Opinion by
Lbwis, C. J.,full ."Bench concurring.
This action was brought to foreclose a mortgage executed by the defendant, George .D. Houston, and his wife, Ellen Houston. Upon the trial, the plaintiff having introduced the note, mortgage and assignment to himself in evidence, rested his case.
The defendant, George D. Houston, was then called on his own behalf, and testified that his wife Ellen had died prior to the bringing of this action, whereupon defendant’s counsel moved the Court upon this testimony to dismiss the action, predicating the motion upon the assumption that Ellen Houston having died before the institution of the action, her representatives should have been joined as defendants. The Court sustained the motion and entered judgment against the, plaintiff for costs.
*472In sustaining this motion the Judge below must have over-. looked the fact that the death of the defendant Ellen Houston was an issue of fact made by the pleadings, and, unless admitted by the plaintiff, should have been submitted to the jury like any other issue of fact. The fact of her death is alleged in the answer, and under our practice, if the allegation' is material, it is presumed to be denied by the plaintiff. (Laws of 1864, p. Y4, sec. 4.) Here there was a direct issue of fact raised by the pleadings, and the Court, in dismissing the action, not only received the testimony of the defendant Houston as incontrovertible, but took the case from the jury, and by so doing deprived the plaintiff of the opportunity of introducing rebutting testimony, if he had any, upon that point.
If the complaint had shown that the defendant Ellen Houston had no interest in the premises upon which the mortgage rvas executed, the proper practice upon her death being suggested would have been to strike out her name and to proceed against the other defendant. "Where one of several persons liable on a joint contract dies, the survivors may be proceeded against without uniting the representatives of the deceased. (Chitty’s Pleadings, 42; Mott v. Petrie, 15 Wend. 318.)
The only ground, therefore, upon which the defendant, George D. Houston, could claim that his Avife’s representatives should be made defendants would be that they had some interest in the premises which were subject to Ihe mortgage. The complaint does not show that Mrs. Houston or her representatives had no interest in the premises, but upon the motion to dismiss being made, the plaintiff offered to amend his complaint by adding an allegation to that effect, and he should have been allowed to do so. The Court erred in dismissing the action and in refusing leave to the plaintiff to amend his complaint.
Judgment reversed and cause remanded.