27 Ala. 277 | Ala. | 1855
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.
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.