Smith v. Harrington

• Decision Date: 13 October 1891
• Citation: 27 P. 803,3 Wyo. 503
• Parties: SMITH v. HARRINGTON
• Court: Wyoming Supreme Court

27 P. 803

3 Wyo. 503

SMITH v. HARRINGTON

Supreme Court of Wyoming

October 13, 1891

Error to district court, Laramie county.

Ejectment by Mary Boughton against Henry Harrington. An application by William G. Smith to be substituted as plaintiff was denied and he brings error. Affirmed.

Order and judgment affirmed.

E. W Mann, for plaintiff in error.

C. N Potter and Lacey & Van Devanter, for defendant in error.

GROESBECK C. J. CONAWAY and MERRELL, JJ., concur.

OPINION

GROESBECK, C. J.

One Mary Boughton brought suit in ejectment against the defendant in error, Henry Harrington, in the district court for Laramie county, by filing her petition in said court on the 5th day of April, 1889. The defendant in error answered, and nothing appears to have been done in the case until June 2, 1890, when there was filed in said court a motion or application by and on the part of the plaintiff in error, Smith, suggesting the death of the original plaintiff, Mary Boughton, July 16, 1889, and alleging that, previous to her death, said plaintiff, Boughton, transferred to said Smith all her interest in the matter and property in controversy. The applicant, Smith, asked that said action may be revived, and that his name may be substituted for that of Mary Boughton, as plaintiff therein. An affidavit was filed in support of this motion and application, stating that Mary Boughton died at Sturgis, Dak., on the day above named; that in her life-time she, by warranty deed of date May 6, 1889, transferred to said Smith all her right, title, and interest in the property and real estate which is in controversy in the action; that said deed was recorded in the office of the county clerk of Laramie county, Wyo.; that affiant and applicant, Smith, is still the owner of the property, and has not transferred his rights acquired by said deed; and that there was no administration of the estate of the deceased plaintiff. It does not appear, from this motion and affidavit, whether or not the said plaintiff, Boughton, died intestate, or left heirs or devisees. It was conceded in the argument of the case that no notice of the motion and application was given to any one, except the defendant in the case below, who appeared by counsel and resisted it. After taking the matter under advisement, the district court overruled the motion, and denied the application. The record does not disclose that any testimony was taken below, in addition to that contained in the affidavit of the applicant, Smith, and the decision here must rest upon the motion and the affidavit.

1. The substitution of the transferee in lieu of the original plaintiff has not been considered by the courts as a matter of absolute right. The court may impose conditions, and it seems that the application must be made by the transferee, and that he cannot be compelled to come into the litigation. Howard v. Taylor, 11 How. Pr. 380; Packard v. Wood, 17 Abb. Pr. 318; Chisholm v. Clitherall, 12 Minn. 375, (Gil. 251.) The application must show a clear prima facie case before the applicants can be permitted to be made parties, (St. John v. Croel, 10 How. Pr. 253, 258;) and the applicant must allege and prove assignment in his own name, (Virgin v. Brubaker, 4 Nev. 31; Mill Co. v. Vandall, 1 Minn. 246, Gil. 195.) Moreover, the court has a right to inspect the conveyance or transfer, and to determine whether or not it is absolute in its terms. The bare statement that the conveyance is a warranty deed is not sufficient, as the instrument passing from Boughton to Smith might be a deed of warranty only in name, and in effect a mortgage or trustdeed. Again, it might be a mere colorable conveyance or a pretended transfer, or void for want of consideration, or procured by duress or fraud, and could be successfully attacked by the heirs or devisees, if any. The case presented by the motion of Smith does not state with sufficient clearness a case to entitle him to the relief sought.

