Delfelder v. Teton Land & Investment Co. , 46 Wyo. 142 ( 1933 )

On Petition For Rehearing. A petition for a rehearing has been filed herein. Counsel say that "the court has failed to consider some of the statutes and authorities cited by us in our original brief," and again, "some of our contentions in support of which we cited certain statutory provisions and cases were not given any consideration whatever by this court." That is stating the case rather strongly in view of the fact that we indicated in one of our former opinions the extreme and painstaking care that we had taken in the case, and which to some extent at least may be gathered from the former opinions handed down by this court. As we have a number of times heretofore stated, it does not follow, simply because we do not mention certain citations of counsel, that we have not given them the consideration which they deserve, and we have frequently been compelled in cases in which there were numerous assignments of error to leave those unmentioned which were not deemed of importance, so as to permit us to discuss freely the main points in the case.

Counsel contend that considering the undersheriff, who gave the sheriff's deed in this case, as a deputy, his deed, nevertheless, is void, because he did not execute it in the name of his principal, but in his own name. They complain because we did not specifically decide that point. We considered that contention a minor point in the case. Counsel disagree with us, and in fact maintain that "of course" a deputy must execute documents made by him in the name of his principal. In deference to the opinions of counsel, which we value highly, we shall discuss the point in detail.

The only cases cited by counsel are Halter v. Leonard, 223 Mo. 286, 122 S.W. 706, and Wilson v. Russell, 4 Dakota 376. These cases are not in point, though they contain expressions favorable to counsel's contention. In both of these cases it was, so far as pertinent here, substantially held that a deed or certificate issued by a deputy may be issued by him in the name of the principal. We have no occasion here to disagree with this view, which, we might say, has generally been upheld (e.g., in 46 C.J. 1063), although it has not gone altogether unchallenged, for it has been held by four different courts that a deputy must act in his own name, or that this method is, at least, more proper than for him to act in the name of his principal. MacKenzie v. Jackson, 82 Ga. 80; State v. Doe, 6 Wash. 587,34 P. 154; Beaumont v. Yeatman, 8 Hum. 542; Eastman v. Curtis, 4 Vt. 616. There are, however, some early cases which sustain counsel's contention. These may be found in note to 26 Am. Dec. 415, and 9 Am. Engl. Ency. of Law 2d 381. Some of them were decided under a statute which specifically provided that a deputy should execute documents in the name of his principal. These cases would, of course, not be in point, since we have no such statute. And it may be doubtful that, except in the face of such statute, many courts today, if any, would uphold counsel's contention in a case where, as in our state, a deputy is provided for by statute, and where he has specifically been given a certain power in question. In Beuley v. Curtis, 92 Ky. 505, a certificate to a deed had been executed by a deputy in his own name. The court said that it would have been better if he had acted in the name of his principal. But the certificate was upheld, the court saying that to do otherwise would be a "sacrifice of right and justice to mere form." In Edson Keith Co. v. Bedwell, 52 Colo. 510, 122, Pac. 392, a jurat was executed by a deputy in his own name, and the court in upholding it said that "it would be a sacrifice of substance to form to hold it void for the reason simply that the party attesting did so in his own name as deputy instead of adding the name of his principal thereto by him as such deputy." The question before us has frequently arisen in cases where an acknowledgment was taken before a deputy. These cases, of course, present the same principle now under discussion. And while it has been held by many courts that it is proper to execute the certificate in the name of the principal, it has also been held in numerous cases that the deputy may make the certificate in his own name. 1 C.J. 797. The question was discussed at length in the case of Wilkerson v. Dennison, 113 Tenn. 237,80 S.W. 765, 3 Ann. Cas. 297, 106 A.S.R. 821, and the court held that the certificate may be made in either form. The same rule was laid down in the case of Halbouer v. Cuenin, 45 Col. 507, 101 P. 763, in which it is said that the great weight of authority is in support of that view. The cases cited, and others, fully, we think, sustain the holding.

