Wheeler v. Bolton

Department No. 2, Myrick, J.: This is an appeal from a judgment rendered after an order sustaining a demurrer, the plaintiff electing not to amend.

The complaint alleges that one Carmen died testate, devising all the estate to plaintiff; that at the time of his decease he was the owner of, and seized and actually possessed, and in the actual occupancy of, a tract of land, described by metes and bounds; that the will of the testator, appointed defendant Bolton and one Adams executors; that the will was probated, and both the executors qualified and entered upon the discharge [304]of their duties; that thereafter, in 1855, Adams departed from this State, and has not since returned; that in 1875, defendant rendered his final account, and the Probate Court, by its decree, adjudged that defendant came into the possession, as executor, of said real estate, and was chargeable with the possession thereof, that the devisee (plaintiff) was entitled to have and receive said real estate, and that defendant be charged with said premises; that'April 17th, 1876, the Probate Court made a decree of final distribution, in which decree plaintiff was adjudged to be entitled to the possession of said real estate, and defendant was required to deliver and surrender the possession of the same to plaintiff; that plaintiff has demanded of defendant the possession of the estate, and that defendant has refused and neglected to deliver the possession of the same or any part thereof; that defendant, in violation of his duties as executor, did not safely keep, retain, and protect his possession of said land, but allowed himself to be dispossessed, and the property and title lost to plaintiff; and plaintiff demands judgment for the value of the land. There is also an allegation that at some time, more than five years before the commencement of the proceedings for the rendition of the account of the defendant, defendant permitted the premises to be taken possession of by intruders without title, and surrendered the possession to the intruders, and there has been an actual continued occupation of the land by the intruders and their successors under a claim of title exclusive of any other right; and that plaintiff is unable to recover possession because the cause of action is barred by the Statute of Limitations.

Defendant demurred, on the grounds:

1st. This Court had no jurisdiction of the subject-matter of the action.

2nd. There is a defect of parties defendant, in that Adams should have been made a party.