John F. J. Mitchell et al., Appellants, vs. John S. Wamble, Appellee, 18 Fla. 169

The Chiee-Justioe delivered the opinion of the court. This was a suit in equity by John S. Wamble against John F. J. Mitchell, Sarah A. Watts and Joseph Leinhart to compel the specific performance of an agreement for the sale of land by Sarah A. Watts to Wamble. J. F. J. Mitchell is charged with certain transactions connected with the sale, and Leinhart as a subsequent grantee with notice. After answer and the taking of testimony it was suggested upon the record that Sarah A. Watts had died, and it was “ ordered that Mrs. Henrietta Mitchell, wife of defendant, J. F. J.

Mitchell, be and she is hereby made a party to this action; that a copy of this order be served on Henrietta Mitchell, and that this cause do proceed according to the rules and usages of this court.” A copy of this order was served on Mrs. Mitchell, who filed no answer and took no action in the cause, except to join in the appeal from the final decree. The court decreed that the deed to Lienhart was fraudulent and void, and that John F. J. Mitchell and Henrietta Mitchell, his wife, do convey to complainant the land described, and that they pay the costs.

The petition of appeal prays a reversal of the decree ordering them to convey. We do not find in the record any evidence that Mrs. Mitchell was a proper party to the suit as an heir at law, or as an administratrix of the estate of Mrs. Watts. The bill states only that John E. J. Mitchell represented himself to be the agent of Mrs. Watts, “his mother-in-law.” Possibly Mrs. Mitchell is the daughter of Mrs. Watts, but if that be so the suit was not revived as against any legal representative of Mrs. Watts.

Upon the death of a plaintiff or defendant materially interested, the suit, accordng to the former and the present practice, abates. 2 Dan. Ch. Pl. & Pr., 5 Am. Ed., 1508. Rule 38, Equity Rules, provides for reviving a suit against the legal representatives of a defendant, but nothing appears to have been done in this cause to revive it after the death of Mrs. Watts, who held the legal title (it is presumed), and who was charged with having agreed to convey the land to complainant.

As to Henrietta Mitchell, she appears to be a mere stranger to the entire transaction and to the property, and as to her husband, he could not convey, for no interest in the property appears in him. The record, therefore, shows no foundation for this decree, and it is reversed and the cause is remanded, with directions that the parties proceed according to the practice of the court. Decree reversed.