Rumney v. Skinner
208 P. 895
Mont.
1922
Check Treatment
MR. JUSTICE COOPER

delivered the opinion of the court.

Aсtion to recover damages for fraud and deceit. The allegations of the complaint are substantially these: That Benjamin Rumney, the husband of Sarah F. Rumney and the father of the other five plaintiffs, died testate in the county of Cascade April 14, 1914, the owner and in possession of the ranch which is the subject of this action; that Mrs. Rumney qualified as executrix and remained in the occupancy and control of the property until November 15, 1916; that at the time of the death of the testator, a mortgage in the sum of $25,000 stood against the property in favor of thе New York Life Insurance Company; that in October, 1916, Sarah F. Rumney and the defendant were both believers and ardent followers of the re*80ligious faith known as Christian Science; that by reason оf this belief, and the high standing in the church and the business world, of the defendant, her own lack of business knowledge, capacity and experience and the marked sagacity of the defendant and his familiarity with corporate methods of acquiring and handling property, he “with intent to cheat,..defraud, deceive and mislead the plaintiffs to their injury, and to cheat and defraud them оf their said property,” orally proposed to assist plaintiffs financially in the operation of the ranch, and to loan them thereon the sum of $25,000 on condition that they agree, at a time to be thereafter fixed, to sell one-half thereof, and to apply the proceeds from the sale to the payment of the mortgage thereon, to repay the defendant the amount so advanced, and divide with him equally the profits to be derived from the operation of one-half and the sale of the other; that with the proceeds to be realized upon this transaction, the plaintiffs would be able to pay and discharge the mortgage and certain claims against the estate, so that in the end half the ranch would be free from encumbrance, and a net profit in cash realized from the transaction; that to accomplish this he would require each of the plaintiffs to “sign over to” John R. Rumney, one оf the plaintiffs, their several interests in the property, so that he would have but one person to deal with; that he would then organize a corporation and divide with plaintiffs its capital stock; that believing all the promises made by defendant, plaintiffs accepted the proposal; that the Rumney Ranch Company was then organized, with defendant, his son, and John R. Rumney аs incorporators; that about November, 1916, defendant presented to plaintiffs a written instrument which he had prepared, and asked plaintiffs to sign it, representing it to be a written assignment to plaintiff John R. Rumney of their several interests in the ranch and personal property; that in their confidence in the honesty and integrity of the defendant, and the belief that the instrument was but an аssignment of their several interests, they all, except Benjamin M. Rumney, signed the document, and the *81defendant then took immediate possession thereof, and plaintiffs have not since seеn it; that the paper so signed was not an assignment as represented, but a deed conveying the ranch and all the personal property mentioned to the corporatiоn known as the Rumney Ranch Company; that this fact was not discovered by plaintiffs until June 23, 1920, but was known to the defendant, and that the design and purpose of the defendant throughout was to cheat аnd defraud the plaintiffs of the ranch and personal property; that the defendant “either forged or procured the forgery of the acknowledgment” to the deed mentioned; thаt the Rumney ranch has since. been under the entire control and management of the defendant by means of the corporation, and that ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌‌‌‌‌‌​​‌​​​​‌​‌‍its organization was but a cloak in aid of his frаudulent design; that defendant never offered to negotiate with plaintiffs for the purpose of selling the ranch as they contemplated would be done under their agreement with defendаnt; that they have received nothing of value from defendant; that defendant caused the deed to be recorded without their consent, and has since conveyed a portion of the ranch to his wife, and has in his own name personally contracted to sell the remaining portion thereof to individuals composing a Mormon colony; that he has secured the eviction of plaintiffs from the “old Rumney home,” which, according to defendant’s original proposal, was to remain the home of the plaintiffs. The prayer is for $65,000 damages.

To the complaint a demurrer was filed upon two grounds: (1) That the complaint did not state facts sufficient to con'stitute a cause of action; and. (2) that plaintiffs have not the legal capacity to sue, because of the fact that the complaint alleges ownership in Benjamin Rumney at the time of his death; that the plaintiff Sarah F. Rumney qualified as executrix, and that it fails to charge that the estate was closed and the property distributed so as to entitle the plaintiffs to seek redress in their own names and of their own right. The *82court sustained the demurrer. Plaintiffs refusеd to amend, and judgment was rendered for defendant. Plaintiffs appeal.

