Harrison v. Simons — 3 Edw. Ch. 394

Majority

p. 394

Harrison v. Simons and others.

May 4, 1840.

Headnote

Practice. Parties. Revivor. Defendant dying after decree.

There is no occasion to revive or bring in new parties, where the mortgagor dies after decree and before enrolment.

Mortgage case ; a decree for sale was had ; and the mortgagor dying after decree, but before enrolment, a petition was presented to revive, setting forth very much in detail the proceedings in the cause as well as the death of the party.

Mr. BuTkley, moved.

This petition is very unnecessarily long for the purpose intended, even if such a step be proper or required by the practice of this court.

But I am of opinion it is neither necessary nor required that a proceeding to revive and to bring in new parties should be had in a case like the present. The decree already made and entered, before the death of the mortgagor, can be enrolled and executed, notwithstanding the death ; and it will bind all who can possibly claim any interest in the property under him. The decree is to be enforced against the property, by a sale and conveyance of title to a purchaser; and this will be e'f

p. 395

fectual at least to pass the title from the time the decree was pronounced. If the decree remained to be enforced in per sonam, it might be necessary to revive and bring in the personal representatives of the deceased or to take measures to o establish the decree against them before they could be called upon to pay the money or to do any act in fulfilment of the decree. But here no act is required to be done for the purpose of carrying out this decree, except what the master can do, namely, to advertise and sell the mortgaged premises and execute a deed to the purchaser, &c.

The right or equity of redemption is already foreclosed by the decree. It appears to be well understood that the death of a material party, after decree pronounced but before enrolment, will not prevent the enrolment and, consequently, the execution of the decree. The books of practice lay down the rule so to be ; and adjudged cases are not wanting on the point. 2 Brown’s Ch. Pract. 694 ; 1 Newland’s Pract. 666 ; 1 Hoffm. Pr. 390, 391 ; 2 Equity Ca. Abr. 279 ; Finch’s Rep. 169 ; West’s Rep. 675, 676.

The prayer of this petition is denied, as being unnecessary.