Jones v. Graham

80 Wis. 6 | Wis. | 1891

Cassoday, J.

The object of the action commenced in the name of Mr. Bromley, and continued in the name of his guardian, was to set aside the conveyances and transfers made by him to Mrs. Arndt, and by her to the other defendants, and to compel reconveyances and retransfers thereof to him. The grounds of the action were to the effect that at the time Bromley made such conveyances and transfers he was of unsound mind, and also that they were obtained without consideration, and by the undue influence, imposition, and fraud of Mrs. Arndt. It is conceded that the action so commenced and continued survived the death of Bromley. In fact the statutes declare, in-effect, that no action shall abate by the occurrence of any event, if the cause thereof survives or continues, and also that actions for the recovery of personal property, or the unlawful withholding and conversion thereof, and all equitable actions to set aside conveyances of real estate, or to compel a recon-veyance thereof, shall so survive. Secs. 2800, 4253, E. S. So the statute expressly provides that “ in case of the death or other disability of a party, if the cause of action survives or continues, the court, on motion, at any time within one year thereafter, or afterwards on a supplemental complaint, may allow or . compel the action to be continued by or against his representatives or successor in interest.” Sec. 2803, R. S.; Plumer. v. McDonald L. Co. 71 Wis. 137. The method of proceeding to revive such action is prescribed by sec. 2810, R. S. When not so revived, the court may, in its discretion, and upon notice, dismiss the action. Sec. 2811, R. S. The rule is general and well recognized that where a sole plaintiff dies during the pendency of an action, and the cause of action continues in favor of another, nothing further can be done in the action until the person in whose favor the cause of action survives is brought before the court by some proper proceeding. La Pointe v. O’Malley, 47 Wis. 338, and cases there cited. Undoubtedly in the ■ case át bar the action was properly revived in the name of the special administrator, as to the personal property and the rents, issues, and profits of the real estate. The statute gave to such -special administrator, particularly with the approval of the court, the power to collect all the goods, chattels, and credits of the deceased, to care for, gather, and secure crops, and preserve all the property of the deceased, for the executor or administrator who might afterwards be appointed, and “for such purposes'” to “commence and maintain actions as an administrator.” Sec. 3811, R. S.; Jefferson County Bank v. Robbins, 67 Wis. 68. The only controversy here is whether, upon the action being so revived in the name of such special administrator alone, it was competent for the court to determine and extinguish the title of the heirs of the deceased to any of the real estate, without any of such heirs being made parties to the action. To fully appreciate the question presented, regard should be had to the legal title and rightful succession to the real estate, as well as to the personal property, upon the death of Mr. Bromley. The refusal of the county court to admit the alleged will of the deceased to probate made that paper ineffectual for any purpose. Sec. 2294, R. S. This being so, he must be regarded as having died intestate. The result is that the legal title and right to the possession of the personal property became, on his death, vested in the administrator for the payment of debts, expenses, and final distribution to the parties entitled, under the orders of the court. Estate of Kirkendall, 43 Wis. 167, 179; Marshall v. Pinkham, 52 Wis. 590; Melms v. Pfister, 59 Wis. 192. On the other hand, subject to the payment of his debts, the title of the real estate became vested in his heirs at law immediately upon his death. Ibid.; Jones v. Billstein, 28 Wis. 221; Marsh v. Waupaca Co. 38 Wis. 250; Root v. McFerrin, 75 Am. Dec. 49. In other words, by such devolution, the legal title to such real estate at once became vested in such heirs; and the serious question presented is whether such title could be divested without process against them, or their being parties to the action, or having an opportunity of being heard.

The principle involved seems to have been determined by • adjudications of this court. In Stark v. Brown, 12 Wis. 572, 78 Am. Dec. 762, the' defendant was in possession, and claimed title under a foreclosure sale to which only the representative of the mortgagee and the -administrator of the mortgagor were parties, and one of the heirs of the mortgagor and the successors of his other heirs brought an action of ejectment; and it was held, in effect, that the equity of redemption descended to the heirs of the mortgagor, and was not barred by the foreclosure sale in an action to which neither such heirs nor their successors in interest were parties. To the same effect is Childs v. Childs, 10 Ohio St. 339, 75 Am. Dec. 512, and note, In Zœgel v. Kuster, 51 Wis. 31, it was held that “ when a mortgagor dies pending an action to foreclose the mortgage, all per- ' sons who succeed by his death to his interest in the land should he made defendants in his stead; and any such person, not made a party, will retain the right to redeem, not- . withstanding the foreclosure and sale; ” and accordingly it was held that the heir at law, not a party to the action, could maintain a bill to redeem. In that case it was held that the words “ proper representative,” as used in sec. 2810, R. S., included the heir at law who succeeded to the title of the real estate, and that such construction was more apparent by the words “ his representatives or successor in interest,” as used in sec. 2803, R. S., quoted above. To the same effect is Posten v. Miller, 60 Wis. 494.

That the heirs at law, in the case at bar, where the court has attempted to divest them of their title to real estate, are the proper parties to revive the action so far as it may affect such realty, is also apparent from another section of the statute which provides that, “ in all actions for the recovery of real property, if the plaintiff, or any of several plaintiffs, shall die before final judgment, his hew, or his executor or administrator, for the benefit of the heir or creditors, may, within such time as the court shall allow, be admitted to prosecute the action in his stead, with the same effect as if the action- had been so originally commenced.” Sec. 2806, R. S. The right thus given to an executor or administrator to act for the benefit of the heir or creditors in certain cases does not preclude the necessity of making the heir a party whenever it is sought to absolutely divest him of his title to the realty, as was here attempted to be done, in his absence, by stipulation and judgment.

We are clearly of the opinion that such heirs have the right to a hearing before being divested of their title to the real estate, either by reviving this action in their names or by an independent9 action; and, since the equities can be more satisfactorily adjusted in this action, where all concerned can have a full hearing, we think it was error to deny the application. We have purposely refrained from, expressing any opinion on the merits. It may he that the ■ original parties to the action have the right to insist upon . all the heirs being made parties.

■ By the Court.— The order of the circuit courtis reversed, and the cause is remanded for further proceedings according to law.