p. 275Daniels v. Brodie and another.Headnote
Practice.Revivor. Vendor and vendee.Where a vendor tenders a deed, files a bill for specific performance and dies, the executor can revive, without bringing the heir at law before the court. If, however, the sufficiency of the deed is likely to be called in question, the executor had better file a bill of revivor and supplement, making the devisee a party defendant.
Motion to revive a suit, through the petition of Caswell Bates, executor of the late complainant, Mary C. Daniels, now deceased.
The bill was filed for the specific performance of a contract on a sale of real estate in the city of New York, alleged to have been sold by the complainant to the defendants. It appeared by the petition, that the complainant, in her life time, tendered a conveyance.
Mr. Hunt, for the motion.
p. 276Mr. R. H. Ogden, in opposition.
Under the will of Mary Daniels, the executor has only a power to sell for payment of debts. The title, therefore, must come from the devisees or heirs. Supposing this to be a chose in action which goes to the executor and that he would be entitled to receive the proceeds of the sale, still, the legal title being in the heirs, they should be brought before the court, so as to be bound by the decree. If not, a decree for the defendants would not be conclusive on them ; and a decree for a specific performance would not coerce them to execute the deed.
If the contract of sale is fulfilled, the purchase money will belong to the executors as a part of the assets and will properly come into their hands. The bill shows that a deed from the testatrix to the defendants, as purchasers, was executed by her, and tendered to the defendants before the bill was filed. If the defendants are bound to perform specifically, they may be decreed to accept the deed already executed and tendered, and to pay the purchase money. For the purpose of obtaining such a decree, it is competent for the executors to revive, in their own names, as complainants ; and to go on with the suit, without making parties of the heirs at law or devisees : since they will be bound, not so much by the decree to be made, as by the deed which their ancestor or testatrix has executed. If there is any doubt about the sufficiency of this deed to pass the title, it would be.better for the executors at once to file a bill of revivor and supplement, making the devisees parties defendant.
The executors may have their election, to take an order for the revival of the suit in their own "names merely or for leave to file a bill of revivor and supplement., as they may be advised,