Dundas v. Carson

• Citation: 43 N.W. 399,27 Neb. 634
• Parties: DUNDAS v. CARSON ET AL.
• Decision Date: 16 October 1889
• Court: Nebraska Supreme Court

27 Neb. 634

43 N.W. 399

DUNDAS

v.CARSON ET AL.

Supreme Court of Nebraska.

Oct. 16, 1889.

Syllabus by the Court.

Under section 202 of chapter 23 of the Compiled Statutes, held, that an administrator of an intestate's estate may maintain an action of ejectment for the recovery and possession of real property for the necessary purposes of administration.W H. Kelligar, for plaintiff in error.

George W. Covell and Robert W. Patrick, for defendants in error.

COBB, J.

This cause is brought to this court on error to review the judgment of the district court of Nemaha county. The plaintiff in error, John H. Dundas, administrator of the estate of Peter B. Borst, on November 4, 1885, commenced an action in the court below alleging that his decedent died intestate in Page county, in the state of Virginia, April 24, 1882; that his estate was insolvent, and was duly administered in accordance with the lex loci; and that plaintiff was, on September 5, 1884, duly appointed and qualified as administrator of said estate in the county court of Nemaha county; that as such administrator he has a legal estate in, and is entitled to, the possession of the N. W. fractional 1/4 of section 4, township 4 N., range 14 E., in Nemaha county; that John L. Carson, as administrator of the estate of Mathew A. Handley, deceased, McFarland Campbell, and Albert Gillen, who were made defendants, since the first day of March, 1879, have unlawfully and wrongfully kept the plaintiff out of possession; that, while unlawfully in possession of the premises, the defendants have received the rents and profits thereof from March 1, 1879, to the commencement of this suit, amounting to $1,000, applying the same to their own use, to the damage of the plaintiff $1,000, for which the plaintiff prays judgment of possession, and damages; that the plaintiff has a legal estate in, and is entitled to the possession of, the N. E. fractional 1/4 of section 4, township 4 N., range 14 E., in Nemaha county, and that the defendants since the first day of March, 1876, have unlawfully and wrongfully kept the plaintiff out of possession; that while unlawfully in possession of the last-described premises, the defendants have received the rents and profits thereof from March 1, 1876, to the commencement of this suit, amounting to $1,500, applying the same to their own use, to the damage of the plaintiff $1,500, for which the plaintiff prays judgment of possession, and damages. Mesne process was issued against the defendants November 4, 1885, and was served on John L. Carson, administrator, and on Albert Gillen, and returned according to law. On December 7, 1885, the defendants Carson and Gillen filed demurrers to the petition, because the court had no jurisdiction of the subject of the action, and the plaintiff no legal capacity to sue the defendants as administrator, or otherwise; because there is a defect of parties plaintiff, and a defect of parties defendant; because different causes of action are improperly joined; and because sufficient facts are not stated to constitute a cause of action against either defendant. Subsequently, on March 29, 1886, on motion and application of the heirs at law of Mathew Handley, deceased, to be admitted and made parties defendant, to-wit, John M. Handley, Margaret Harmon, Joseph Handley, Cassander Bennett, William Millsops, Mary M. Millsops, Russell Millsops, Robert Millsops, Joseph Millsops, John Millsops, Samuel Millsops, Emily Millsops, Sarah A. Millsops, Julia Hays, Franklin L. Handley, George W. Handley, John Handley, Archibald Handley, Strander Handley, Mary Handley, Mrs. Joseph Stetes, William Handley, Joseph Carpenter, Harvey Handley, Mary Jackson, and Eliza Young, were each and all made parties defendant, with leave to answer. On March 31st, following, they demurred to the petition as follows: (1) That it does not state facts sufficient to constitute a cause of action against defendants; (2) that the plaintiff has no legal capacity to sue herein; (3) that this court has no jurisdiction of the action.

Upon the argument of the demurrers to the petition, they were sustained by the court, and judgment against the plaintiff for costs, to which exceptions were duly taken, and errors were assigned -- First, that the court erred in sustaining the demurrer; second, in rendering judgment against the plaintiff.

It is admitted by the pleadings in the issue in the court below that the allegations of the petition are to be taken as true; that the plaintiff in error is the administrator, under the laws of Nebraska, of the estate of Peter B. Borst, late of Page county, Va., who died intestate and insolvent on the 24th April, 1882, and whose personal estate was found insufficient to pay his debts, after administration, under the lex loci. It is not doubted that as such administrator, the plaintiff in error has a legal estate in, and is entitled to, the possession of the real estate in the petition described; but it is denied by the defendants that the court below had jurisdiction of the plaintiff's action at law, in the nature of ejectment, for the recovery of his intestate's real estate; or that the plaintiff could maintain such an action; or that a sufficient cause of action had been set up. It is not to be disputed that at common law the defendants' arguments would prevail; that the title to the real estate would descend at once to the heirs and next of kin, and the right of possession follow, subject to any paramount lien for the debts of the deceased which might exist; and that the administrator could have no concern with it. But that rule of the common law has been changed in this state by the statute providing for...