Hamilton v. Homer

Takbell, J. : Charles D. Hamilton brought ejectment in the circuit court of Claiborne county, in 1866, against Mary D. Homer, for the recovery of the lands described in the declaration. The defendant pleaded the general issue, a special plea of Superior title in equity, and gave notice of various matters Of defense not essential to be mentioned. The plaintiff demurred to the second plea, and the demurrer was sustained, with leave to defendant to answer over. At this stage of the case, viz., in 1869, the death of the plaintiff, Hamilton, was suggested, and the record recites that, “it — 391 — appearing to the satisfaction of the court, that the title to the land in controversy has ceased to exist in the plaintiff, and become vested in Lizzie Hamilton, it is therefore ordered by the conrt that this case stand revived in the name of Lizzie Hamilton, and that she be substituted plaintiff in this case.” Subsequently the defendant, Mary D. Homer, died, when scire facias was issued, reciting the death of the plaintiff, Hamilton, and the revival of the suit in the name of Lizzie Hamilton, and commanding the sheriff to summon Alexander H. Homer and Hose E. Bass to show cause why the suit should not be revived against them as the heirs at law of Mary D. Homer, deceased. Service having been made upon these parties, they appeared, and by special plea adopted the plea and defense interposed by the former defendant. In this situation the cause came on for trial at the July term of the circuit court of Claiborne county, 1871. The plaintiff read to the court and jury the pleadings filed by the original parties, together with the special plea of the present defendants, adopting the plea and defense already filed. The plaintiff then offered to read in evidence a deed from Charles A. Pearson to Charles D. Hamilton, of the land in controversy, to which defendants objected, and the same was then read to the court. The plaintiff then read to the court a deed from the sheriff of Claiborne county to Lizzie Hamilton of the same land, together with the judgments and writs of venditioni exponas, and of fieri facias upon which it is based, from which it appears that, upon judgments constituting a lien upon the land in suit, obtained against said Charles H. Hamilton, deceased, in his life-time, the said land was sold after his death, and subsequent to the institution of this action the said Lizzie Hamilton becoming the purchaser, and received a deed from the sheriff, when, as above stated, she was substituted plaintiff herein. Upon these facts the counsel for the defendants objected, that the cause could not be further prosecuted for the want of a proper plaintiff, and moved the court, ore tenus, that the suit be' abated. After argument of counsel — 392 — the court ordered the action abated and dismissed at the costs of plaintiff. From this decision of the circuit court, the plaintiff in ejectment prosecuted a writ of error, and assigns here, as grounds of reversing the judgment: 1st. That the objection to the person of the plaintiff could not be taken after the plea to the merits ; 2d. That the court erred in disregarding the order of the court of a prior term reviving the cause in the name of Lizzie Hamilton ; 3d. That, in abating the action, the court assumed appellate powers, reviewing and reversing at a subsequent term an order of a prior term ; 4th. That the court erred in abating the cause on a motion, ore terms, after revival by order of the court. The order reviving the suit in the name of the present plaintiff was ex parte,, and this fact disposes of several alleged grounds of error: 1st. Because it was ex parte. 41 Miss. 42, 49; ib. 210; 8 Smedes & Marsh. 505; 6 How. 285; 12 Smedes & Marsh. 63; 2 ib. 535; 24 Miss. 377; 41 ib. 88; 42 ib. 506; Bouv. Law Dict., Judgment; Chit. Gen. Prac., 19, 35, 568. 2d. The substitution of the present plaintiff upon suggestion was a matter of course under art 25, Code, 391, the propriety of such action or the truth of the suggestion being, by said article, directed to be tried upon the trial of the cause, with the title of the deceased plaintiff. Under this article, the order of the court substituting the present plaintiff was not an adjudication of the right of Lizzie Hamilton to prosecute the action. It was merely a provisional substitution, subject to final determination at the trial. By art. 14, p. 388 of the Code of 1857, it is provided, that, “after issue joined” in ejectment, “the parties shall proceed to trial as in other actions,” and “'if both parties appear, the question at the trial shall be, whether the