St. John v. Croel

10 How. Pr. 253 | N.Y. Sup. Ct. | 1854

By the court—Welles, Justice.

The only question on the motion to dismiss the appeal, which is not put to rest by the counter affidavits, is, whether the order is appealable. The 349th section of the Code allows an appeal to the general term, from an order made at special term, in five different cases. The third is, “where" it involves the merits of the action, or affects' a substantial right”

There can be no doubt, I apprehend, that the order appealed from in this case does affect a substantial right. I shall therefore proceed to the consideration of the appeal upon its merits.

The Revised Statues provide that, “ the action of ejectment shall not abate by the death of any plaintiff, or of one of several defendants, after issue, and before verdict or judgment; but the same proceedings may be had, as in other actions, to substitute the names of those who may succeed to the title of the plaintiffs so dying; in which case the issue shall be tried ás between the original parties; and in case of the death of a defendant, the cause shall proceed against the other defendants.” (2 R. S. 308, § 32.) The proper proceeding to substitute the names of those succeeding to the title of the deceased plaintiff, in an action of ejectment, was by scire facias. (2 R. S. 386, §§ 2 and 3; James agt. Bennett, 10 Wend. 540.) In such proceeding, by scire facias, it was necessary for the persons asking to be made plaintiffs, to show that they had succeeded to .such title as the original plaintiff had. (Boynton and You-mans agt. Hoyt, 1 Denio, 53.)

By the Code, (§ 121,) “ In case of death, marriage, or other disability of the party, the court, on motion at any time within one year thereafter, or afterwards, on a supplemental complaint, may allow the action to be continued by or against his representative, or successor in interest.”

Assuming that this provision of the Code applies to existing suits, it is equally necessary, as under the revised statutes, to show that the-persons asking to be made plaintiffs, have succeeded to the title of the deceased plaintiff. The petition in this case asked to have John Henry Herbert St. John, the son, and Beverly Robinson1, the surviving devisee in trust, of the deceased plaintiff, substituted as plaintiffs. This could not be done, for the reason that it is apparent they have not both succeeded to the interest of the deceased plaintiff in the lands in question. Their claims are, to some extent, hostile to each other—at least, they are not in harmony. In case that cannot be done, it was asked to have the court determine which of the two was the legal successor to the title. This is asking more than should be required of the court. The parties applying are bound to show a clear prima facie case, before they can be permited to come into the litigation; which neither of them have done. The papers show, I think, that John H. H. St. John, the son of the deceased plaintiff, was born in France, of an alien mother, while both of his parents were permanently residing there, and was therefore himself an alien, and incapable of inheriting lands in this state. The order appealed from only allowed him to be substituted a plaintiff, as successor to the interests of his father in the lands in question.

Mr. Robinson, the surviving trustee, could not properly, on these papers, be substituted as plaintiff, for the reason that, according to his own showing, the legal estate did not vest in the trustees, under the will of William James St.' John. The will is not among the papers used on this motion; and has not been presented to us; but if, by its terms, as suggested in the petition, it only devised the land to Robinson and Ricketts.in trust to sell and dispose of the same, and apply the proceeds of the sales in the manner therein mentioned, without authority to receive the rents and profits, it is quite clear they only took a power in trust, and not the legal estate.

No amendment can be made, founded upon any event which has happened since the commencement of the suits. If any change has taken place in the title pendente lite, upon proper facts being shown, new parties may be substituted, as succeeding to the title. But amendments of the declarations necessarily relate to the time the suits were commenced: and no facts are stated in the petition, showing any necessity for such amendments. All that can be done, is to allow the actions to be continued in the name of the successor in interest of the deceased plaintiff, when it is made to appear who that successor is. That not having been done, the motion at the special term should have been denied.

The order appealed from must be reversed, with $10 costs to each of the three attorneys for the different defendants.