Wilson v. Kirkland

• Decision Date: 06 April 1911
• Citation: 172 Ala. 72,55 So. 174
• Parties: WILSON ET AL. v. KIRKLAND.
• Court: Alabama Supreme Court

55 So. 174

172 Ala. 72

WILSON ET AL. v. KIRKLAND.

Supreme Court of Alabama

April 6, 1911

Rehearing Denied April 27, 1911.

Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Action by Laura Kirkland, executrix, against W. J. Wilson and others. From a judgment for plaintiff, defendants appeal. Affirmed.

J. F Sanders, for appellants.

H. L Martin, for appellee.

SAYRE J.

W. W Kirkland brought his statutory action of ejectment for the recovery of a tract of land, claiming mesne profits also. The plaintiff died pending the action, leaving a will by which the title of all his lands vested in his widow. The trial court allowed the action to be revived in the name of the widow as executrix. It is said that this was error, for the reason that the revivor should have been had in her name as devisee.

While the action of ejectment cannot be maintained by heir and persoual representative jointly as original parties, because they have no interests in common (Tarver v. Smith, 38 Ala. 135), the heir or devisee may bring his separate action on his title by descent or devise; and it is also settled that the personal representative may sue in ejectment in his own name for the lands of his intestate or testator, not because any title resides in him, but because possession is necessary to the complete exercise of his statutory authority. Moragne v. Moragne, 143 Ala. 459, 39 So. 161, 111 Am. St. Rep. 52; McKay v. Broad, 70 Ala. 377. Where the plaintiff in ejectment dies pending the suit, it seems that section 2497 of the Code of 1907 authorizes a revivor in the name of the personal representative and the heir or devisee jointly. But "the personal representative has the exclusive right to such damages as accrued in the lifetime of the deceased plaintiff; and of them there can be no recovery, unless he is a party. He has, also, the right to intercept the entry and possession of the heir, or devisee, and to apply the rents, or, under the orders of the court of probate, make sale of the lands, for the payment of debts or for distribution; and this confers upon him the right to revive the action in his own name, and to prosecute it to final judgment, recovering the possession, and, as an incident, the rents accruing prior and subsequent to the death of his testator or intestate."

If it is proposed to have the suit, when revived, proceed for the recovery of possession, and for damages accruing prior and subsequent to the death of the plaintiff, as was the case here, the revivor may be had in the name of the personal representative alone, or in his name jointly with the heir or devisee. Evans v. Welch, 63 Ala. 250.

Nor did the defendants' offer to show that plaintiff's testator left sufficient personal property to pay his debts affect plaintiff's right to revive the action and to have a recovery in her capacity as personal representative. That was a question for adjudication upon an application for a sale of the...