plaintiff, or plaintiffs, or either, and which of them, is entitled to recover the possession of the premises in question. ’ ’ According to art. 15, “if it shall appear at the trial that the title of the plaintiff existed, as alleged in the declaration, in such manner that the plaintiff or plaintiffs, or one of them, was, — 393 — at the commencement of the action, entitled to recover possession of the premises in question, ' * * * but that such title has expired at the time of the trial, the plaintiff or plaintiffs so entitled shall, notwithstanding such expiration, have a verdict according to the fact that he had such right of recovery at the commencement of the action, and shall recover his costs of suit, but as to the premises claimed, the judgment shall be that the defendant go thereof without day.” This statute reiterates the teachings of the books, that, in ejectment, the plaintiff must have both the legal title and the right of possession at the time of the commencement of the action and at the trial. It is enacted in art. 25 of the chapter on ejectment (Code of 1857), from which we have quoted above, that “in case of the death, before trial, of a sole plaintiff, * * * the legal representative of such deceased plaintiff may, by leave of the court," enter a suggestion of such death, and that he is such legal representative, and the action shall thereupon proceed, and the truth of the suggestion shall be tried on the trial of the action, together with the title of such deceased plaintiff, and such judgment shall follow upon the verdict, in favor of or against the person making such suggestion, as is hereinafter provided, with reference to a judgment for or against such deceased plaintiff.” Accordingly, the right of the present plaintiff, Lizzie Hamilton, to prosecute this suit, depends upon whether she is within the phraseology of this statute, the “legal representative” of the deceased plaintiff, in whose stead she was substituted. The term “legal representative” is defined in article 34 of the above statute, regulating the action of ejectment, which article is as follows: “ Wherever in this act, the words ‘ legal representative ’ of a deceased party, plaintiff or defendant, occurs, in relation to the effect of the death of such party in an action of ejectment, they shall be understood to mean such heir, devisee or other representative of the deceased person, as, upon his death, 'becomes seized or possessed of, or otherwise entitled to, the estate — 394 — or interest in the premises in question, of which such' deceased person was seized, possessed or entitled unto, at the time of his death.” The plaintiff in error contends that the words “other representative,” and “ otherwise entitled to,” embrace, and are decisive of, the case at bar. In pursuance of art. 25 of ch. 55, already referred to, counsel suggested the death of Charles D. Hamilton, the sole plaintiff, and that Lizzie Hamilton was his “legal representative,” the truth of which suggestion was to be determined upon the trial, “together with the title of such deceased plaintiff.” By the very terms of this article, only the title of the original plaintiff could be tried upon the trial, and not that of a purchase of such title, whether at sheriff’s sale on execution or otherwise. But, is Lizzie Hamilton the “ legal representative ” of Charles D. Hamilton, deceased, within the meaning of the statute \ It is clear that she is not. The “legal representative” is declared to mean “ such heir, devisee or other representative of the deceased person, as, upon his death, becomes seized, or possessed of, or otherwise entitled to, the estate or interest in the premises in question, of which such deceased person was seized, possessed, or entitled to at the time of his death.” Lizzie Hamilton did not, “upon his death” become “seized or possessed of, or otherwise entitled,’ ’ to, the estate or interest of the deceased in the premises in question, but subsequently and by purchase. The right to prosecute the suit is clearly confined, not only to such, as “upon his death,” became seized or possessed of, or otherwise entitled to, the estate or interest in the premises sued for, but to the “representative” of the deceased. And, to vary the expression, such “representative” must be “ seized or possessed of, or otherwise entitled” to, the estate in controversy, upon the death of the original plaintiff, and again, the “representative” only may be “seized or possessed of, or otherwise entitled” to, such premises. Lizzie Hamilton, having purchased the title of the deceased plaintiff, she was a vendee or purchaser, but not a ‘£ legal repre — 395 — sentative,” within the meaning of the provisions of the Code nnder consideration. The judicial signification of the words “legal representatives,” .in the light of the doctrine of “descent,” “succession” and “ represention,” and the distinction between these, and the term “vendee,” are as old and as well defined as the law itself. 