
    YOUNG v. KELLY.
    Equity Pleading and Practice ; Bill of Revivor and Supplement; Abatement; Laches; Interlocutory Orders.
    1. An assignee of a chose in action may sue in equity in his own name without using the name of the assignor; and he may maintain a hill of revivor in his own name, if his interest has accrued during the pendency of the suit.
    2. A hill of revivor and supplement may, under Equity rule 48 of the Supreme Court of this District, he filed at any time as a matter of right within the ordinary periods of limitation, three or six years. General Rule 118 of that court, if it applies at all to suits in equity, is restricted in its application to the revival of suits by motion, as distinguished from bills of revivor.
    S. The lien acquired by the filing of a bill in equity to enforce a judgment at law, and by the issue of process, upon the property described in the bill, is not affected by the expiration of the judgment lien by lapse of time, which would make the judgment unavailable at law, or by failure to renew the judgment by scire facias, or any other, circumstance not having direct relation to the suit in equity; but the equitable lien continues until the suit is disposed of by decree, dismissal, abatement or otherwise. Nor will laches in the prosecution of the suit, affect the lien.
    4. The death of one of two complainants in a judgment creditors’ proceeding, will not, before decree, cause an abatement of the suit as to the survivor.
    5. A decree in such a suit permitting the trustees in a deed of trust of a portion of the property embraced in the suit, to sell under their deed, and requiring them to pay the proceeds of sale into court, is not a final decree, but a mere interlocutory order.
    No. 133.
    Submitted April 16, 1894.
    Decided May 8, 1894.
    
    
      HeariNG on an appeal from a decree of the Supreme Court of the District of Columbia, holding an equity term, sustaining a demurrer to and dismissing a bill of revivor and supplement. The case was pending in the General Term of that court at the date of the creation of this court, and was transferred here by operation of law.
    
      Affirmed with modification.
    
