The first cause of demurrer assigned is “ that there is a defect of parties plaintiffs. The heirs at law of John Kinnicutt should be joined as plaintiffs.” One answer to this objection is, that it does not appear that he had any.heirs other than the plaintiff Benjamin S. Kinnicutt, his son, and who claims as devisee; and if John Kinnicutt had any other heirs at law, there was no necessity that they should be plaintiffs. They might have been made defendants if the validity of the will was *o be questioned. The devisee was not bound to join the heirs at law with himself as plaintiffs. The second cause of demurrer *329assigned is, u That the personal representatives of the original complainants should he plaintiffs.” For what reason1? By the original bill a conveyance of real estate was demanded, and an account of the rents and profits after Issachar Robinson took possession. Although the original complainants might have been entitled to such account, on their death the right to such account would vest exclusively in their personal representatives, but the personal representatives could not unite with the heirs at law or the devisees of the real estate as plaintiffs. The plaintiffs can not have an account of the rents and profits which accrued before the death of the original plaintiffs.
The third cause of demurrer is, “ That several causes of action have been improperly united in said complaint. It claims a specific performance of an alleged contract to convey real estate, and account and payment for the use and occupation of the same real estate by all the defendants,” &c. This is not the claim. The demand is, that Issachar Robinson should pay a reasonable sum for the use and possession of the premises since he was put into possession thereof by the said Greenfield. This was not setting up two distinct causes of action. If Issachar Robinson wrongfully kept possession and refused to give a deed, justice required that he should give a deed and pay for the rents and profits. This was not setting up two distinct causes of action, which could not be legally united, but merely a specification of what he ought to do to make full compensation for the wrong done by him. A bill in equity could not be demurred to because the complainants demanded too many kinds of relief. The plaintiffs in the supplemental complaint can have no claim to the rents and profits which accrued in the life time of their ancestor and testator.
The fourth cause of demurrer is, “ That the complaint does not state facts sufficient to constitute a cause of action.” If the demurrer is understood to extend to the original bill, then an objection to the demurrer is, that some defendants who now demur have answered the original and can not now demur to it. If the demurrer be confined to the supplemental complaint, then an answer to the demurrer is> that as to them it was not *330intended to state facts constituting a cause of action. As tc them the only object is to revive the former action, and to proceed in that action.
It may be necessary to examine the five specifications which have been named under the fourth cause assigned for demurrer.
First. “ It does not state the necessary facts to entitle these plaintiffs to revive or continue the original action by a supplemental complaint, as attempted in this case.” Two specifications are made, as I understand them, in support of the general proposition. It does not show that the plaintiffs' have such a joint interest and right to the subject matter of the action as to authorize them to join as plaintiffs in a supplemental complaint to revive and continue the action attempted in this case. If the plaintiffs have any right to compel any one of the defendants to give a deed, it is a joint right, and one can not maintain the action without the other. Whether they can jointly have a remedy by the supplemental complaint in this case is a different question.
Second. “It does not show that the alleged will of John Kinnicutt was properly executed and proved, as a will of real estate, so as to give the alleged devisee an undisputed and exclusive right and title to the claim, and interest in the subject matter of the original action.” The plaintiffs have united in the allegation that Benjamin S. Kinnicutt is the devisee of all the interest which John Kinnicutt had in the subject of the suit. The defendants are at liberty to put that fact in issue. By demurring, the defendants have admitted that Benjamin S. Kinnicutt is devisee, as alleged in the complaint.
Third. “ It does not show that the alleged will of John Kinnicutt was properly executed and proved, as a will of real estate, so as to give the alleged devisee an undisputed and exclusive right and title to the subject matter of .the action.” It could not be so executed and proved as to prevent the defendants disputing it if they chose.
Fourth. “ The heirs at law of Joseph Spier deceased might proceed by a simple revival of. the original action, and then bring James M. Robinson before the court, if necessary, by a *331supplemental complaint.” The defendant Issachar Robinson and James M. Robinson could not be compelled to execute the contract in moities. All persons entitled to have the deed executed must join in the suit to compel an execution of the deed and in the offer to perform the contract on their part. The heirs of Joseph Spier can not entitle themselves to a deed for the whole of the premises by an offer to perform the contract on their part.
The fifth specification under the fourth cause of demurrer is, Cl Benjamin S. Kinnicutt, the alleged devisee, can only obtain the benefit of the proceedings in the original suit by an original bill or complaint in the nature of a bill of revivor and supplement.” This objection is the most important one which has been made, and perhaps the only one which it is necessary to examine.
From the supplemental complaint it may be inferred that the plaintiffs supposed that their case was provided for by the 121st section of the Code, by which it is enacted that no action shall abate by the death, marriage, or other disability of a party, or by the transfer of any interest therein, if the cause of action survive or continue. In case of death, marriage, or other disability of a party, the court, on motion, at any time within one year thereafter, on afterward, on a supplemental complaint, may allow the action to be continued by or against his representative or successor in interest. In case of any other transfer of interest the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action. This section, by the amendment of the Code, was made applicable to civil suits pending on the first day of July, 1848. This action, by the death of both complainants, had abated before the first day of July, 1848, and the conveyance from Issachar Robinson to James M. Robinson was made before that day. The section relates Jo actions which would thereafter abate and not to actions which had abated before the day last mentioned. With this action the 121st section of the Code has nothing to do. Vrooman agt. Jones, (5 How. Pr. R. 369.) It was held that section 121 of the Code did not authorize an action of ejectment to be re*332vived against a party who purchased the land in dispute before the Code took effect. This case must be decided without any reference to the Code. It must depend upon the Revised Statutes and the former practice of the court of chancery. The supplemental complaint in this case resembles a supplemental bill much more than it does a bill of revivor. In Cooper’s Pleading, 70, it is said that a bill of revivor must charge that the cause ought to be revived and stand in the same condition with respect to the parties to the original, as at the time the abatement happened, and it must pray that the suit may be revived accordingly. No such allegations are contained in the supplemental complaint in this cause.
Benjamin S. Kinnicutt does not claim as heir at law, but as devisee. He could not revive the suit by a bill of revivor or by petition under the practice of the court of chancery, or by virtue of 2 R. S. 184, § 115. (1 Barb. Ch. Pr. 681, 682.) A devisee, a' purchaser, or an assignee, can not bring a bill of revivor, nor have such a bill brought against him; but if a devisee wishes to continue a suit he must file an original bill in the nature of a bill .of revivor, (2 Maddock’s Chancery, 400 and 401, and cases there cited; Wilder agt. Keeler, 3 Paige, 164; Mitford’s Pleadings, 66-74.) A devisee can obtain the benefit of a former suit only by an original bill in the nature of a bill of revivor. In such a bill the complainants in this suit might have united.
I am therefore of opinion that the demurrer be allowed, with leave to the plaintiffs to amend on the payment of costs.