Brewington v. Stephens' Administrators
Supreme Court of Missouri
Appeal from Madison Circuit Court. I. The plaintiff’s cause of action did not abate by the death of the defendant; it survived against his administrators. (R. C. 1855, p. 133, § 26, 27; 15 Mo. 619; 18 Mo. 166.) I. The action of forcible entry and detainer is a real action. So is ejectment. Neither form of action abates by the death of defendant. Ejectment must be revived in the names of the heirs or devisees.
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Appeal from Madison Circuit Court. I. The plaintiff’s cause of action did not abate by the death of the defendant; it survived against his administrators. (R. C. 1855, p. 133, § 26, 27; 15 Mo. 619; 18 Mo. 166.) I. The action of forcible entry and detainer is a real action. So is ejectment. Neither form of action abates by the death of defendant. Ejectment must be revived in the names of the heirs or devisees. (Fine v. Gray, 19 Mo. 33.) The rule is the same in the case of forcible entry and detainer. The heir or devisee and not the administrator must be called to defend the possession. Had the…
1Opinion of the CourtEwing, Judge
This was an action of forcible entry and unlawful detainer before a justice of the peace, where the plaintiff had judgment, from which the defendant took an appeal to the circuit court. Pending the cause in the circuit court the death of the defendant was suggested, and his administrator was substituted. At a subsequent term, the suit was dismissed on the ground that it did not survive against the personal representative of the deceased.
As the action did not abate by the death of the defendant, it survived, of course, either against the administrator or heirs, or both, and there was no cause…
2Cited by3 opinions
- Roberts v. NelsonSupreme Court of Missouri · 1885
- Woodruff v. Gazebo East ApartmentsCourt of Civil Appeals of Alabama · 2015
- State Ex Rel. Ake v. Kansas City, Mo.Missouri Court of Appeals · 1926