Barnett v. Powers

Campbell, C. J. Mrs. Powers appeals from an order confirming a sale on foreclosure. The suit was first brought against'her husband as sole defendant. Her title was by grant from him not recorded until after suit brought, though made before. He died soon after suit was brought, and an attempt [319] was made some months thereafter to revive under the statute by petition. Comp. L., § 5102. Before this was done her title had been recorded. The bill was not amended, and there was nothing to show why she was brought in, as a wife is neither heir nor legal representative. ' A bill of revivor was never the proper remedy to bring in parties claiming otherwise than by operation of law as a consequence of the death of the original party. 2 Dan. Ch. Pr., 1696-7; Story Eq. Pl., §§ 339, 342,-354a, 377-8. Any title not thus derived could only be brought in by an original bill of some kind. This title. being derived before suit, could not under any circumstances have been brought before the court without, such a bill, whether by new suit, or an original bill in the nature of a supplemental bill or bill of revivor. The statute was not designed to allow any independent right to be asserted without proper allegations. 2 Dan. Ch., Pr., 1673; Crowfoot v. Mander, 9 Sim., 396; Stewart v. Nicholls, Tamlyn, 307; Hardy v. Hull, 14 Sim., 21; Foster v. Foster, 16 Sim., 637. Moreover, the suit abated a second time by the resignation of the first administrator and the appointment of a new one. There was no subsequent revivor. The decree was void, and the sale was also void, and the order confirming it must be reversed with costs of this court, and twenty dollars 'and disbursements in the court below. The other Justices concurred.