    The Court in its opinion stated the case as follows:
    On October 21, 1877, Warren S. Young, one of the appellants in this case, obtained judgment at common law in the Supreme Court of the District of Columbia, against Moses Kelly, one of the appellees, for $5,731.40; and on the next day, October 22, 1877, George W. Utermehle, whose interest has now become vested in the other appellant, Walter C. Clephane, recovered eleven several judgments, amounting in the aggregate to $5,916.66, against the same defendant Kelly. Nine days afterwards, on October 31, 1877, Young and Utermehle joined in filing the present suit in equity, which is a creditors’ bill to reach equitable assets of the judgment debtor in various pieces of real estate in the District of Columbia in satisfaction of the judgments obtained by the complainants, on the ground of the failure of assets at common law. Moses Kelly was made defendant in the suit, with sixty-two other persons interested, or supposed to be interested, as trustees of or beneficiaries in the property described in the bill.
    The suit was permitted to drag on for several years without active prosecution or practical result, apparently for the reason that Kelly’s equities in the various pieces of real estate in question were of very doubtful value. Subsequently, however, in consequence probably of a general enhancement in the value of real estate in the District of Columbia, the interests of Kelly that were sought to be reached by the bill became more definitely valuable, and it became manifest to the complainants that they should press the suit.
    On April 16, 1889, while the cause was yet pending without much action upon it beyond the release from time to time of certain lots from the lien of the suit, George W. Utermehle, one of the two original complainants, died, having, by his last will and testament, bequeathed all his personal estate to his wife, Sarah Utermehle, and made her executrix. Letters testamentary were duly issued to her on April 26, 1889, and she entered upon the performance of her duties as executrix. But .she never became a party to the present suit.
    On May 25, 1892, as executrix and legatee, of George W. Utermehle, she assigned to Walter C. Clephane, one of the appellants, all her interest in the judgments recovered by George W. Utermehle against Moses Kelly, and all her interest in the present suit instituted for the enforcement of those judgments.
    It seems that at that time a sale had been advertised under certain deeds of trust of certain pieces of real estate which had been included’ in the bill of complaint in this case by the trustees mentioned in the deeds or substituted for them; and on May 26, 1892, Warren S. Young, as one of the two original complainants in this suit, and Walter C. Clephane, as assignee of the interest that had belonged to the other original complainant, George W. Utermehle, joined in filing a petition in this cause to restrain the proposed sale, with the result that, on June 2, 1892, with the consent of all the «parties interested, an order was made by the court allowing the sale to proceed, but requiring the proceeds to be paid into the registry of the court. The sale was made, and on August 25, 1892, the sum of $3,586.22, the proceeds of sale, was paid into the registry of the court. Afterwards, on June 19, 1893, this sum was paid over to Mason N. Richardson and Clarence A. Brandenburg, as trustees, for the purpose of investment; and they now hold the fund subject to the order of the court.
    In the meantime, in pursuance of a motion made in that behalf on June 9, 1892, and allowed by the court on June 18, 1892, Young and Clephane, on the day last mentioned, joined in filing in their, own names a bill of revivor and supplement, in which they set forth the fact of the death of George W. Utermehle, the devolution of his interest on his widow, Sarah Utermehle as his executrix and legatee, the transfer by her of that interest to the complainant Clephane, the proposed sale of the real estate mentioned in their previous petition, which sale had not then actually taken place, and the order permitting that sale and directing the payment of the proceeds into court; and the prayer of their bill was for a revival of the suit, that the bill should be taken as supplemental- to the original suit, and for a sale of the equitable interest of Kelly in the real estate mentioned in the bill of complaint and the application of tlie proceeds of sale to the satisfaction of the judgments held by the complainants.
    To this bill of revivor and supplement there was a demurrer interposed on behalf of the defendant Kelly, the alleged ground of which was that, inasmuch as the suit had not been revived within one year after the issue of letters testamentary on the estate of George W. Utermehle, the suit had become wholly abated as to all the parties beyond the power of revival.
    This demurrer seems to have been based on one of the general rules (No. 118) of the Supreme Court of the District of Columbia, which is in the following terms:
    “Any person who, while a cause of action at law or in equity is in suit, becomes entitled thereto or interested therein, as personal representative, husband, or transferee of the plaintiff, may, upon motion in writing filed in the cause, showing when and how he became entitled or interested, be allowed to prosecute the suit against the defendant or his personal representative instead of or with the plaintiff, as the case may be. This motion must be made within one year after the cause of action has accrued to the mover; otherwise the said suit shall abate.”
    On October 31,1892, the demurrer came on for argument, and was sustained, but upon a different ground from that assigned by the defendant, namely, that the bill of revivor and-supplement should have been filed in the name of Sarah Utermehle, executrix and legatee, to the use of Walter C. Clephane, and not in the name of Clephane himself. And thereupon an order was made dismissing the bill of revivor and supplement, the court at the same time stating that it was unnecessary to pass upon any of the other questions involved.
    From this order or decree; an appeal was taken on November 1, 1892, to the General Term; and this appeal it is which is now before us, having been transferred to us from the General Term under the law.
    
      Mr. Clarence A. Brandenburg for the appellants.
    
