
26 U.S. 241 (____)
1 Pet. 241
JAMES FINDLAY, WILLIAM LYTLE, CHARLES VATTIER, ROBERT RITCHIE, AND OTHERS, CITIZENS OF OHIO, APPELLANTS,
vs.
THOMAS S. HINDE, AND BELINDA HIS WIFE, CITIZENS OF KENTUCKY, APPELLEES.
Supreme Court of United States.

*242 The bill, answer, exhibits, and depositions, showed a case containing many controverted facts and allegations; and the questions of law arising upon the same, were elaborately argued by Mr. Webster and Mr. Caswell, for the appellants; and by Mr. Dodridge and Mr. Jones, for the appellees.
*243 Mr. Justice TRIMBLE delivered the opinion of the Court. 
This is a contest for lot number 86, in the city of Cincinnati. The appellees, who were complainants in the Court below, claim the lot, in right of the complainant, Belinda, as half-sister and heir at law of Thomas Doyle, Jun. only son of Thomas Doyle, the elder.
In the year 1795, Abraham Garrison became the proprietor, and was seised in fee of the lot in controversy.
The bill charges, that on the 10th of September, 1799, Abraham Garrison, being so seised, sold the lot to William and Michael Jones, brothers, and partners in trade, for the price of 250 dollars; part of which being paid, the said Abraham Garrison gave a receipt for the same, binding himself to convey; which receipt is annexed, and made part of the bill: That a few days after, the said Abraham Garrison made a deed of conveyance, attested by two witnesses, to the Jones's, for the lot; which deed has been lost by time and accident: That on the 26th of March, 1800, William Jones, in behalf of the firm of William and Michael Jones, conveyed the lot to Thomas Doyle, jun.; and that although the intention of that conveyance was to pass the title of both partners, and is in equity good for that purpose; yet, as it did not pass the legal title of Michael Jones, he has since, in the year 1819, for the purpose of confirming the title of the complainants, made a deed of confirmation to the complainant, Thomas S. Hinde.
Various other matters are stated in the bill, as strengthening and confirming the equitable right of the complainants, in right of the said Belinda, as heir at law of Thomas Doyle, jun.
The bill charges, that the defendants have fraudulently, and with notice of the claim of Thomas Doyle, jun. and of the complainants, subsequently, obtained conveyances of the legal title, from and under Abraham Garrison, and seeks discovery and relief.
The defendants, James Findlay, William Lytle, Charles Vattier, and Robert Ritchie, answered; and the bill was taken as confessed, against the other defendants, for want of answer.
The answer put in issue, generally, the allegations of the bill, and the title of the complainants; but it is not a present necessary to say, whether they do or do not, sufficiently, deny notice.
It appears, from the answers, and title deeds filed in the cause, that all the defendants, as well those who have not answered, as those who have, are interested in defending the title *244 of the lot: they standing in relation to each other as vendors, warrantees, and vendees.
At the hearing of the cause, in the Circuit Court, the defendants; Vattier and Ritchie, were decreed to convey to the complainants; and costs were decreed against all the defendants; and all of the defendants have joined in the appeal to this Court.
The appellants contend, that the decree is erroneous, upon several grounds, which have been very elaborately argued at the bar. Among these, two preliminary objections have been raised, to the regularity of the proceedings and decree; and if either of them be sustained, it will be unnecessary to consider the more important objections made to the decree, upon the merits of the conflicting claims of the parties.
The first preliminary, objection is, that no affidavit of the loss of the deed, from Garrison to the Jones's "by time and accident," as charged in the bill, was made and annexed to the bill.
In support of this objection, the counsel for the appellants have cited numerous authorities, to prove, that when the loss of a deed, or other instrument, is made the ground for coming into a Court of Equity, for discovery and relief, an affidavit of its loss must be made, and annexed to the bill  and, that the absence of such affidavit, is good cause of demurrer to the bill. But no case has been cited, and none is recollected, in which has been decided, that although the party charged, failed to demur for that cause, but answered over to the bill, or permitted it to be taken for confessed, by default, against him, yet the absence of the affidavit is sufficient cause for a reversal of the decree.
If such a decided case were shown, we should exceedingly doubt its reason and authority.
The objection appears to us to be of that character, which ought to be made at the earliest practicable stage of the cause; and if not then made, should be considered as waived. Upon the face of the bill there is an apparent jurisdiction, and the use of the affidavit is only to show, prima facie, the truth of the matter.
It is not like the cases in which there is an apparent want of equity, on the face of the bills, admitting all the facts stated to be true; nor like the case, in which it is apparent, on the face of the bill, that a Court of Equity could have no jurisdiction of the matters charged. In such cases, although a demurrer will be to the bill, yet none is necessary; inasmuch as there is either an absolute want of equity, or of jurisdiction.
We think the supposed former existence and loss of the deed from Garrison to the Jones's, was not the only ground for appealing *245 to a Court of Equity for relief. If the deed, as stated in the bill, were produced, it, in consequence of not being proved, or acknowledged and recorded, would be insufficient as a legal title against subsequent purchasers, without notice. The complainants had a right to a discovery, upon the ground of notice, against the defendants; and if notice should be brought home to them, the complainants had a right to relief, by a decree quieting the title, &c.
