ON QUESTION OF REVIVOR.
BROWN, C. —
This suit was instituted October 26, 1909, against Killingsworth and the Farmers Bank, to obtain specific performance of a contract to convey land in Greene county and incidentally to reform the written contract by correcting the description of the land Among other things the petition states
“That on said date to-wit, July 7, 1908, the plaintiff purchased said real estate from the defendant for the price and sum of $3850, and entered into a written contract with defendant whereby they agreed as follows: that the plaintiff would pay for an abstract of title, and the defendant would furnish plaintiff a perfect title to said real estate, and deliver him possession of-same between the first and 15th days of August, 1908, and allow plaintiff one-third of all crops grown on sixty-four acres of said premises in the year 1908 (except the orchard) and that plaintiff should have reasonable time to procure an abstract and a loan on said real estate, and the defendant was to have a reasonable time to perfect his title if it should be defective, and on said day executed a general warranty deed to plaintiff, intending by said deed to convey the aforesaid described real estate, and plaintiff drew his check on the Bank of Ash Grove, for the sum of one hundred dollars, payable to the said Farmers Bank, and plaintiff and defendant [636]*636J. F. Killingsworth. delivered the possession of said written contract, check and deed, to the Farmers Bank-aforesaid, which were enclosed in an envelope and deposited with the said bank, with the understanding and agreement on the part of the plaintiff and defendants that the said defendant, Farmers Bank, would hold said papers until called for by both parties, to-wit, the plaintiff and J. F. Killingsworth, and would deliver up said papers when requested so to do by said parties.”
It also charges, in substance, an offer to pay the consideration, and his readiness still to do so, and brings the amount into court. It also specifies certain damages which plaintiff claims to have suffered from the non-performance of the contract, and eonclucdes as follows:
“Wherefore plaintiff prays the court to ascertain the amount necessary to perfect said title in accordance with said contract, and the value of the crop belonging to plaintiff on said premises, and the rent value of the same from the 12th day of August, 1908, and the damages accruing to plaintiff by reason of being deprived of said premises. And that the possession of said premises be delivered to plaintiff, and all right, title and interest of defendant therein be decreed and vested in plaintiff upon the payment of the sum found due the defendant by him, and in the event the court should find that plaintiff is not entitled to a specific enforcement of said contract, then plaintiff prays for the sum of $1500 as damages by reason of its breach and for other proper relief.”
A trial was had before the court without the intervention of a jury on October 27, 1909, resulting in a judgment for defendants dismissing the petition. The case was treated throughout as one for equitable relief. This appeal was returnable to the April term, 1910, of this court. Killingsworth died in February, 1910, and on the 5th day of the following month the defendant Watson became administrator of his estate. [637]*637On January 11, 1912, and during the October term, 1911, the death of Killingsworth was suggested in this court and a scire facias was issued to the administrator returnable on the first day of the next term. On March 12, 1913, the abstract of record and brief were filed by appellant, and on April 12th the respondents by their attorneys filed their brief.
The heirs of Killingsworth have, during the present term, appeared for that purpose only, and filed their motion to dismiss the cause for the reason that it has not been revived by substituting them as defendants, and the question is presented whether we should proceed with the parties now before us to finally dispose of this appeal.
