Dwinal v. Holmes , 37 Me. 97 ( 1854 )

Howard, J.

— At common law, the death of a sole party, pendente lite, abated the suit. The inconvenience resulting from the application of this rule has been remedied by statute law, in a great measure. So that now, in personal actions, the cause of which, by law, survives the death of a sole plaintiff or defendant, before judgment, will not abate the suit,- but the administrator or executor of the deceased party may appear and prosecute or defend the action,- and he may be cited for that purpose; and if he do not appear judgment may be rendered against him upon nonsuit or default. R. S., c. 120, §§ 10, 15; and statute 17 Car. 2, c. 13, and 8 and 9 W. 3, c. 10, §§ 6 and 7.

In respect to real actions, the inconvenience of abatement, by the death of parties, is remedied by R. S., c. 145, § 19; which -provides that no action, wherein the possession of land is, or may be demanded, shall at any stage of its progress, after having been entered in eourt, be abated by the death or intermarriage of either party thereto, &c.

If a petition for partition may be regarded as an action, in a legal sense, it is not a personal action, and by it the possession of land is not demanded. The petitioner must be seized in fee .simple, or for life, of the estate, or have a right of entry, in order to maintain his process. R. S., c. 121, § 1. It.is plain, therefore, that the provisions of the statutes referred to, do not embrace petitions for partition.

By R. S., c. 121, § 16, and the Act of amendment, 1842, c. 31, § 14, it is provided, that “tenants in common, joint tenants and co-partners may, all, or any two or more of them, join or sever in petitions for partition; and whenever they join, and either petitioner shall decease, or convey his share pending the petition, the Court may allow an amendment of the petition; and his name may be erased, and the names of his heirs, devisees or grantees, respectively, inserted in his stead; and they, with the other petitioners, may proceed in the cause for their respective shares; and the heirs, devisees or grantees of a several petitioner may be inserted as petitioners, instead of the deceased grantor.” But there is no provision for citing in the heirs, devisees or grantees, or compelling them to appear, or proceeding to judgment without their voluntary appearance. Unless they do appear there is but one party in Court, and the petition abates, under the general rule of the common law, by the death of the petitioher. The Act of April 19, 1854, is prospective in terms, and does not reach the infirmities of this case.

Respondent’s motion denied.

Shepley, C. J., and Rice, Hathaway and Cutting, J. J., concurred.

Note. By Act of 1854, c. 97, petitions for partition are not to abate on account of tbe death of a party thereto ; but the Court may cite in either the heirs, or the executor or administrator of such deceased person, and they may be made parties to the process.