Opinion · Nclaw North Carolina
THOMAS v. KELLY, 35 N.C. 43 (1851)
DEM ON DEMISE OF JOHN THOMAS v. ABEL KELLY., 35 N.C. 43 (N.C. 1851)
- Type
- Opinion
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- Nclaw North Carolina
- Jurisdiction
- Nclaw
- Date
- 1851-01-01
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- general
THOMAS v. KELLY, 35 N.C. 43 (1851) DEM ON DEMISE OF JOHN THOMAS v. ABEL KELLY.Supreme Court of North Carolina (December Term, 1851.) 1. An action of ejectment does not abate by the death of the lessor of the plaintiff. 2. Where, upon the death of the lessor, some of the heirs come in and are made parties, and others refuse to do so, a nonsuit cannot be entered for that cause. 3.
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THOMASv. KELLY,35 N.C. 43(1851)
DEM ON DEMISE OF JOHN THOMAS v. ABEL KELLY.
Supreme Court of North Carolina
1. An action of ejectment does not abate by the death of the lessor of the plaintiff.
2. Where, upon the death of the lessor, some of the heirs come in and are made parties, and others refuse to do so, a nonsuit cannot be entered for that cause.
3. The defendant may, if he thinks proper, obtain a rule upon the heirs to give security for the costs, which the court will grant if they are in danger, as if the sureties to the prosecution bond already given are insolvent or in doubtful circumstances.
APPEAL fromEllis, J., at a Special Term, 1851, of MOORE.
This is an action of ejectment upon the demise of John Thomas. After the making of the demise, John Thomas, the lessor, died; and at a previous term of the court his heirs at law, upon motion, were made parties plaintiffs. At the present term two of the said heirs came into court and entered aretraxit;whereupon their names were ordered to be stricken from the record. Plaintiff's counsel then asked leave to amend, so as to strike out the names of the heirs at law, and permit the suit to stand as it originally did, upon the demise of John Thomas. This motion was allowed and the amendment accordingly made. Defendant's counsel then objected to the further prosecution of the suit, upon the ground that Thomas, the lessor, was dead. The court was of opinion that the suit did not abate by the death of the lessor, but thought that the plaintiff ought not to be allowed to prosecute the suit further, but should be called and nonsuited; that the fiction in this form of action was intended for the useful purpose of trying the title of (44) the lessor to the premises; that no such purpose could be subserved by a further prosecution of this suit; that no one succeeding to Thomas claimed or asked or desired, so far as appeared to the court, that the title should be tried; that there was no responsible person plaintiff to comply with and perform the orders and rules of the court that should be made in the case; and that there was no one who could be attached for such costs as plaintiff might be ordered to pay during the progress of the suit; and for these reasons it would be an improper use of the fiction. In submission to which opinion, plaintiff submitted to a nonsuit and appealed to the Supreme Court.
D. Reid, Kelly and Haughton for plaintiff.Mendenhall and Strange for defendant.
NASH, J.
It is a well established principle governing the action of ejectment that the death of the lessor of the plaintiff does not abate thePage 46suit, and for the reason that the right to carry it on is supposed to be in the lessee. Nor can the death be pleaded, since the last continuance; and if the action is prosecuted to judgment, it is not error. Adams on Ejectment, 289;Turner v. Grey, Str., 1058. The suit is or may be carried on precisely, and judgment rendered precisely, as if the lessor was still alive (Mowberry v. Marge, 2 Mumford R., 453), without taking any notice of the death of the lessor or of his heirs. Defendant may, however, if he thinks proper, obtain a rule upon the heirs to give security for the costs, which the court will grant if they are in danger — as if the securities of the prosecution are insolvent or in doubtful circumstances.Carter v. Washington, 2 Hen. Mun. R., 31; Purvis Hill, Do., 614. So fully does the law, for the purpose of carrying on the suit, consider the lessee of the plaintiff, that an action may be maintained (45) in his name for the mesne profits, after the lessor or his heirs have been put in possession of the premises.Holdfast v. Shepard,31 N.C. 222. His Honor who tried the cause below was aware that the death of Thomas did not abate the suit; but he was of opinion that there was no one who succeeded to his claim, and asked or desired, so far as appeared to the court, that thetitleshould be tried; and, as there was no responsible person plaintiff to comply with and perform the orders and rules of the court that should be made in the case, and as there was no one who could be attached for such costs as plaintiff might be ordered to pay during the progress of the suit, the plaintiff ought to be called.
We think there is error in the opinion. The first reason assigned by his Honor is at variance with the record. Upon the death of the lessor, the lessee obtained permission to amend the declaration by adding counts upon the demise of the heirs. The names of the heirs — ten in number — are specified upon the record. Subsequently four of them withdrew their names as not being willing to carry on the suit. The names of the others remained, thereby showing that they were desirous so to do. There were, then, persons who succeeded to the rights of the lessor and wished the suit should proceed. Any part of the heirs were competent to carry it on, as an action on the demise of any one or more could be brought.
The second ground assumed in the opinion is equally untenable. There were persons who were responsible for the costs. By law, upon the return of a declaration in ejectment, before the defendant can be called on to plead, bond with good and sufficient sureties to prosecute, etc., must be filed by the plaintiff. A prosecution bond was in this case given, and no allegation or suggestion is made of its insufficiency. The costs then, are secured, and there are persons answerable for them. If his Honor was correct in the course he pursued, it (46) would be much better for those who succeeded to the rights ofPage 47the lessor that the suit should abate upon his death, as in that case they would be responsible only for the costs of the plaintiff, whereas, by the judgment of nonsuit, they would ultimately be answerable for the whole.
We are of opinion that there is error in the opinion of the court below, as above pointed out. The judgment is
PER CURIAM. Reversed, andvenire de novo.Cited: Blount v. Wright,60 N.C. 90;Scott v. Elkins,83 N.C. 428.