By the Court.
Nisbet, J.
delivering the opinion.
[1.] There is only one question in this record for our consideration — for but one decision was made by the Court below. We were invited, by counsel for the plaintiff in error, to the consideration of a number, which invitation we declined. The sole question is, whether Dempsey Connelly ought to have been retained as a party to the bill filed by the executors, to Samuel Pruitt’s will. We think that the presiding Judge did right in dismissing it, as to him. The bill was filed by the executors, for the purpose of getting protection against a contingent claim upon the estate, before proceeding to a distribution. They had refused to pay out the legacies, unless refunding bonds were given, upon the ground that one of them, to wit: John W. Pruitt, was the donee of a number of negroes, under a deed, with warranty of title from the testator, and that Dempsey Connelly claimed title to those negroes, as remainder-man, after a life estate in his mother, by deed of gift, executed by his mother before her intermarriage with the testator. The reasoning is this : Dempsey Connelly setting up a title in remainder, paramount to the title of John W. Pruitt, if that title is established, the covenant of warranty in the deed from the testator to John W. Pruitt will be bro*305ken, and he will be entitled to go upon the estate for damages; therefore, they, the executors, ask the Chancellor to decree, tjiat they may be allowed to retain effects sufficient to respond to that claim of damages. To get this decree, they have filed their bill, in the nature of a bill of interpleader, against all the legatees, and, also, against Dempsey Connelly, and pray that he, Connelly, shall litigate his title, and that the Court adjudicate it. The question is, can they compel him now to litigate his title? Is he a necessary party to the bill, with a view to the relief sought by the complainants ? If they are entitled to relief — if they are entitled to retain property sufficient to respond to the breach of the warranty — I see no reason why that relief may not be decreed, without bringing Connelly before the Court and deciding upon his title. A Court of Chancery might decree the relief, without a final adjudication of his title. It would have the whole case before it, and would, doubtless, frame a decree so as to do justice .to the legatees, protect the executors, and still leave Connelly unprecluded as to his title. All these things we leave to the Court below, upon the hearing. All that we now say is, that we do not see that, if the complainants are entitled to the relief they ask, at all, Connelly is a necessary party, in order to the granting of that relief.
Again : this is a bill filed for the aid and direction of Chancery, by the executors, in execution of the will. Connelly, who is a stranger to the will — who claims nothing under it — but who is alleged to hold title to property of the estate of the testator, paramount to the title of the testator, and derived from a third person, is made a party defendant, and required to litigate that title. Upon authority and principle, this cannot be done. “ No person (says Mr. Story) need be made a party to a bill, who claims under a title paramount to that brought forward and to be enforced in the suit, or who claims under a prior title or incumbrance not affected by the interests or relief sought by the bill. Thus, for example, on a bill to carry into effect the trusts of a will, a person who claims by a title paramount to that will, ought not to be made a party, in order to bring into contestation his rights under such paramount title.” Story’s Eq. Plead. §230. It seems to me, that this is the very case put by Mr. Story, in illustration of the rule. See, also, Devonshire vs. Newenham, 2 Sch, fy Lefr. 207, 212. Pelham vs. Gregory, 1 Eden. R. 520. S. G. 6 Bro. ,Ch. *306R. 575. 3 Bro. Par. Cas. by Tomlins, 204. Eagle Fire Ins. Co. vs. Lent, 6 Paige’s R. 635. Lange vs. Jones, 5 Leigh’s Rep. 192. Story’s Eq. Plead. §§148, 149. 1 Daniels’ Ch. Prac. 313.
Let the judgment be affirmed.