¶1Upon the death of one of several parties plaintiff in an action of the class which may be prosecuted by the surviving plaintiff or plaintiffs the action does not abate, but under our statute — Code, § 38 — the action may either be revived or, upon the suggestion of the death made upon the record, it may proceed in the name of the surviving plaintiffs. The present action is of the class referred to; and there was no error in allowing the action to proceed after suggestion made of the death of Wiley Pickens without revival. Phoenix Ins. Co. v. Moog, 81 Ala. 335. It may be noted that no objection is shown to have been made to so proceeding, , (
¶2*652Neither mortgage under which the defendant claimed was sufficient, to convey the, title to Reuben Pickens’ homestead. The first lacked the certificate of the wife’s separate examination which, under section 2034 of the Code,, was requisite, to give validity to such a conveyance.
¶3The second mortgage', expresses the purpose for which Mrs. Pickens joined in to he that of relinquishing her right to dower. Under the authority of Long v. Mostyn, 05. Ala. 543, and Thompson v. Sheppard, 85 Ala. 611, such expression must be held to negative Mrs. Pickens’ intention to sign in token of her assent to the conveyance of the homestead right and to render her signature uneffective for the latter purpose.
¶4Section 1552 of the Code provides that “if the defendant has a crop planted or growing on the premises', and the jury find for the plaintiff, they must also ascertain the rental value of the premises during the current year, and no writ of possession can he issued until the expiration of the year, if the defendant executes a _bond in double the amount of such rent, payable to the plaintiff, with surety approved by the clerk, conditioned to pay the rent so assessed at the expiration of the year.” To obtain the benefit of this provision it devolves on a defendant to make proof on the trial of the fact that he •has a crop growing or planted on the land, as well as of the rental value of the premises, for in the absence of such proof there can he no authority for the assessment of rental value. The statement of facts upon which it was agreed the case should he tried was silent as to the growing crop, and the effect of that agreement was to confine the proof to the agreed statement.
¶5The judgment will be affirmed.