Building v. Hardie (1888) · DecisionDepot

Building v. Hardie

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Supreme Court Mar 23, 1888 No. No. 11828Published

Before: Paterson, Seárls

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Holding. A widow sued only in her representative capacity as executrix is not individually bound by a foreclosure decree regarding her personal homestead rights, even if those rights were mentioned in the answer. Because she was not made a party in her individual capacity through formal court order or intervention, the writ of assistance against her was properly denied.

Issues

Whether a judgment against a party in a representative capacity binds that party in their individual capacity regarding personal property rights.
Whether a defendant sued as an executrix becomes an individual party by setting up a homestead defense in the answer without a formal order or intervention.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It is well settled that a judgment for or against a party in one right cannot affect him when acting in another right.”

“The code specifies but two methods by which, after the commencement of an action, new parties may be brought in; one is by an order of the court and the other by complaint of intervention.”

Synopsis

Judgment—Action against Personal Representations does not Afeect Individual Rights — Homestead.—Where a surviving wife is sued solely as the executrix of her deceased husband, in an action to foreclose a mortgage executed by him, a judgment of foreclosure cannot affect the individual rights that she has in the mortgaged property as a homestead, notwithstanding in her answer as executrix she sets up the fact of the declaration of homestead on the property.

Opinion — Seárls

Seárls, C. J. —This is an appeal from an order after final judgment.refusing a writ of assistance.

Robert Chalmers in his lifetime executed a mortgage upon certain premises in El Dorado.County; subsequently his wife Louisa declared a homestead upon a portion of the same premises.

Chalmers.departed this life, and an action to foreclose the mortgage was brought against the executor and executrix of his last will, viz., against George Chalmers and Louisa M. Chalmers, as executor and executrix thereof.

Louisa Chalmers, the widow, was made a party defendant as executrix, but not in her individual capacity.

The executor and executrix set up the fact of the declaration of homestead by the latter, and the court found the existence of the homestead as a fact, and that it was subsequent in time and subject to the lien of the mortgage.

A decree was entered in favor of plaintiff, under which [334]the property was sold, purchased by plaintiff, and a sheriff’s deed having passed, possession was demanded of Louisa M. Chalmers (who had before that time intermarried with one Hardie), pursuant to a clause in the decree requiring possession to be delivered to the purchaser, which was refused, whereupon plaintiff applied for a writ of assistance.

' The court below denied the writ upon the grounds that Mrs. Chalmers was not. individually a party to the foreclosure suit, and was not made such, or concluded by the answer made in her representative capacity, setting up the homestead, or by the decree rendered therein.

It is well settled that a judgment for or against a party in one right cannot affect him when acting in another right. Thus a plaintiff suing as administrator of his wife is not affected by a judgment against himself, in her lifetime, in an action to which she was not a party. (Blahey v. Newby, 6 Munf. 64.) “A decree against one as administrator, on a bill to compel the delivery of slaves claimed as a gift from the intestate, will not conclude his rights as a creditor, on a bill by him against the former plaintiffs, to set aside the gift conveyance for fraud.’’ (Freeman on Judgments, sec. 156, and cases cited.)

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Dissent — Paterson

Paterson, J., dissenting.—I dissent. It is true that Louisa M. Chalmers was not, technically speaking, a party defendant in the action, but she voluntarily set up her individual rights in the property, and caused the same to be litigated. Her homestead right was set forth in detail. It was treated as an issue in the case. The trial proceeded upon the theory, by all the parties, that her individual rights were in controversy, and the findings of the court upon that matter were as full as the allegations of the answer. Her individual right was not necessarily or even properly in the answer as a part of the defense made by the defendants in their representative capacities. The estate could not in any way be benefited by the determination of the homestead rights of Mrs. Chalmers; on the contrary, if her homestead right had been established (the court found that plaintiff's mortgage was a lien upon the property described in said declaration of homestead) the estate would have lost a fund which otherwise would have been devoted to a payment of the debts. She therefore, in effect and in fact, became a party to the suit in her individual capacity; her rights were determined, and I think she was bound by the decree rendered in the case. If the name Louisa M. Chalmers had been ’ repeated in the title of the cause without the addition of the official designation “ executrix,” there can be no doubt that judgment would be binding upon her. “A nominal .but not substantial difference in parties does not effect the estoppel. The general rule that a judgment of a court having jurisdiction of the subject-matter and the parties and the process, and rendered directly upon the point in question, is conclusive between the same parties, is not complied

[337]with when the same person, though a party in both suits, is such in different capacities,—in the one individually, in the other as administrator, go if an action is brought by A as guardian of B, a minor, a judgment against A as guardian is in his official capacity, and will not preclude him from maintaining a subsequent action in his own right individually, and vice versa. For in the prior action, A, properly speaking, had not been a party. The real party in interest was the minor by A, his guardian. The subsequent action in A’s own name is not, then, between the same parties; the person may be the same, but in different capacities, and the former action cannot preclude him from maintaining the subsequent action; but where they litigate their individual rights in the same action, the judgment is conclusive. Thus where an executrix, who was also the widow of the testator, being sued in the former capacity only, but raising in her defense of the suit the issue of her rights as usufructuary,, will be personally concluded by the judgment, and cannot subsequently attach its validity on the ground that she was not cited in her individual capacity(1 Herman on Estoppel, sec. 94.)

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Synopsis

Opinion — Seárls

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Dissent — Paterson

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