This suit was brought by all of the heirs of Grace B. Noble except one, against that one for partition of land.
Appellant intervened, claiming that he and the other heirs of his father, whose names were given, owned an undivided interest of one-half in the land sought to be partitioned.
Plaintiffs replied to the intervention, defending against it by pleading the proceedings in a former suit as an adjudication against intervenor of the issue of title, and also pleading the statute of limitations of five years, but not praying for affirmative relief against the intervenor.
The intervenor did not appear at the trial, and a decree was rendered that he take “nothing by his intervention,” and directing the partition of the land between plaintiffs and defendant.
We think that the proper judgment for the court to have rendered under these circumstances would have been to dismiss the intervention without prejudice. An intervenor against whom no affirmative relief is asked by the pleadings of the other parties to the cause occupies so much the position of a plaintiff that the only proper action to take with regard to him when he fails to appear is to dismiss his suit for want of prosecution.
The fact that the intervention is in a suit for partition does not change or affect the rule. As long as the pleadings or evidence fail to show in a suit for partition that there are persons interested in the title that is the subject of that suit, who have not been made parties to it, the proceedings may properly be prosecuted to a final decree and execution.
If there be a superior title outstanding in persons not made parties to the suit, or if there be persons interested in the title adjudicated who have not been made parties, their title would remain unprejudiced, and the decree rendered would not be binding upon or of any effect as to them.
It was not incumbent upon plaintiffs to make either the intervenor or the other persons named by him parties, as their claims did not originate *282in the title of which they sought partition, but, on the contrary, were adverse to it.
If plaintiffs saw proper to do so they could by making its owners parties have had that or any other adverse title litigated. If they did not do so, every owner of a title not litigated, and every owner under the title that was in issue not properly made a party to the proceeding, should have been left unprejudiced by the final decree. This would have been the effect of not making the intervenor a party to the suit. The effect of a judgment upon the merits against him, when he had voluntarily become a party, is to bind him.
Other errors assigned are not properly presented for decision by the record.
The judgment is reversed and the cause is remanded.
Reversed and remanded.
Delivered February 25, 1890.