The defendant contends that until the estate has been duly administered, the final accounts approved, the сlaims against the estate paid, and the estate distributed according to law, the action cannot be maintained by the devisees, and that a deed from them would pass no title to еither the real or personal property until after a distribution is decreed in due course of law. In this contention there is no merit. Section ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌‌‌‌‌‌​​‌​​​​‌​‌‍6477 of the Revised Codes of 1907 provides that еvery action must be prosecuted in the name of the real party in interest ; and section 6487 declares that all persons having an interest in the subject matter of the action, and in the relief to be had, may be joined as plaintiffs. By section 4787 title of the testator in the property passed to the devisees under the will immediately upon his death. This court so held in Gelsthorpe v. Furnell, 20 Mont. 299, 39 L. R. A. 170, 51 Pac. 267. By like prоcess of reasoning, the supreme court of California, in construing statutes identical with our own, reaches the same conclusion in Phelps v. Grady, 168 Cal. 73, 141 Pac. 926. Indeed, the heirs are the only necessary pаrties to recover lands of the decedent. (Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844.)

The right of an executor or administrator to the possession of the lands and personal property of a testator is only a quаlified one, dependent upon the existence of debts and the necessity of paying them. He has no control over the assets, except as it may be necessary to ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌‌‌‌‌‌​​‌​​​​‌​‌‍subjeсt them to the payment of the debts of the estate. After they are paid, the right of the heirs in the property is absolute. The charge' created upon the lands by the statute for thesе purposes is not a perpetual one, even when the debts of the estate remain unpaid. (Moseley v. McBride, 40 Okl. 270, 138 Pac. 138.) “Notwithstanding the fact that the personal representative is by statute given the right to рossession of land as assets for the purpose of administration, the heirs are *83indispensable parties in ejectment, or any similar action where the title is in question.” (18 Cyc. 946, 947, par. 3.) The relation of an executor to the lands of a deceased person is regulated by statute. He has no interest in the lands, as such. They pass, as at common law, to the heir, at the instant of the death of the ancestor, subject to be intercepted by the power conferred by statute. '

The argument defendant makes upon the sufficiency of the complaint tо charge fraud is that the plaintiffs do not show that they were prevented from reading the instrument, nor that they failed to read it because of any deceit on the part of the defendant by which they were prevented ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌‌‌‌‌‌​​‌​​​​‌​‌‍from acquainting themselves with its contents; that they have no cause of complaint because they did not apprise themselves of its terms and effects; and that no fiduciary relations existed between themselves and the defendant which entitles them to repudiate their agreement.

The complaint charges the defendant with the making of promises which he never intended to beep. If true, they amounted in substance to fraud and deceit and resulted in serious injury to the rights of the plaintiffs. A demurrer which goes to the whole complaint cannot be sustained if the plaintiffs are entitled to some relief, although some of the averments of the bill may be insufficient. And if from any view the plaintiff is entitled to some relief, the cоmplaint will be good against a general demurrer. (Hicks v. Rupp, 49 Mont. 40, 140 Pac. 97.)

The complaint alleges clearly, and certainly with enough detail, that the defendant made representations intending that the plaintiffs should act upon them, that the statements were false, and that the plaintiffs believed them and acted upon them to their damage. (Buhler v. Loftus, 53 Mont. 546, 165 Pac. 601.) Without indulging in a minute analysis of its averments, the complаint raises substantial ‍‌​​‌‌​‌​​​​‌​‌​‌‌‌‌‌‌‌​​​​​‌‌‌‌​‌‌‌‌‌‌​​‌​​​​‌​‌‍issues upon the facts it essays to plead; and they are of substance enough *84to call upon the defendant to clear the transaction of the taint of fraud and deceit it imputes to him.

Judgment reversed.

Reversed.

Associate Justices Farr, I-Iolloway and Galen and Honorable Roy E. Ayers, District Judge, sitting in place of Mr. Chibe Justice Brantly, disqualified, concur.