Anderson v. White , 10 Paige Ch. 575 ( 1844 )

The Chancellor.

The formal objections to the bill cannot be sustained, if the complainant is entitled to succeed upon the merits. The bill is not a simple bill of revivor; as it contains matters which show that a mere bill of revivor could not have been sustained. For the interest of the complainant in the original suit, in the premises in controversy, was actually conveyed by him in his lifetime. And in such a case, if the purchaser of the premises wishes to revive and continue the proceedings, he can not do it by bill of revivor, but he must file an original bill in the nature of a bill of revivor and supplement. (Welf. Eq. Pl. 220. Story's Eq. Pl. 304, § 377, 378.) And where the defendant in the original suit is entitled to revive the proceedings therein, he must do it upon a similar bill, as he can not file a simple bill of revivor, against the grantee of the complainant in that suit. The real question in this case, therefore, is whether the complainant shows such an interest in the revival' and further continuance of the proceedings in the original suit as to sustain the present bill. For the defendant in a suit can in no case file a bill to revive, where the adverse party neglects to do so, unless he shows that he has an interest in the revival of the suit. (Horwood v. Schmedes, 12 Ves. 311.) But it is now settled, in opposition to the opinion of Lord Hardwick, in the anonymous case before him, (3 Atk. 692,) that a defendant is entitled to revive in all cases, after a decree, where he can have a benefit from the further proceedings in the suit, in case the adverse party will not himself revive. In the case of Williams v. Cook, (10 Ves. 407,) Sir William Grant, the roaster of the rolls, very correctly says, “ the good sense is that in every case where a defendant can derive a benefit from the further proceeding he may revive, unless there is a general rule against it.” (See also Welf. Eq. Pl. 212 ; Story’s Eq. Pl. 300, § 372.) As the defendant must revive before he can appeal from a decree against him, where the suit abates before the bringing of his appeal, it follows of course that he has an interest to revive wherever an appeal will lie, and where he would be absolutely without remedy except by a revival of the suit and by an appeal.

In the present case, the complainant does not appear to have any interest whatever in reviving the proceedings in the original suit, except for the mere purpose of enabling him to review the decision of this court, upon the motion to set aside the decree pro confesso and to permit him to come in and make a defence in such original suit. For if the order of this court upon that application is to stand unreversed, the decree, so far as appears from this bill, is absolute and conclusive upon him, not only as regards White the purchaser but also as to the heirs at law of D. Anderson, the original complainant; even if the present complainant is able to prove the allegations in his bill, that the conveyance to White was without consideration and that the premises are in fact held by him for the sole benefit of such heirs at law. Whether the court for the correction of errors will sustain an appeal from a decision of this court resting in mere discretion, as to the opening of a decree by default, is not for me to decide after the conflicting decisions in that court upon the subject. The safer course, in the present case, therefore, is to overrule this demurrer, and to require the defendants to answer. And then if the complainant can establish the allegations in his bill as to the supposed fraud and want of consideration of the conveyance to White, the proper decree to revive the original suit maybe made; so as to enable him to take the opinion of the "court of dernier resort upon the question whether an appeal will lie from the decision referred to, and whether such decision is erroneous.

The demurrer must therefore be overruled, with costs to abide the event of this suit; and the defendants who reside within this state must put in their answers within sixty days after notice of the entry of the order hereon, or the bill must be taken as confessed as to such of them as neglect to answer the same. And such of the defendants as reside out of the state must put in their answers within three months; with liberty to any of the defendants to make an ex parte application to the chancellor to extend the time for answering, upon suEcient cause shown.