Jameson v. Smith's Ex'rs

• Decision Date: 08 April 1816
• Citation: 7 Ky. 307
• Parties: Jameson, etc. v. Smith's executors.
• Court: Kentucky Court of Appeals

7 Ky. 307

Jameson, etc. v. Smith's executors.

Court of Appeals of Kentucky.

April 8, 1816

A suit for land cannot be revived in the name of executors.

A will authorizing executors to sell and convey land, confers only a naked authority and gives neither a right of property nor a right of action.

Judge LOGAN absent.

OPINION

BOYLE Chief Justice.

THE original bill in this case was filed by George S. Smith claiming title under an entry in the name of John Mosby against George Jameson and James Martin, holding the elder legal title, derived under an entry in the name of John Jameson.

Smith having died during the progress of the cause, an order was made reviving the suit in the names of his executors, who filed a bill of revivor, which they afterward, on a motion for that purpose had leave to amend, and in their amended bill they prayed that the heirs of Smith might be made parties, and that a subpena should issue against them. A subpena issued accordingly, but no return was made on it. In this situation the cause was heard, and a decree pronounced by the Court below against the defendants, who have appealed to this Court.

Before we examine the merits of the adverse claims, it is necessary to decide whether the executors had a right to revive and maintain the suit in their names: for if they had not, as it is apparent from the record that the heirs of Smith were not before the Court, and could not consequently be bound by any decree pronounced in the case, it would be obviously not only useless, but improper that the Court should express any opinion in relation to the merits of the adverse titles. It cannot be pretended that the executors could revive and maintain the suit in their names, independent of any right derived to them from the will of their testator; and we apprehend that there can be no doubt that the will in this case does not vest in them such a right. They are authorized by the will to sell and convey the land which is the subject of controversy, for certain purposes therein mentioned; but this is evidently but a naked authority, uncoupled with any right or interest in the land; and according to the settled principles, both of Courts of Law and of Equity, the right of property and the right of suit are inseparable concomitants.

The decree of the Court below must therefore be reversed with costs, and the cause remanded that the order reviving the suit in the names of the...