delivered the opinion of the court.
The Judge after adverting to the pleadings in the cause, said: It has been objected, that after a decree had passed against John Etchison, the defendants could not be made parties to that decree, by a supplemental bill. We are inclined to think that this objection is not sustainable. According to the practice of the English Court of Chancery, after publication has passed, and the cause has been set down for hearing, new parties maybe added by amending the bill; but after a decree has been made in the cause, and it is found necessary to make additional parties, it must be done by a supplemental bill. In Wyatt's Pr. Reg. 90, it is said, “ after publication passed, and the cause set down, you can only amend by adding parties, and cannot introduce new charges, or put a material fact in issue, which was not so in the cause before, but a supple,*187mental bill should be preferred. Where a supplemental bill brings a new person, or a new interest before the court, it is open to the parties to make any objection to the decree, which might have been made at the first hearing.” In the same book, 89, it is said, “ where a supplemental bill, is merely to bring formal parties before the court, the parties to the original, and not be parties to the supplemental bill”’ So in 4th Johns. Ch. R. 606, Chancellor Kent, speaking of a supplemental bill, says, “ when it is used merely for the purpose of bringing a formal party before the court, as a defendant, the defendants to the original bill need not be made parties. Where the objection for want of parties is made either out of season, as in Jones vs. Jones, 3 Atkins 110, 217, the want of parties may be supplied by a supplemental bill. In that case, the cause had been once heard, and was brought on again, upon the equity reserved, when the objection was raised. So also in Holdsworth vs. Holdsworth, 2 Dick. 799, parties appeared to be wanting, on an appeal from a decree at the rolls, and the cause was ordered to stand over, with liberty for the plaintiffs to file a supplemental bill, merely to add parties.” In this case, Chancellor Kent gave leave to the plaintiff to file a supplemental bill, to bring in a subsequent incumbrancer. In 6th Johns. C. R. 450, a bill was filed, to foreclose a mortgage. The defendants in their answer stated, that they derived title to, and owned only two-fifths of the mortgaged premises, by the will of their father, by which legacies were given to other persons, charged upon the whole mortgaged premises. The cause was set down for hearing, upon the bill and answer, and a reference ordered, and upon coming in of the master’s report, computing the amount due on the mortgage, and the cause being heard for further directions, the defendants objected, that the legatees ought to have been made parties ; and it was agreed, that the objection if good, should be deemed as made in season. Upon these facts, the Chancellor ordered the cause to stand over, to the end, that the legatees might be brought in by a supplemental bill, remarking, that the present defendants need not be made *188parties to such bill, according to the case referred to of Ensworth vs. Lambert, 4th Johns. Ch. R. 605. The legatees in this case, were therefore considered merely as formal parties to the suit, although they had the prior, incumbrance, and were ordered to be made parties by a supplemental bill. As the decree obtained at the first hearing, does not bind the newly made parties, but is open to any objection, which might have been made at the first hearing, we do not perceive that either the principles of policy, or justice, forbid the course which has been pursued in this case, in making the defendants parties to the decree. In 2 Dick. 799, parties appeared to be wanting on an appeal from a decree at the rolls, and the cause was ordered to stand over, with liberty for the plaintiffs to file a supplemental-bill, merely to add parties. In 1 Dick. 33, we find the following case. The defendant appealed from a decree, pronounced by the master of the rolls, in the original cause. Before it was brought on, the plaintiff filed a supplemental bill, to carry the decree into execution, apprehending he had not proper parties to the decree when pronounced. The defendant demurred (inter alia,) for that the appeal was not determined; the demurrer was over-ruled. In this case, we find a supplemental bill was sustained, to make proper parties to the decree, for the purpose of carrying it into execution, not 'only after it had been pronounced, but after it had been appealed from. We therefore think, that there is nothing in the objection, that proper parties could not be made to the decree in this case by supplemental bill, more especially, as they are not bound by the former decree, or the evidence in the cause upon which it was founded. In 4 Harr, and Johns. 