Criscoe v. Adams

delivered the opinion of the court.

The appellant filed his bill in the chancery court for a partition of certain lands and also for an accounting for rents, alleging that the complainants and defendants are tenants in common, and owners in fee of said lands, and that the defendant had been in possession since 1912 collecting rents thereon, and that the defendant had converted certain timber, praying for a partition and accounting of rents and profits. The defendant answered denying the complainant’s title and denying that complainant owned any interest in the said lands, and setting up title in himself, and alleging that he filed the bill in 1911 in the chancery court to confirm and quiet the title of the defendant to said' land, and that the court had decreed in his favor in said suit against certain particular defendants named in the bill and as against all unknown defendants and claimants, and the defendant makes his answer a cross-bill, alleging that he is legal and equitable owner in fee simple and deraigning his title thereto, and praying that the claim of the complainant be canceled as a cloud or doubt and for other relief. A decree of the cause referred to, under which the defendant claims his title was confirmed, is made an exhibit to his *50Gross-bill. 1TI10 complainant ¿and cross-defendant answered tbe cross-bill of the defendant, denying that the defendant was the legal and equitable owner in fee simple and averring’* that'the complainant and cross-defendant is the owner of a half interest therein, and setting up that Frances Manning, as owner in the chain of title of both complainant and defendant, conveyed to oneJGeorge Connerly and Gene Green a deed to the lands described in the Mil of • complaint, making a copy of the deed an exhibit to the answer, and denying that the suit referred to in the cross-bill affected his right or title, because he was not .made a defendant in said suit, and because at the time said suit was filed George. Connerly was in possession of said land, claiming to be the owner of an undivided one-half interest, and that he was not made a party to the said suit nor summoned and was not a nonresident, and further alleging that the bill in that suit neither alleged that the complainant was in possession, nor that there was no adverse occupancy of the said land. The chancellor decreed for the defendant, and complainant appeals.

It appears from the evidence that on the 31st day of January, 1908-, Frances Manning conveyed to Gene Green and /George Connerly her interest in the land described in the bill of complaint by a deed in long form of printed conveyance in this state, and in the blank space intended for the description wrote the description of the land and in addition thereto the following:

“The conditions of the above deed are that George Connerly on his part agrees to take care of Frances Manning for the remainder of her life, to provide food and raiment, and to care for her when she is disabled to care for herself. ”

It appears that, after the making of this deed-of-conveyance, Frances Manning filed the bill in the chancery court to cancel the deed for a breach of the alleged condition above set out, and that the grantees George Con*51nerly and Gene Green were made parties defendant to said bill and duly summoned in the suit to show cause why the relief should not be granted. After these defendants were summoned into court and before further proceedings were taken therein, except the defendant obtained leave to plead, Frances Manning! died, and. one J. F. Holmes, administrator, appeared and procured a revivor of the said suit in his name as administrator, and thereafter took decree pro co rifes so and final decree against (George Connerly and Gene Green, canceling the deed and ordering them to yield up possession to the complainant. This final decree was dated the 28th day of May, 1909, and was never appealed from, nor ivas any bill of review filed within the statutory period for a bill of review; and on the 21st day of January, 1911, the writ of assistance was issued out of the chancery court and George Connerly and other parties were removed from the premises. After the sheriff removed Connerly and went away, Connerly immediately returned to the premises and occupied the same until about the year 1913, when a second writ of assistance was issued, and he was again removed from the premises and was prosecuted and convicted for trespassing thereon. On the 27th'day of January, 1914, George Connerly and Eliza Connerly conveyed to J. L. Criseoe, the appellant, for a purported consideration of one thousand dollars the land in question.

At the time Frances Manning filed her suit, a lis pen-dews notice was filed giving notice of the suit and description of the land.-. Subsequently Frances Manning conveyed to Ceph Green and wife a part of the land, and Ceph Green and wife conveyed to Adams, the appellee. Thereafter Adams filed a bill in chancery court to vacate and set aside so much of the decree in the suit of Frances Manning against George Connerly and Gene Green as affected his title and for a confirmation of his title and *52for possession. This bill was filed in November, 1911, and the numerous parties, including- Eliza Connerly, wife of George Connerly, as heirs at law of Frances Manning, deceased. A deed from Frances Mlanning to Ceph Green and wife, Eugenia Green, bears date of the 16th day of October, 1908. A decree pro confesso was taken February 12, 1912, andi the final decree the 23d day of April, 1912i, in the suit of Adams against the heirs of Frances Manning- and her administrator, and there was no appeal, and a writ of possession was executed and Connerly and family moved off of the land and Adams put in possession thereof on the 16th day of January, 1913.

The appellant assigned for error that the court below erred in holding that the appellant was concluded by the decree of May 28, 1909, canceling the deed to George Connerly and Gene Green; second, that the court erred in holding that appellant was concluded by the proceedings in cause No. 2037, styled L. M. Adams v. J. F. Holmes et al., Administrator and Heirs of Frances Manning, dated April 24, 1912, and that the court erred in holding that the appellant was not the owner of an undivided one-half interest in the land sought to be partitioned and erred in dismissing complainant’s bill and canceling his title and confirming, and quieting the title of the appellee.