In the case of Craig v. Bradford, 3 Wheaton (1818) it was held that a survey, made by a deputy, was, in point of law, to be considered as made by the principal, and that his signature to the plat and certificate was a sufficient authentication of the survey, to entitle the person claiming under it to a grant. In Westbrook v. Miller, 56 Mich. 148, it was held that a deputy Auditor General could execute a tax deed in his own name. In Calendar v. Olcott, 1 Mich. 344, and Wheeler v. Wilkins, 19 Mich. 78, a return made by a deputy sheriff in his own name was held to be valid. In Hogdon v. Davis, 6 Dakota 21, it was said that "the sale at foreclosure by the deputy sheriff, while, perhaps, irregular in not using the name of his principal, was valid," thus taking away whatever force there might otherwise have been in some of the things said in Wilson v. Russell, supra. In Burke v. Laock, 41 Minn. 250, it is said:

"The law authorizes a deputy sheriff, as such, to make the sale; and consequently, when he does so, it is proper for him to execute the certificate in his own name as deputy sheriff. His certificate stands on the same footing, and has the same force and effect, as that of the principal sheriff."

The case was followed in Clark v. Mitchell, 81 Minn. 438.

In Story on Agency (9th Ed.) Sec. 149, note 4, it is said:

"There is a distinction between doing an act by an agent, and doing an act by a deputy, whom the law deems such. An agent can only bind his principal, when he does the act in the name of his principal. But a deputy may do the act, and sign his own name; and it binds his principal; for the deputy in law has the whole power of his principal."

The rule is stated and approved in Calendar v. Olcott, supra. In Throop on Public Officers, sec. 585, it is said:

"Ordinarily a deputy must act in the name of his principal, and his acts in his own name are invalid. But where a statute empowers a deputy, eo nomine, to perform particular acts, he may lawfully act in his own name."

In Mechem on Public Officers, sec. 584, it is said that the conflict in the cases is more apparent than real, and that in those states in which a deputy is recognized as an independent public officer, the deputy may act in his own name, and the author further says, in sec. 570:

"Where a public officer is authorized to appoint a deputy, the authority of that deputy unless otherwise limited, is commensurate with that of the officer himself, and in the absence of any showing to the contrary, it will be so presumed. Such a deputy is himself a public officer, known and recognized as such by law. Any act, therefore, which the officer himself might do, his general deputy may do also."

And the author cites a number of cases holding that the deputy might act in his own name.

In the case at bar, the statute eo nomine authorized the deputy sheriff to conduct a sale of mortgaged property under a power of sale. Section 4639, Wyo. C.S. 1920, in force at the time of the sale herein in question, provided that, to perpetuate the evidence of the sale, an affidavit might be made of the fact of the sale "by the person who acted as auctioneer at the sale," which, in case a deputy holds the sale, can refer to no one except the deputy individually. It is held that authority to execute a conveyance to the purchaser at a foreclosure sale is necessarily incident to the power of sale, and that the deed, accordingly, may be made by the mortgagee, his assignee, or by the sheriff or other officer who made the sale. 41 C.J. 992. Section 4636, Wyo. C.S. 1920, provided that "if the lands sold be not redeemed within the time limited therefor, the officer making the sale shall forthwith execute and deliver to such purchaser a deed" etc. If the statute had contemplated that only the sheriff should make the deed, it could easily have so stated. It does not say that. We think that even counsel for plaintiff will concede that a deputy who makes the sale may, so long as he is such deputy, execute the deed. Counsel merely contend that it must be in the name of the principal. The deputy is eo nomine given the power to execute the deed, pursuant to a sale made by him. If, then, the rule laid down by Throop, supra, is correct, and we think it is, then a deed executed in his individual name cannot be held to be invalid. Counsel seem to think that we should hold otherwise, in the light of section 4637, W.C.S. 1920, which empowers a successor in office to execute the deed. That section was passed in 1915, and was enacted merely to give some one power to execute a deed, when an officer, who had made a sale, had gone out of office. We are unable to see how that section can have any bearing on the point as to whether a deputy who makes a sale and who is still in office, should execute the deed made pursuant thereto in his own name or in that of the principal.

