trustees in the strict meaning of that term, and who are authorized by various statutes to maintain actions in the exercise of their personal authority, such as officers of voluntary societies, guardians, or committees of the person, and the like. § 181. That executors and administrators can maintain actions relating to the estate in their own names alone, is a proposition too familiar and elementary to require discussion or the citation of authority. Although in general a foreign executor or administrator cannot sue as such in the courts of another State or country than that in which he was appointed, yet, if the objection is not raised by answer or demurrer, it is waived under the codes of procedure; that is, the objection goes simply to the parties' capacity to sue, and not to the cause of action set up in the complaint or petition.1 In California, lands owned in fee by the deceased do not descend at once to his heirs or pass to his devisees, but go with the personalty into the estate in the hands of his administrator or executor as a part of the assets to be administered upon. Any action, therefore, relating to such land, to recover its possession, or damages for injuries done to it, or rents, or the like, brought at any time before a final settlement of the estate and distribution thereof, must be prosecuted by the administrator or executor alone.2 In an action by the administrator of a mortgagee, brought to foreclose the mortgage, the heir of the mortgagee is not a proper party to be joined as a coplaintiff. In California, as in New York, the mortgage is a mere security, incident and collateral to the debt, and belongs wholly to the personalty.3 - § 182. How far general guardians of infants, testamentary or appointed by the probate courts, are authorized to maintain actions in their own names, relating to the personal property of their wards, depends rather upon the provisions of the statutes which define their powers and duties than upon those of the codes. The codes in general can hardly be deemed to have enlarged their powers in this respect. In a few States, the guardian is specifically mentioned and coupled with the executor and administrator in the section of the statute under consideration; and this language may be interpreted as authorizing him to sue in respect of all 1 Robbins v. Wells, 18 Abb. Pr. 191. 2 Curtis v. Herrick, 14 Cal. 117; Meeks v. Hahn, 20 Cal. 620; Grattan v. Wiggins, 23 Cal. 16; Emeric v. Penniman, 26 Cal. 119. 3 Grattan v. Wiggins, 23 Cal. 16. property which is under his control by virtue of his office. In New York, it has been determined by the Supreme Court in a very carefully considered case, the decision, however, being rested upon a construction of the Revised Statutes, and not of the code, that the general guardian may bring all actions in his own name respecting the personal property of the ward and the rents and profits of his real estate. This same power is expressly conferred upon him by the statutes of certain States. On the other hand, it is held in Kentucky that, while the guardian, who has taken a note expressly made to himself as payee for moneys belonging to the ward, may prosecute an action thereon, because the promise is given directly to him, he cannot sue in respect of his ward's property in general, since he has no estate or interest therein; such actions must be brought in the name of the infant. The statutes which provide for the appointment of guardians or committees over the property of lunatics, confirmed drunkards, and other such persons not sui juris, generally confer upon them the same powers that are given to the general guardians of infants, and a similar rule should therefore prevail in reference to their prosecution of actions. Although there is some conflict in the decided cases, yet, as these guardians or committees do not acquire any estate or interest in the property subjected to their control, but only a power of possession and management, the correct doctrine upon principle would seem to be that they cannot maintain actions concerning it in their own names, unless expressly authorized to do so by statute; other actions may be brought by them.5 1 This interpretation is given to the language of the code by the Supreme Court of Indiana in Shepherd v. Evans, 9 Ind. 260, which holds that, by virtue of the provision, the guardian is empowered to bring such actions in his own name. Thomas v. Bennett, 56 Barb. 197; Seaton v. Davis, 1 N. Y. Sup. Ct. 91; and see White v. Parker, Barb. 48, 52; Mebane v. Mebane, 66 N. C. 334; Biggs v. Williams, 66 N. C. 427. 488, which expressly holds that the committee is a "trustee of an express trust within the meaning of the code. The whole subject was discussed and determined in the very late case of Fields v. Fowler, 4 N. Y. Sup. Ct. 598. The action was brought by the committee of the person and estate of a lunatic to set aside the sale of a farm made by defendant to the lunatic, to cancel the satisfaction of a mortgage which had been executed by him, and also a check which he had given on such sale. The action was held to be properly brought by the committee. E. Darwin Smith J., in giving the opinion of the court, says: “The rule undoubtedly was, and still is, at law, where the action SECTION SIXTH. WHO MAY BE JOINED AS PLAINTIFFS. § 183. The following are the provisions relating to the joinder of parties plaintiff in one action found in the various State codes, and it will be seen that there is an absolute identity of language in all the legislation upon this subject. "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." This is the important section; but the following one somewhat enlarges its scope and effect in certain cases: "Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but, if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint [petition]." 