Douglass v. Sherman

The Chancellor. It appears to be well settled that the defendant may raise the objection at the hearing that the suit has abated as to some of the parties, whose rights should be before the court to enable it to make a proper decree. And if it appears that the suit is not properly revived, or that the complainant had no right to revive, he cannot have a decree. • (Russell’s heirs v. Craig’s devisee, 3 Bibb, 377. Harris v. Pollard, 3 P. Wms. 348. Lasco and others v. Moyers, Bumb. 144.) The 107th section of the title of the revised statutes relative to this court, (2 R. S. 184,) and the subsequent sections of the same article, apply only to those cases where, by the former practice of the court, the proceedings could be continued by a simple bill of revivor. The representatives alluded to in those provisions are such as become so by operation of law on the death of a party; and not those who become so by devise, grant, or other title which may be contested in the suit. In the language of Lord Redesdale; “ Wherever a suit abates by the death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir at law, executor or administrator, so that the title cannot be disputed, at least in the court of chancery, but the [361] person in whom the title is vested is alone to be ascertained, the suit may be continued by a bill of revivor merely.” (Mitf. PI. 4 Lond. ed. 69.) So also in the case of the marriage of a female plaintiff; as the sole fact to be ascertained is the person of the husband, a simple bill of revivor is all that is necessary to continue the suit. But where, by the marriage settlement, the interest of the property in controversy is vested in trustees, for the separate use of the wife and her issue, a bill of revivor alone is not sufficient ; but a supplemental bill is also necessary to bring the interest-of the trustees, &c. before the court. (Merriwether v. Mellish, 13 Ves. Rep. 161.) And in all cases where, by the death of a party, the suit is abated, and his interest or title to the property in controversy is transmitted by a devise, or in any other manner, so that the title as well as the person entitled may be a subject of litigation in this court, the suit cannot be continued by a bill of revivor. In such cases an original bill, in the nature of a bill of revivor and supplement, must be filed, on which the question of title may be put iff issue and litigated. (Huet v. Lord Say seal, Sel. Cas. in Ch. 53. Ryland v. Green, 4 Bro. P. C. 348. Backhouse v. Middleton, 1 Cas. in Ch. 174. Russell’s heirs v. Craig's devisee, 3 Bibb’s 377. Harrison v. Ridley, Comyn’s Rep. 589.) But in such eases, the purchaser or devisee will be bound by the former proceedings in the original cause, to the same extent that the heir would have been upon a bill of revivor1, (2 Vernon’s Rep. 672,) and the adverse party will be bound to the like extent, (id. 548.) It sometimes becomes necessary, on a simple bill of revivor, to call for an answer ; as in the case of an executor or administrator of a deceased defendant, to ascertain whether he has assets to pay the complainant’s demand. (Mitford’s Plead. 4 London ed. 76. Brownlow v. Duke of Chandos, Vern. Scriv. Rep. 109.) That case, as well as that of a necessary discovery from the person who has become the personal representative of a deceased defendant, was probably intended to be provided for by some of the new provisions incorporated into the revised statutes. (2 R. S. 184, § 113, 114.) The provision in the 115th section of the statute, authorizing the representatives of a deceased com [362] plainant to amend the bill, could not have been intended to authorize an assignee or devisee to amend the bill by stating' the nature of their title ; for. it is well settled that nothing can inserted in the original bill, by way of amendment, which has arisen subsequent to the commencement of the 'suit. (Usborne v. Balter, 2 Mad. Rep. 339.) The object of that provision undoubtedly was to put the executors, administrators, or heirs of the deceased complainant, on the same footing as to amendments, as the decedent was at the time of his death ,* and not to compel them to file a supplemental bill to obtain such alterations in the original bill, as could be properly introduced in the form of amendments. The conclusion at which I have arrived, upon a full examination of all the authorities on the subject, is. that this was not a case in which the suit could be revived by making Hester Douglass complainant, as the devisee of her deceased husband, under the provisions of the statute then in force ; which, in this respect, were the same as. the present law. As executrix, she had no right to revive, the suit, or to redeem the land which belonged to- the heir or devisee. (Smith v. Manning, 9 Mass. Rep. 422. Lomax v. Bird, 1 Vernon, 182. Grant v. Duane, 9 John. Rep. 612.) And if the usual decree should be made in such a case, a neglect to redeem within the time limited would be no bar to the devisee or heir at law. Neither was this