Burrows v. Taylor

Ohio Supreme Court

Burrows v. Taylor

1 Wright 600, 1 Ohio Ch. 600

DecidedMay 15, 1834

StatusPublished

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Bluebook

Burrows v. Taylor, 1 Wright 600, 1 Ohio Ch. 600 (Ohio 1834).

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Opinion

WRIGHT, J.

The first question presented is, can a devisee, of all the real estate of the testator, revive a bill concerning a tract of land, which he shows was conveyed by the testator when alive ? A bill of revivor seeks to resuscitate proceedings interrupted by death and to continue the proceedings as to the same interest. The chancery act (22 O. L. 79) expressly provides for a devisee’s reviving a suit if the cause of action be devised, and he could maintain the suit if brought anew. But a devisee, of other matters, showing no interest in the subject of the suit, has no more right to come in, and take up and carry on the proceedings, than any other stranger to them.

The next question is, can a lite pendente purchaser of the interest of the complainant revive? Such purchaser acquires no right that will authorize him to interfere with the suit. We do not see how an intermeddler with the interest of the complainant entitles himself to the more favorable regard of a chancellor. If a party die, and the law casts the interest in controversy upon the heir, there is a right in him to revive, because the interest is identical, and has been cast upon him .by operation of law. Our statute places devisees on the same footing. A voluntary change of interest makes no such case, and creates no necessity for a revivor. Good policy requires that litigated interests, while in dispute, shall not become the subject of traffic. We think the purchaser has no right to revive the proceedings — what other right he may have acquired it is not neces-*sary now to inquire: (11 Vesey, 198; 2 Ves. and [602 B. 201; 1 Vern. 417.)

The third questioon is, can two, each claiming for himself the estate in controversy, revive jointly? The interests disclosed are antagonist — in no respect the same; joint action, therefore, is improper. If either would assert his claim, he should act against the other, not with him. As they stand, it is not proven which has the interest, and neither can be struck out without consent. These objections may be urged on demurrer, (Har. Ch. 210.)

The demurrer is -allowed.

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WRIGHT, J.

The first question presented is, can a devisee, of all the real estate of the testator, revive a bill concerning a tract of land, which he shows was conveyed by the testator when alive ? A bill of revivor seeks to resuscitate proceedings interrupted by death and to continue the proceedings as to the same interest. The chancery act (22 O. L. 79) expressly provides for a devisee’s reviving a suit if the cause of action be devised, and he could maintain the suit if brought anew. But a devisee, of other matters, showing no interest in the subject of the suit, has no more right to come in, and take up and carry on the proceedings, than any other stranger to them.

The next question is, can a lite pendente purchaser of the interest of the complainant revive? Such purchaser acquires no right that will authorize him to interfere with the suit. We do not see how an intermeddler with the interest of the complainant entitles himself to the more favorable regard of a chancellor. If a party die, and the law casts the interest in controversy upon the heir, there is a right in him to revive, because the interest is identical, and has been cast upon him .by operation of law. Our statute places devisees on the same footing. A voluntary change of interest makes no such case, and creates no necessity for a revivor. Good policy requires that litigated interests, while in dispute, shall not become the subject of traffic. We think the purchaser has no right to revive the proceedings — what other right he may have acquired it is not neces-*sary now to inquire: (11 Vesey, 198; 2 Ves. and [602 B. 201; 1 Vern. 417.)

The third questioon is, can two, each claiming for himself the estate in controversy, revive jointly? The interests disclosed are antagonist — in no respect the same; joint action, therefore, is improper. If either would assert his claim, he should act against the other, not with him. As they stand, it is not proven which has the interest, and neither can be struck out without consent. These objections may be urged on demurrer, (Har. Ch. 210.)

The demurrer is -allowed.

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1 Wright 600, 1 Ohio Ch. 600, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burrows-v-taylor-ohio-1834.