2. Defendant contended in the trial below, after plaintiff had rested, and she contends now, that the action should have been brought, if brought at all, against her in her capacity as executrix. She was not made a party as such. We treated the point as one involving a defect of parties, holding that it should have been raised by demurrer or answer, and not having been so raised, it was waived. It appears now that defendant's contention was broader than we seemingly took it to be. Defendant claims, not that she should have been made one of the defendants in her capacity as executrix, but that she, in that capacity, should have been made the sole defendant; in other words, that the action was brought altogether against the wrong party, and that, accordingly, no valid judgment could be rendered herein. Reading the record, and the original brief of counsel for the defendant in the light of the petition for rehearing and the brief filed in connection therewith, we can see that the contention was broader than we apparently took it to be. We may have taken the view which we did perhaps partially at least by reason of the fact that in the brief of counsel for the plaintiff, too, the position was taken that the contention merely involved one of defect of parties, which was waived under our statute. We found no answer to this on the part of the defendant, unless that was made on oral argument. In any event, since counsel for defendant seem to consider the point one of importance, we shall discuss it from its various angles, and it may be gathered from what we shall say as to whether, or to what extent, our statements heretofore made were wrong.

FIRST. Counsel say that from the time that Mrs. Delfelder was appointed executrix of the estate, she had possession of the property in question, and they assert that she was the only proper party defendant, apparently on the theory that an action in ejectment, i.e., for the recovery of real property, must be brought against the party in possession, and cannot be brought against any one else. Counsel for the plaintiff answer that the defendant herein denied the plaintiff's title (which is true), and that she cannot, accordingly, deny that she, individually, had possession, and they cite us to section 89-3904, Rev. St. 1931, which provides in part:

"It shall be sufficient in such action (for the recovery of real property) if defendant in his answer deny generally the title alleged in the petition, or that he withholds the possession; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted."

The rule mentioned in the statute is discussed in 19 C.J. 1141, 1142, and Tyler on Ejectment, page 457. It is in force in many states in which the defendant may raise the general issue, and in code states. It exists in England. It is not, however, in force everywhere. See in addition to the cases cited in 19 C.J. supra, Rucker v. Steelman, 73 Ind. 396; Applegate v. Dee, 2 Ind. 169; Volz v. Newbert, 17 Ind. 187; Perkins v. Rait, 43 Me. 280; Blake v. Dennett, 49 Me. 102; Treat v. Strickland, 23 Me. 234; Taylor v. Danley,83 Kan. 646, 112 P. 595. The fundamental reason for the rule seems to be that no one should be able to question plaintiff's title unless he is interested therein; that the question of possession and that of title should be separated in an action in ejectment; and that a person who wants to question such title should, in fairness, not at the same time be able to question the fact of possession. The rule shows clearly that the question of possession is by no means of that paramount importance which counsel for defendant apparently attributes to it. They do not believe that this rule prevented defendant from showing the true facts, namely, that she was in possession as executrix. But by that she evidently intended to deny that she was in possession as an individual, the very fact which the statute intended to prohibit. A person cannot very well, consistently, admit and deny at the same time. Under the statute she admitted possession. She was, accordingly, barred from denying it. The rule is too well established to permit us to say that it is not applicable in this case.

SECOND. Let us take a step further, and investigate whether Mrs. Delfelder was in possession of the premises in controversy individually or as executrix. Counsel cite us to our statutes, which limit the right of possession of a widow to the time that letters are granted, and which direct an executor to take possession of the property of the deceased. Section 88-2309, -2501, -2901. But it is one thing for a statute to make a direction, and another for it to be carried out. Counsel further cite us to the cases of Flinn, et al v. Gouly, (Cal.) 75 P. 542, and Brazil et al v. Silva,181 Cal. 48, 185 P. 174, 178. The first of these cases was an action to foreclose a lien of a street assessment, brought against Ellen Gouly individually and as administratrix. There was no averment as to the fact that defendant acted as administratrix, and a judgment against her, in that capacity, was accordingly reversed. We do not know why the case has been cited. The Brazil case was an action against the sole distributee under a will to recover property on the ground of a constructive trust in plaintiffs' favor. It was held that the action did not accrue till the distribution was made, and that up to that time defendant held possession in her capacity as administratrix. The case cannot be considered in point. It does not appear whether the administratrix had actual or only constructive possession. Either kind of possession evidently sufficed for the determination of the question as to when the statute of limitation would commence to run, while the question here is as to who had actual, physical possession. On that point the record shows that Mrs. Delfelder, individually, was in possession when Mr. Delfelder died. She also testified to the same thing. And after stating that she had returned the property in controversy in her inventory as executrix she testified as follows:

"Q. And since that time, have you been remaining in occupancy of that property there, since you made the return of the inventory?

