41 Ark. 165 | Ark. | 1883
Richardson filed his bill in equity, alleging that he had conveyed certain lands to the defendant, Neel, by a deed absolute in form, but intended to operate only as a mortgage security; that Neel, in consideration thereof, was to pay certain specified debts of the plaintiff, and that he had been fully repaid out of the rents and proceeds of the sale of some of the lands, all sums so advanced by him, but had neglected to pay some of the scheduled debts. The prayer was to have the deed declared a mortgage and for a reconveyance and an accounting.
Upon the death of a sole plaintiff, an action may be revived in the name of his representatives, to whom his right has passed. Where his right has passed to his personal representative, the revivor shall be in his name; where it has passed to his heirs, or to his devisees, who could sup.port the action if brought anew, the revivor may be in their name. Gantt's Dig., sec. 4774.
In Anderson v. Levy, 33 Ark., 665, — a suit involving :the title to lands — the plaintiff had died and the cause was revived in the name of his administrator, and proceeded to a decree. This court said : “The decree and all proceedings in the court below, with regard to the land, after suggestion of McCrary’s death, were erroneous. The administrator might have prosecuted the suit for an account against Eartee and a personal decree ; but that branch of the case was abandoned. Upon the death of a party the title to his lands passes at once to his heirs or devisees and the administrator cannot represent them in court. In all cases where title is to be affected they are necessary parties. It is well settled that the heirs of a mortgagor are necessary parties defendant to a bill to foreclose, or as complainants in a bill to redeem. A bill to assert an equitable title to land, to which the legal title is in another is in fact a bill to redeem. 'The success or failure of it affects the heirs and they must be brought in. * * * The court should, of its own motion, refuse to proceed until the heirs are brought in and ■can have an opportunity to be heard.” See also Haley v. Taylor, 39 Ark., 104; Sisk v. Almon, 34 Id., 391; S. G., 40 Id.
The appellants are not without remedy, however. Mr. Grace doubtless has a meritorious claim against the estate-of Richardson ; although this remedy may prove to be inefficacious, as suggested here, on account of the insolvency of the estate. Then he certainly has a retaining lien upon the-deeds, papers and securities entrusted to him by his client . . and possibly, although on this point we express no opinion, his lien may extend to the subject of the suit, so that it may-not be defeated by a collusive settlement between the-defendant and those who have succeeded to Richardson’s rights. Compare on this subject, Gist v. Hanley, 33 Ark., 233; Compton v. State, 38 Id., 601 ; Carpenter v. 6th Av. R. Co., 1 Am. Reg. U. S., 410 and note.
. Again, if Neel received the property, as alleged in the bill, under a promise to pay Richardson’s debts, a trust, it should seem attaches to the property, which the creditors may enforce by appropriate suits. And there are indications in the record that some or all of these creditors, are pursuing the property in the federal courts.
All that we mean to decide is, that whatever rights the appellants have must be asserted in independent suits. They cannot ingraft their claims for relief upon the dead stock of a suit which has abated, nor attach them as a tail to a kite which has already descended to the ground.
The decree below is affirmed without prejudice to the right of the appellants to institute new suits.