#### BURROWS AND BROOKS v. TAYLOR, ET AL.

Bill of revivor — heir—devisee—lite pendente purchaser — antagonist interests.

A bill of revivor seeks to resuscitate proceedings interrupted by death, and to continue them as to *the same*interest.

An heir upon whom the subject of the suit is cast by operation of law, may revive — the statute of Ohio places the devisee of the subject on the same footing, if the suit be such as he could prosecute if it were not commenced.

*601A lite pendente purchaser acquires no right that will authorize him to interfere with a suit " pending, and the death of his vendor confers upon him none to revive the suit.

Where there are antagonist interests, they cannot be united in the same bill and prosecuted jointly; if the holder of either would proceed, he must make the other defendant.

*Bill of*Revivor. The interest of Mary Chambers was prosecuted in the original bill by herself and husband. The husband died pending the suit, and it was further prosecuted by her alone. She then, as alleged in the bill, conveyed the estate in controversy to Burrows one of the present complainants. After which she made her will, devising all her real estate to Brooks, the other complainant, and died, the original suit still pending. The bill prays a revivor in the name of Burrows, the vendee, and Brooks, the devisee of Mary Chambers, jointly.

To this bill the respondents demur.'

*Hammond*and *Tibbats*for the demurrer,

cite *Harrison's Ch.*210; 1 *Ch. Ca.*123, 174; 3 *Ch. R.*39; *Mosely*44; *Hind's Pr.*49, 69; *3Pr. Wms.*348; *Redes. Tr.*164; 1 *Vern.*446, 417.

*N.*Wright, contra.

Wright, J.

The first question presented is, can a devisee, of all the real estate of the testator, revive a bill concerning a tract of land, which he shows was conveyed by the testator when alive ? A bill of revivor seeks to resuscitate proceedings interrupted by death and to continue the proceedings as to the *same interest.*The chaneery act, (22 *O. L.*79) expressly provides for a devisee’s reviving a suit if the cause of action be devised, and he could maintain the suit if brought anew. But a devisee, of other matters, showing no interest in the subject of the suit, has no more right to come in, and take up and carry on the proceedings, than any other stranger to them.

The next question is, can a lite pendente purchaser of the interest of the complainant revive ? Such purchaser acquires no right that will authorize him to interfere with the suit. We do not see how an intermeddler with the interest of the complainant, entitles himself to the more favorable regard of a chancellor. If a party die, and the law casts the interest in controversy upon the heir, there is a right in him to revive, because the interest is identical, and has been east upon him by operation of law. Our statute places devisees on the same footing. A voluntary change of: interest makes no such case, and creates no necessity for a revivor. Good policy requires that litigated interests, while in dispute,¡shall not become the subject of traffic. We think the purchaser has no right to revive the proceedings — what other right he may have acquired it is not neces *602sary now to inquire: (11 Vesey, 198; 2 *Ves. and B.*201; 1 *Vern.*417.)

The third question is, can *two,*each claiming for himself the estate in controversy, revive jointly ? The-interests disclosed are antagonist — in no respect the same: joint action, therefore, is improper. If either would assert his claim, he should act *against*the other, not *with*him. As they stand, it is not proven which has the interest, and neither can be struck out without consent. These objections maybe urged on demurrer: *(llar. Ch.*210.)

The demurrer is allowed.