2 The particular statutory rules relating to married women as parties, and prescribing when wives may sue alone or when husbands must be joined, will be stated in a subsequent portion of this section. Many of these special enactments are not found in the codes of procedure, but in separate and independent legislation. § 184. The Common-law Rules. Before entering upon the interpretation of these statutory provisions, and before discussing is brought to assert the title of the lunatic to real and personal property, it must be brought in his name, as held in McKillip v. McKillip, 8 Barb. 552." He cites the laws of 1845, ch. 112, which authorize the committee to sue for any debt, claim, or demand transferred to them, or to the possession and control of which they are entitled; also Gorham v. Gorham, 3 Barb. Ch. 32; Ortley v. Messere, 7 Johns. Ch. 139, and § 111 of the code, and reaches the conclusion that the equity rule as to parties is controlling in actions of this kind. The decision in Person v. Warren, 14 Barb. 488, is expressly approved and followed. S. P. Bearss v. Montgomery, 46 Ind. 544. New York, § 117; Ohio, § 34; Indiana, § 17; Kansas, § 35; California, §§ 378, 381; Missouri, art. 1, § 4; Wiscon sin, ch. 122, § 18; lowa, § 2545; Nebraska, § 37; Florida, § 68; Kentucky, § 34; South Carolina, § 140; Nevada, § 12; Dacota, § 70; Oregon, § 380: but limited to equitable actions; North Carolina, § 60; Idaho, § 12; Washington, § 8; Montana, § 12; Arizona, § 12; Wyoming, § 40. New York, § 119; Indiana, § 19; California, § 382; Wisconsin, ch. 122, § 20; Florida, § 70; South Carolina, § 142; Dacota, § 72; Oregon, § 381, but limited to equity actions; Nevada, § 14; Ohio, § 36; Kansas, § 37; Iowa, § 2548; Nebraska, § 39; Kentucky, § 36; Missouri, art. 1, § 6; North Carolina, § 62; Idaho, § 14; Washington, § 8; Montana, § 14; Arizona, § 14; Wyoming, § 42 the doctrine of parties plaintiff with respect to their uniting or severing in an action in the reformed American system of procedure, it will be advantageous and even necessary to state in a brief but comprehensive manner the rules which prevailed at the common law, unchanged by legislation. The common law, in respect to the union of defendants, divided liabilities into joint, joint and several, and several; in respect to the union of plaintiffs, it divided all rights into joint, and several. The requirements that all the persons jointly interested should unite as plaintiffs in any action brought to maintain the interest, and that, in the case of a several right, each separate holder of it should sue alone, were very peremptory, and upon them were based the form, extent, and even possibility of the judgment to be recovered. All the possible occasions from which could arise the two classes of rights, joint or several, and which could give an opportunity for the distinction into these two classes, are (1) contracts in which the rights of the obligees, covenantees, or promisees may be joint or several; (2) wrongs to person, character, or property, not consisting in the breach of contracts; (3) property in land, in respect of which there may be joint ownership, ownership in common, and several ownership; (4) property in chattels, in respect of which there may be joint ownership, ownership in common, and several ownership. These are all the occasions which can give rise to joint or several rights. But the possessors of the rights which spring into existence upon these occasions may themselves be separated into two classes,- those who hold of their own right, and those who hold in a representative character or capacity, as executors, administrators, and trustees of all kinds. To these must also be added the special case of husband and wife; and it is to be determined when they should be united as plaintiffs, and when the husband should sue alone. I shall take up these classes in the order indicated, and shall state the commonlaw rules in reference to the union or severance of parties plaintiff in a legal action, as laid down by text-writers of the most approved authority, but without any discussion of the doctrine or illustration by examples. § 185. First, the rights which arise from contracts. When a contract, either sealed, written, or verbal, is made with two or more persons, and their legal interest therein is joint, all the obligees, covenantees, or promisees, if living, and as many as are living, must join as plaintiffs, even though the covenant or promise to them is in terms joint and several. The interest spoken of is not the interest which will be had in the sum of money or other benefit promised when the agreement is performed, but the interest in the contract, the legal, technical interest created by the terms of the very agreement.1 This rule as to the union of parties plaintiff in an action brought upon a joint contract being thus universal and peremptory, it becomes a matter of the utmost importance to determine when a contract is thus joint; when the rights of the promisees, or their legal interest in the contract, is joint, and not several. In general, if a promise is made to two or more persons, the right is presumptively joint; a several right is the exception. No express joint words, therefore, are necessary; but some words indicating such an interest must be used to create a several right. A mere promise to A. and B. always creates a joint right, even though the share of the money promised which each is to have is designated.3 The following examples of contracts in which the rights and interests were held to be joint are given as illustrations of this general doctrine. Where one of a firm of bankers had loaned money, all the partners may join in an action to recover it. An agent of three part-owners of a ship sold the vessel, and paid over their respective shares of the price to two of them; it was held that the three must unite in an action to recover the other share, payment of which had been refused; the implied promise was to all the owners jointly.5 A. conveyed land to several persons, and in the deed covenanted with them, "and to and with each and every of them," that he was lawfully seised all the grantees were required to join in an action on this covenant. When one covenants with A. and B. to pay a sum of money to A., both must unite in a suit to recover the money; there is a joint interest in the contract, although A. is the only one interested in the benefit which is to result from its performance." 1 1 Chitty Pl. Springfield ed. 1840, p. 8a; Eccleston v. Clipsham, 1 Wm. Saund. 153, n. 1; Anderson v. Martindale, i East, 497, 501; Hill v. Tucker, 1 Taunt. 7; James v. Emery, 5 Price, 529; Hatsall v. Griffith, 4 Tyr. 487; Wright v. Post, 3 Conn. 142. 2 Hill v. Tucker, 1 Taunt. 7; King v. Hoare, 13 M. & W. 499, per Parke B.; Yorks v. Peck, 14 Barb. 644. |