The opinion of the Court was delivered by
Willard, A. J.The actiou was trespass to try titles. The only questions presented by the record arise upon two propositions of law submitted to the jury. The matters set forth in the 1st, 4th, 5th and 6th grounds of appeal do not appear to have been the subject of *345any proposition submitted to the jury, nor of any request to charge, and consequently they cannot be considered at the present time. The 2d and 3d grounds of appeal will be considered as embracing exceptions duly taken.
The 2d ground is based upon an instruction to the jury “that the order of the Court of Equity for the conveyance of the 100 acres, left out by mistake, in the original deed from Phelps to Esau Price, enuréd to the benefit of the mortgagee, and those claiming under him.” E. Price purchased from Phelps and gave back a mortgage for the purchase money. Phelps’ deed, by mistake, omitted part of the land intended to be conveyed, but the land was described in Price’s mortgage. . Subsequently the mistake was corrected by proceedings in equity, which resulted in a decree directing the Commissioner to convey to E. Price. That conveyance was never actually made, but, in consequence of the intervention of a creditor of Price, the land was actually conveyed by the Commissioner to S. Bobo, the assignee of E. Price, and by him conveyed to the plaintiffs.
Had the Commissioner conveyed to Price, as the decree in its original form directed, Price would have been in the same position, as it regards the mortgagee, as if he had acquired the land by deed from Phelps subsequent to the execution of the mortgage, with recitals in the deed showing that it was intended as a correction of a mistake in the original deed. _ He would, in that case, have held the land subject to the mortgage, under the estoppel, resulting from his attempt to embrace it within the lands mortgaged. The plaintiffs’ title rests upon the legal rights of Price’s creditor, which cannot exceed those of Price himself, and accordingly the lands in the hands of the plaintiffs were charged with the mortgage precisely as they would have been had they passed into the actual possession of Price. The proposition charged as above stated does not differ substantially from that just presented, and is free from error.
The third ground of appeal presents the instruction “that the plaintiffs were concluded by the proceedings in equity in which Webber -was complainant, and E. Price and others defendants, from disputing the title of defendant derived from the sale under the decree in that case.” This charge is to be understood as holding that the proceedings in equity so bound the plaintiffs that they could not aver against it. In this respect it is erroneous. The decree referred to could not directly bind the plaintiffs, because neither *346they nor their grantors were made parties to it. To whatever extent they may have been bound by the mortgage, their rights could not be directly concluded by the procedings to foreclose the mortgage unless they were parties to it, or unless their title, or that of their immediate grantor, was derived subsequently to the decree from one bound by it. This was not the case, for the assignment to S. Bobo, under which the rights of the plaintiffs, as against E. Price, are to be tested, was anterior to the filing of the bill by Webber. It was, therefore, necessary that S. Bobo should have been made a party to the bill in order to give the decree direct binding effect upon the plaintiffs.
As the case stands before us, we are compelled to infer that the verdict for the defendant stood wholly on the proposition embraced in this exception. To hold that the plaintiffs were directly bound by the proceedings in foreclosure was to conclude them from disputing it as stated by the Court, and would entitle the defendant to his verdict, irrespective of any other question in the ease. The question of title, so far as it related to the facts, was, in effect, withdrawn from the jury by the instruction'of the Court.
A new trial must be granted.
Moses, C. J., and Wright, A. J., concurred.