Marcy v. Howard

• Decision Date: 12 December 1890
• Citation: 8 So. 566,91 Ala. 133
• Parties: MARCY ET AL. v. HOWARD.
• Court: Alabama Supreme Court

8 So. 566

91 Ala. 133

MARCY ET AL. v. HOWARD.

Supreme Court of Alabama

December 12, 1890

Appeal from circuit court, Baldwin county; W. E. CLARKE, Judge.

Trespass by the heirs of Peter Marcy, deceased, against W. L. Howard to recover damages for alleged trespasses committed by defendant upon lands in Baldwin county, Ala., belonging at the time of the trespass to said Peter Marcy. Defendant, W L. Howard, died during the progress of the suit, and the action was revived against Frances A. Howard, his executrix. During the trial plaintiffs moved to be allowed to make the administrator of the estate of Peter Marcy, who was appointed by the probate court of Baldwin county during the trial, a party plaintiff; but the court denied this motion, and plaintiffs duly excepted. It was shown by the evidence that the original defendant, W. L. Howard, was the agent, or acted as agent, of the said Peter Marcy, deceased, during his life and upon the examination of one of the plaintiffs, Daniel P Marcy, as a witness, he was asked in reference to this relation, and about some transactions with the said W. L. Howard, deceased; but defendant objected to the introduction of this testimony, on the ground that the witness was a plaintiff in the suit, and that the testimony was in reference to conversations or transactions with a deceased person, whose estate was interested in the result of the pending suit. The court sustained this objection, and plaintiffs duly excepted. The same ruling was had in reference to the testimony of the wife of the said witness, and plaintiffs also excepted. Verdict and judgment for defendant, and plaintiffs appeal.

Thos. H. Smith, for appellants.

F. G. Bromberg, for appellee.

STONE C.J.

The plaintiffs in this suit, in each count of the complaint claim damages for an alleged trespass quare clausum fregit. They describe themselves as heirs of Peter Marcy, deceased. They aver the trespass was committed "on, to-wit, the 1st day of December, 1885, and prior and subsequent thereto," and that the lands on which the trespass was committed belonged to plaintiffs. The defendant demurred to the complaint, assigning as a ground that damages for such trespass are personalty, and that the right to sue for them vests in the personal representative, and does not descend to the heir. The record shows no ruling on this demurrer. It was no doubt overruled, as there was nothing in it. The complaint does not show that the trespass was committed in the life-time of Peter Marcy, the ancestor; and while the plaintiffs aver that they are his heirs, they do not show they base their right of recovery on that relation. They do not sue as heirs. Such words are treated as mere descriptio personarum. Agee v. Williams, 27 Ala. 644; Crimm v. Crawford, 29 Ala. 623; McCoy v. Watson, 51 Ala. 466. There was a demurrer by plaintiffs to defendant's fourth plea, and it is assigned as error that the court overruled that demurrer. The record fails to show any ruling on that demurrer, and hence we cannot consider it. 3 Brick. Dig. p. 78, § 7; Id. p. 705, § 82. The present suit is an action of trespass to lands, and charges the defendant with cutting and removing timber therefrom. The lands, at the time of the alleged trespass, were the property of Peter Marcy, who subsequently died. The suit is by his heirs at law, and seeks to recover damages for cutting and removing the timber. The court in effect charged the jury that the heirs could not maintain the action, and there were verdict and judgment for the defendant. Damage to real estate, or, rather, the right to recover compensation therefor, is personalty, and does not descend to the heir, but to the personal representative, in countries where the common law prevails. In re Nabor's Heirs, 7 Ala. 459; Jordan v. Abercrombie, 15 Ala. 580. It follows that, in the absence of a showing to the contrary, the right to sue in this case vested, on the death of Peter Marcy, in his personal representative, and not in...