Richter v. Beaumont

Woods, J.,

delivered the opiniou of the court.

The death of appellee’s testatrix was never suggested, so far as the record discloses the steps taken below, nor -was her executor ever made party by any revivor or other order of ■court. Whether he could properly maintain the suit under the will of Mrs. B. Beaumont (which we find in the transcript), was an important preliminary question, which seems never to have been presented at all. Ordinarily, the executor has no authority to bring ejectment; and if that power was supposed to have been conferred by the will of Mrs. Beaumont, the question should have been raised by an application for revivor in the name of the personal representative instead of that of the heir.

But still more erroneous was'the so-called revivor, on suggestion of plaintiff below, agaiust the appellant as heir of the original defendant. It perfectly appears that appellaut was not his heir, nor asserting title under him. She was in possession, and asserting an independent, adverse title in herself. The heirs of the deceased defendant were not made parties, under the order of revivor, but the attempt was undertaken to make a new defendant altogether. There was no revivor or amendment, but an unwarranted effort to carry on a pending suit by substituting a new party as defendant. If the appellee wishes to test the strength of appellant’s title, lie must do so by an action instituted against her. He began by assailing the title of George Richter and ends with a judgment overthrowing that of Kate Richter, a person holding independently of, and adversely to, all the world, and not derivatively or otherwise from the original defendant.

Reversed and remanded.