1 Steph. Com. 353; ib. 357; 2 ib. 243; 4 Kent's Com., § 65; ib., § 67; 2 Black. Com. 201; Co. Litt. 237 b; Burrill’s Law Dic., titles Descent, Representative, Representation, Successio, Succession; Reeve on Descents, 19. “Property of lands by descent,” says Lord Bacon, “is where a man hath lands of inheritance and dieth, not disposing of them, but leaving it to go (as the law casteth it) upon the heir. This is called a descent of law.” Title by descent, or hereditary succession, is directly opposed to that of purchase. 3 Wash. on Real Prop. 4; 2 Black. Com. 241; Co. Litt. 18 b.; Bac. Abr., title Descent; Burr. Law Dic., title Purchaser. Doubtless there are “ other ” representatives of a deceased person than the heir or devisee. And the “ representative ” may be “ otherwise ” entitled to the estate or interest, in the premises in question, than by being “seized or possessed” thereof. But if wrong in these particular views of art. 34, it is certain that a purchaser is not a representative of a deceased party, within the meaning of the chapter of the Code on ejectment, and that only a representative can be permitted by substitution to proceed with the action. Hence, art. 34, Code, ch. 55, is consistent with the immemorial use of terms, and makes no change in this respect, as urged by counsel for the plaintiff in error. In the case at bar, Lizzie Hamilton is not the legal representative of Charles D. Hamilton, deceased. Her acquisition of the title of the latter was by purchase, and not by descent, under the statute, “of descents and distributions,” Code, § 14, art. 110, p. 452, and she is not within the provisions of said art. 34, ch. 55, Code of 1857. The rule of pleading laid down by Lord Coke, and ‘ ‘ memorized by every well-read lawyer,” is invoked by counsel — 396 — for plaintiff in error, as decisive of this case, viz. : 1st. To the jurisdiction of the court; 2d. To the person of the plaintiff, and next of the defendant, etc., each subsequent plea admitting the former. This rule is as greatly venerated as the memory of its author, but it has no application to the points developed by the evidence : 1st. Upon general rules of pleading, Graham’s Pr.; Stephen’s Pl.; 2d. Because the right of the plaintiff to prosecute is specifically directed to be tried on the trial, art. 25, Code, 391; and, 3d. In ejectment, the general denial puts in issue every material right to be established by the plaintiff. Upon the trial the plaintiff had three points to establish: 1st. The death of Charles I). Hamilton, the original plaintiff; 2d. That the present plaintiff, Lizzie Hamilton, was his “legal representative;” 3d. The title of the said deceased to the premises in controversy. The testimony disclosed the fact that Lizzie Hamilton was not the legal representative of Charles D. Hamilton, and that before the trial title had passed out of him. Upon this state of facts, was the court right in abating the suit ? In addition to our views of the provisions of the Code, regulating the action of ejectment, we need only refer to the well-established rule, that the plaintiff in this action must show title both at its commencement and at the trial. Art. 15, ch. 55, Code of 1857; Adams on Eject., ch. 3, and notes and cases; 25 Miss. 177; 40 ib. 793; 32 ib. 133; 30 ib. 129; Bac. Abr., title “ Ejectment.” Art. 25, Code, 319, would seem to contemplate a verdict of the jury upon the “ suggestion ” of death, etc., but the facts developed were not disputed, and there was no question for the jury. There was no objection to the course taken on this ground. In Pintard’s lessee v. Griffing, 32 Miss. 133, decided in 1856, there was a plea puis darrien continuance, alleging the expiration of the term of the plaintiff, and of all right and title to the premises in litigation, upon which there was a verdict, but, under the present statute, this is regarded as wholly — 397 — unnecessary. In abating the action we think the court was clearly right. A quaere is propounded by counsel for defendant in error, as to the costs. Were this a case in equity, the costs might be divided, but in a court of law, and as the present plaintiff came into the cause on her own motion, we presume she did so in view of all the responsibilities. Judgment affirmed.