L. B. Varn contracted to purchase a lot of land, went into possession, and commenced the erection of a store-house thereon, expending his money therefor, but died before its completion. His heirs completed the building at their own expense, and paid the vendor the purchase money, taking title to themselves. They then sold to one Carter. A specialty creditor of Yarn brought action against these heirs and Carter to set aside the sale as fraudulent, and subject the lot of land to the payment of intestate’s debts. Judge Mackey dismissed the complaint as to Carter, but gave leave to plaintiff'to amend so as to declare against the other defendants on the sealed note for real estate descended. Judge Fraser afterwards ordered that an administrator of Varn be added as a party plaintiff, which was done. Judge Hudson gave judgment against the defendants for the claim of plaintiff to the extent of the money received by them for the lot of land, less some debts paid.
On appeal this decree w^as reversed, and the cause remanded, all the justices agreeing that the amendments were proper. Mr. Chief Justice Simpson was of opinion, however, that the administrator should have been a party defendant, and not plaintiff; that the character of a cause of action is to be determined by the allegations of the complaint, and not by the prayer for relief; that the action was against heirs to subject real estate descended to the payment of their ancestor’s debts.
Mr. Justice McIyer was of opinion that the property sold by .defendants was personalty, and the proceeds thereof equitable assets, for which they should account, having credit for their expenditures for purchase money and improvements ; he also was of *609opinion that the administrator was properly made a party plaintiff.
Opinion filed April 3, 1888. Howell & Murphy, for appellants. W. S. Tillinghast, contra.Mr. Justice McGowan was of opinion that, whether the property was realty or personalty, intestate’s estate was entitled to the value added by the improvements erected by the intestate thereon.
Judgment reversed.