J. S. BARRETT v. J. J. BIRGE, T. E. LINDENBERGER, and WM. SHATTUCK, Administrator of the Estate of CHARLES NEAL, Deceased, 50 Cal. 655

By the Court:

Section 195 of the Probate Act authorized actions for the recovery of real property, or for the possession thereof, to be maintained against executors or administrators in all cases in which the same might have been maintained against their respective testators or intestates. In this State, therefore, the cause of action which may be enforced by the action which is commonly called'ejectment, survives. An. action does not abate “if the cause of action survive or continue.” (Pr. Act, Sec. 16; 0. 0.

Proc., Sec. 385.) Assuming that the rule at the time the conveyance was made by Burnett, as attorney in fact, was like the rule of the common law, the covenant did not enlarge the estate conveyed. That estate was the right, title and interest of John A. Sutter, Jr., at the date of the deed. (Gee v. Moore, 14 Cal. 474.) The plaintiff was not estopped by the judgment in favor of defendants in the action of Van Dorn v. Dirge et al.

When the present plaintiff applied to be substituted for Van Dorn in that action, the court had power to direct that the action proceed in the name of Van Dorn, or that Barrett (present plaintiff) should be substituted. The latter order was made, but this in no way affected the issues to be tried —the substitution of Barrett only authorizing him to proceed with the prosecution of the title of Van Dorn.

Deraignment of an independent title to Barrett would not have been permitted at the trial of the former action; in other words, as substituted plaintiff, Barrett was authorized to prove only the title which Van Dorn had at the commencement of that action. Judgment and order affirmed.