default. Betton could not appeal from the decretal order of December 29th, 1848, overruling the demurrer, because it was not a final decree. He could, we conceive, adopt either of two courses;-to answer the bill, defend the cause upon the merits, and, on appeal, present the questions arising on the demurrer to this court for its review, as well as the merits of the final decree; or, it was competent for him to do as he has done, after the judgment of the court on the demurrer, to abandon further defence, and rely on what he considered the erroneous judgment of the chancellor. Mr. Betton was not in default until February rules, 1849, consequently we consider he has the right, after final judgment, to enter his appeal, and bring before this court the matters in the record prior to his defaultthe decree pro confesso, and all other subsequent proceedings in this cause, no matter how erroneous they be, cannot be examined into upon his complaint. From the view which we have taken of the effect of a decree pro confesso, or a default in a chancery proceeding, it results in this case, that our inquiry must be limited to the decree of the Circuit Court of the 29th December, 1848, overruling the demurrer, and if that judgment be found correct, the final decree must be affirmed. The demurrer does not allege a want of equity in the billindeed, it is conceded in the argument by counsel for the appellant, that Williams, as the assignee of the bonds of Hunter, given for the price of the land, and the interest thereon, has the same right, which the assignors, Nuttall, Braden and Craig, had, to subject the land to the payment of the debt; but it alleges a want of proper parties defendants in general terms. It is objected by the counsel for the respondents, that a Betton vs. Williams, et al.-Opinion of Court. demurrer, for want of proper parties, must show who are the proper parties-not, indeed, by name, but in such manner as to point out to the plaintiff the objection to the bill, and to enable him to amend by adding the proper parties. Such is the rule laid down in all the treatises on chancery pleading and practice. Mitford's Chancery Pleading, 180. 1 Daniel's Chancery Practice, 385. Story's Equity Pleadings, 238, 543. However, in Tourton vs. Flower, 3 Peere-Williams', 369, there was a demurrer for want of a particular party pointed to in the demurrer, by reference in compliance with the rule, and the demurrer, being held to be ill for that cause, as the party referred to was, in fact, before the court, it was then alleged ore tenus at the bar, the absence of another and necessary party, and the demurrer was held good for this last cause, though without costs-this seeming to be, according to the judgment of Lord Chancellor Talbot, the penalty for a demurrer ore tenus at the bar, as this was held to be. So in Pyle v. Price, 6 Vesey Junior's Reports, 780, there was a general demurrer, and the objection of the want of proper parties was alleged ore tenus. It was insisted in this case, that a demurrer for such a ground must point to the parties, by name or by reference. Lord Eldon is reported to have said, it was doubtful whether there was a general rule that a demurrer, for want of parties, must state the parties; and in a late case in the English chancery, The Attorney General v. Poole (4 Mylne & Craig's Reports, 32,) Lord Cottenham says upon this point, that Lord Redesdale, in his book, certainly so states the rule, and that that passage has been adopted by subsequent writers upon equity pleading, but no authority is referred to in support of the dictum. He says further "that it is not necessary to inquire how far that proposition is consistent with the general doctrine upon the subject of demurrers, or with the well established practice of allowing demurrers ore tenus, for want of parties. There seems, at least, sufficient ground for the Betton vs. Williams, et al.-Opinion of Court. doubt suggested by Lord Eldon, in Pyle v. Price." We find, also, a dictum of the Supreme Court of the United States, in Whiting v. The Bank, in which it is said, that the objection of a want of a proper party ought properly to have been taken by the parties in that suit at the original hearing, or upon appeal, if any, before the Appellate Court. See 13 Peters' Reports, 14. We are, however, satisfied that the objection to the demurrer, if available at all, should have been taken in the court below, by a motion to have the demurrer taken off the file, or some other appropriate motion, by which the court would have passed upon the validity of the pleading, and the judgment thereon being entered of record, its propriety could have been reviewed by this court, on appeal. In the case at bar, the ground stated in the demurrer is, that the proper parties are not made defendants to the suit; and as this objection is taken by demurrer, and the defect, if it exists at all, must appear on the face of the bill, we are inclined to think it sufficiently certain, especially if, on examination, we find that the persons omitted are "indispensable to a complete adjudication of the rights of all interested, so that the performance of the decree of this court may be perfectly safe to those who are compelled to obey it, and, also, that future litigation may be prevented." Story's Equity Pleadings, $72. It is alleged in argument by the appellant, that the following persons are necessary and proper parties, and who should have been made defendants in this suit: 1 William P. Craig, the heirs at law of William B. Nuttall, and the heirs at law of Hector W. Braden, who are the vendors of the land in question to Hunter, and who are bound by their contract with him to execute a title, on payment of the purchase money. 2 John M. G. Hunter, the vendee of Nuttall, Braden and Craig, who is still liable on his bonds for the purchase money and interest, and is interested in taking |