333, this court say, “ the rule is, that where new parties are added, after the testimony is taken, the cause shall be heard on bill and answer, as to such new defendants.” The bill in this case, calls upon the defendants to state what part of the land embraced by the former decree they are in possession of, and how their title to the same accrued; of course their answers are responsive to the bill, and therefore evidence. We do not think that the complain*189ants are entitled to a decree against Philip and John G. Duvall, because it does not appear, that the lands to which they claim title are the same, as those mentioned in the deed of mortgage to the complainants. Philip Duvall states, that he purchased a part of, the addition to “ Rays Adventure,” which he transferred to John G. Duvall, and nineteen acres of “Silence Resurveyed,” which he still has in possession. The lands conveyed by the deed of mortgage, are called in said deed “Ray’s Adventure,” or the “Resurvey on Ray’s Adventure,” and “ Silence,” and there is no proof in the record to shew, that they are the same lands. The answer of Griffith, wdiich is also responsive to the bill, and therefore evidence in the cause shows, that he claims by title paramount the mortgage of the complainants, and although his title has not yet been perfected, we do not think that the complainants are entitled to a decree against him. The purchasers under the former decree state, that they are ready and willing to comply with the terms of their purchases, so soon as they can obtain a title to the property purchased by them; against them, therefore, as they are not in default, we think the complainants are not entitled to any relief. The answers of the defendants, who are minors, and who are charged in the bilr to be the heirs at law of Ephraim Etchison, being by their guardian, and consequently no evidence against them, it was incumbent upon the complainants, before they could obtain a decree against them, as such heirs, or legal representatives, to have proved by legal and competent testimony, that they were the heirs at law of said Ephraim Etchison, claiming title to the land in their possession in such character and capacity. The answers of Peregrine Etchison and Elijah P. Etchison admit, that they are in possession of part of the land in the will mentioned, and have been in possession of the same ever since the death of said Ephraim Etchison, claiming the same as his heirs at law. Against them therefore, we think the complainants would he entitled to a decree, for the sale of such part of the land in said mortgage mentioned, as they may have in their possession, as the heirs at law and legal *190representatives of said Ephraim Etchison. But we think that the deed of mortgage, under wffiich they claim to have the land sold, is not legally admissible in evidence against such defendants, because, it was only brought into the cause by depositing it as proof of the complainant’s claim, with the commissioner, to whom the commission issued upon the failure of John G. Duvall, to appear and answer, and to which commission the "said defendants, were not parties, and consequently had no opportunity of impeaching or' disproving the said deed, if it had been in their power so to do ; they consequently, had not notice that the complainants intended to offer such deed in evidence as against them, and consequently for the want of such notice, might have been taken by surprise, if it had been adduced in evidence against them. If it had been filed in the canse, as proof of the complainants’ claim, and to affect and operate against all the defendants, it would have been evidence against all, because all would thereby have had notice of the purpose and object to be accomplished by the filing of it; and if they wished or desired to contest its admissibility, upon the ground of fraud, or had it in their power to contest its legal validity upon any other ground, time, no doubt upon application, -would have been given them for that purpose. The. filing of it with the register, we think a sufficient notice, that it is to be used on the trial of the cause; but that as before observed, if. the party against Whom it is to be read in evidence, should satisfy the chancellor that he would be taken by surprise, time ought to be given him to contest its- admissibility, if required. In 1st Paige Rep. 491, Chancellor Walworth states the rule in that state to be, “ that if the complainants wish to prove any fact in the bill, not admitted in the answer, they should file a replication, and give the defendant an opportunity to be heard on the question of the existence of the fact. If it is a mere exemplification of a record, -which proves itself, it may be sufficient to' give notice to the defendant, that it is to be used on the hearing, which will enable him to examine witnesses to explain or rebut the effect thereof, if it can be explained.” For the *191reasons we have stated, we think the decree of the chancellor ought to he affirmed, so far as it relates to the respondents Griffith and Philip, and John G. Duvall, and that it ought to be reversed, and the bill dismissed without prejudice, as to the other defendants. We have come to the conclusion, that the bill ought to be dismissed without prejudice, to give to the complainants an opportunity of having the sale rescinded which has been made to a part of the defendants, if upon a hill filed against them they shall so elect, instead of having the sale made to them partially executed, and also to afford to the complainants an opportunity of instituting any new proceeding they may deem necessary, in order to bring the merits of their case fully before the court.
Decree affirmed as to Lyde Griffith and Philip, and John G. Duvall, and reversed, and dismissed without prejudice, as to the other defendants, with costs