JOHN F. J. MITCHELL ET AL., APPELLANTS,
v.
JOHN S. WAMBLE, APPELLEE
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John S. Wamble sued to enforce an agreement for sale of land by Sarah A. Watts. After Mrs. Watts died during litigation, the trial court improperly substituted Henrietta Mitchell (wife of co-defendant John F. J. Mitchell) as a party without showing she was a legal representative of the deceased, and decreed that the Mitchells convey the land. The Florida Supreme Court reversed, holding the decree was void because Henrietta Mitchell was not a proper party and the suit had abated upon Mrs. Watts's death without proper revival.
The decree was reversed because: (1) the suit abated upon the death of Sarah A. Watts, the party holding legal title and charged with the obligation to convey, and it was not properly revived under equity rules; (2) Henrietta Mitchell was not shown to be a proper party as an heir at law or administratrix of Mrs. Watts's estate; and (3) neither Henrietta Mitchell nor her husband had any interest in the property that would support a decree to convey.
“Upon the death of a plaintiff or defendant materially interested, the suit, accordng to the former and the present practice, abates.”
Establishes the fundamental principle that an equity suit abates upon the death of a materially interested party unless properly revived
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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 *171rules 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.
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Izler v. Porter Slyke, 115 So. 516 (Fla. 1928)…a suit and before decree proconfesso or before final decree after pleadings filed, an indispensable defendant dies, the action abates and must be revived by bringing into court the legal representatives of the deceased defendant. Mitchell v. Wamble, 18 Fla. 169; Worley v. Dade County Security Co., 52 Fla. 666, 42 So. 527. But where such defendant dies during the interval between an entry of decree pro confesso and a final decree, as in this case, a more serious problem is presented. Without deciding this…