      Mr. Wm. F. Mattingly for the appellee, Mason N. Richardson, trustee.
    1. There was no error in the decree of the cotrt below in dismissing the bill of revivor. The decree of May 14th, 1885, as appears from the record, was a final decree upon the hearing of the cause, without reservation, and a complainant is not entitled to split up a cause and have a series of decrees. This decree was an adjudication upon the entire cause and ended the case.
    2. The cause was not operative as a lis pendens to bind a subsequent purchaser because of the grossest laches in its prosecution. The theory of the doctrine of lis pendens is , not that it is notice, but that an equitable lien is obtained by filing the bill, which is only retained by diligent prosecution. 13 Am. & Eng. Ency., 889; 1 Free, on Judg’ts, Sec. 202, 203; Watson v. Wilson, 26 Am. Dec., 459.
    3. When this bill of revivor and supplement was filed, June 9, 1892, the suit had abated as to Utermehle April 16, 1889, more than three years previous; the judgments had expired in October, 1889; and complainant had done practically nothing in prosecuting the cause since March, 1878, when their time for taking testimony was limited, a period of 14 years, so that the judgments were barred both at law and in equity, as appears from the face of the record.
    4. Clephane, the assigneee, bought the judgments after they were dead, after the equity suit had ceased to be a lis pendens for want of prosecution and more than three years after it had abated. Under these circumstances he is in no position to claim the interposition of a court of equity.
    As purchaser of the judgments he obtained no title to anything, as no judgments existed. No scire facias had been sued out by the executrix in order to make her a party, as was absolutely essential. Evans Pr., 56; Hanson v. Barnes, 3 G. & J., 359; Trail v. Snouffer, 6 Md., 308; Haywood v. Murphy, 1 Green, 193. At the time of the assignment, she had nothing to assign. As purchaser of the right to prosecute the suit in equity, what did he acquire? He did not own the judgments, for there were none. Will a court of equity permit a purchaser of an action which has abated for over three years, and which had been practically abandoned for nearly fifteen years, who has no title to the thing itself which was the foundation of the action, to revive so stale a claim? No,authority can be found to sustain such a claim.
    5. Even when a complainant assigns the property which is the subject-matter of the suit, so that he no longer has any interest in it, it is essential for the assignee to become a party, and he can only do so by bringing an original bill in the nature óf a supplemental bill, which is open to new defenses. 2 Dan. Ch., 1598; Story’s Eq. PL, Secs. 335, 346 and 349.
    
      
      Mr. T. Percy Myers for the appellee, Warren S. Young, administrator.
    
      
       The following opinion of the court delivered by Mr. Justice Morris, March 5, 1894, in this case, explains itself: “ This case as we supposed was submitted to us on printed briefs and an agreed statement of facts without oral argument. Subsequently, a statement was filed by counsel for one of the presumed parties in interest, claiming that there was in effect no agreed statement of facts and that no statement of facts had been agreed upon. From the peculiar condition of the record, as it stands, it is impossible for us to form any intelligent opinion of the case; and being desirous to do full justice between the parties, if we can, we have determined to order that the cause be restored to the calendar for oral argument; and it is so ordered.” Subsequently, the case was heard on oral argument and decided as shown by the opinion set out in the text. — Reporter.
    
   Mr. Justice Morris

delivered the opinion of the Court:

In the argument before us the ground assigned by the court below for the dismissal of the bill has not been urged at all, and we may presume that it has been abandoned. It is certainly untenable. That the assignee of a chose in action may in equity sue in his own name, and that it is not necessary to use the name of the assignor as a party to the suit, is a well settled rule of equity procedure. Story’s Eq. Jur., Sec. 1057. And there is no more reason why he should not be entitled to file a bill of revivor than an original bill in his own name, if his interest has accrued during the pendency of the suit. The right of an assignee to file a bill in equity is not confined to the first assignee or transferee of the right. It belongs to any person who by assignment or transfer becomes entitled to an equitable right. Sarah Utermehle, had she retained the interest of her deceased husband, would undoubtedly have been entitled to file a bill of revivor and supplement in her own name. When she transferred that interest, her assignee became entitled to the same right. Daniell’s Ch. Plead., and Prac., p. 254; Adams Eq., p. 405.

Nor, in our opinion, is the limitation of one year applicable which is prescribed by the Rule No. 118, to which reference has been made. That rule expressly purports to be based upon the act of Assembly of Maryland of 1785, Chap. 80, Sec. 1, and is in terms almost identical with that act, except that the act distinctly applies only to suits at common law, while the rule purports to include likewise suits in equity. ' If this addition in the rule be not the result of inadvertence, and the rule is not to be disregarded in this connection as inconsistent with the rules specially provided- for equity, we must restrict its application to that special subject with which it assumes to deal, the subject of the revival of suits by mere motion, as distinguished from bill of revivor. Rule 48 of the Equity Rules of the Supreme Court of the District of Columbia provides as follows:

“Whenever a suit in equity shall become abated by the death of either party, or by any other event, it may be revived by a bill of revivor, or a bill in the nature of a bill of revivor, as the circumstances of the case may require, filed by the proper parties entitled to revive the same, which bill may be filed in the clerk’s office at any time: and upon suggestion of the facts the process of subpoena shall, as of course, be issued by the clerk, requiring the proper representatives of the other party to appear and show cause, if any they have, why the cause should not be revived. And if no cause be shown at the next rule day, occurring after fourteen days from the time of the service of said process, the suit shall stand revived, as of course.”

