majority">Mates, J.,

delivered the opinion of the court.

The only deed sought to be canceled is the deed of W. B. Beason to Henry M. and P. E. Coleman to the N. W. ¿ of the S. W. ¿, section 13, township 1, range 15 E., of date December 18, 1889, which it is claimed was made by a mutual mistake of the parties. The demurrer admits this fact, and, if so, the deed is a cloud on the title of the property. This being the case, and because neither the rights of Mrs. Elizabeth Beason, nor those of D. C. and M. Torrence, are to be affected in any way, it was not necessary to make them parties- to this proceeding. It is true that Mrs. Elizabeth Beason, by deed of date September 21, 1903, attempted to and did convey to Henry M. and P. E. Coleman this identical property; but it is not sought to cancel any interest conveyed by this deed from her to them, nor is this deed to be affected in any way by this suit, that not being the purpose of the suit. The deed of Mrs. Beason purports to convey a fee simple; but under the terms of the will she has no right to make title to anything but a life interest in this property, since her estate is limited to 'that. But with this we have no concern in this suit.

The only other question in the case is whether or not John G. Beason, as executor, could institute this suit and remove the cloud upon this title by canceling the - deed executed by W. K. Beason, by mistake, to Henry M. and P. E. Coleman. In the *626case of McCaa, Ex'x, v. Russom et al., 52 Miss., 639, it was held under the facts of that case, the court being careful to limit its decision to the particular case, that the executrix could not file a bill to remove cloud from the title by reason of a mistake in a deed made by the testator, where the title to the real estate was not vested in the executrix by the will for sale or otherwise. In the case now under consideration the complainant has an interest both as a devisee under the will and as executor. On the trial in the court below no objection was made as to his right to institute this suit, and it is urged here for the first time, and under the facts in the case comes too late. The interest which the executor is undertaking to protect is not antagonistic to the interest of any heir or devisee under the will; but he is endeavoring to protect and conserve the rights of all parties in interest. No party in interest not made a party complainant in the suit is indispensable to a decision in this case' upon its merits, and a decree in the case will protect the interest of all concerned. The contention, under the facts of this case, that the complainant, as executor, has no right to bring this suit, may be correct, if we treat the suit as a suit by the executor merely; but it comes too late, and the objection will be treated as waived by the defendants. Of course, in any case where the subject-matter of the litigation was such that a final decree could not be made without materially affecting the interest of parties not before the court, it would make no difference when the objection might be taken so far as its effectiveness would be concerned. In truth, in a proper ease, the court would take notice of the want of proper parties of its own motion; but such a case is not made here.

We think the court erred in sustaining the demurrer. Gerard v. Bates, 124 Ill., 150, 16 N. E., 258, 7 Am. St. Rep., 350; McDonald v. St. Paul, 82 Minn., 308, 84 N. W. 1022, 83 Am. St. Rep., 428; Fly v. King, 71 Miss., 537, 14 South., 465.

Reversed and remanded.

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