A. I have.

Q. Have you any other home than that you are now occupying?

A. No.

Q. Then so far as you are concerned, you have been living in that from April, 1913, up to the present time?

A. I have.

Q. And you are living in it now?

A. Yes, sir."

If a third person had been executor and had attempted to use a house belonging to the estate as his home, he probably would have been promptly asked, why he should not be compelled to pay for the use. In this case, it does not appear that the defendant has in any way charged herself, as executrix, with rental, and the only impression that may be gathered from the foregoing testimony is that there was no change of possession whatever from 1913 up to the time of the trial. If there was a change, it could have been theoretical only. The physical possession remained the same. The most that could be said, it would seem, is that defendant held possession under herself as executrix, similarly, say, to a tenant at will, or on sufferance. And there seems to be no question that a tenant in actual possession is a proper party in an action of ejectment. 19 C.J. 1073, 1097-99.

THIRD. If, moreover, we assume that the executrix had possession, it is still necessary to inquire whether or not the defendant, on account of her claims, was, nevertheless, a proper party herein in her individual capacity. If she was, then it necessarily follows that the contention that the action should have been brought solely against the executrix, falls to the ground, and it then resolves itself at most into a question merely of defect of parties, as stated in the original opinion, assuming, of course, that the executrix was a proper party at all, and the defect, if any, was waived unless properly raised. Finnegan v. Carrahar, 47 N.Y. 493; Mataoka Coal Corporation v. Mining Corporation, infra. For some reason or other, counsel confidently assume that if the executrix was in possession, their contention is correct. Some of the cases which were cited in the brief of plaintiff, and in our original opinion, hold the contrary. No cases were cited in the brief of defendant. None are cited now. However, the rule which counsel for defendant assume to be beyond cavil appears to have been the rule at common law. Adams on Ejectment, (4th Ed.) 283. Possibly the Bench and the Bar as a whole are of the opinion held by counsel for defendant, and it may not be inadvisable to investigate the question anew, and at some length.

At common law, it seems, the owner of the property, generally the landlord, was to a large extent at the mercy of the person or tenant, in possession, who alone was the proper party in an action of ejectment, and who was not compelled to notify the landlord of the pendency of the suit. To remedy that situation, the statute of 11 Geo. II, c. 19, was passed, authorizing the courts to permit the landlord to come in and defend. At first the term "landlord" was construed strictly. But in the case of Fairclaim v. Shamtitle, 3 Burr, 1290, 97 Eng. Rep. 837, Lord Mansfield decided that the benefit of the statute should be extended to every person whose title was connected with, and consistent with the possession of the occupier, and that it should not be necessary that they had previously exercised any act of ownership over the property. And the courts, thereafter, permitted an heir, who had never been in possession, to defend, where the father, under whom he claimed, had just died before. So a devisee in trust, not having been in possession, was permitted to defend, and a mortgagee was permitted to come in as defendant with the mortgagor. Adams, on Ejectment, supra, 283-289. See also Bower v. Cohen, 126 Ga. 35. The law as thus modified fied has been applied in some of the courts in this country. See a review in Tyler on Ejectment, 448-456. The author calls attention, among others, to Porter v. Robinson, 3 A.K. Marsh, 253, wherein it was held that the possession of a widow, remaining in the mansion house until her dower was allotted, was consistent with the possession of the heirs, and that in an ejectment brought against her, they had the right to defend.

The foregoing may well be borne in mind in considering, as we shall proceed to do, the modifications under the codes. These are not by any means uniform, some of them providing for the joinder of interested parties in connection with provisions which specifically deal with the action for the recovery of real property, or ejectment; others still hold to antiquated rules. Our statute dealing with that subject contains no separate, independent provision as to joinder of parties. But section 89-514, Rev. St. 1931, provides that "any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff or who is a necessary party to a complete determination or settlement of a question involved therein." We must determine the meaning and application of that section in the case at bar. In Garner v. Marshall,9 Cal. 268, decided in 1858, the court said that a similar section of the California statute did not apply in an action in ejectment, and that it referred "to cases in equity where all parties, whose rights may be affected, are to be brought in as parties, in order that a complete decree may be rendered." That the court misunderstood the intent of the statute is obvious. For as said in Pomeroy, Code Remedies (5th Ed. 1929) section 1871, in speaking of joinder of defendants:

"The rules which the legislatures have put into a statutory form are confessedly the general doctrines of equity concerning defendants. They apply in terms to the civil action appropriate for the pursuit of all remedies; no exceptions are made or suggested. The design of the legislature is therefore plain, that these equitable doctrines and rules should be controlling in all cases, and should not be confined to actions which are equitable in their nature."

