Greenia v. Greenia

• Decision Date: 31 March 1851
• Citation: 14 Mo. 526
• Parties: GREENIA ET AL. v. GREENIA ET AL.
• Court: Missouri Supreme Court

14 Mo. 526

GREENIA ET AL.

v.GREENIA ET AL.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM WASHINGTON CIRCUIT COURT.

JOHNSON, for Appellants.

I. It is insisted that the court erred in overruling the motion to require respondent's attorney to show his authority for instituting the present suit. By this motion no imputation of improper conduct was attributed to the attorney. It is clear that, upon a proper case made out, the court will require the attorney to show his authority. McKeman v. Patrick, 4 Howard (Miss.) R. 333; Coge, Ex'r, v. Foster, 5 Yerger (La.) R. 261; Wright v. McLemore, 10 Yerger (La.) R. 236; McAlexander v. Wright, 3 Monroe (Ky.) R. 194; Keith v. Wilson, 6 Mo. R. 435. “The object of the rule is to prevent an attorney from appearing for any party on the employment and at the instance of a stranger, who may have no interest in the cause, either legal or equitable.” 3 Monroe (Ky.) R. 191; 6 Mo R. 435. Did the appellants show a proper case? They showed by affidavit that the four brothers of Louis Greenia were natives and residents of Canada; that only one had been to this country, and that was many years ago--that one Joseph Beauchamp had come down to Potosi, declaring that he had purchased the interest of Louis Greenia's brothers, and claiming the property as his own, and had told appellants that he had employed the attorney to manage the case for him, and the appellants further stated that whatever interest the brothers of Louis Greenia may have had, they have none now, and they further believe, from the facts, that the present plaintiff never authorized the attorney to bring this suit in their names. It was admitted by respondents' attorney, that Beauchamp had declared that he owned the interest of the brother of Louis Greenia. The attorney read an affidavit of Beauchamp stating that he had authority from some of Louis Greenia's brothers and from the respondents of others to collect their shares by suit or otherwise; and proved that he acted as attorney in presence of Beauchamp. It is contended that the affidavit of Beauchamp was no answer to the affidavit and proof of appellants. Beauchamp could not prove his authority by his own oath. If so, any stranger who would be willing to swear to his authority might collect the debts and legacies of foreigners without their knowledge or consent. Besides, Beauchamp was a perfect stranger, he showed no authority either written or verbal, and for aught that appears, might have been an imposter. It was both proved and admitted that he had declared that he had bought out the brothers of Louis Greenia, deceased, and when it becomes necessary to make a different case he readily swears that he was authorized to collect their shares by suit or otherwise; and what casts a strong suspicion over the whole case is that when he comes to name the legal respondents of deceased brothers in his affidavit as having authorized him, he names persons whose names are not inserted in the record as plaintiffs. Even admitting that Beauchamp could prove his authority by his own oath, it should at least appear that he was authorized by the plaintiff. It will be remarked by the court that the attorney pretended to no authority except from Beauchamp. This is one of the very cases provided for in the rule, viz: to prevent an attorney from acting on the employment of a stranger, who may, in fact, have no interest either legal or equitable in the suit. 3 Monroe, 194. As a reason for enforcing this rule, the court will remark, that it was proved on the trial, that the appellant, Joseph Greenia, and his brother, the father of the two other appellants, came to Missouri under a promise from their uncle that he would do something for them. This promise was undoubtedly well known to the father of the appellants, who remained behind in Canada, and must have felt a lively interest in his children's welfare; and though it does not appear that Louis Greenia ever provided for them by will, the court will not presume that Francis Greenia, the father, would set up any right which would defeat his own children, and particularly when they would at least get his share if he did not claim.

II. Upon the merits it is insisted that the law is with the appellant. Before any party can inherit, he must possess inheritable blood. At common law an alien could not inherit lands, nor could a citizen inherit if the immediate ancestor was an alien. The bar of alienage was removed by act of Parliament, passed in the 11th and 12th William III, ch. 6; McCreery's Lessee v. Somerville, 9 Wheat. R. 354. The impediment of the life of the ancestor is also removed by the 7th section of our statute of Descents and Distributions, Laws of 1845. The section reads as follows: “In making title by descent, it shall be no bar to a demandant that any ancestor, through whom he derives his descent from the intestate is or has been an alien. A precisely similar statute was considered by the Court of Appeals in Virginia, and they decided that it not only removed the alienage but the impediment of the life of the ancestor. Jackson v. Sanders, 2 Leigh's R. The 7th section, therefore, confers inheritable blood upon the appellants who are citizen nephews. The word “““descent” used in this section is applicable to both kinds of property, and has been so used by our Legislature since the State was first organized. See 1 Terr. Laws, act of 1807, §§ 7, 9, 11, 14, 16, p. 129 et seq.; act of 1815, §§ 9, 10, 12, 14, 17, 80, p. 400 et seq.; act of 1817, p. 509; act of 1822, § 37, p. 930. Laws of 1845, Administration, art. 6, § 4, p. 100; Descents and Distributions, § 6. A comparison of these sections will show, that the word “descent” is applied sometimes to personalty, and at others to realty, but most generally to both kinds of property. It is manifest, therefore, that this section m...