From Rutherford.
A grant cannot be vacated without making the grantee or his heirs a party, although his interest in it lias been assigned.
This was a petition to vacate a grant, which issued to Jlndrew and David Millet'. Thd petition charged, that the Defendants were in possession of the land covered by the grant, claiming it untier mesne conveyances from the patentees, but neither the latter nor their heirs, were made parties Defendant.
On the Fall circuit of 1827, his honor Judge Norwood vacated the grant, for reasons which it is unnecessary to slate, as they were not discussed in this Court, and no opinion was given upon them.
The case came here upon the appeal of the Defendants, and Badger, for them, objected that the patentees were not parries — lie contended that this must be the case, because the judgment being in rem, otherwise tiiey might be affected by a suit which they had no opportunity of defending.
Wilson, contra.
Per Curiam
We think it is irregular and erroneous to vacate a-grant, without making the patentee a party, if tic is Jiving, or his heirs if lie is dead, and that an allegation of the patentee having assigned all his rights under the grant, will not dispense with the necessity of making him a party.
Let the judgment be reversed.*