Barrett v. Birge
Synopsis
Abatement of Action of Ejectment.—In this State, the action of ejectment does not abate by the death of the defendant pending the action, but survives, and the representative of the deceased may be substituted in his stead.
Effect of Covenant in Deed.—If a conveyance of the right, title and interest of the grantor contains a covenant of warranty of title, and the grantor, at the date of the conveyance, has no title, hut afterwards acquires it, the covenant does not enlarge the estate conveyed so that the title afterwards acquired by the grantor vests in the grantee.
Substitution of a Plaintiff in Ejectment.—If, in an action of ejectment, a new plaintiff is substituted in place of the original plaintiff, the issues are not changed, but the title to be tried is tho title of the original plaintiff, and the new plaintiff cannot deraign an independent title, but must rely on the title which the first plaintiff had at the commencement of tho action.
Estoppel by Judgment.—If, during the pendency of an action of ejectment, a now plaintiff is substituted for the original one, and judgment is rendered for the defendant, the substituted plaintiff is not estopped by tho judgment from afterwards maintaining an action on a title not derived from the original plaintiff in the first action, and which was not litigated in that action.
By the Court: Section 195 of the Probate Act authorized actions for the recovery of real property, or for the possession thereof, [659]to be maintained against executors or administrators in all cases in which the same might have been maintained against their respective testators or intestates. In this State, therefore, the cause of action which may be enforced by the action which is commonly called'ejectment, survives. An. action does not abate “if the cause of action survive or continue.” (Pr. Act, Sec. 16; 0. 0. Proc., Sec. 385.)
Assuming that the rule at the time the conveyance was made by Burnett, as attorney in fact, was like the rule of the common law, the covenant did not enlarge the estate conveyed. That estate was the right, title and interest of John A. Sutter, Jr., at the date of the deed. (Gee v. Moore, 14 Cal. 474.)
The plaintiff was not estopped by the judgment in favor of defendants in the action of Van Dorn v. Dirge et al. When the present plaintiff applied to be substituted for Van Dorn in that action, the court had power to direct that the action proceed in the name of Van Dorn, or that Barrett (present plaintiff) should be substituted. The latter order was made, but this in no way affected the issues to be tried —the substitution of Barrett only authorizing him to proceed with the prosecution of the title of Van Dorn. Deraignment of an independent title to Barrett would not have been permitted at the trial of the former action; in other words, as substituted plaintiff, Barrett was authorized to prove only the title which Van Dorn had at the commencement of that action.
Judgment and order affirmed.
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