Crump v. Wallace

CHILTON, O. 1. The motion to dismiss the appeal, or to strike the cause from the docket, cannot prevail. True, the security for the cost, which forms the ground of the motion, is not very forma], but it embraces the cost of the appeal; and although it says, *■ for all the plaintiffs except —Eeeves” [280] it is sufficient, since security given for the cost of the appeal by one appellant, is as good as if given by all. The specifying of the person for whom the parties to the bond stand surety for the cost, is but a designation of their principals, to whom, they would have the right to look for indemnity, should they have the cost to pay. - 2. In actions of ejectment, the death of a portion of the lessors of the plaintiffs does not abate the suit, nor destroy the right of the survivors to proceed. — Adams on Ej. 320; 1 Wend. 27; 8 Johns. R. 495; Baker v. The Heirs of Chastang, 18 Ala. 417. The suit, being in the name of John Doe, a fictitious person who cannot die, progresses; and it is within the discretion of the court to allow amendments in stating the demise. But this fiction, of proceeding in the name of an unreal plaintiff, does not, and cannot, apply to the action of trespass to try title,where the suit is brought in the name of the real party, who must be able to sue, or he cannot maintain it. In the case before us, several sue, but one of the plaintiffs was dead before the commencement of the action. As death has interposed a perpetual'bar to his being a party in court, the fact of his decease may well be pleaded as it was in this case, and is not necessarily pleadable in abatement only. But the question recurs, does it operate only to bar a recovery on the part of. the deceased, or as a bar to the entire action ? This action is governed by the same rules (the fiction and consequences which result from the fictitious proceedings aside) that obtain in the action of ejectment. When, therefore, several parties unite in an action, they are supposed and must be considered as relying upon a joint demise; and must allege and prove that each has the right to recover. In such case, all must recover, or none of them can. — 1 Mar. R. 41; 2 ib. 242, 387, 459; 3 ib. 19, 379, 462; 4 Mon. R. 365; 7 ib. 230 ; Litt. Sel. Cas. 420; Hall and Wife v. Holcomb, 26 Ala. 720. It is well settled, in ejectment, that on a joint demise none can recover without proving title in all. As it is impossible to prove title in all the parties plaintiffs, one of them being dead before the action was commenced, the plea of such death must be a bar to the suit. That such a plea is a bar to ■ an ordinary action, see Jenks v. Edwards, 6 Ala. 143, and cases there cited. [281] Tlie fact that co-lieirs may each maintain an action for his share, or may join, and if one die, the suit may proceed in the names of the survivors, may be granted, without at all affecting the position above asserted. Here there is a party introduced upon the record, at the inception of’the proceedings, who cannot sue ; and we know of no rule of law which will authorize his name to be dropped from tlie list of the complainants, so long as there is no change in the circumstances existing when the action was commenced. The new Code makes provision for amendments as to parties; but this suit was commenced under the old law existing before the Code, and must be controlled by that law. It follows from what we have said, that the plea of the death of George Reeves before suit brought, was good as a bar to the action ; and the replication that he had no interest, but was made a party because he was the husband of Rutha Reeves, another plaintiff, who is the party really interested, and under the supposition that he was living when the suit was commenced, was properly held bad on demurrer. Judgment affirmed.