action, as hereinafter stated, complain of the defendant, which is a banking institution duly incorporated under the laws of the State of New-York. That a subscription was heretofore circulated by the plaintiffs, for the purpose of procuring funds to erect a new church edifice in the town of to be called the 66 church," and the plaintiffs, and about one hundred other persons, subscribed the same, in sums varying from $5 to $100 each, and the said plaintiffs, and most of the other subscribers thereto, have paid the whole or the greater portion of their subscriptions.1 36, Part II., ante, p. 175; and where one or more legatees, in behalf of themselves and other legatees, seek an accounting, and for an application of the testator's estate, as in McKenzie v. L'Amoreux (No. 80, part II, ante, p. 335 and note; see also Pleadings, 123 127.) It has been held that where the plaintiff, a stockholder of a company, prosecuted in his own behalf the directors and secretary of the company, alleging false and fraudulent representations, and fraudulent over issue of the stock of the company, and appropriating by the defendants, to their own use, the property of the company, whereby the plaintiff's stock was valueless or nearly so; that all the stockholders having a common interest, and affected in the same proportionate degree, according to the quantity of stock each held, it was a case in which there should be but one recovery, and in which all of the same class should join, or the suit should have been prosecuted by the plaintiff for the benefit of himself and the other stockholders. (Wells v. Jewett, impleaded with others, 11 How., 242.) In a similar case (Bell v. Mali and others, 11 How., 254), it is held that the false representations, with proper averments, would give a cause of action to the plaintiff alone; the mere over issue of stock would give a cause of action to the company, or the plaintiff and all the other stockholders. 1 It is not sufficient simply to allege that the other parties are so numerous that it would be impracticable to bring them all before the court, but the nature of their common interest must appear to be such as would entitle them, were they all before the court, to maintain the action in their own right or their own names. (Habicht v. Pemberton, 4 Sand., 657.) That said plaintiffs, collected a considerable part of said subscription, amounting in all to the sum of $, and deposited the same in the said Bank of -, to the credit of the " church;" and that others of said subscribers have collected other portions of said subscriptions, amounting to the sum of $, and deposited such sum to the like credit, in the same bank. That said "church" is not yet erected, and the subscribers are not incorporated, and there is no such body corporate or organized society as the " church," and no person or persons, other than said subscribers, who are authorized to receive such deposits, to the knowledge or belief of the plaintiffs. That said plaintiffs, and the other persons depositing such money in said bank, have demanded the same at its banking-house in that is to say, on the of, during the usual hours of business of said bank, and said bank refused to pay the same. day Wherefore the plaintiffs, in behalf as well of themselves as of all other persons similarly situated and subscribing to or interested in said fund, demand judgment against the defendant for the sum of $, with interest $thereon from the, &c., [the time of demand,] besides costs. J. L. F., Plaintiffs' Attorney. (No. 26.) By several heirs, on behalf of themselves and numerous other heirs (some of whom are unknown), on a covenant of warranty on eviction of the heirs holding as tenants, after the death of the grantee.1 SUPREME COURT-RENSSELAER COUNTY. A. K., B. K. and C. K., for themselves and all other heirs of A. J. K., deceased, agt. The abovenamed plaintiffs, on their own behalf as well as on the behalf of all others similarly situated, that is to say, all the heirs-at-law of A. J. K., deceased, complain of the defendant, and allege the following facts, constituting their cause of action: That the plaintiffs are heirs-at-law of A. J. K., late of deceased, who died intestate on the 10th day of June, A. D. 1856, leaving no widow, father, mother, children, or brother or sister him surviving. That the heirs-at-law of said A. J. K. are the children, 1 This seems manifestly a case in which one or more of the parties in interest may sue for the benefit of the whole, within that provision of section 119 of the Code which applies the rule to cases where the "parties are very numerous, and it may be impracticable