Harrington v. Becker — 2 Barb. Ch. 75

Majority

p. 75

Harrington and wife vs. Becker and others.

Headnote

Where a suit abates by the death of some of the defendants, before decree, the proper course for the survivors, if they wish to speed the cause, is to move for an order that the complainant revive the suit within such time as shall be directed by the Court, or that his bill be dismissed with costs.

Where a suit abates by the death of one of the original defendants, and a third party subsequently acquires the interest of the deceased party,, by purchase from his heirs before the revival of the suit against such heirs, the suit must be revived, by a bill of revivor and supplement, against the purchaser.

p. 76

This was an application by J. Crary, one of the defendants, to dismiss the hill for want of prosecution. The bill was filed, against the widow and hens of the owner of the equity of redemption in the mortgaged premises, and against Crary, to foreclose a mortgage. Subsequent to the commencement of the suit, and after the cause was in readiness to take testimony as to some of the defendants, the widow of the former owner of the equity of redemption died; and one of his children also died. After those events, the other children, who were the hens at law of the deceased child, conveyed the whole of their interest in the mortgaged premises to a stranger.

M. Fairchild, for the defendant Crary.

C. F. Ingalls, for the complainants.

The death of the widow alone would not have deprived the defendant Crary of the right to dismiss for want of prosecution; for all her interest terminated with her life, and the cause of suit survived against the other defendants. But by the death of one of.the children, who was a tenant in common, in fee, of the equity of redemption, with the others, the suit abated as to his share; which would have rendered it necessary to revive the suit against the other children, as the heirs at law of the deceased child, although they were already parties to the suit as to their own shares of the equity of redemption. An order to dismiss, therefore, would have been improper, in that situation of the suit, even if the surviving children had not subsequently conveyed all their interest in the premises to a third person, as purchaser. The proper course for a defendant, who wishes to speed the cause, in such a case, where the suit abates before decree, is to move for an order that the complainants revive the suit, within such time as shall be directed by the court, or that their bill be dismissed with costs.

Here the suit has not only abated as to one of the original defendants, whose interest survived to his heirs, but a third

p. 77

party has subsequently acquired that interest, from such heirs, as well as the rights of all the original defendants, except Crary, in the premises. The suit must, therefore, be revived by a bill of revivor and supplement, against such purchaser.

The motion to dismiss for want of prosecution must be denied. But under the clause of the notice asking for such relief as the party may be entitled to, an order must be granted requiring the complainants to cause the suit to be duly revived, "against such purchaser, within ninety days, or that their bill be dismissed, with costs, as against the defendant Crary; unless the purchaser prevents the revival within that time, by getting the usual time to answer the bill of revivor and supplement extended. '