Brueggeman v. Jurgensen

Scott, Judge,

delivered the opinion of the court.

This case stands on a non-suit, and we see no way in which the plaintiffs can be relieved from it. If we regard the suit as *89 one to enforce tbe specific performance of a contract to convey lands, tbe petition is so framed that sucb relief can not be granted. It appears from the record that tbe title to tbe lot which tbe plaintiffs would have conveyed to them, is not in the defendant. He has passed it away for a valuable consideration, and bis vendee is not made a party to tbe suit. Whether that vendee is a bona fide purchaser, it is not necessary to inquire, as he is not before this court. It would be a vain thing, and the plaintiffs would not be at all advanced, to mate a decree vesting the title of the defendant in them, when it appeared that all the title the defendant ever had has been conveyed to another.

If we look upon the suit as one to recover damages for a breach of the covenant to convey, it is not free from difficulties. If it is an action to recover damages, the heirs of Brueggeman have no right to them. They can not have an action to recover damages for a breach of contract. The right to maintain such actions'is in the executor or administrator alone. If the heirs were permitted to join in such actions, a confusion would ensue which no court could disentangle. Parties should know what they are after before suit is brought, and frame their petitions accordingly. They «an not expect to have a judgment without any regard to the pleadings in the cause. A large latitude is allowed in making amendments. If they will not have them made before they come to this court, there is no power here to relieve them from the consequences of such neglect.

When it was ascertained that the defendant had conveyed away the lot in dispute, the plaintiffs might have amended their proceedings, and brought in the purchaser from the defendant as a party. Having failed to do this, they had no right to inquire into the bona fides of his purchase. He was no party to the suit, and could not be affected by it. The court, therefore, properly refused the plaintiffs’ first instruction, as it was designed to place before the jury the consideration of a subject wholly irrelevant.

The second instruction asked by the plaintiffs was properly *90 refused, because it entirely omitted all consideration of the evidence in support of the allegation of a mistake in the covenant for the breach of which damages were sought to be recovered. The evidence clearly established the mistake, and the defendant was entitled to the benefit resulting from the correction of the error.

The other judges concurring, the judgment will be affirmed.