This rule is identical with Rule No. 56 of the Rules of Practice in Equity prescribed by the Supreme Court of the United States for the courts of equity of the United States, and both are derived from the practice of the English Court of Chancery. Daniell’s Ch. Plead, and Prac., pp. 1694-1708. Under them, and under the English chancery practice, it has always been held by analogy to the general statute of limitations that a bill of revivor and supplement may properly be filed at any time as a matter of right within the ordinary period of limitations. Story’s Eq. PL, Sec. 831; Hollingshead’s Case, 1 P. Wms., 742 ; Perry v. Jenkins, 1 Mylne & Craig, 122 ; Coit v. Campbell, 82 N. Y., 512.

At the utmost, then, we have two rules upon the same subject — one providing that a cause in equity may be revived upon motion, if the motion is made within one year; and the other providing that any such cause may be revived by bill of revivor, if such bill is filed within three or six years. And as this is a case of bill of revivor, and not of motion, it should not be barred by anything less than the larger period of limitation.

Indeed, we do not understand that, in the argument before us, the appellee seriously contends for the application fio this case of Rule No. 118. The argument on his behalf is mainly directed to the more plausible and more substantial theory of laches; and the claim, which he urges most strenuously, is that by the failure to prosecute the suit for an unconscionable length of time, and by the failure to file .the bill of revivor and supplement until after the lapse of more than three years after the time when the suit became abated, the judgments themselves having in the meantime expired nearly three years before, without any attempt to renew them, the lien was lost, the judgments became barred both in law and in equity, and the suit became inoperative as a Us pendens to affect the right of any subsequent purchaser. For fourteen years, it is said, nothing of practical importance was done in the cause, and the suit was permitted to languish. Utermehle died on April 16, 1889; and yet more than three years were permitted to pass after this without any attempt to revive the suit as to his interest or to press its prosecution. The judgments themselves expired by their own limitation in October, 1889; and it is claimed that when Clephane purchased them from Sarah Utermehle in 1892 she had nothing to assign, as they were dead beyond the power of revival; and her assignment of her interest in the equity suit carried nothing with it.

It appears from the brief which has been filed on behalf of Mason N. Richardson, trustee, who has become substituted in some way as appellee for or with the administrator of Kelly, that on May 13, 1892, assuming that the lien of the suit had been lost, Kelly conveyed to Richardson certain property that had been included in the bill of complaint, in trust to pay some alleged debts. But the agreed statement of facts signed by the parties, which here has taken the place of a record, discloses nothing of this kind; and we have not, therefore, before us any case of contest between the complainants as claimants of a lien under the suit and a subsequent purchaser for value. The controversy is to be determined as though the equitable interest sought to be reached •still remained in Kelly or his légal representatives.

