State ex rel. Nabor's Heirs

COLLIER, C. J. — The act of 1821, declares, that “The fictitious proceedings in the action of ejectment are hereby abolished; and hereafter the mode of trying the right and title to lands, tenements, pr hereditaments, shall be by action of trespass, in which the plaintiff shall indorse on his writ, and [461] copy writ, that the action is brought as well to try titles, as to recover damages.” By the act of 1835 it is enacted, that “In all cases where the action of trespass to try titles, would, under the present laws, be the proper action, the plaintiff at his election, shall have either said action of trespass to try title, or the action of ejectment; and when the action of ejectment shall be brought, it shall be lawful, and shall be the duty of the jury trying the same, to assess the damages in favor of the real plaintiff, as in action of trespass to try titles.” [Clay’s Dig. §§ 43, 46.] The first section of the act of 1821, very clearly indicates, that the action of trespass in the form which it prescribes, is but a substitute for ejectment with its common law fictions. And the second section declares, that the laws then in force in relation to the latter action, except as far as relates to fictitious proceedings therein, shall be applied to the action of trespass to try titles. This latter provision is not affected by the act of 1S35, which merely gives ejectment where the plaintiff shall elect to sue in that form of action, instead of trespass. This being the clear construction of the statutes cited, we have but to inquire, what is the law in respect to an action of ejectment, in the condition in which the present case comes before us. Without multiplying citations to the point, it may be stated, as a settled rule, that the death. of the lessor of the plaintiff in ejectment does not abate the suit. [Frier v. Jackson, 8 Johns. Rep. 495; Jackson v. Austin, 1 Wend. Rep. 27.] The act of 1802 declares, that no suit shall abate by the death of either plaintiff or defendant, where the cause of action survives, and provides the mode for its-revival. [Clay’s Dig. 313, § 1.] The action of trespass to try titles is not, in legal effect, trespass quart clausum fregit, and embraced by the act of 1826, which authorizes an executor or administrator to revive such a suit. In the former, the trial of the title and recovery of possession is the principal matter, to which the damages are accessorial, and it may be revived by an application of the rules which govern the remedy by ejectment. It may be supposed, that the heirs are not entitled to the damages accruing previous to the death of their ancestor, and as the remedy in their favor cannot, by a revival of the suit, [462] secure all the rights of the original plaintiff, they should not be allowed to prosecute the action. Be this as it may, we think it furnishes no test by which the question we are considering can be determined. The recovery of the land, we have said, is the primary purpose of the suit, and the diminution of the damages by a change of plaintiffs, cannot defeat the principal object. If then, the action was brought for the recovery of the freehold, upon the death of the plaintiff, his heirs are authorized to continue its prosecution; if a term of years, or a mere chattel real is sought to be recovered, it belongs to the personal representative, and in such case the executor or administrator is to be substituted for the decedent, to the remedy he commenced. In the action of trespass the quantum of interest in controversy, is not shown by the record, and the Court will admit either the heirs, or personal representatives, to revive the action, according as an agreement between them may show either the one or the other tobe entitled. If, upon the trial, the proof should show that an improper plaintiff had been made, without reference to the merits of the case, there could be no recovery in his favor. The consequence of what we have said, is, that the refusal of the Circuit Court to permit the suit to be revived, and ordering the same to be abated, was an error prejudicial to the re-lators. It is therefore ordered, that a mandamus issue to the Circuit Court of Shelby, commanding that Court to reinstate the cause therein lately pending,. at the suit of Wm. Nabors against Elihu Jones and others, defendants, and permit the same to be revived in the name of the proper parties, instead of the plaintiff, who, it is alledged, has died since the commencement of the action; or else show cause at the next term of this Court, why this mandate has not been obeyed.