City of Louisville v. Woolley, et als. Gen. Stat., sec. 1, art 4, chap. 52; Burnett's City Code, p. 783, secs. 17, 24 and 25. HENRY M. LANE, ATTORNEY FOR APPELLEE. 1. To revive an action against a real representative, by order or petition, where there was no personal debt against the ancestor, the order must be obtained or the petition must be filed within one year from the death of the ancestor when the action abated. 2. If the proceeding be by petition to revive, it will be refused, unless it state "facts necessary to authorize a revivor." The petition now authorized by the Code, section 501, is a mere substitute for the bill of revivor under the old system and must contain the "necessary facts" which were required in the old bill of revivor. Civil Code, 510, 500, 508, 569, 506, 714; Apperson v. Fulkerson, 7 Ky. Law Rep., 452; Ellis v. Johnson, 4 Ky. Law Rep., 992; Broaddus v. Broaddus, 10 Bush, 299; Thompson v. Williams, 86 Ky., 15 and 20; Lane Co. v. Oregon, 7 Wallace, page 79; Blackstone's Com., 475; Pierce v. City of Boston, 3 Met., 520; Shaw v. Pickett, 26 Vermont, 486; City of Camden v. Allen, 2d Dutcher, 398; City of Louisville v. Louisville Gas Co., 15 Ky. Law Rep., 177; City of Louisville v. Cochran, 5 Ky. Law Rep., 883; 82 Ky., page 15; Dumesnil v. City of Louisville, 4 Ky. Law Rep., 14; Slaughter v. City of Louisville, 12 Ky. Law Rep., 61; also 89 Ky., page 112; Ormsby v. City of Louisville, 2 Ky. Law Rep., 66; and 79 Ky., 197; Newport & Cin. Bridge Co. v. Douglas, 12 Bush, 716; Story's Equity Pleading, sec. 354; 3d Blackstone's Com., 168; Woolley v. Holt, 789, 791; Buford's Admr. v. Guthrie, 14 Bush, 684; Ky. Stat., sec. 2998; Greer v. Powell, 1 Bush, 496; Taylor v. Palmer, 31 Cal., 240, 254; Neenan v. Smith, 50 Mo., 525; 60 Mo., 292; Louisville v. Hexagon Tile Walk Co.; Forst v. Davis, 19 Ky. Law Rep., 561; Wood's Ex'r. v. Wood's Heirs, 19 Ky. Law Rep., 210; Ky. Stat., sec. 2998; Emory v. City of San Francisco, 28 Cal., 349; People v. Mayor of Brooklyn, 4 Com., 420; Barker v. Southern Construction Co., decided by Judge Guffy, October 29, 1898. PETITION FOR REHEARING BY P. B. MUIR FOR APPELLEE. 1. Administrators are not heirs and have no estate in the lands of the dead owner. Bullitt's Code, 506; Belcher v. Schamburg, 18 Mo., 189; City of Louisville v. Hexagon Walk Co., 20 Ky. Law Rep., 236. 2. A petition to revive an action must "state facts necessary to authorize a revivor with a prayer therefor." Bullitt's Code, sec. 501. City of Louisville v. Woolley, et als. 3. All pleadings by a municipal corporation must be verified by oath. Bullitt's Code, secs. 115, 117. 4. Where the owner of real estate dies pending a suit against him, the suit must be revived against his heirs and not against his personal representatives. Brewington v. Stephens, 33 Mo., 38; Gillette v. Morrison, 7 Nebraska, 263; Bowles v. Winchester, 13 Bush, 9 Civil Code Ky., secs. 501, 506, 507, 503 and 561; Bolinger v. Rogers, 19 Ky. Law Rep., 1751; Thrasher v. Lewis, 13 Ky. Law Rep., 926; Forst v. Davis, 19 Ky. Law Rep., 561; Greer v. Powell, 1 Bush, 489; Gardner v. Roberts, 4 Ky. Law Rep,, 614; Moseley v. Garrett, 1 J. J. Marshall, 212; Story on Pleading, secs. 374, 289; Lane Co. v. Oregon, 7 Wallace, 179. OPINION OF THE COURT BY JUDGE BURNAM-REVERSING. These actions, were brought by the city of Louisville against R. W. Woolley and his wife, Mary E. Woolley, on the 8th day of August, 1894, to collect certain taxes due the city, which had been assessed against the real property of the wife. The defendants filed their demurrer to the petition on the 12th day of September thereafter, and subsequently, on the 14th day of April, 1896, filed their joint answer, without any action by the court upon the demurrer. A part of the property sought to be subjected to the payment of these taxes was held in the name of Mary E. Woolley, and a part was held in the name of R. W. Woolley as trustee for Mary E. Woolley. During the pen. dency of these actions Mary E. Woolley died intestate on the 2d day of February, 1897, and R. W. Woolley qualified as her administrator on the 24th day of February, 1897. On the 12th day of March, 1898, the plaintiff tendered and moved to file an amended petition asking that the actions be revived against R. W. Woolley, administrator of the estate of Mary E. Woolley, Sophia J. Woolley, Mary J. Fenley, and Oscar Fenley, her husband, as the only heirs at law of Mary E. Woolley. This motion was resisted by the proposed defendants upon the ground that the amend City of Louisville v. Woolley, et als. ments came too late, having been tendered more than one year after the death of Mrs. Woolley. Their objection was sustained by the trial court, the motion to file the amended petitions overruled, and the petitions dismissed without prejudice, to which plaintiff excepted; and subsequently, on the 30th day of June, 1898, plaintiff presented a second amended petition, and a demurrer and reply to the answer, and moved the court to set aside the order dismissing the case without prejudice, and permit it to file same. In this second amended petition it was