Opinion.

The appellee by his bill attempted to litigate with Roberts for the purpose of foreclosing a lien upon certain lands sold to him, and also to test the validity of a tax title to the same land acquired by the appellant, Doggett. It is evident that Doggett is not in any manner interested in the issue to be tried between appellee and Roberts, for he claims by a title, which, if valid, is paramount *578to the title both of the vendor and his vendee. His title, though acquired subsequent to the sale by Tinsley to Roberts, is not derivative, but antagonistic, and if it prevails would render fruitless the controversy between them, in so far as the enforcement of the vendor’s lien is sought, by a destruction of the title to the land. He is therefore improperly joined as a defendant, and the chancellor erred in overruling the demurrer interposed by him.

As the bill, however, charges facts which, if proved, may entitle complainant to a cancellation of the tax title held by Doggett upon repayment to him of the amount paid by him at the tax sale, and interest and damages, a point which we do not now adjudicate, it is proper to permit an amendment directing a separate bill to be filed against Doggett alone, as provided by the Code 1880, § 1881.

It is therefore ordered that the decree he reversed and the demurrer of the defendant, Doggett, be sustained, but that complainant may, within sixty days after the filing of the mandate in the court below, exhibit his separate bill against the defendant, Doggett, without the issuance of further process thereon; in default of which, his said bill heretofore filed shall be dismissed as to said defendant, Doggett, but without prejudice as to any other proceedings he may thereafter institute touching the matters in said bill contained.