suit revived in her name as executrix ; for it appears on the face of the order that she had not yet proved the will, although she intended to do so thereafter. The whole difficulty has arisen from the loose and irregular practice, which has in some cases been adopted, of permitting a person claiming a right to revive to be substituted in the place of the deceased complainant, under the statute, without any notice to the " other parties who have appeared in the suit. The proper course to be adopted by the heirs or personal representatives of a deceased complainant to revive the suit, under the 115th section of the revised statutes before referred to, is for them to apply to the court upon a petition or affidavit, stating the death of the complainant, and showing that they in fact sustain the character in which they ■claim the right to revive. ' And if they claim the right to re [363] vive as executors, it should appear that they have taken probate of the will. (1 P. Wms. 753.) Duo notice of the application should also be given to the solicitors of the other parties who have appeared in the cause, and who do not join in the application, so as to give them an opportunity to be heard as to,the right of' the applicants to revive. The order of revival should also state the particular character in which they are permitted to revive and continue the suit; and the cause-is to be entitled .accordingly, in all subsequent orders and proceedings therein. The original pleadings and proceedings are not however to be altered or amended by inserting the names of the new complainants. Such is not the meaning of that clause of the statute which authorizes the new complainants to amend the bill. The order to revive in this case was not authorized by the statute, and was therefore irregular in form ; and no decree can be made in favor of the present complainant, in any character, until that irregularity is corrected. If the defendant is correct in supposing that the will, by which all-the real estate of Edward Douglass was devised to his wife, was made long before he acquired any interest in this property under the sheriff’s sale, she has no right to redeem in the character in which she has attempted to revive the suit, as nothing passed to her under the will as devisee. (Thompson v. Scott 1 M’Cord’s Ch. Rep. 32.) In that case the right to continue the suit belongs to the heir if there is one capable of taking by descent; and if there is none, it either belongs to the people of the state, by escheat, or it is extinguished. It was suggested on the argument, that no injury could arise to the defendant by a decree in favor of the present complainant, as she had obtained a conveyance from the heir at law of the decedent since his death. Whether such a conveyance would be valid pending this litigation, and while the defendant was holding the premises adversely to such claim; and whether the person making the conveyance is capable of taking by descent, and many other questions of a like character, cannot be passed upon properly under this form of proceeding. The correct mode of litigating such questions is upon a bill, where the. defendant may put the questions of. [364] fact in issue and examine witnesses thereto in the usual manner. Even on a proper application by an heir at law, to revive under the statute, if either his legitimacy or his alien-age was really a disputed question, the court, in its discretion might deny the application, and direct a formal bill of revivor to be filed ; so as to enable the defendant, either by plea or answer, to contest his right to revive. The order of the first of March, 1825, and all subsequent proceedings, must be set aside as irregular and erroneous ; but without costs to either party, as the defendant was equally in fault with the present complainant, in proceeding under that order instead of moving to set it aside. Mrs. Douglass must be permitted to file a bill in the nature of a bill of revivor and supplement, if she shall be advised so to do, for the purpose of setting up her claim to continue the suit and to redeem, either as devisee under the will, or as the assignee or grantee of the heir at law of her late husband; and if she does not file such bill within three months, she is to be thereafter precluded from any further proceedings against the defendant, founded on the decretal order made in this cause during the life of her husband. If any other persons, not now before the court, have the right to revive, 1 cannot at, this time make any order affecting them. The defendant, if he wishes to terminate the' suit as to them, must either proceed to revive, or take some other step on his part to preclude their right, or wait until it is terminated by the' lapse of time. Probably he may, on a proper application, be entitled to such an order as was granted in Pells v. Coon, (1 Hopk. 450 ;) requiring the alleged heir at law, or the attorney general, to proceed within a limited time, .if they shall be advised so to do, or that they be precluded.