averred that the defendant R. W. Woolley at the date of the assessment and levy of the taxes upon the property described in the petition was, as husband of Mary E. Woolley, the owned of an inchoate right of curtesy in all of the real estate sought to be subjected to the payment of the taxes sued for, and that at the death of his wife he came into possession of all of the said real estate as tenant by the curtesy, entitled to receive the rent, income, and profits therefrom; and it was further alleged that, by reason of the assessment and levy of the taxes sued for, plaintiff had acquired a lien upon the whole of the real estate, including the interest of R. W. Woolley, and plaintiff prayed for a judgment enforcing its lien upon the life estate of R. W. Woolley in each and all of the parcels of real estate described in the original petition. The motion to file this. second amended petition was also overruled, as was the motion to file the demurrer and reply to defendants' answer, and on motion of appellees the action was dismissed, from which judgment this appeal is prosecuted. The chief, and, indeed, we may say, the only, question for decision upon this appeal is whether plaintiff's petitions for a revivor were tendered in time. It is contended. for appellees that this proceeding is an action which con City of Louisville v. Woolley, et als. cerns only the right or claim to real property, and the question of revivor is regulated by section 506 of the Civil Code. This contention is made upon the theory that the claim asserted is not a debt, or in the nature of a debt, as it is not founded upon a contract, express or implied, but that it is a tax levied by the city for its support, and operates in invitum, and that, consequently, the administrator of decedent was neither a necessary nor proper party to the determination of the question involved, because he had no interest in the land, and was not liable for the debt; that the only persons interested in the proceedings were the heirs at law of Mary Woolley, deceased, and that the suit could only have been revived against them within one year after the time when the motion could have been first made; while it is the contention of appellant that the personal representative of the decedent was a proper and necessary party to the proceeding, and that it could not have been revived, except by consent, within six months after his qualification. Section 501 of the Civil Code provides that an action may be revived on motion of either party to the action, or that his representative or successor may file in the action a petition against the other parties stating facts necessary to authorize a revivor with a prayer therefor. Sections 507 and 509 of the Code provide, in effect, that an action can not be revived against a personal representative of a defendant, or against him and the real representatives of the defendant, except by consent, within six months after the qualifica tion of the personal representative, or after the expiration of one year from the date of such qualification. While section 506 provides that: "Upon the death of defendant to an action for the recovery of rea! property only, or which concerns only his rights or claims to such City of Louisville v. Woolley, et als. property, the action may be revived against the real representatives or any of them, and an order therefor may be forthwith made in the manner directed in the preceding sections of this title." A question very similar to the one at bar was considered by this court in the case of Buford's Adm'r v. Guthrie, 14 Bush, 683, and it was there held that an action to enforce a vendor's lien for unpaid purchase money could not be revived against the real representatives of the deceased, even though the personal representative consented to such revivor, within six months from the grant of administration without their consent; that the question was regulated by the provisions of sections 507 and 509 of the Civil Code, and not by section 506. And in the case of Forst v. Davis, 41 S. W. 27, which was a proceeding to enforce a mortgage lien, it was held that the order of revivor against the executrix could not be made until six months after her qualification, without her consent, and that section 506 did not apply. It is true that both of these proceedings were actions to enforce liens secured by contract, and the lien in each case was given as security for the payment of a debt for which a personal judgment was sought against the mortgagor and vendee, but the right to enforce a contract lien given as security for the payment of a debt is wholly independent of the right to a personal judgment. The real estate of a married woman may be subjected to liens properly secured, notwithstanding the fact that no personal judgment can be rendered against her by reason of her coverture; so, under the old law, her real and personal estate could have been subjected to the payment of necessaries furnished herself and family, notwithstanding the fact that no personal judgment could have been rendered against her for the debt. And it can not be contend |