to bring them all before the court." In this case it will be seen that the heirs are numerous, and some of them are unknown and cannot be ascertained by the plaintiff, and therefore it is impossible to bring them before the court. The action is for the breach of a covenant of quiet enjoyment and warranty, which runs with the land, and therefore must be brought by the heirs, and cannot be by the personal representatives. (Pleadings, 142, 143.) or descendants of the children, of his three brothers, who are now deceased, to wit: [Naming the brothers,] and that plaintiffs are all the children of one of said brothers, to wit: That the other two brothers died, each leaving a large family of sons and daughters, and that several of such sons and daughters are also dead, leaving children them surviving, the names or places of residence of all of whom are not known to, and cannot be ascertained by, the plaintiffs,. and the whole number of the heirs of said A. J. K. is upwards of fifty.1 That on the 5th day of July, 1850, the said defendant and his wife executed and delivered to the said A. J. K., in consideration of the sum of $―, then and there paid $to them, a conveyance, with the usual covenants of warranty, &c. [Here set forth substance of the deed, and the covenant of quiet enjoyment and warranty in full; or, if it be preferred, set out the deed in full, or annex copy of it to the complaint, with the allegation, a copy of which is hereto annexed, and forms a part of the complaint.] That said A. J. K. thereupon went into possession of said premises, and continued in such possession, by himself or his tenants, up to the time of his death, as aforesaid, and after his death the said plaintiffs, A. K., B. K. and C. K., as tenants under an unexpired lease from said A. J. K., continued in possession until evicted by defendant as hereinafter stated.2 1 The foregoing allegations are necessary in such a complaint, in order to show, within the decision in the case of Habicht v. Pemberton (4 Sand., 657), that the parties are numerous, and that their common interest is such as would enable them all, if parties before the court, to maintain the action. 2 The action is maintainable by the heirs only, because the eviction or breach of the covenant was after the grantee's death. Had the eviction been of the grantee in his lifetime, the action should The plaintiffs further allege, that one B. L. P., who, at the time of making the said warranty deed or conveyance, and continually from thence until and at the time of the eviction hereinafter mentioned, had, as plaintiffs are informed and believe, and still has, lawful right and title to said premises, with the appurtenances paramount to said defendant and his grantees, did, under execution and due process of law, issued on a judgment obtained in this court against the plaintiffs in an action to recover possession of said premises, after a trial thereof on the merits, he, the said defendant, having been duly notified on the commencement of said action to come in and defend the same, enter into the said premises and upon the possession thereof, and ejected and removed therefrom said plaintiffs,1 so holding possession either as tenants of said have been brought by the personal representatives. A covenant real ceases to be such when broken, and no longer runs with the land, and the right of action descends to the personal representative, and not to the heir. (Beddoe v. Wadsworth, 21 Wend., 120). 1 Covenants for quiet enjoyment and warrantee are broken only by an actual eviction and ouster of possession. (See, among other cases in our own courts, Miller v. Avery, 2 Barb. Ch. R., 582; Bank of Utica v. Mersereau, 3 Barb. Ch. R., 528; Webb v. Kelly, 6 Wend., 281; Kelly v. Dutch Church of Schenectady, 2 Hill, 105; Batterman v. Pierce, 3 Hill, 171, 176; Greenby v. Wilcox, 2 John., 1; Folliard v. Wallace, 2 John., 395; Kent v. Welch, 7 John., 258; Shepherd v. Ryers, 15 John., 497.) And the allegations in the complaint should therefore show that there has been a breach of the covenant by an eviction or ouster. But eviction by legal process is not necessary to found an action on the covenant. Whenever the grantee is ousted by one having a lawful right to the property, paramount to the title of the grantor, the covenants are broken, and the grantee may sue. (Greenvault v. Davis, 4 Hill, 643.) And it seems even that the grantee can recover, though he voluntarily give up possession to an adverse claimant; but he takes upon himself the burden of proving paramount title in such other. (Stone v. Hooker, 9 Cow., 154; Fowler v. Poling, 6 Barb., 165.) |