Emery, V. C.
(after stating the facts).
The complicated questions of practice which arise in the case are due, manifestly, to the irregularity of both parties to the suit in proceeding with the cause without an order of revivor after notice, in September, 1889, of the death of John C. Havens and to the failure of both parties to call the attention of the vice-chancellor to the defect of parties before the submission of the cause. The revival of a suit which is either abated or made defective by the death of a party interested, is not a new suit, but is still the same suit, in which both parties are entitled to the benefit of all former proceedings, and, as was said by Mr'. Justice Depue in Marlatt v. Warwick, 4 C. E. Gr. 439 (Errors and Appeals, 1867), all that is open for litigation on a revival of proceedings under our Abatement act is whether the new party brought before the court has the representative character reputed to him. The amendments to the bill, authorized by the act to be made by the new parties, are (section 5) “ such as his interest or title therein may require,” and in the present case the only issue made on the amended bill related to the succession in title. Under the English practice the form of decree of revivor, after reciting the last material proceeding in the suit and the subsequent events in concise form, proceeded “ that this suit, which has become abated in manner aforesaid, stand revived and be in the same plight and condition that the same was in at the time of the said abatement.” 3 Dan. Ch. Pr. (6th ed.) *2538. Both parties, under such decree, had the benefit of the previous proceedings and were bound thereby and by the whole of the proceedings, and this was the principal, if not the sole, object of the bill of revivor.
[150]*150“A revivor cannot be made to operate from a particular period of the cause only, but its whole proceedings — bill, answer and orders in the cause — must stand revived, for a revivor is but a continuance of the same suit, and'it cannot be a continuation of the same unless it proceeds from where the other left off.” 2 Dan. Ch. Pr. *1542.
And under the English practice, where the parties irregularly proceed with the cause after abatement or defect of necessary parties and decrees are subsequently made, an order of revivor will not be made, but the new party will be put to a supplemental bill unless all parties expressly stipulate to be bound by the previous proceedings in the cause taken after the abatement. Griffin v. Morgan, L. R. 4 Ch. App. 351. See, also, Story Eq. Pl. 384 and cases cited. The new complainants contend (properly, I think) that they are not bound by any proceedings in the original cause taken after the death of their ancestor, but the question in this case is whether, this being admitted, the new complainants can, simply by an order of revivor, nnder the statute and under an amendment to the original bill, which merely stated their succession, now bring on, either for the benefit of all the complainants or of themselves alone, what is practically a new cause or rehearing of the cause, upon additional evidence taken to meet a defect in the original evidence of complainants after an adverse decision. So far as relates to the original complainants, it seems clear that they cannot themselves directly claim any benefit from such new evidence taken after their proofs had closed and theft cause was submitted and decided adversely. If the proceedings, by the death of one complainant, had not merely become defective in parties, but had in law abated, so that no valid decree could be made against the survivors, in the absence of the representatives of the deceased party, then the original complainants in this cause might, perhaps, indirectly receive the benefit of opening the proofs for new evidence to meet an adverse decision, if it were regular to proceed in the cause on a mere order of revivor without a supplemental bill, a supplemental bill would seem to be necessary. Story Eq. Pl. 384. Rut where, by the death of a. party complainant, the suit becomes merely defective as to parties and a [151]*151final decree in the cause valid as between the surviving parties may be made, then, as it seems to me, there is no difficulty, in point of practice, in continuing the cause as between the surviving parties to final hearing and decree, even after the death of one of several complainants. Of course the decree in such case would not bind the successors in title to the deceased, but the proceedings in the suit taken áfter the death would bind all the parties who could legally take them, and the successors in title of the deceased party could not, ex mero motu and by an order of revivor under the statute, affect the status of the other parties complainant or defendant, as between themselves, existing at the time of the order, or prevent their being bound by the previous proceedings.
Ordinarily, on bills of partition, the presence of all parties interested is considered necessary, and if a decree of partition is to be made all must be parties, and in the absence of any the court would not ordinarily proceed to decree. Freem. Par. § 463 and eases cited. But this rule is based on the principle that the court will not proceed to make an ineffectual decree, and where, as here, the parties submitted the original cause without calling attention to any defect of parties, and the court thereupon denied the partition as against the defendant land company, I see no reason why the court should not proceed to a complete decree on this decision as between the then parties to the suit, in the absence of the representatives of the deceased party. These surviving parties, in submitting the cause without calling attention of the court to the known defect of parties, both took the risk of a decree which might be made settling their rights as between themselves and without reference to the absent interests, and neither of these parties can be allowed to evade the effect of the decision by introducing, directly or indirectly, new evidence to meet defects in their evidence disclosed by the decision.
