delivered the opinion of the court.

There is not a particle of proof in the record (and the case is brought up on the testimony) as to whether S. D. Kelly died testate or intestate. If he died testate, his will was not produced, so as to show who wasi his devisee; if intestate, it is not shown who were his heirs.

Mrs. Myrick cannot recover, unless she shows that the title of Kelly, the original plaintiff, has devolved upon her. Until that has been done, she cannot controvert the bona fides of the conveyance by McRaven to his wife, or challenge at all the rightfulness of her possession. It may have been from inadvertence that the proof was not made, or perhaps counsel may have supposed that the recital of the reason or right in which Mrs. Myrick and her husband were admitted parties to prosecute the suit was an ascertainment that she was heir and devisee of Kelly, deceased.

The effect of such suggestion and revivor is declared in § 1562, Code 1871 (art. 25, p. 391, Code 1857), to be as follows : “ In case of the death, before trial, of a sole plaintiff, or of any of several plaintiffs, whose right does not survive to any other plaintiff, the legal representative of such deceased plaintiff may, by leave of the court, enter a suggestion of such death, and that he is such legal representative, and the action shall thereupon proceed, and the truth of the suggestion shall be tried on the trial of the action, together with the title of such deceased plaintiff,” &c. Whether Mrs. Myrick was heir or devisee of the original plaintiff, Kelly, was as much involved in the issue tried as his title to the property.

On the evidence the finding and judgment could not have been for the plaintiffs. Judgment affirmed.