So when the same point again came before the California court in Valentine v. Mahony, 37 Cal. 389, (1869), the court recognized the obviously erroneous decision in the Garner case, but said that the rule had been in force so long that the legislature should make the correction, which it did three years later. Code Civ. Proc. 379, 380.

Pomeroy, on Code Remedies (5th Ed., 1929), the author speaking of the action to recover real property, says in section 195:

"If the object be to establish the title, the holder or claimant of the adverse title must be made the defendant, while in respect of the claim to possession the occupant must be made a defendant. These are the simple essentials of the action, and they clearly have nothing in them akin to "ejectment.' The codes of some states contain express provisions in relation to parties defendant, and especially in relation to the union of landlord and tenant as co-defendants, but these are rather inserted from an excess of caution, and do not add anything to the force of the more general clauses."

And in section 196, the same author, after speaking of making all those in joint possession parties, further states, citing many cases:

"In addition to these he may join the landlord or person holding the fee, or any person claiming the ownership and right of possession, and must join such person, if he desires to establish in that action his own ultimate ownership against the claimant."

In 19 C.J. 1099, citing many cases, it is said:

"Under Code and Practice acts, any person having an interest adverse to plaintiff, or claiming title or right of possession, may be made a defendant. Privity with the occupant is not essential. But while such person is a proper party, he is not a necessary party, unless he is in actual occupation."

In Newell on Ejectment, Sec. 41, it is said:

"The modern rule in ejectment requires that all persons who have or claim to have any interest, ownership, title or right of possession in or to the premises sought to be recovered, must be joined as defendants if it is sought to bind them upon questions of title."

In the case of St. John v. Pierce, 22 Barb. 362, the court said among other things:

"The action of ejectment was anomalous before the code, but I think the codifiers did not intend to have any such anomaly remain. They clearly intended to have one uniform system of practice and pleading and proceeding in all civil actions. * * * The codifiers intended to allow great latitude in regard to parties. They say, ``We have intended to leave suitors very much at liberty to choose whom to make defendants and whom to join as plaintiff. No person can be affected by a judgment but a party, or one who claims under him. The rule will make the plaintiff bring in all parties whom he wishes to affect.'"

In the case of Waldorph v. Bortle, 4 How. Pr. 358, an action to recover real property, the defendant died during the pendency of the action, and his heirs were brought in. It was objected that they were not proper parties because it was not shown that they had succeeded to the possession, and it did not appear who was in possession. The court said:

"But I think the rule, as to making parties defendant in an action to recover possession of land, is now changed. Section 118 of the Code provides ``that any person may be made defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein." This is applicable to every civil action, including as well cases in which the remedy would formerly have been at law, as those in equity, such distinction being now abolished. (Code, § 69). The practice in all actions is now, therefore, the same as in our late court of chancery; and I see no reason why, in an action to recover possession of land, all persons claiming title to, or an interest in the property, may not now be made defendants as well as the persons in actual possession. I think it is, therefore, sufficiently shown that the heirs-at-law, claiming title, may properly be made defendants. They have succeeded to the legal rights of the original defendant. If there is a third person in the actual occupation of the premises, he ought also to be made a defendant."

In the case of Matoaka Coal Corporation v. Mining Corporation,121 Va. 522, it appeared that recovery was sought from the Matoaka Coal Corporation, defendant in ejectment, which had obtained a lease to certain property, the terms of which were claimed to have been violated. The lessee had subleased the premises in controversy to one Barger, who had gone into the exclusive possession of the property. It was there contended that the action could not be maintained without making Barger, as the party actually occupying the premises, a party defendant. The court in referring to an amendment of similar import as our section 89-514, supra, except dealing directly with the action to recover real property, said:

"The purpose of the amendment seems to have been to permit the plaintiff to join with the occupant as defendant any other persons claiming title to the land (Burk's Pl. Pr. sec. 119, p. 200); and it may be conceded that the actual occupant is always a necessary party defendant to an action of ejectment in the sense that another defendant may by timely and proper procedure compel the plaintiff to bring the occupant before the court. The presence of the occupant, however, is not essential to the jurisdiction of the court, and if the claimant of the premises, who is sued does not appropriately raise the point, and defends the action upon the merits, he is bound by the judgment. The statute in question expressly makes the defendant in this case a proper party, and it was manifestly the real party in interest."

