Marsh v. Board of Supervisors

Lyon, J. Unlike the case of Magee v. The Board of Supervisors of Waupaca County, decided herewith {ante, p. 247), the complaint in this case attempts to make the administrators of the estate of Samuel Marsh, deceased, plaintiffs in their representative capacity. The only objection taken to the sufficiency of the complaint is, that it contains no averment that the administrators have filed an authenticated copy of their appointment in some county in this state. If such administrators are necessary or proper parties to the action, the objection seems to be well taken. Moir v. Dodson, 14 Wis., 279. But we perceive no good reason for making them parties in their repre • sentative character. The action is to remove a cloud upon title to land, and the owners of the land are, of course, the proper plaintiffs. The complaint shows that the plaintiffs who sue in an individual capacity are such owners. On the death of Samuel Marsh, intestate, the lands described in the complaint descended immediately to his heirs, and the administrators subsequently appointed took no'interest therein except the mere [253] right of possession pending the administration. R. S., ch. 100, sec. 7. . Until that right is asserted and possession taken, the heirs may maintain ejectment for the land. Jones v. Billstein, 28 Wis., 221, and cases cited. The owners of the lands in question being plaintiffs in this action, the real difficulty is, that there is an excess of plaintiffs. But that is a difficulty which cannot, in general, be reached and corrected by a demurrer. Willard v. Reas, 26 Wis., 540, and cases cited. The exception to this rule is where a wife is improperly joined with her husband as plaintiff. Read v. Sang, 21 id., 678. The grounds of the exception will be found stated in the opinion of that case by Dixon, O. J., and need not be repeated here. The averments in the complaint concerning the administration of the estate of Samuel Marsh would probably be stricken out on motion as irrelevant and redundant. Saveland v. Green, 36 Wis., 612. It follows that the order sustaining the demurrer must be reversed, and the cause remanded for further proceedings. By the Court. — It is so ordered. Eyas', O. J., took no part in the decision of this cause.