Souillard v. Dias , 9 Paige Ch. 393 ( 1842 )

The Chancellor.

The objection is well taken that the bill does not show any right in these defendants to revive the suit. It is not necessary here to discuss the question as to what may be the effect of the offers made in the answers of the defendants, in the original suit, to permit the complainant to redeem. The bill does not show that the legal title in the premises was devised to these complainants. If this was a case, therefore, in which the personal representatives of the deceased defendants had a right to revive, for the purpose of receiving back from Dias the $15,000 and interest, the objection is properly taken, ore tenus, that the heirs, or devisees, of Gaze and Richaud, in whom such legal title is now vested, should have been made parties to the bill of revivor, either as complainants or defendants. No decree for a reconveyance can be made in a suit to which the holders of the legal title are not parties. And without such reconveyance the personal representatives of Caze and Richaud will in no event be entitled to a decree for the repayment of the $15,000 and interest; even if the offer in the original answers could have the effect of converting the real estate into personalty, so as to give the executors an interest in this controversy.

The counsel for the defendant is clearly right, also, in supposing that this is a case in which neither the personal representatives of the defendants, nor the heirs or devisees, have a right to revive. The general rule is strict, that before a decree or a decretal order by which a defendant becomes entitled to an interest in the further continuance of the suit, neither he nor his representatives can sustain a bill of revivor. And it was formerly held that he could not do so even after decree, except in the single case of a decree to account. (Anon. 3 Atk. 692.) It is now established, .however, that after a decree the suit may be revived at the instance of a defendant, or. of his representatives, if the complainants, or those who represent them, neglect to revive it. ( Williams v. Cooke, 10 Ves. 407. Howard v. Schwedes, 12 Idem, 316. Gordon v. Bertram, 1 Mer. Rep. 154. Finch v. Lord Winchelsea, 1 Eq. Ca. Abr. 2.) The revised statutes have given some rights to the defendants, and to the survivor of several defendants, in the revival of suits, which they did not before possess. (See 2 R. S. 185, § 118 to 131.) But none of those provisions appear to extend to the case of an abatement by the death of a sole defendant, or of all the defendants in the suit, before he or they have obtained an interest in the further prosecution of such suit, by a decree, or by a decretal order under which some right has been acquired.

This demurrer is, therefore, allowed; and the complainants’ bill must be dismissed with costs.