Robertson v. Curlee

The opinion of the Court was delivered by Mr. Justice Gary. This was a proceeding commenced by the plaintiff in the probate court against the, defendant, James R. Curlee, to 'have dower assigned to her in two tracts of land aggregating about 1,200 acres, alleged to be in the possession of James R. Curlee. The petition was filed on *456 the 2,7th day of July, 1899. On the 18th of August, 1899, •James R. Curlee filed his answer, in which he alleged among other things that one of the tracts of land had been conveyed to him by Thomas K. Elliott and Thomas H. Ketchin; that the said grantors expressly warranted the titles to this defendant against themselves and all other persons by a covenant of general warranty. He also prays that Elliott and Ketchin might be made parties to the proceeding, and required to defend the title to the land which they had conveyed to 'him. On the day that James R. Curlee filed his answer, he also served notice upon Elliott and Ketchin of the pendency of the proceedings against him, of its nature, and that they were required to defend the title to the land they had conveyed. The notice was served before the filing of said answer. Other facts necessary for a proper understanding of the questions presented by the exceptions are set out in the order of his Honor, the Circuit Judge, which is as follows : “This case comes up on appeal from the court of probate. There are two appeals. It appears that on the 18th dayof August, 1899, a motion was made by the defendant, James R. Curlee, and Thomas K. Elliott and Thomas H. Ketchin in the court of probate, to have said Thomas K. Elliott and Thomas H. Ketchin made parties defendant to the proceeding, and to come in and defend the title. This motion was refused by the court of probate, by its order dated the 21st August, 1899. The defendant, James R. Curlee, ' as well as the said Thomas K. Elliott and Thomas H. Ketchin, thereupon served and filed notice and grounds of appeal from said order. The action was heard by the court of probate on its merits on September 4th, 1899, and resulted in a decree in favor of the defendant. From this decree the defendant, James R. Curlee, duly served and filed notice and grounds of appeal. The said defendant raised objection at the hearing of the case on its merits in the probate court as to the power of that court to proceed pending the appeal from the order hereinbefore mentioned. In addition to the reasons-therein stated, I am satisfied that the order refusing *457 the motion to have the said Thomas K. Elliott and Thomas H. Ketchin made parties defendant should be affirmed, for the further reason that the service of the notice to vouch them to come in and defend the title did not require them to be made formal parties to the record, but only required them to defend the cause in the name of the defendant; and the said Thomas K. Elliott and Thomas H. Ketchin became thereby privies to the record. I am also satisfied that there is no error in the decree. “It is, therefore, ordered, that both appeals be dismissed, and the judgment of the court of probate affirmed.” 1 It will not be necessary to' consider the exceptions in detail, as some of them raise the same question in different language. We will first dispose of those exceptions raising the question whether the probate court had jurisdiction to hear the case upon the merits after service of notice of appeal from the order, dated 21st August, 1899. Sec. 57 of the Code is as follows : “Any person interested in any final order, sentence or decree of any probate court, and considering himself injured thereby, may appeal therefrom to the Circuit Court in the same county at the stated session next after such appeal.” * * * Sec. 59 of the Code provides: “When an appeal according to law is taken from any sentence or decree of the probate court, all proceedings in pursuance of the order, sentence or decree appealed from shall cease until the judgment of the Circuit or Supreme Court is had.” These sections must be construed together. While the order may be regarded “final” as to the rights of Elliott and Ketchin, it was not “final” as to the rights of all the parties to the proceeding, and this is what the Code contemplates. The exceptions raising this question are overruled. 2 The next question that will be considered is whether the Circuit Judge erred in sustaining the order of the probate court refusing to allow Thomas K. Elliott and Thomas H. Ketchin to be made parties defendant in said proceedings, in order that they might answer and defend *458 the title to the land they had conveyed. In the case of Goodwin v. Taylor, 2 Brev., 171, the Court says : “There is no particular form to be observed in vouching, but for the most obvious reason and on the plainest principles of justice the party to be affected by a verdict ought either to be a party or a privy in the suit. If he is a stranger in the action — that is, not a party — he ought to have notice within a reasonable time that the verdict, if it is had against the defendant, will be used against him, so that he may have an opportunity of opposing and defeating the plaintiff's action, if he should be disposed to do so.” The doctrine is thus stated in Davis v. Wilbourn, 1 Hill, 27: “It is a part of the contract of warranty that the warrantor shall defend the title, and by this mode of proceeding two objects are obtained: 1st. It gives the defendant the advantage of the better information which the warrantor is supposed to possess in relation to the title; and 2d. Saves the necessity of trying the same title again in an action against the warrantor. The notice to the warrantor makes him a privy to the record, and he is bound by it to the extent to which his rights have been tried and adjudged; and in an action against "him at the suit of the warrantor, in addition to the record, all that is necessary to' be shown is that his title was in issue and judgment given upon it.” In the case of Middleton v. Thompson, 1 Sp., 67, the Court uses this language: “In this State, we have no such thing in practice as a voucher, technically so called, and as practiced in England. A notice to the warrantor to come in and support the title of the warrantee is used in its place.” See, also, Wilson v. McElwee, 1 Strob., 65; and Buckels v. Mouzon, 1 Strob., 448. These authorities show that the notice served on Elliott and Ketchin made them parties to the proceedings, and that the motion hereinbefore mentioned was entirely unnecessary. If the motion had been granted, it would only in a formal manner have enabled the warrantors to exercise a right which had already been conferred upon them by law; and -if the motion had been refused on the ground that there was no necessity for such a pro *459 ceeding, there would have been no error. The refusal of the motion was, however, not based on this ground. The probate court construed 'the law on this subject as follows : “Sec. 1916 of the Gen, Stat. provides that the summons may be directed to any ‘person or persons who may be in possession of any of said lands,’ and it is admitted by Curlee’s answer that he is in possession of the land. The court of probate is a court of limited jurisdiction, and if the warrantors should be made parties, I am without power or authority to decree any relief against them in favor of the plaintiff, dr between them and their proposed codefendant, James R. Curlee; neither the Constitution or the statute law giving this Court power to determine suits on covenants of warranty. Further, Elliott and Ketchin are not necessary parties for the determination of 'this action. When the cause shall have been heard on its merits, the only question to be determined is whether the demandant is entitled to dower in the premises; and the defendant, Curlee, having admitted by his answer not only that he is in possession, but holds the legal title, he is the necessary party defendant for the determination of the question. He (Curlee) having notified his warrantors of demandants claim, is doubtless possessed of whatever information his warrantors could have given him, especially as the warrantors were represented by same counsel at the time of serving defendant, Curlee’s, answer.” The order of the probate court defining the rights of the parties was binding on them until reversed. It deprived the warrantors of a right which the law gave them independently of an order to that effect, and was, therefore, erroneous, and should have been set aside by the Circuit Court. The exceptions presented by this question, in my opinion, should be sustained, but the majority of the Court is of a contrary opinion. It is, therefore, the judgment of this Court, that the judgment of the Circuit Court be affirmed. *460 Mr. Justice Jones. I think the judgment should be affirmed for the reason stated by the Chief Justice. Mr. Justice Pope. I dissent. As stated by Chief Justice Mclver in his dissenting opinion, the reasons given by the Circuit Judge for his judgment may be faulty, and yet such judgment may be correct. The Circuit Judge held that Elliott and Ketchin were not necessary parties. In this he was correct, as is admitted in the leading opinion.