Saltmarsh v. Candia , 51 N.H. 71 ( 1871 )

Smith, J.

The husband could not have brought this suit alone in the lifetime of the wife.

The wife was a necessary party; the husband was " but an ennabling party, a side supporter, and not the actor ;" "he died as a party when his wife died." At common law, the right of action did not survive to the husband, but the suit would abate by the wife's death, and could not be revived. 1 Chitty's Pleading 75;-see, also, Norcross v. Stuart, 50 Maine 87. Wood v. Griffin, 46 N. H. 230, cited by the plaintiff, was an action of trespass, quare elausum, brought by husband and wife, for trespass on the land of the wife. That was an action which the husband, as tenant by the marital right, might have brought alone without joining his wife. Being seized of the freehold jure uxoris, and entitled to receive the rents and profits during the joint lives of himself and wife, he could have sued alone for "the disturbance to his own possession and present enjoyment." 1 Chitty's Pleading 74, 75; 1 Bishop on the Law of Married Women, sec. 578;-see, also, Adams v. Barry, 10 Gray 361; Allen v. Kinqsbury, 16 Pick. 235. It was rightly held that the husband might prosecute the suit after the wife's death. Buck v. Goodrich, 33 Conn. 37, is more analogous to the case at bar. There, the husband and wife brought an action on the case for injury to the wife's land by flowage. In the declaration, the plaintiffs (in the view of the court) passed by all injury to the possession, all injury in which both were interested, and counted only upon the permanent, lasting injury to the freehold of the wife. They sued only for that portion of the injui~y committed to the real estate of the wife, which was of a permanent nature, and solely affected her interest. It wa~ held, that the husband could not prosecute the action after the death óf his iv~fe, during the pendency of the suit. The present suit was brought to recover solely for the personal injury to Mrs. Saltmarsh, and did not, at common law, survive to her husband, to be prosecuted by him.

Neither di~ the right to prosecute th~s s1~it su;vi;e to the husband, under the statutes of this State. "Actions pending at the death of either party, in which the right of action does not survive, may be prosecuted to final judgment at the election of the surviving party, or of the legal representative of the deceased party, as actions iñay be prosecuted the ~ause of which survives." ^* Gen. Stats., ch. 207, sec. 12. “ When one of two or more plaintiffs or defendants dies, and the right of action survives, the action may be prosecuted by or agamst the sur-viviug parties, such death being suggested on the record.” ■ Gen. Stats., ch. 207, sec. 13. The latter section is obviously inapplicable to this case, because the present cause of action is not one which “survives.” The former section merely puts pending suits, “ in which the right of action does not survive,” on the same footing, so far as further prosecution is concerned, as actions “ the cause of which survives.” But in the latter class of actions the husband cannot, after the wife’s death, prosecute a suit commenced by the husband and wife in the lifetime of the wife,to winch she was a necessary party. Such an action abates upon the wife’s death, and the husband goes out of court, but the administrator of the'wife will be allowed to come in as sole plaintiff and revive and prosecute the suit. Pettingill v. Butterfield, 45 N. H. 195; Pattee v. Harrington, 11 Pick. 221. The husband is not, by virtue of the marital relation, “ the legal representative ” of his deceased wife.

We think that the word “ party,” in section 12, means the party who is, in the eae of the law, the meritorious cause of action.

Upon these views, the ruling that the action could be maintained by the husband alone was erroneous.

It is suggested that since the trial the husband has been appointed administrator upon his wife’s estate ; that he has appeared at the trial term as administrator to prosecute this suit: and that, as he makes no objection to the result of the trial, there is therefore no occasion to set aside the verdict.

In considering the questions thus raised, it is necessary to bear in mind that Henry Saltmarsh, in his individual capacity, or as the husband of the late Mrs. Saltmarsh, is an entirely distinct person in law from Henry Saltmarsh, administrator of the estate of Mrs. Saltmarsh. The legal aspect of the case is the same as if some stranger had been appointed administrator, and had expressed himself satisfied with the result of the husband’s prosecution of the suit since the wife’s death.

Undoubtedly a person may ratify an action brought in his name, but without his knowledge or authority, by another professing to act as his agent and on his behalf—Ancona v. Marks, 7 H. & Norm. 686; Craig v. Twomey, 14 Gray 486; and an administrator may ratify a suit brought in the name of the intestate in his lifetime without authority. Mathewson v. Eureka Powder Works, 44 N. H. 289. But the difficulty in the present case, as to the administrator’s ratifying what lias been done by the husband in the prosecution of the suit since the wife’s death, is, that the husband did not profess to act in the name or on the behalf of the wife’s administrator. He seems to have asserted the right to prosecute the suit on his own account. It does not appear , that he claimed to be acting by the authority of the wife’s administrator, nor to be acting on behalf of the person, whoever he might happen to be, who should thereafter legally represent the intestate’s estate. An act, to be susceptible of ratification, must be done at the time on the behalf of the person who afterwards undertakes to ratify it. “ Batihabitio ” is defined as “the act of assenting to what has been done by another in my name.” Broom’s Legal Maxims 833. The term “ ratification ” involves the idea of a previous assumption by the doer of the character of agent for the ratifier. “ It presupposes the act to be done for another, but without competent authority from him.” Third persons would be placed in great uncertainty, and might be subjected to wrong, “ if A might adopt as his own an act which was represented by the agent as the act of B, ” or as an act done by the agent-on his own account. “ Ratum quis habere non potest, quod ipsius nomine non est gestum." Wilson v. Tumman, 6 Man. & Gr. 236; Maule, J., in Briant v. Pilcher, 16 C. B. 354, p. 357; Coltman, J., in Walker v. Hunter, 2 M. Gr. & Scott 324, p. 334; Heath v. Chilton, 12 M. & W. 631, pp. 638, 639;—see, also, Watson v. Swann, 11 C. B. (N. S.) 756; Story on Agency, 7th ed., sec. 251, a. Moreover, in the present case a ratification would be utterly unavailing. Its utmost effect could not exceed a prior authority. But no prior authority from the administrator could have legalized the prosecution of this suit by the husband in his own name.

The decisions in Janvrin v. Fogg and Lisbon v. Lyman are not in point for the plaintiff. In those cases the court declined to order, on technical grounds, a new trial of certain issues of fact which had once been well tried between the proper parties. But in this case there has been no trial between the proper parties. There was really no plaintiff in court during .the trial. It is very clear that; if the trial had resulted in a verdict for the defendants, that verdict would not have been binding upon the administrator, and could not have been used to his prejudice, he not having been a party to the suit, and not being in privity with the husband. It is an elementary principle “ that nobody can take benefit by a verdict, who had not been prejudiced by it had it gone contrary.” “ Every estoppel ought to be reciprocall, that is, to binde both parties; and this is the reason, that regularly a stranger shall neither take advantage, nor be bound by the estoppel.” Co. Litt. 352, a. If the verdict had been the other way, the defendants could not have availed themselves of it against the administrator in this action, or elsewhere. “ It would be unjust, therefore, to permit it to be introduced against the town. Estoppels are mutual.” Parker, C. J., in Fogg v. Plumer, 17 N. H. 112, p. 115. 1 Phil. Ev. 326, 327; Cowen & Hill’s Note 571.

Verdict set aside. New trial. ,