2. The following cases cited hold that notice of applications, like or similar to the one at bar, must be given to the heirs devisees, or personal representatives of the deceased plaintiff, and we cite the principle apparently governing the decision in each case: The alleged purchaser should give notice to the plaintiffs as well as to the defendants. Howard v. Taylor, 11 How. Pr. 380, supra. "There is no inflexible rule that the court, in a case like this, cannot proceed without the appointment of an administrator of the original plaintiff. The interest of the appellants in the question is that the person substituted should be the real owner of the claim, or, if not, that the real claimant should be concluded by the order." Schell v. Devlin, 82 N.Y. 333. Where a plaintiff had, pending an action, transferred his interest, and died, and after his death his assignee, on notice to the defendant alone, moves to be substituted as plaintiff, the motion should be denied for want of notice to the personal representatives of the deceased plaintiff. McLaughlin v. Mayor, etc., 58 How. Pr. 105. Referring to this principle, the court observe: "This decision has been followed for over eighteen years in this court, [New York common pleas,] and has not been, as far as we have any knowledge, questioned in this or any other court of the state. The practice so established seems to be eminently proper. It is intended as a check upon any possible fraud upon the estate of the deceased plaintiff and upon defendant. If the alleged assignment were a forgery, defendant, after paying the judgment obtained by the assignee, would be compelled to pay the claim over again when the action was revived by the personal representatives of the deceased and prosecuted to judgment. In that aspect of the case, defendant has a vital interest in the inquiry as to the genuineness of the alleged transfer. On the other hand, should the pretended assignee exhaust the liability of defendant by his execution, the estate of the deceased plaintiff would be afterwards deprived substantially of the debt. Defendant has therefore an interest in the order, and the representatives of the deceased a still greater interest. It may be said that the defendant had the right, upon the motion, to produce proofs of the want of genuineness of the paper; but greater protection is afforded defendant by notice to the representatives of the alleged assignor of the application for substitution of the assignee, for such notice would work an estoppel against the estate in favor of the defendant. There might be delay to the assignee because of failure to apply for letters of administration on the estate of the deceased plaintiff, but an assignee who elects to prosecute an action in the name of his assignor takes the chances of inconvenience and delay arising from the death of the latter." So it was held in a leading case in Texas: "If a suit be instituted in the name of one person professedly on its face for the benefit of another, then, on the death of the nominal plaintiff, the suit may proceed in the name of the beneficiary, without reviving in the name of the representatives or heirs. Pasch. Dig. art. 10; Price v. Wiley, 19 Tex. 142; Clark v. Hopkins, 34 Tex. 139. If, however, the suit appears on its face to be for the benefit of the plaintiff, we know of no authority, neither under our statutes and system of procedure, nor under the rules of pleading and practice in equity, for allowing it, after the death of the plaintiff, to proceed in the name of an alleged assignee or beneficiary, until the representatives or heirs of the deceased have been cited and allowed an opportunity to admit or contest the right claimed. It is true that, in equity, suits do not abate on death, but that a bill of revivor will lie by the personal representative or heir according to the nature of the bill, and that in favor of a devisee or purchaser a bill in the nature of a bill of revivor will lie; but to a bill of the latter class the heirs or representatives of the deceased must be parties. Says Justice STORY: 'When a party plaintiff dies, whose interest is transmitted to some other person, if the title be that of mere representative in law, there is no change in the title itself, and the only question that arises is, who is the person entitled to take as representative? that is, in respect to real estate, who is the heir, and, in respect to personal estate, who is the executor or administrator? When this fact is ascertained, the person succeeds by operation of law to the whole title of the deceased. A bill of revivor in such case merely substitutes the representative in lieu of the deceased, and states no new fact as to title, except that of transmission by operation of law. The title of representative or heirship, at least in a court of chancery, is not disputable; but the person in whom it is vested is alone to be ascertained. But, when a party plaintiff claims a title by purchase or devise, he introduces a new title not previously in the case, and which is controvertible, not merely by the defendants in the bill, but also by the heirs at law. As to these parties, the suit is original; it does not merely revive the old suit, but it states new supplementary matter calling for an answer. So far, then, as it states such matter, it is an original bill; and so far as it seeks to revive upon that matter, it is in the nature of a bill of revivor.' Slack v. Walcott, 3 Mason C.C. 512. In the same opinion, Justice STORY quoted from Lord Chief Baron GILBERT, who, in giving his reasons why 'a devisee or assignee of any plaintiff cannot have a subpoena ad revivendum after the decease of such plaintiff,' says: 'Because, where a party devises or assigns his interest, and dies, if the devisee or assignee were to bring his bill of revivor...