Death of Party: Revivor. It has been uniformly held by this court that, although new parties, as successors to those who may have died during the pendency of the appeal, can only be substituted in the mode pointed out by the statute, that is to say, upon voluntary appearance and consent of the adverse party, or after service of summons issued for the purpose of revivor on such party (Jeffries v. Flint, 55 Mo. 29), yet on the death of one of a number of appellants a cause may proceed without a revivor. [Reineman v. Larkin, 222 Mo. 156; Reed v. Colp, 213 Mo. l. c. 581; St. Louis v. Brinckwirth, 204 Mo. l. c. 286; Prior v. Kiso, 96 Mo. 303.] These cases, however, apply each to its own facts, and there is nothing in them that suggests that the court thought it impossible that circumstances might arise in which the interests of the parties ranged on the same side as appellants might in fact be so adverse that they would need protection from each other. The Legislature seemed to have some such notion when it expressly required, in what is now section 2074, Revised Statutes 1909, that the survivors on either side should suggest the death of any of their own associates which might occur up to the very time of the submission This [638]*638notifies the opposite party that one of its adversaries has gone where the court has no jurisdiction over him, and that. they have an opportunity to determine whether, to affect his interest or claim, some one else must be brought in to represent it. If so, the provisions of section 2075 authorize it to be done nolens volens. Under the provisions of section 2078 it might be done “in like time and manner and with like effect as provided for in original suits in circuit courts.” This provision with respect to time can only refer, and therefore does refer, to the limitation contained in section 1921 of the statutes to which we have already referred, which is as follows: “In all cases where the representatives of -a deceased or disabled party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to such party and the interest of his representative or successor therein; and the cause shall proceed in favor of or against the survivors.” Those two sections (1921 and 2078) read together, as they must be, give to the representatives interested, as well as to the parties to the suit, the plenary right to make the substitution authorized at any time before or during the third term after the suggestion of the death. We cannot if we would, without violation of the statute, curtail this right with respect to any one having an interest in its exercise.
This petition is framed upon the theory that the suit is one in equity for the specific performance of a contract for the sale and conveyance of land. It is to that feature that this court owes its jurisdiction of' the appeal. The heirs or devisees of the deceased defendant, whoever they may be, are the legal owners of the land, and therefore the parties interested adversely to the plaintiff in that controversy. It is true that the petition contains a prayer for damages for breach of the contract, provided the court should find itself unable [639]
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ON QUESTION OF REVIVOR.
BROWN, C. —
This suit was instituted October 26, 1909, against Killingsworth and the Farmers Bank, to obtain specific performance of a contract to convey land in Greene county and incidentally to reform the written contract by correcting the description of the land Among other things the petition states
“That on said date to-wit, July 7, 1908, the plaintiff purchased said real estate from the defendant for the price and sum of $3850, and entered into a written contract with defendant whereby they agreed as follows: that the plaintiff would pay for an abstract of title, and the defendant would furnish plaintiff a perfect title to said real estate, and deliver him possession of-same between the first and 15th days of August, 1908, and allow plaintiff one-third of all crops grown on sixty-four acres of said premises in the year 1908 (except the orchard) and that plaintiff should have reasonable time to procure an abstract and a loan on said real estate, and the defendant was to have a reasonable time to perfect his title if it should be defective, and on said day executed a general warranty deed to plaintiff, intending by said deed to convey the aforesaid described real estate, and plaintiff drew his check on the Bank of Ash Grove, for the sum of one hundred dollars, payable to the said Farmers Bank, and plaintiff and defendant [636]*636J. F. Killingsworth. delivered the possession of said written contract, check and deed, to the Farmers Bank-aforesaid, which were enclosed in an envelope and deposited with the said bank, with the understanding and agreement on the part of the plaintiff and defendants that the said defendant, Farmers Bank, would hold said papers until called for by both parties, to-wit, the plaintiff and J. F. Killingsworth, and would deliver up said papers when requested so to do by said parties.”
It also charges, in substance, an offer to pay the consideration, and his readiness still to do so, and brings the amount into court. It also specifies certain damages which plaintiff claims to have suffered from the non-performance of the contract, and eonclucdes as follows:
“Wherefore plaintiff prays the court to ascertain the amount necessary to perfect said title in accordance with said contract, and the value of the crop belonging to plaintiff on said premises, and the rent value of the same from the 12th day of August, 1908, and the damages accruing to plaintiff by reason of being deprived of said premises. And that the possession of said premises be delivered to plaintiff, and all right, title and interest of defendant therein be decreed and vested in plaintiff upon the payment of the sum found due the defendant by him, and in the event the court should find that plaintiff is not entitled to a specific enforcement of said contract, then plaintiff prays for the sum of $1500 as damages by reason of its breach and for other proper relief.”