Again: If the complainants should fail, as we think they have failed, to prove, by competent and satisfactory evidence, the former existence, execution, and contents of a formal deed of conveyance, sufficient to pass the legal title; we perceive no reason why they might not rely upon the executory contract contained in the receipt; and in this latter view of the case, the jurisdiction of the Court of Equity is unquestionable; and a general demurrer to the whole bill, for want of an affidavit, would not be sustainable. At most, a demurrer to only so much of the bill as stated and relied on the deed, could have been maintained for want of an affidavit of its loss.
The second preliminary objection to the proceedings and decree, is the want of proper parties.
It has been argued, for the appellants, that Abraham Garrison was a necessary party; and, that as the complainants claim through him by an executory contract; he ought to have been before the Court before any decree could be made against the defendants; who also claim through and under him, by a subsequent conveyance of the legal title.
The counsel for the appellees endeavoured to overcome this objection, by arguing, that the deed from Garrison to the Jones's, conveyed the title from him to them; that the contract was, therefore, not executory, but executed between Garrison and the Jones's; and further, if it were not so, that there was no necessity for bringing Garrison before the Court; he having conveyed away the legal title to the appellants; and that therefore no decree could be made against him.
We have already said, the evidence in the cause does not establish a formally executed conveyance from Garrison to the Jones's, sufficient to convey the legal title; and that the complainants are therefore driven to rest their case upon the executory contract, contained in the receipt.
Under this aspect of the case, was it necessary to make Garrison a party, to enable the Court to pronounce a decree between the parties, really before the Court?
In the case of Symmes vs. Guthrie, 9 Cranch, 25, this Court declared the general rule to be, that, "regularly, the claimants who have an equitable title, ought to make those whose title they assert, as well as the person for whom they claim a conveyance, *246 parties to the suit." "And that for omitting to do so, an original bill may be dismissed."
In the case of Mallon and others vs. Hinde, 12 Wheat. 193. 196, the complainants claimed a survey in the military district, in Ohio, by virtue of certain executory contracts, with Elias Langham, and the heirs of Sarah Beard; and sought, by their bill against Hinde, to obtain a conveyance from him of the legal title; which, it was alleged, he had fraudulently obtained, with notice of the complainants' prior equity. Langham, and the heirs of Sarah Beard, were not made defendants; and for that cause, the decree was reversed. There is no distinction, in principle, between that case and this. In that case, this Court, in delivering its opinion, hold the following language: "For the appellees, it is insisted the proper parties are not before the Court, so as to enable the Court to decree upon the merits of conflicting claims. And we are all of that opinion." "The complainants can derive no claim in equity to the survey, under or through Langham's executory contract with the Beards, unless these contracts be such as ought to be decreed against them, specifically, by a Court of Equity." "How can a Court of Equity decide, that these contracts ought to be specifically decreed, without hearing the parties to them? Such a proceeding would be contrary to the rules which govern Courts of Equity, and against the principles of natural justice."
This reasoning applies with equal force to the case at bar. Here, however perfect all the other links may be in the chain of the complainant Belinda's equitable title to the lot in contest, she can have no claim to it in equity, but through and under the executory contract of Garrison with the Jones's. Garrison has a right to contest the equitable obligation of that contract. No decree can be made for the complainants, without first deciding, that the contract of Garrison ought to be specifically decreed. He might insist the purchase money had not been paid, or make various other defences. It is not true, that if he were made a party, no decree could be made against him. It might not be necessary to require him to do any act, but it would be indispensable to decide against him the invalidity of his obligation to convey, and overrule such defence as he might make; and if the purchase money had not been paid, to provide by the decree for its payment, before any decree could be made against the defendants holding the legal title. We are all of opinion, that upon this second preliminary objection, the decree of the Circuit Court must be reversed.
A question of some difficulty presents itself, as to the extent of the reversal. The decree of the Circuit Court directs the defendants, Ritchie and Vattier, to convey certain portions of *247 the lot of ground; and awards costs, generally, against all the defendants. There is no doubt, the defendants, against whom there is only a decree for costs, could not appeal alone, from the decree of costs. But the defendants, below, have all appealed together, and although some of them hold the legal title to the lot, yet they all have an interest in defending the title; standing as they do, in the relation of vendors and warrantees, and vendees. Under these circumstances, we think the reversal should be general, as to all of the appellants, and the whole case opened. And we are the more inclined to adopt this course, because, so numerous, and so great, have been the irregularities in conducting the cause in the Court below, from its commencement to its termination, by decree; that it seems impracticable that justice be done between the parties, without sending the cause back, as to all the parties; with directions, that the complainants have leave, if asked by them, to amend their bill, and make the proper parties; and to proceed dé novo in the cause, from filing such amended bill.
This cause came on, &c. on consideration whereof, It is the opinion of this Court, that there is error in the proceedings and decree of said Circuit Court, in this, that Abraham Garrison ought to have been made a party, but was not, before a decree was made between the parties in the cause. Whereupon it is adjudged, decreed, and ordered, that the decree of said Circuit Court, for the district of Ohio, in this cause, be and the same is hereby wholly reversed, annulled, and set aside. And it is further ordered, that the cause be remanded to the Court from whence it came, with instructions to permit the complainants, upon application for that purpose, to amend their bill, and to make proper parties, and to proceed de novo in the cause, front the filing of such amended bill, as Law and Equity may require.