In South Park Commissioners v. Gavin, 139 Ill. 280, 287, 28 N.E. 826, under a similar statute, the court said:

"We are of the opinion that under the statute now in force, in an action of ejectment brought to recover land in actual occupancy of some person, it is entirely competent to join with the tenant in possession, not only those in privity with him, but all persons, whether in privity with him or not, who claim title or interest in the premises in controversy as co-defendants."

A case closely in point to that at bar is Porter v. Robinson, supra. There the widow was in possession, but there was a question whether or not the heirs were. The court held that they were properly made defendants; that "they had a right to be heard in that character (as heirs), as those who claimed the ultimate right to the land, the possession of the widow being only temporary and consistent with theirs, whether they reside on the land or not." See also Marvin v. Dennison, 1 Blatchf. 159; McCain v. Jewell, 24 Pittsb. Leg. J. 185; Napa v. Howland, 87 Cal. 84, 25 P. 247.

Some of the cases go even farther than the foregoing. In Jeffrey v. Hursh, 45 Mich. 59, it was held that if defendant in possession relies on a tax title, and the validity of that title comes in question, the owner (not in possession) must be made a party. In Grace v. Means, 129 Ga. 638,59 S.E. 811, it was held that if one in possession claims his right to possession under a purchase-contract from a third person, his vendor, the latter is a necessary party.

The foregoing authorities, if not conclusive, seem to be at least persuasive that there would be no justification for us to ignore section 89-514, supra, and hold that, while applicable to other actions, it has no application to an action for the recovery of real property. In terms it is applicable to all actions. Permission, under the statute, to make a person defendant does not depend upon the actual and lawful extent of the interest; a claim of an interest is sufficient, and that defendant claimed an interest herein cannot be doubtful, for she alleged that she was the sole heir and devisee under the will of the deceased, and that atthe death of her husband, she became entitled to the homestead premises. Hence counsels' assertion in their brief on rehearing that we were wrong in saying in the original opinion that she claimed the right of possession can be true at most, if at all, only to the extent that she recognized that claim to be temporarily subservient to that of herself as executrix. And hardly that. For if her allegations were correct, possession by the executrix, if it existed, was purely at her pleasure, and could last only until she, individually, would set the law in motion to have the homestead set off to her. Furthermore, it is difficult to see how the controversy in the case could be completely determined without the presence, in the case, of the defendant herein. Counsel have, we fear, laid too much stress on the fact of possession. In many cases, the person in possession would not care a fig as to who is the owner of the premises, and he might frequently be perfectly willing to give up, technically at least, the possession to a plaintiff without a struggle, thus putting the person under or for whom he holds at a disadvantage. That shows the inadvisability, already recognized in the time of George II, to let the person in possession be the sole and only person who can defend in an action for the recovery of real property. A person in possession in good faith should, of course, be protected. He should, generally at least, be made a party defendant. But it might frequently be inadvisable to leave the defense to him alone. In some jurisdictions, it is made the duty of a tenant to notify the landlord, if an action in ejectment is brought, so as to enable the latter to protect himself. 19 C.J. 1097. We have no such statute, but if the plaintiff brings him in the first place, the same purpose is subserved. The fact of possession is in many, if not most of the cases, but of minor significance. The point of importance ordinarily is the title. That is true here. We need not discuss or determine the full significance of that fact, except to say that in many, and perhaps most, jurisdictions, the action is no longer a purely possessory action, but is, where both the title and the right of possession are brought in question, one in which the title in question also is finally adjudicated. Marvin v. Dennison, 1 Blatchford 159; 20 Vt. 662; McCown v. Hannah, 3 Or. 302, 305; Cagger v. Lansing, 64 N.Y. 417, 428; Winkler v. Korzuszkiewicz, 118 Kan. 470, 235 P. 1054; Jenkins v. Raulston, 214 Ala. 443, 108 So. 47; In re Dutton's estate, 208 Pa. 350,57 A. 719; 19 C.J. 1214, 1218; 34 C.J. 950; Freeman on Judgments, 5th ed., sec. 865; 9 Cal. Jurisp. 1018; see also Allen v. Houn, 30 Wyo. 186,200, 201, 219 P. 573. The ultimate interest in the property, in any event, was the important question here. We need not go so far as to hold that the statute intended to have all interests of every kind determined, no matter how diverse; although the court in Ten Broeck v. Orchard, 74 N.C. 409, seems to go to that extent. We can here limit our decision to a case in which the interest is similar to that mentioned in Fairclaim v. Shamtitle, supra, and Porter v. Robinson, supra. The possession of the executrix, if she had possession, was consistent with the interest claimed by the defendant as an individual, for her claim finds a basis in the estate of which she was executrix. We think, accordingly, that we were not mistaken in stating in the original opinion, that the point here under discussion was at most one of defect of parties.