A trial was had before the court without the intervention of a jury on October 27, 1909, resulting in a judgment for defendants dismissing the petition. The case was treated throughout as one for equitable relief. This appeal was returnable to the April term, 1910, of this court. Killingsworth died in February, 1910, and on the 5th day of the following month the defendant Watson became administrator of his estate. [637]*637On January 11, 1912, and during the October term, 1911, the death of Killingsworth was suggested in this court and a scire facias was issued to the administrator returnable on the first day of the next term. On March 12, 1913, the abstract of record and brief were filed by appellant, and on April 12th the respondents by their attorneys filed their brief.
The heirs of Killingsworth have, during the present term, appeared for that purpose only, and filed their motion to dismiss the cause for the reason that it has not been revived by substituting them as defendants, and the question is presented whether we should proceed with the parties now before us to finally dispose of this appeal.
Death of Party: Revivor. It has been uniformly held by this court that, although new parties, as successors to those who may have died during the pendency of the appeal, can only be substituted in the mode pointed out by the statute, that is to say, upon voluntary appearance and consent of the adverse party, or after service of summons issued for the purpose of revivor on such party (Jeffries v. Flint, 55 Mo. 29), yet on the death of one of a number of appellants a cause may proceed without a revivor. [Reineman v. Larkin, 222 Mo. 156; Reed v. Colp, 213 Mo. l. c. 581; St. Louis v. Brinckwirth, 204 Mo. l. c. 286; Prior v. Kiso, 96 Mo. 303.] These cases, however, apply each to its own facts, and there is nothing in them that suggests that the court thought it impossible that circumstances might arise in which the interests of the parties ranged on the same side as appellants might in fact be so adverse that they would need protection from each other. The Legislature seemed to have some such notion when it expressly required, in what is now section 2074, Revised Statutes 1909, that the survivors on either side should suggest the death of any of their own associates which might occur up to the very time of the submission This [638]*638notifies the opposite party that one of its adversaries has gone where the court has no jurisdiction over him, and that. they have an opportunity to determine whether, to affect his interest or claim, some one else must be brought in to represent it. If so, the provisions of section 2075 authorize it to be done nolens volens. Under the provisions of section 2078 it might be done “in like time and manner and with like effect as provided for in original suits in circuit courts.” This provision with respect to time can only refer, and therefore does refer, to the limitation contained in section 1921 of the statutes to which we have already referred, which is as follows: “In all cases where the representatives of -a deceased or disabled party shall not be made parties according to the provisions of this article, on or before the third term after the suggestion of the death or disability, the action shall abate as to such party and the interest of his representative or successor therein; and the cause shall proceed in favor of or against the survivors.” Those two sections (1921 and 2078) read together, as they must be, give to the representatives interested, as well as to the parties to the suit, the plenary right to make the substitution authorized at any time before or during the third term after the suggestion of the death. We cannot if we would, without violation of the statute, curtail this right with respect to any one having an interest in its exercise.
This petition is framed upon the theory that the suit is one in equity for the specific performance of a contract for the sale and conveyance of land. It is to that feature that this court owes its jurisdiction of' the appeal. The heirs or devisees of the deceased defendant, whoever they may be, are the legal owners of the land, and therefore the parties interested adversely to the plaintiff in that controversy. It is true that the petition contains a prayer for damages for breach of the contract, provided the court should find itself unable [639]*639to decree its specific performance, and the administrator has been substituted as a party defendant on some such ground, but this gives him no common interest with the owners, and therefore no right to represent them in their defense. The bank is a mere stakeholder having no interest whatever in the merits of the controversy. The judgment has inured to the owners of the land. It is the right of appellant to attach. it in this appeal, but the burden is upon him to overthrow it, and he can only sustain that burden by proceeding in the manner prescribed by law. The. cause will stand upon the docket during the present term for such action as may be taken in compliance with the law.
Blair, C., concurs.
PER CURIAM: —
The foregoing opinion of Brown, C., is adopted as the opinion of the court.
All concur.