Wilson v. Kirkland

SAYRE, J.

W. W. Kirkland brought his statutory action of ejectment for the recovery of a tract of land, claiming mesne profits also. The plaintiff died pending the action, leaving a will by which the title of all his lands vested in his widow. The trial court allowed the action to be revived in the name of the widow as executrix. It is said that this was error, for the reason that the revivor should have been had in her name as devisee.

While the action of ejectment cannot be maintained by heir and personal representative jointly as original parties, because they have no interests in common (Tarver v. Smith, 38 Ala. 135 ), the heir or devisee may bring his separate action on his title by descent or devise; and it is also settled that the personal representative may sue in ejectment in his own name for the lands of his intestate or testator, not because any title resides in him, but because possession is necessary to the complete exercise of his statutory authority. — Moragne v. Moragne, 143 Ala. 459 , 39 South. 161 , 111 Am. St. Rep. 52 ; McKay v. Broad, 70 Ala. 377 . WTiere the plaintiff in ejectment dies pending the suit, it seems that section 2497 of the Code of 1907 authorizes a revivor in the name of the personal representative and the heir or devisee jointly. But “the personal representative has the exclusive right to such damages as accrued in the lifetime of the deceased plaintiff; and of them there can be no recovery, unless he is a party. He has, also, the right to intercept the entry and possession of the heir, *75 or devisee, and to apply the rents, or, under the orders of the court of prohate, make sale of the lands, for the payment of debts or for distribution; and this confers upon him the right to revive the action in his own name, and to prosecute it to final judgment, recovering the possession, and, as an incident, the rents accruing prior and subsequent to the death of his testator or intestate.”

If it is proposed to have the suit, when revived, proceed for the recovery of possession, and for damages accruing prior and subsequent to the death of the plaintiff, as was the case here, the revivor may he had in the name of the personal representative alone, or in his name jointly with the heir or devisee. — Evans v. Welch, 63 Ala. 250 .

Nor did the defendants’ offer to show that plaintiff’s testator left sufficient personal property to pay his debts affect plaintiff’s right to revive the action and to have a recovery in her capacity as personal representative. That was a question for adjudication upon an application for a sale of the land. The suit here, though revived and prosecuted hy the executrix, is a suit against strangers holding adversely to her in whatever capacity she may claim, and is presumptively for her ultimate benefit as devisee. — Morgan v. Casey, 73 Ala. 222 . So no error has been shown by any of the assignments addressed to these points.

Plaintiff claimed under a deed executed in pursuance of a power of sale contained in a mortgage which had been given by the defendants. Defendants denied having executed the mortgage. This made an issue of fact which was properly submitted to the jury for their decision. The mortgage, offered in evidence by the plaintiff, was in perfect form, and bore what purported to be the signatures of the defendants, and certificates of *76 a justice of the peace, showing their separate acknowledgments of its execution in legal form. These certificates were signed by the justice of the peace, whose name also appeared ¿s an attesting witness. The justice, testifying as a witness for the plaintiff, said, among other things, that subsequent to the execution and delivery of the mortgage, upon the mortgagee’s suggestion, he had added his signature at another place on the paper as a witness. Upon this fact defendants based an objection to the admission of the mortgage in evidence.

The mortgage, if signed and acknowledged by the defendants, sufficed at the time of its execution to pass title, without an attesting witness, so that a.concession that there was impropriety in the subsequent subscription of the justice’s signature as a witness cannot operate to disturb rights theretofore vested, nor to destroy the office and effect of the mortgage paper as a muniment of title. The reasons for this conclusion are stated in Alabama State Land Co. v. Thompson, 104 Ala. 570 , 16 South. 440 , 53 Am. St. Rep. 80 .

It was conceded in the court below that defendants’’ alleged tender, if in other respects sufficient, was not kept good. There was therefore no error in excluding the evidence as to it. — Maxwell v. Moore, 95 Ala. 166 , 10 South. 444 , 36 Am. St. Rep. 190 .

After considering all points argued, we find no error in the record'.

Affirmed.

Simpson, McClellan, and Mayfield, JJ., concur.