FOURTH. What has heretofore been said has been said largely upon the theory that Mrs. Delfelder as executrix is a different person from herself as an individual. The case of Eggers v. Krueger (C.C.A. Cal.) 236 Fed. 852, involves the interest of a person, who was at the same time sole heir and administrator of the estate, and the case is almost exactly in point on the question now under consideration. Krueger, sole heir, was appointed administrator of the estate of his mother. He was sued in the state courts in ejectment in his individual capacity. He thereafter sought relief from the judgment in that suit in the Federal courts. The latter court, holding that that suit was properly brought against him as an individual rather than an administrator, said:

"It is urged that relief against the judgment had against Krueger personally should be granted, because Krueger now claims as the administrator of the estate of his mother. Thus is presented the question whether the judgment against Krueger individually affects his rights as administrator. Krueger, being the heir of his deceased mother, whose estate he represents as administrator, as such heir is entitled to the possession of the property. As his possession flows from such right, as administrator he is privy to his possession as heir, and as heir may prosecute or defend the action. California Code of Civil Procedure, §§ 1452, 1453, and 1581; McFadden v. Ellmaker, 52 Cal. 348; Ryer v. Fletcher Ryer Co., 126 Cal. 482, 58 P. 908. Furthermore, Krueger having actually appeared and defended the action, it is not material that in making the defense he did not have himself substituted in his official capacity as the nominal defendant. California Code of Civil Procedure, § 1908; Estate of Ricks, 160 Cal. 467, 117 P. 539. We believe ejectment was properly brought against Krueger, occupant of the premises, individually rather than as administrator; the rule being that no action can be maintained against a personal representative, as such, for a tort. Luscomb v. Fintzelberg, 162 Cal. 433, 123 P. 247."

It may be noted that the court in the last sentence cites a California case, and the rule relied on is obviously the rule quoted in that case and contained in 18 Cyc. 884; 24 C.J. 742, and which is as follows:

"If a personal representative takes property not belonging to the estate, he has no right to it in his representative capacity. His refusal to restore it to the rightful owner renders him individually liable, and he cannot be sued in his representative capacity for his individual tort."

The Federal court evidently saw no difference between a case where a person wrongfully withholds personal property, and one where he wrongfully withholds real property. Counsel doubtless will immediately say that section 88-2502 expressly provides that executors and administrators may be sued in an action to recover real property. That is true, as the statute says, "in all cases in which the same might have been maintained by or against their respective testators or intestates." The Federal court had the California statute of similar import before it, and it is mentioned in Ryer v. Ryer, 126 Cal. 482, 58 P. 908. The statute evidently was not considered applicable. Whether or not it was thought that it is in fact but a survivor statute, we cannot say. We need not pursue the subject further, for in any event, the statute does not purport to limit a suit for the recovery of real property against the executor or administrator alone.

All in all, it must be apparent that the contention of counsel for the plaintiff here under consideration must be overruled.

3. Counsel further discuss in their brief the fact of the charge of $3500 for attorneys fees, and the question as to whether or not the claim of plaintiff should have been filed with the executrix. Some of the statements in the brief show that some of the language of the court has been misunderstood; other arguments advanced were fully considered on the original hearing. We are unable to see that any good purpose would be subserved if we had a re-argument of the case, and the petition for a rehearing should accordingly be denied.

Denied.

KIMBALL, Ch. J., and RINER, J., concur.