It is conceded, and of course it could not successfully be controverted, that by the filing of a bill in equity to enforce a judgment at common law, and by the issue of process thereon, a lien is obtained by the complainant upon the property specifically and sufficiently described in the bill and sought to be reached by it; and this equitable lien continues until the suit is disposed of by decree, dismissal, •abatement or otherwise. Miller v. Sherry, 2 Wall., 237; Freedman's Savings and Trust Co. v. Earle, 110 U. S., 710. The idea cannot be entertained for a moment that the lien so acquired can be affected in any way by the expiration of the lien of the judgment at common law, by lapse of time, that would make the judgment unavailable at law, by failure to renew the judgment through the process of scire facias or by any other circumstance whatever having no direct relation to the suit in equity. If this were not so, all that a judgment debtor would have to do in any case to defeat the judgment against him, would be to cover up his property, and then indefinitely prolong the contest when a suit in equity is instituted against him. Neither can laches in the prosecution of the suit in equity be held to affect the lien. It is equally in the power of the defendant as in that of the complainant to expedite a suit in equity, and in the present instance it was competent for the defendant Kelly, at any time during the fourteen years of delay, of which complaint is now made, to bring the cause to a hearing and to have the question of the lien upon his property determined. If there were laches on the part of the complainants, he concurred and co-operated in those laches; and .he cannot now assign as injury that action or inaction in which he had part. In fact, it is quite apparent that both parties rather preferred the delay; and that the result of such delay was beneficial to both in the enhancement of the value of the property sought to be subjected to the satisfaction of the lien. Both parties have proceeded under the theory that there was an abatement of the suit by the death of Utermehle; and the main contention of the appellee is that this abatement became final and conclusive, and that the suit became absolutely at an end, by the failure to have it revived by bill of revivor within three years after the date of the issue of letters testamentary on the estate of Utermehle. But this argument proceeds upon an entirely erroneous assumption. The suit was never at any time abated as to Young. He was always competent to prosecute it, with or without his co-complainant. If the interest of the two complainants in the prosecution of the suit should be regarded as joint, then undoubtedly it survived in its entirety to the survivor. If, on the contrary, the interests of the two should be regarded as several, and the joinder was merely for convenience and to obviate a multiplicity of suits, which is the ground upon which joinder of different creditors in such suits has been sustained, there is absolutely no reason whatever why the death of one of the parties should in any manner affect the right of the other to prosecute the suit.

Says Daniell, in his Treatise on Chancery Pleadings and Practice, p. 1699: “If a surviving party can sustain the suit, as in the case of several creditors, plaintiffs on behalf of themselves and other creditors, no bill of revivor is necessary, because the representatives of the deceased plaintiff can come in under the decree. It is to be observed, however, that although in such case no revivor is necessary, yet if one of the original plaintiffs in such a suit dies after the decree, his personal representative may, if he thinks proper, revive the suit.”

We conclude that there was no abatement of the suit in this case, and that consequently no bill of revivor was necessary. On this ground alone, which leaves the complainants free to proceed with the cause, can the demurrer interposed by the defendant Kelly be sustained.

Another objection is made on behalf of the appellee which demands our consideration. It is claimed that a decree rendered in the cause on May 15, 1885, was a final decree which ended the cause and precluded any further adjudication of it. That decree was simply an order permitting the trustees in one of the numerous deeds of trust mentioned in the bill of complaint to make sale under the provisions of the deed of the property therein mentioned, and requiring them to bring the proceeds of their sale into court. It did not purport to dispose of any of the numerous other pieces of property included in the bill, nor to dispose of the suit, nor to adjudicate any of the issues between the parties. This is not, in any proper sense of the term, a final decree. It is no more than a mere interlocutory order; and it is evident that it was so understood by the court, and so intended by the parties. The question as to what constitutes a final decree in equity has been the subject of frequent judicial investigations; and we look in vain through the authorities for anything that would justify us in attributing the element of finality to this decree in any such sense and for any such purpose as is now claimed on behalf of the appellee.

As we are of opinion that the cause was not abated by the death of George W. Utermehle, and that no bill of revivor was necessary, we are compelled, for that reason and for that reason alone, to regard the decision of the court below in sustaining the demurrer to the bill of revivor as correct. But the inference to be drawn from this is directly the reverse of that which would result from the reasoning of the court below, and from an affirmance of its decision by us without modification. The complainant will have the right to proceed with the cause, and to prosecute it to a final decree, as they may be advised; and the modification which we make of the decree is that the demurrer should be sustained and the bill of revivor and supplement dismissed, without prejudice to their right so to do.

And, accordingly, the cause will be remanded to the court below, with direction so to modify the decree, and for such further proceedings according to law, not inconsistent with this opinion. Under the circumstances of this cause, each party will pay his own costs on the appeal.  