Two propositions are relied on chiefly by the appellant. First, it is insisted that there was no notice to George Connerly of the revivor of the suit of Frances Manning v. George Connerly after the death of Frances Manning; and, second, that there could be no revivor in the name of the administrator, but that the revivor would have to be made in the name of the heirs. In other words, it it insisted that a revivor by the administrator of the complainant without notice to the defendant is void and that in fact there could be no revivor in the name of the administrator at all. Section 724, Code of 1906 (section 507, Hemingway’s Code), reads as follows:

*53“If there be two or more-plaintiffs or defendants in any suit, and one or more of them die, if the canse of action survive to the surviving plaintiff or against the surviving defendant, the suit' shall proceed in the name of the surviving plaintiff against the surviving defendant ; and where either party shall die between verdict and judgment, such death need not be- suggested in abatement, but judgment may be entered as if both parties were living1; and if, on the death of. any plaintiff in actions which survive, before verdict, the heir, legatee, or devisee, executor, administrator, or other legal representative of such deceased party shall not appear and become a party to the action, on or before the second term of the court next after the death of such party shall have been suggested on the record, the action' shall be dismissed, unless good cause be shown to the contrary.”

Section 687, Code of 1906 (section 465, Hemingway’s Code), reads as follows:

“All things contained in this chapter, not restricted by their nature or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever.”

Both of these sections appear in the chapter of the Code on Circuit Courts, and it is argued that section 724, Code of 1906 (section 507, Hemingway’s Code), has no application to a suit in chancery; and that even under these sections that notice ought to be given to the defendant to revive against the defendant. There is no. special section made specially applicable to the chancery court -with reference to revivor, and, as the legislature intended the provisions of the circuit court chapter to apply to all courts when not restricted in their nature or by express provisions to particular courts, we think that section 724, Code of 1906 (section 507, Hemingway’s Code), is applicable to the chancery court. In this section it is provided that where either party should die the cause of action survives in favor *54of the surviving plaintiff or against the surviving defendant. In actions before verdict, if the heir, legatee, devisee, executor, administrator, or other legal representative of the deceased party, shall not appear or become a party to the action on or before the second term of the court next after the death of such party shall have been suggested on the record, the action shall be dismissed unless good cause be shown to the contrary. This section changes the common-law rule in circuit courts, and, as we construe it, applies also to the chancery court, and the action is not dismissed, but remains a pending suit until the second term, when, if no action is taken, the court dismisses it. In other words, the defendant, being in court, must take notice of proceedings suggesting death and reviving the suit for this length of time, and it is not necessary to bring them into court with a new notice. In the proceedings before us the administrator of the deceased complainant made timely application for a revivor of the suit in his name for the benefit of the heirs, and defendants were bound by the proceedings made after such revivor, and they made no effort to appeal nor did he contest the suit in the court below; and although he was put out of possession under this judgment, he took no steps to vacate or correct the judgment so rendered. Independent of the statute above quoted, a suit in equity does not abate or rather does not terminate in equity at the death of a party, but merely suspends the proceedings therein so that on removal of the cause of abatement suit may be revived and proceeded with. 1 C. J: 27.

At common law the.death of the plaintiff or the defendant was the termination of the suit, though it did not destroy the right to bring a new suit in certain cases.

In our view the administrator was authorized to revive the suit. Under certain conditions th'e administrator may resort to the land for the payment of debts, and it is his duty to -pay taxes and preserve the es*55tate of decedent committed to his care. This is a collateral attack upon that decree, and whether the revivor in his name might have been successfully contested at the time and in the court where the motion for revivor was made' is immaterial here. If for any purpose the administrator was authorized or had an interest in the land of his decedent, his act in reviving the suit and prosecuting* it to effect operated for the benefit of the heirs, and the appellant is not in a position now to complain of the court’s action. We cannot review the court’s action in that cáse for mere irregularities.

It is contended by the appellant also that the deed of Frances Manning to Connerly could not be canceled for breach of his agreement and that suit would have to be brought against Connerly personally. We think the provision of the deed relied on as a condition justifying forfeiture was a question which the chancellor had authority to adjudicate. He had the power to adjudicate whether it was a condition for the breach of which a. forfeiture might be taken, and, whether his decision was right or wrong, it cannot be considered on collateral attack. The authorities relied upon by the appellant would be pertinent on a direct attack, but the court having jurisdiction to decide the controversy, and no appeal having been taken, and the period for a bill of review having expired by limitation. Connerly and his vendees are bound by it. It follows from what we have said that the complainant was charged with notice by the Us pen-dens record of the result of this suit, and that all right, title, and interest of George Connerly was canceled by this decree. The suit of Adams v. Heirs of Frances Manning, confirming his title, is effective as against Eliza Connerly, wife of George Connerly. The two suits completely extinguish the rights of the complainant. It is true that George Connerly was not a party defendant to the suit of Adams v. Heirs and Administrator of Frances Manning, and that he was on the land at the *56time, and his interest, if any he had, could not have been affected by the suit! for the reason that a party filing a bill to confirm title should mate parties defendant all persons in the actual possession of the property. However, that does not affect the result here, because all of the right that George Connerly ever had was canceled by the first decree. The court below reached the same conclusion, and the judgment will be affirmed.

Affirmed.