(concurring):
I may be in error, but the morel reflect the more averse I become to the reversal of a decree giving plainti ff a decree against the land for its purchase money — a just debt ■ — for reasons assigned by Judge English. I grant that the court must have the legal title before it in order to confer it upon the purchaser, and that Morrill’s heirs would be necessary parties had they title; but they have not, but it is in Conant, a plaintiff. The bill was taken for confessed. It alleges that Morrill sold the land to Davis; that Morrill owned the land as trustee for the Gallatin Company; and had executed a deed declaring- such trust; that he was dead, and that Conant was trustee for the company; and that the devisees and heirs of Morrill had made a deed conveying to Conant, as trustee, “all right, title, and interest which they as heirs and devisees, have under the will of said Lot M. Morrill and as descended to them by law;” and that Conant had become, as trustee, substituted “to all rights, powers, duties, and authority which said Morrill has as trustee in his lifetime. ” Now, what scintilla of title or interest in the suit had Morrill’s heirs under these *117facts, shown by the bill, and taken fon true? Why make them parties? The estate of Morrill had no title to purchase money or the land. Riley was not a necessary party, and therefore the dismissal as to him amounted to nothing-. .The bill saysthat Morrill sold to Davis by executory contract, and then Davis conveyed • to Lester by deed, and Lester conveyed to Riley by deed, and Riley conveyed to Shinn by deed, and, as Shinn is a party, the land is followed into his hands, and all the right sold Davis by Morrill is found in his hands,and will pass, under the sale, the equitable title. Why make Lester and Riley parties? They have no title in them. Do you answer that they sold under warranty and ought to be parties to be bound by the decree? Morrill has nothing- to do with the rights between Davis, Lester, Riley, and Shinn growing out of their sales from one to another. The plaintiff cannot be called on to sue in such manner as to estop Lester and Riley from denying liability to Shinn under their warranties. As warranties run with the land, this rule would require a plaintiff to make all grantors in the line of title parties. That is matter foreign to the case as between Morrill’s assigmee and Morrill’s vendee, Davis. This is purely a suit g-rowing out of a sale from Morrill to Davis, and the adjustment of rig-hts between these intermediate alienees g-rowing out of other and different transactions, having no relation to the sale from Morrill to Davis, is utterly foreign to this suit. You cannot give relief between co-defendants unless it grow out of the pleading and proof between plaintiff and defendant. Bank v. Woodford, 34 W. Va., 480, (12 S. E. 544). But it is said that Davis had another title. What of it? When she brought in the Morrill title, the two titles united in her ceased to be adverse, and she conveyed both to Lester, Lester to Riley, Riley to Shinn. No matter whether the decree would sell both or not, no one has right to compel Morrill to bring in and adjudicate an adverse title, for the reason that this is a suit based alone on a sale from Morrill to Davis, and a contract between them; and even if Morrill has sold with general warranty, he would not. have to bring in owners of adverse title as parties, as adverse owners have a right to a trial by jury, and the adverse title is foreign to the subj ect in controversy *118between Morrill and Davis. But Morrill contracted for only special warranty. Outstanding- superior title in a third party would not bar him from relief ag-ainst the land. He is entitled to look to the land he sold. And particularly is this so, seeing- that both titles united in Shinn. Am I to be told that perhaps Riley sold to Shinn with warranty, and, as this suit is to fix a lien on the land which would break the warranty, Shinn is entitled to call on Riley to defend the title, and to have him before the court, so as to bar him from contesting the fact of such lien when sued on his covenant of warranty? Why, that is a matter between them, and Morrill has nothing to do with it. “A person is not a proper party between whom and the plaintiff there is no proper privity or common interest, but his liability is to another person” (Story, Eq. PI. § 227 \ even if he be consequentially affected {Id. § 226). It is not'enough that he is interested in the question adjudicated, if there can be no decree against him. Id. § 231. There could be no decree against Riley, if a party. In a bill “for specific performance of contract of sale of realty the' only proper parties, in general, are the parties to the contract itself.” Id. § 226b; Bart. Ch. Prac. 214. “No person need be a party who claims under a title paramount to that brought forward to be enforced in the suit.” Story, Eq. PI. § 230; Bart. Ch. Prac. 208, 214.
I intended to dissent from a reversal, but on examination I realize that the point made by the petition as to irregularity in the proceedings at rules is well taken, and calls for reversal. At rules there was an entry of process served on all defendants except Mary Davis and J. Ii. Riley, and alias summons was awarded as to them, and the case was continued for bill, and at subsequent rules bill was filed, and decree nisi as to all served, and alias again to Davis and Riley, and no entry at any rules taking- bill for confessed as to those served with process, and none setting- case for hearing as to them. Somehow, however, it got upon the hearing docket, as an order was entered dismissing- as to Riley and remanding to rules for process as to Davis. Process was subsequently served on Davis, and not an entry was made at rules of decree nisi, or bill taken for confessed, or setting cause for hearing. In fact, the case was not af-*119terwards put on tbe rule docket. At the term at which the final .decree was entered, sug-g-estion was made by plaintiff that, rules had not been indorsed on the bill and then entries were indorsed on the bill as follows: “April rules, 1893, process returned served on Mary Davis.” “May rules, 1893, bill taken for confessed, and set for hearing.” This will not do. This suggestion revealed the error at rules. There was no entry in the rule docket. The court, in its decree, ordered the bill taken for confessed; but the point is that never, at rules, was the case set for hearing. A defendant is bound to attend at rules when summoned; but I have yet to learn that a case can be entered on the hearing docket, and heard, without an entry at rules setting it for hearing, if the defendant do not appear, and thereby waive the error. Proceedings at rules must end and the case go on the hearing docket before there can be decree. Defendant is not bound to attend at term until the case ends at rules, and is ordered to go on the hearing docket. If an entry is made setting the case for hearing, he is bound to attend term; but, if not, he has the right to understand that the plaintiff will not ask a decree, as he has not set the case for hearing. The entry setting the case for hearing is indispensable. These proceedings at rules, especially the order to hear the case, are no empty formality. These rule proceeding's are carefully provided by statute to make cases ready for hearing. Bart. Ch. Prac. 241, says: “Proceedings at rules should be regulai'ly and exactly kept; and, if any mistake is made, thoug'h- they cannot be corrected at the next rule day, yet it is the duty of the court at the next term to have the correction made, and for that purpose to remand the case to rules, in order that proper proceedings may be had therein.” Now, a court cannot for the first time in term take a bill for confessed, and set for hearing. ' It may take for confessed, but not set for hearing', unless defendants have appeared. Section SO, chapter 125, Code, tells us just when, at rules, a plaintiff or defendant may have a case set for hearing, showing its importance. Instead of the court’s ordering entries to be made on the bill, which would be no part of the record, and amount to nothing, it should have remanded the case to *120rules, where, in fact, it was, with direction to mature the cause properly for hearing-. If there is no appearance it is as much the duty of the court to see that the case has been set for hearing- as to see that process has been served. It cannot hear until the case is ready for hearing. And even this entry on the papers related only to Mary Davis, and the case was never set for hearing at rules as to other defendants, and Shinn was the owner of the land. For this reason I agree to reverse the decree. These matters have seemed to me’ to be of sufficient importance in practice to call for this note.
Reversed.