As to the entry now of a decree, as advised by the vice-chancellor in his opinion, it is not contended by the new complainants that on the case as argued before him a different decree ought not to be advised by me, or that the cause is before me as [152]*152a rehearing of the original cause between the original parties. As between the original parties the decree should be entered as directed in the filed opinion, and any application for rehearing is irregular until the decree has been so entered. This is the practice of the English court where the sitting chancellor directs what order should be made and an entry thereof is made in the minutes, and the order is not actually signed during his term of office. Lord Eldon said that regularly the decree should then be made up as directed in the minutes, to be signed by him, and he would then consider the application for rehearing. Taylor v. Popham, 15 Ves. 73 (1808). This is also the practice where there has been a declaration of rights in a cause before the discovery that a necessary party was omitted, who has been brought before the court by supplemental bill. Jenkins v. Cross, 15 Sim. 76.
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Emery, V. C.
(after stating the facts).
The complicated questions of practice which arise in the case are due, manifestly, to the irregularity of both parties to the suit in proceeding with the cause without an order of revivor after notice, in September, 1889, of the death of John C. Havens and to the failure of both parties to call the attention of the vice-chancellor to the defect of parties before the submission of the cause. The revival of a suit which is either abated or made defective by the death of a party interested, is not a new suit, but is still the same suit, in which both parties are entitled to the benefit of all former proceedings, and, as was said by Mr'. Justice Depue in Marlatt v. Warwick, 4 C. E. Gr. 439 (Errors and Appeals, 1867), all that is open for litigation on a revival of proceedings under our Abatement act is whether the new party brought before the court has the representative character reputed to him. The amendments to the bill, authorized by the act to be made by the new parties, are (section 5) “ such as his interest or title therein may require,” and in the present case the only issue made on the amended bill related to the succession in title. Under the English practice the form of decree of revivor, after reciting the last material proceeding in the suit and the subsequent events in concise form, proceeded “ that this suit, which has become abated in manner aforesaid, stand revived and be in the same plight and condition that the same was in at the time of the said abatement.” 3 Dan. Ch. Pr. (6th ed.) *2538. Both parties, under such decree, had the benefit of the previous proceedings and were bound thereby and by the whole of the proceedings, and this was the principal, if not the sole, object of the bill of revivor.
[150]*150“A revivor cannot be made to operate from a particular period of the cause only, but its whole proceedings — bill, answer and orders in the cause — must stand revived, for a revivor is but a continuance of the same suit, and'it cannot be a continuation of the same unless it proceeds from where the other left off.” 2 Dan. Ch. Pr. *1542.
And under the English practice, where the parties irregularly proceed with the cause after abatement or defect of necessary parties and decrees are subsequently made, an order of revivor will not be made, but the new party will be put to a supplemental bill unless all parties expressly stipulate to be bound by the previous proceedings in the cause taken after the abatement. Griffin v. Morgan, L. R. 4 Ch. App. 351. See, also, Story Eq. Pl. 384 and cases cited. The new complainants contend (properly, I think) that they are not bound by any proceedings in the original cause taken after the death of their ancestor, but the question in this case is whether, this being admitted, the new complainants can, simply by an order of revivor, nnder the statute and under an amendment to the original bill, which merely stated their succession, now bring on, either for the benefit of all the complainants or of themselves alone, what is practically a new cause or rehearing of the cause, upon additional evidence taken to meet a defect in the original evidence of complainants after an adverse decision. So far as relates to the original complainants, it seems clear that they cannot themselves directly claim any benefit from such new evidence taken after their proofs had closed and theft cause was submitted and decided adversely. If the proceedings, by the death of one complainant, had not merely become defective in parties, but had in law abated, so that no valid decree could be made against the survivors, in the absence of the representatives of the deceased party, then the original complainants in this cause might, perhaps, indirectly receive the benefit of opening the proofs for new evidence to meet an adverse decision, if it were regular to proceed in the cause on a mere order of revivor without a supplemental bill, a supplemental bill would seem to be necessary. Story Eq. Pl. 384. Rut where, by the death of a. party complainant, the suit becomes merely defective as to parties and a [151]*151final decree in the cause valid as between the surviving parties may be made, then, as it seems to me, there is no difficulty, in point of practice, in continuing the cause as between the surviving parties to final hearing and decree, even after the death of one of several complainants. Of course the decree in such case would not bind the successors in title to the deceased, but the proceedings in the suit taken áfter the death would bind all the parties who could legally take them, and the successors in title of the deceased party could not, ex mero motu and by an order of revivor under the statute, affect the status of the other parties complainant or defendant, as between themselves, existing at the time of the order, or prevent their being bound by the previous proceedings.
