Burnett v. Lyman

• Decision Date: 22 May 1906
• Citation: 54 S.E. 412,141 N.C. 500
• Parties: BURNETT et al. v. LYMAN et al.
• Court: North Carolina Supreme Court

54 S.E. 412

141 N.C. 500

BURNETT et al.

v.LYMAN et al.

Supreme Court of North Carolina.

May 22, 1906.

Ejectment—Parties—Transfer of Interest Pending Suit — Substitution of Plaintiffs.

Under Revisal 1005, § 400, providing that every action must be prosecuted in the name of the real party in interest, and section 414, providing that when a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in, it was error to direct a verdict in favor of plaintiffs in ejectment who parted with their interest in land before the trial, notwithstanding section 415, providing that no action shall abate by a transfer of any interest therein if the cause of action continues, and in case of a transfer of interest the action shall be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted in the action.

[Ed. Note.—For cases in paint, see vol. 17, Cent. Dig. Ejectment, § 146.]

Appeal from Superior Court, Buncombe County; McNeal, Judge.

Action by W. B. Burnett and another against A. H. Lyman and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

Tucker & Murphy, for appellants.

Frank Carter, for appellees.

CLARK, C. J. This Is an action of ejectment begun by W. B. Burnett and W. E. Burnett. After it had been pending for some time the plaintiffs conveyed the land by deed in fee simple to one Rawls, who before the trial conveyed to Mattie C. Moore, a married woman. Neither Rawls nor Mrs. Moore were made parties. Upon the above facts appearing in evidence, the defendants moved for judgment of nonsuit. The court refused the motion, and directed the jury, if they believed the evidence, to find the issues in favor of the plaintiffs.

In Arrington v. Arrington, 114 N. C. 120, 19 S. E. 278, Burwell, J., says: "In an action to recover land, the rule is that the plaintiff must have the right to the possession not only at the institution of the suit, but at the time of trial also, " quoting 7 Lawson R. & R. § 3708, which lays this down as the universal rule, save he says one case in Vermont which Judge Burwell further shows was not in truth any exception. Arrington v. Arrington is cited to sustain this proposition. Morehead v. Hall, 132 N. C. 123, 43 S. E. 542. To same effect is 15 Cyc. 29, and cases there cited. The defendants admit that this proposition was unquestionably true under the former practice, but contend that this is changed by Revisal 1905, § 415, which provides that "No action shall abate by the death, marriage, or other disability of a party, or by a transfer of any interest therein, if the cause of action survive or continue. * * * In case of any other transfer of interest, the action shall be continued in the name of the original party, or the court mayallow the person to whom the transfer is made to be substituted in the action." Aside from the fact that this section, enacted in 1868, was in force when the above cited cases were decided, it must be noted that the general principle of the reformed procedure is that "every action must be prosecuted in the name of the real party in interest" Revisal 1905, § 400, and that the above-quoted section 415 does not refer to the parties who may maintain an action but to "abatement of actions" and must be construed in connection with section 400, and with the following provision in section 414, "When a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in." Certainly a complete determination cannot be had when the true owner of the land is not a party to the action.

Construing sections 400, 414, and 415 of the Revisal together, and recalling that the last relates to the "abatement of actions" only, it would seem that the provision therein that the action may be continued in the name of the original plaintiff means simply that the abatement does not act automatically upon the transfer of the interest and that if the action is continued without objection, the judgment shall not be void, but none the less, the judge...