is a statutory action in the nature of an action in ejectment commenced by the appellees
Silas H. Gould makes no individual claim to the property, but defends as the father of Silas Gould, Jr. He sets forth a paramount equitable title to the property in his said minor son, Silas, and alleges that the possession is held by Silvester Gould, his wife, under the equitable title of the minor son. Silvester, the wife and mother, makes no defense in her individual right, but as the guardian ad litem, of the minor, Silas Gould, she sets up the same equitable title interposed by Silas H, Gould. The equitable title thus pleaded by the defendants is alleged by them to have arisen from an oral contract made between Silvester Gould and her sister, the decedent, by the terms of which Silvester promised to devote her personal services to the necessities of decedent as long as decedent should live, and in consideration therefor decedent promised to convey the property here in question to the minor son, Silas Gould. It is alleged that pursuant to such agreement Silvester took possession of the said premises, and devoted her personal services to the necessities of the decedent, as promised, but no conveyance of the property was made by decedent, nor has any conveyance been made by anyone since her death. They pray that these plaintiffs, executors, be required to make a conveyance of said property to Silas Gould,
After the plea in bar had been sustained, the cause proceeded to trial upon the remaining issues and resulted in a judgment for plaintiffs against all the defendants for the immediate possession of the property and against Silas H. Gould alone for the accrued rent and for rent to accrue at a monthly rate and for costs. The defendants moved for a new trial and assigned many grounds for the motion, but we deem it unnecessary in this opinion to set forth these grounds in detail. The court denied the motion for a new trial, and the defendants appeal from the judgment and from the order refusing a new trial.
The appellants assign as error the order sustaining the plea in bar for the reasons the evidence offered in its support was not sufficient to show that the judgment was res adjudicata of the questions presented in the defendants’ defense and cross-complaint. That the rights of Silas Gould, Jr., could not be decided upon a demurrer nor motion, but they must be decided upon the merits, and the judgment offered was not rendered on the merits. The other assignments are too general to merit notice.
On the question of the plea of res adjudicata the complaint, answer and judgment were filed as exhibits and are before us, but the oral testimony of the witness introduced is not before us. It is clear, however, from these exhibits, that the former action was prosecuted by the plaintiffs therein as trus
There can be no serious question that the rights of Silas Gould, Jr., could be amply protected by the trustee with whom the contract was made for his benefit. The law gives such trustee the absolute right to maintain such an action for the benefit of a cestui que trust without the formality of joining such beneficiary in the action. Par. 1299, Rev. Stats. Ariz. 1901. The complaint offered and received in evidence is conclusive that such action was prosecuted for the sole benefit of Silas Gould, Jr. Upon the face of that complaint it is alleged “that plaintiffs (Silas H. and Silvester Gould) have no personal interest in said real estate and no personal claim against the estate of said” decedent. The claim that Silas. Gould, Jr., was not a party to such action is wholly without foundation. True, he was not named as a party in the title of the action, but the only rights submitted were his rights, and, if the judgment rendered in that action would be binding at all, it would bind him and adjudicate his rights. The bene-ficiary in such action is in effect and to all intents and purposes the real party in interest. 23 Oye. 1245.
The oral evidence, not preserved in the record, was offered, we must presume, to supply any defects in evidence not furnished by the exhibits and served with such documentary evidence to support the finding of the court on the issues presented by the plea. In such a suit commenced and prosecuted by the party with whom the contract involved was made for the benefit of another, the judgment rendered therein will bind the beneficiary in all respects in the same manner and to the same extent as if he had commenced and prosecuted such action in his own name.
The appellants further contend that the decree or judgment in the former action is not conclusive as a bar in this action,.
“To create such a judgment, it is by no means essential that the controversy between the plaintiff and the defendant be determined ‘on the merits,’ in the moral or abstract sense of those words. It is sufficient that the status of the action was such that the parties might have had their lawsuit disposed of according to their respective rights, if they had presented all their evidence and the court had properly understood the facts and correctly applied the law. But if either party fail to present all his proofs, or improperly manage his ease, or afterward discover additional evidence in his behalf, or if the court find contrary to the evidence, or misapply the law, in all these eases the judgment, until corrected or vacated in some appropriate manner, is as conclusive upon the parties as though it had settled their controversy in accordance with the principles of abstract justice. Frequent instances occur tending to convince us of the unwelcome truth that many judgments, which in law are regarded as being ‘ on the merits, ’ are, in fact, repugnant to any disposition of the rights of the parties ‘on the merits,’ as those words would be employed in relation to the ordinary affairs of men.” Freeman on Judgments, 3d ed., sec. 260.
An examination of the judgment in the record offered in evidence discloses that the trial of the action came to an end when the plaintiffs offered evidence in support of the. allegations of their complaint. The defendants objected to the introduction of any evidence upon the grounds that the complaint shows upon its face that the plaintiffs had no equities and are not entitled to sustain an action for specific performance; and, having an adequate remedy at law and having elected to pursue the same, plaintiffs were estopped from maintaining such action. Upon these grounds the court sustained the objection and refused to permit the plaintiffs to offer any evidence whatever, and upon motion of defendants the court ordered the cause dismissed. An objection to the introduction of any evidence is in all respects equivalent to and raises the same questions as a demurrer to the complaint. Goodrich v. Board etc., 47 Kan. 355, 18 L. R. A. 113, 27 Pac. 1006;
In this instance the objection was in effect a demurrer to the complaint upon the grounds that the complaint fails to state facts sufficient to constitute a cause of action entitling the plaintiffs to any equitable relief. “A demurrer to a complaint because it does not state facts sufficient to constitute a cause of action . . . raises an issue which,' when tried, will finally dispose- of the case as stated in the complaint, on its merits, unless leave to amend or plead over is granted. The trial of such an issue is a trial of the cause as a cause, and not the settlement of a mere matter of form in proceeding. There can be no other trial except at the discretion of the court, and, if final judgment is entered on the demurrer, it will.be a final determination of the rights of the parties which can be pleaded in bar to any other suit for the same cause of action.” Alley v. Nott, 111 U. S. 472, 28 L. Ed. 491, 4 Sup. Ct. Rep. 495; City of Los Angeles v. Mellus, 58 Cal. 16, 19, reaffirmed in 59 Cal. 455; 2 Black on Judgments, 848, sec. 709.
It is clear that the former action was a general dismissal on the merits and a final decree rendered thereon, and no leave to amend nor plead over was given by the court. A judgment so rendered will constitute a bar to the use of the same cause of action there involved as a counterclaim in a subsequent action at law between the same parties. Baker v. Cummings, 181 U. S. 117, 45 L. Ed. 776, 21 Sup. Ct. Rep. 578. And with equal force will it constitute a bar to the use of the cause of action there involved as a defense set up in a cross-complaint in a subsequent action at law between the same parties, as is attempted here.
We have found no reversible error on the record presented, and therefore the judgment is affirmed.
FRANKLIN, C. J., and. ROSS, J., concur.
NOTE.—As to eonelusiveness upon beneficiaries of judgments against trustees, see notes in 34 Am. Dec. 722; 73 Am. St. Rep. 164.
As to decree on merits rendered on demurrer and its effect as constituting former adjudication, see note in Ann. Cas. 1913A, 541.