Ordinarily, on bills of partition, the presence of all parties interested is considered necessary, and if a decree of partition is to be made all must be parties, and in the absence of any the court would not ordinarily proceed to decree. Freem. Par. § 463 and eases cited. But this rule is based on the principle that the court will not proceed to make an ineffectual decree, and where, as here, the parties submitted the original cause without calling attention to any defect of parties, and the court thereupon denied the partition as against the defendant land company, I see no reason why the court should not proceed to a complete decree on this decision as between the then parties to the suit, in the absence of the representatives of the deceased party. These surviving parties, in submitting the cause without calling attention of the court to the known defect of parties, both took the risk of a decree which might be made settling their rights as between themselves and without reference to the absent interests, and neither of these parties can be allowed to evade the effect of the decision by introducing, directly or indirectly, new evidence to meet defects in their evidence disclosed by the decision.
As to the entry now of a decree, as advised by the vice-chancellor in his opinion, it is not contended by the new complainants that on the case as argued before him a different decree ought not to be advised by me, or that the cause is before me as [152]*152a rehearing of the original cause between the original parties. As between the original parties the decree should be entered as directed in the filed opinion, and any application for rehearing is irregular until the decree has been so entered. This is the practice of the English court where the sitting chancellor directs what order should be made and an entry thereof is made in the minutes, and the order is not actually signed during his term of office. Lord Eldon said that regularly the decree should then be made up as directed in the minutes, to be signed by him, and he would then consider the application for rehearing. Taylor v. Popham, 15 Ves. 73 (1808). This is also the practice where there has been a declaration of rights in a cause before the discovery that a necessary party was omitted, who has been brought before the court by supplemental bill. Jenkins v. Cross, 15 Sim. 76. On the hearing upon supplemental bill it was there claimed on behalf of the new party that the first declaration was erroneous, but it was held that the same declaration must be made on the supplemental as in the original suit, and the new party would be heard on a petition for rehearing, otherwise the record in the cause would be inconsistent with itself. As to the original complainants who survived at the time of the original submission of the cause (not including, however, Margaret A. Havens), I conclude, therefore, that the decree advised by Vice-Chancellor Van Fleet dismissing the bill as to tract No. 4 should now be advised. Margaret A. Havens, as the widow of John C. Havens, becomes one of the new complainants and must be treated as such, although she was one of the original complainants as wife of John C. Havens. Inasmuch as one of these original complainants has died since the submission and since the filing of the opinion, the decree in the cause should be dated as of the date of the submission. Tallman v. Wallace, 19 N. J. L. J. 108 (Errors and Appeals, 1896). As to the new complainants the bill should be dismissed without prejudice. The dismissal of the bill of the original complainants as against the defendant land company leaves this defendant and the new complainants as the sole owners or claimants of any interest in tract No. 4, one of the two tracts sought to be partitioned. As to the [153]*153other tract, No. 5, the original as well as the new complainants claim undivided interests in this tract, and defendant land company, by its amended answer, claims only one-half interest therein.
It appears to have been admitted by the land company, on the hearing before Vice-Chancellor Van Fleet, that one-half interest in lot No.' 5 belonged to the heirs of John Curtis, these, being the original complainants and their successors in title. The persons interested or claiming interests in the two tracts, 4 and 5, are therefore so different that no single commission could issue to divide the two lots, and the bill of the. new complainants, as to the partition of lot No. 4, must therefore be dismissed without prejudice. And under the decision of the court of errors and appeals, in Slockbower v. Kanouse, 5 Dick. Ch. Rep. 481 (1892), decided after the opinion of Vice-Chancellor Van Fleet, it would seem that the amended bill must be dismissed as one involving a dispute of legal title, and that a decree in complainants’ favor would be of no avail if appealed from. The defendant land company, by their amended answer and cross-bill, set up an equitable as well as legal title under the disputed deed, and as the vice-chancellor held the deed to convey a legal title, the cross-bill must be dismissed. As to the rights of the complainants (original and new) and of the defendants in tract No. 5, the brief of counsel submitted to Vice-Chancellor Van Fleet states that there was no dispute between the parties. Nothing was said at the argument before me in reference to-this tract, and I will hear counsel of all parties, as to the partition, of this tract, before advising decree. The infant heirs of the new complainant, Albert A. Havens, who has died since the order of revivor, should be made parties before any hearing or decree in relation to lot No. 5.