Maxedon v. The State, on the relation of Simpson and Others. complaint from the files," but the court overruled the motion, and Maxedon thereupon demurred to the complaint for the following causes : "1. That the complaint does not state facts sufficient to constitute a cause of action. "2. That A. J. Simpson, one of the relators herein, has no legal capacity to act as relator. "3. That the heirs of Sarah Dixon, and others mentioned as parties to the partition suit referred to in the complaint, are the only proper relators herein." But the court overruled the demurrer, and this ruling presents the first question for our consideration. The statute provides that, "every action must be prosecuted in the name of the real party in interest," except that an executor, administrator, or trustee of an express trust, or a person expressly authorized by statute, may sue, without joining with him the person for whose benefit the action is prosecuted. A trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another. It shall not be necessary to make an idiot or lunatic a joint party with his guardian or committee, except as may be required by statute. 2 G. & H., §§ 3 and 4, pp. 35 and 36. Here, the real parties in interest are the persons who owned the land sold by the first commissioner, and who were entitled to the proceeds of the sale. The bond sued on was not given on a contract made with Simpson, as commissioner, nor in his name. He had no interest in the money collected by Joseph Cox, the former commissioner, and secured by the bond. Nor do we conceive that it was at all requisite, in the discharge of the duties of his trust, whatever they may have been under his appointment, to sue for, or receive, the money that had come into the hands of Cox, a former commissioner. The other relator, Dixon, occupies no better condition. The complaint does not aver that the persons of whom he Maxedon v. The State, on the relation of Simpson and Others. represents himself as guardian are infants, and as, without such an averment, the law presumes them of age, the complaint is bad. Shirley v. Hagar, 3 Blackf. 225; McGillicudy v. Forsythe, 5 id. 435; Hanly et al. v. Levin, 5 Ohio Rep. 228. If the suit was brought on the relation of the persons in interest, by Dixon, their guardian, without averring their infancy, his name might, perhaps, be stricken out as surplusage. But it is instituted on his relation, not on the relation of those he professes to represent, and the averment, therefore, can only be regarded as descriptio persona. But there is still another reason why the suit cannot be maintained in the name of Dixon as relator. The statute provides that, "when an infant shall have a right of action, such infant shall be entitled to maintain suit thereon, and the same shall not be delayed or deferred on account of such infant not being of full age." 2 G. & H., § 10, p. 42. And the next succeeding section enacts that, "before any process shall be issued in the name of an infant, who is a sole plaintiff, a competent and responsible person shall consent in writing to appear as the next friend of such infant," &c. From the various provisions of the statute referred to, it seems evident that the action must be brought in the name of the infant, by his next friend, and not by a guardian. It should also be observed that, from the showing in the complaint, Sarah Dixon is entitled to a portion of the money sought to be recovered, and is, therefore, a party in interest, and should be made a party relator. The demurrer, though not drawn in the language of the statute, we think should be considered as raising the objection "that there is a defect of parties plaintiffs," under the provisions of the code, and, for the reasons stated, should have been sustained. Many other questions are discussed by counsel, some of which may possibly arise in a future trial or suit, but, in view of the imperfect manner in which they are presented Skillen and Another v. Carlisle. by the confused record now before us, we do not feel called upon to examine them. When the proper parties are brought before the court, and the pleadings shorn of the redundant and irrelevant matter now presented, and proper averments made in a form to present the merits of the case, the questions referred to may not arise, but if they do, then will be the proper time for their decision. The judgment is reversed, with costs, and the cause remanded, with instructions to the court below to sustain the demurrer, with leave to both parties to amend their pleadings. J. & T. S. Collins and Black & Wilson, for appellants. SKILLEN and Another v. CARLISLE. APPEAL from the Marion Circuit Court. GREGORY, J.-The appellants sued Carlisle for the possession of real estate, and to enjoin the proceedings in certain criminal cases, charging the forcible entry and detainer of the premises in controversy. A demurrer to the complaint was sustained in the court below, which presents the question for decision in this court. On the 6th of September, 1848, James Blake and James M. Ray platted part of out-block No. 148, in the city of Indianapolis, subdividing it into thirty-two lots, numbering from 1 to 32, and caused the plat to be recorded on that day. According to that plat, lots numbered 21 and 22 of the subdivision were bounded on the east and west by straight lines, and on the south by the National Road, running in a south-westerly direction from east to west. On the 2d of February, 1852, Blake and Ray made another plat of the same part of block No. 148, making, among other things, Skillen and Another v. Carlisle. the east and west lines of lots 21 and 22 run at right angles with the National Road for the distance back of thirty-two feet. This last named plat was acknowledged on the 30th of June, 1860, and recorded on the 20th of August following. On the 21st of July, 1855, Blake and wife, and Ray, conveyed by deed in fee to Daniel Carlisle's heirs lot 21, which deed was recorded on the 30th of the last named month. Under this deed, the appellants claim title by deed from one of Daniel Carlisle's heirs. On the 9th of May, 1860, Ray and wife conveyed by deed in fee, to the appellee, John Carlisle, lot 22. The dispute between the plaintiffs and defendant is about the boundary line dividing lots 21 and 22. The complaint charges that the defendant is in the wrongful possession of a certain portion of lot 21, describing it, and that to recover the possession of the portion of lot 21 so described, the said James Skillen heretofore, on &c., brought his action in the Marion Circuit Court, against the defendant, alleging that the plaintiff was, on the 11th of July, 1860, seized and entitled to, and in the legal possession of, lot number 21, in out-block number 148, as laid off by James Blake and James M. Ray, in their addition to the city of Indianapolis, as per plat thereof, as recorded in the recorder's office of Marion county, and that afterward, in the month of September, 1860, the defendant unlawfully entered upon and took possession of some eighteen inches of the east side of said lot, and had unlawfully occupied the same until that time, and had unlawfully and without right kept the plaintiff out of the possession thereof, and demanding judgment for the possession thereof, and also $500 in damages. That the defendant was duly served with a summons to appear in said court, to answer the said action; that he did appear by his counsel, and filed his answer to the complaint, denying every allegation thereof, and a jury being impanneled and sworn to try the issues joined, returned the following verdict, to-wit: "We, the jury, find for the plaintiff, and assess the damages at $5, Skillen and Another v. Carlisle. and we find that defendant does unlawfully occupy fifteen inches on the front of the east side of lot 21, mentioned in the complaint, running back seven and a half feet, to a point, belonging to the plaintiff." A judgment was rendered on this verdict, and the point made is, that on account of the conflicting plats, the verdict and judgment are inoperative, because of their uncertainty, and no bar to this action. It is shown by averments in the complaint, that the second plat was only matter of evidence on the trial of the prior suit. The deeds under which the respective parties claimed were also in evidence. By them it appears that the conveyances of lots 21 and 22, from Blake and Ray, were both made before the recording of the second plat, showing conclusively that the trial must have related to the description of these lots in the first plat. If there is any uncertainty in the description of the premises recovered in the former action, it must be sought for elsewhere than in the conflict between the two recorded plats. The description in the former suit is as certain as the description in the present action. It is not pretended that the court below could have enjoined the criminal proceedings, and the case in judgment must be regarded simply as an action for the recovery of the identical real estate recovered in the former suit. We are of opinion that the Circuit Court committed no error in sustaining the demurrer to the complaint. The judgment is affirmed, with costs. RAY, J., was absent. J. Morrison and R. L. Walpole, for appellants. L. Barbour, J. D. Howland and J. T. Jackson, for appellee. |