Hanks v. Matthews

Bartch, J. (after stating the facts): We think the ruling of the court in this case was not erroneous. The suit between Hanks and Matthews referred to in the complaint herein instituted for the purpose of declaring the deed from Hanks to Matthews to be a mortgage, and for the restoration of the property conveyed thereby, and the possession thereof, to Hanks, had, in respect to the possession for the withholding of which damages are claimed, the effect of an action in ejectment, and therefore the controversy herein may be determined by the principles which apply to actions upon supersedeas bonds in suits in ejectment. A bond on appeal in such an action is required and executed to indemnify the plaintiff against damages which he may sustain pending the appeal by the wrongful withholding of the possession by the defendant. The judgment in the action pleaded in the case at bar conclusively determines that the possession of the premises in controversy belonged to the plaintiff therein, and during the pendency of the appeal was wrongfully withheld from him, no other plaintiff having been substituted.. Under section 3187, Comp. Laws Utah 1888, the plaintiff herein, as grantee of the premises which constituted the subject-matter of that suit, had the right to have herself substituted as plaintiff therein; and, if she had done so, she would then herself have become the plaintiff, and would have acquired all the rights of the [329] plaintiff under tlie judgment. But, not having had herself so substituted in that action, she acquired no rights, as grantee, respecting the possession of the premises pendente lite, which can be enforced in an action, or under the judgment, in her own name, in the absence of an assignment of the rights of the plaintiff to her. The mere fact that she is the grantee of the plaintiff’s estate in the premises does not constitute her his legal assignee, as to a bond on appeal .from a judgment in his favor. Such would doubtless be the case if the bond were made direct to the plaintiff, and on principle, it would seem, the result is the same when the undertaking is to his administratrix. Substitution under the statute having been omitted, the nominal plaintiff in that action has become the trustee of the grantee, to prosecute the action and recover the possession of the land in his own name, and the grantee cannot sue on the appeal bond in her individual capacity. Where an undertaking on appeal is given, pursuant to section 1000, Rev. St. U. S., to a plaintiff in a cause involving the possession of land, a grantee of the plaintiff pendente Ute acquires no right which can be enforced in- his own name in an action upon the undertaking, unless such grantee shall have had himself substituted as plaintiff in the original action. Walsh v. Soule, 60 Cal. 443. The cases cited by counsel for the appellant are not in point, under the circumstances of this case. We are of the opinion that the complaint states no cause of action, and it is therefore unnecessary to discuss the other questions raised by the demurrer. The judgment is affirmed. ZaNE, C. J., concurs. Miner, J., concurs in the judgment.