Ind. v. Adamson

• Decision Date: 24 January 1888
• Citation: Ind. v. Adamson , 114 Ind. 282, 15 N.E. 5 (Ind. 1888)
• Parties: Indiana, B. & W. Ry. Co. v. Adamson et al.
• Court: Indiana Supreme Court

114 Ind. 282

15 N.E. 5

Indiana, B. & W. Ry. Co.

v.Adamson et al.¹

Supreme Court of Indiana.

January 24, 1888.

Appeal from circuit court, Fountain county; Joseph M. Rabb, Judge.

C. W. Fairbanks and Thos. F. Davidson, for appellant.Nebeker & Dochterman, for appellee.

Elliott, J.

The appellees describe in their complaint a tract of land owned by them and Nellie Adamson in October, 1880, and allege that they and Nellie Adamson entered into a contract-not a clear one-with the appellant.The statement of the contract is as follows, viz.: That they, the plaintiffs, should execute to the defendant a quitclaim deed for a strip of land out of said land, 100 feet wide and 435 feet long; and permit the defendant to construct and extend an embankment from its then terminus over said land in an easterly direction, until it should meet with and intersect with the west end of said bridge; and release said defendant from all damages that should accrue to them on account of the said embankment or the overflow of water, in consideration of which the defendant agreed to maintain its road so the plaintiffs could have the benefit of the same, pay plaintiffs and said Nellie Adamson $100 and construct and maintain in and through the said river embankment inclosing said land a good and sufficient stone-box culvert, the hole of which should not be less than two feet wide by four feet high; that the same should be constructed in a reasonable time and at the point designated by the plaintiff, and should be so constructed that it would be sufficient to carry off and permit the escape of the overflow water on said land well and sufficiently, then, and in the future; and it was further agreed by the defendant that the plaintiff and Nellie Adamson should have a passage-way along said embankment, along the river at the east end of the fill, so to be made by the defendant, the bottom of which was not to be lower than the high-water mark of said river; and it was further agreed by the defendant that the river embankment was to be left unimpaired, except where it was cut or removed by putting in said culvert.It is averred that the plaintiff and Nellie Adamson did execute a quitclaim to the defendant, and fully performed their part of the contract, and that Nellie Adamson has since died.It is also averred that the defendant did not perform its part of the contract, but of the provisions in violation thereof, tore down the river embankment, and has failed to put in a stone-box culvert.

The appellant contends that the demurrer to the complaint on the ground of a defect of plaintiffs is well taken, because neither the heirs nor the representatives of Nellie Adamson are made parties to the action.In answer to the appellant, the counsel for the appellees assert that, as the contrary does not appear, it must be assumed that the heirs of Nellie Adamson are parties.This position is not tenable.The complaint does not profess to assert a right in any of the plaintiffs as the heirs or representatives of Nellie Adamson, but proceeds exclusively on the theory that the cause of action is in them in their own right.They sue as in the right of original contracting parties, and not in the capacity of heirs or representatives of a deceased party.It cannot, therefore, be inferred in aid of the complaint that the heirs or representatives of Nellie Adamson are parties to the action.This inference cannot be made without assuming that the plaintiffs sue in a different capacity from that which they themselves profess, and this assumption cannot be justly made.It is a familiar rule of pleading that a demurrer admits only such facts as are sufficiently pleaded, and it is quite as well settled that facts must be directly averred, and not pleaded by way of recital.School Tp. v. Farlow, 75 Ind. 118.

There is no direct allegation that Nellie Adamson was the wife of John M. Adamson, although, in a deed set forth in the complaint, that fact appears by way of recital; but a recital in an instrument not the foundation of the action, is not the allegation of a traversable fact.It is, indeed, very doubtful, if a recital of the character here under discussion would be sufficient, even if found in an instrument on which the pleading was based.But, however this may be, it is quite clear that it cannot be regarded as sufficient when contained in a mere collateral instrument.This conclusion excludes from the discussion the authorities which bear upon the question of the right of a husband as the survivor of his deceased wife, to maintain an action for injuries to property jointly owned by them.Authorities declaring the rule in cases of partnership are not of controlling force.The rules which apply to contractswith partners rest upon essentially different principles from those which govern cases of joint contracts.The rights of partners are, in many respects, very different from those of joint obligees.The relations of the partners are different, and the rules which govern actions brought by them, or against them, are not the same as those which obtain where parties are united in a joint obligation, and not associated in a partnership.We exclude, as without controlling force, although they may be remotely analogous, the authorities which govern actions brought by surviving partners.The process of elimination which we have pursued, trims the case down to the question whether, under the Code of Civil Procedure, the survivors may bring an action on a joint contract, without joining the heirs or representatives of the deceased obligee.That they might have done so at common law is indisputable.Dicey, Parties, top page 149.If the Code has not changed the rule, they may still do so.The question with which we have to deal is important, and not entirely free from difficulty; but, after the most careful study we have been able to give the subject, we feel bound to hold that the Code does not change the common-law rule.The question goes back of the procedure, and takes up the element of the right itself.The right the statute does not profess to change; it reaches only the remedy.In the case of a joint contract, the whole right, the unified interest, vests in the survivors.Upon them falls the entire right.If they do possess the entire right, then they are the real parties in interest; since it is inconceivable that if they do profess the entire right any other person can be a real party in interest.The principle of the common law, vesting the whole right in the survivors, is not changed by the Code; and so long as the principle remains unchanged, the persons possessing this entire right must be regarded as the real parties in...