Ex Parte SWAN, 23 Ala. 192

GIBBONS, J. As a general rule, it is undoubtedly true that a judgment for or against a dead man is a nullity. This proposition has been so often recognized in this court, that it is not deemed necessary to cite authorities in support of it. But, whilst this is true as a general rule, it seems to be equally true that, in the action of ejectment, at common law, the death of the lessor of the plaintiff does not abate the suit, and the nominal plaintiff is deemed competent to continue the action, at least for the recovery of the land and nominal damages.—Adams on Ejectment 820, 335; 1 Wendell 27; Frier et al. v.

Jackson ex dem. Van Allen, 8 John. 495. At common law in the action of ejectment the plaintiff only recovered the premises sued for, and damages for the ouster, which were generally nominal. “ In the action of ejectment,” says Mr.

Chitty, “as at present conducted, though nominally a mixed action, being altogether a mere fiction, it being brought by a nominal plaintiff against a nominal defendant, for a supposed, ouster, merely nominal damages are given ; and satisfaction for the injury the real plaintiff has sustained, by being kept out of the mesne profits &c., is not in general included in the verdict in the ejectment.” — 1 Chitty’s Plead. 193.

These were the subject of a separate action, called an action for mesne profits ; in form an action of trespass vi et armis, “ but in effect to recover the rents and profits of the estate.” In remarking upon this latter action, the same author says : “ The action for mesne profits may be brought by the lessor of the plaintiff in ejectment, either in his own name or in the name of the nominal lessee, (John Doe ;) but in either shape, it is equally his action; for it is not in any manner affected by the fiction, which prevails in the ejectment.

It is sometimes, however, more advantageous to bring the action in the name of the lessor of the plaintiff, who is the party really concerned, as he may then recover damages for the rents and profits received by the defendant previously to the time of the demise laid in the declaration in ejectment, which cannot be done at the suit of the nominal plaintiff.” — 1 Chitty’s PL, supra.

By analogy, it would seem to follow, necessarily, that when the action for mesne profits was commenced in the name of the nominal plaintiff, the suit would be unaffected by the death of any party in interest on the part of the plaintiff, as the nominal party, John Doe, never dies. In this country, the aetion of ejectment is generally understood to be the proper remedy for the recovery of both the lands and mesne profits in the same suit, and the authorities in support of this position are very numerous.

For all practical purposes, this enlarged view of this action has much in its favor, as it accomplishes in one action, what could otherwise be effected only by two.

Conceding to the nominal' plaintiff the right at common law to recover the lands and nominal damages in the action of ejectment, notwithstanding the death of his lessor, and also the right to bring a suit in his own name for the mesne profits after the recovery in ejectment,dt is difficult to perceive any reason, according to the rulos of the common law, why he should not have the right to recover both the lands and mesne profits in the same action, whore by the rules of practice both could be recovered in the same suit 3 and this, we apprehend, would he the case in those States where by the established practice the two actions -were united, if they were unaffected by statutory provisions.

But however this may be in- other States, our statute has placed the action of ejectment upon a basis .entirely decisivo of the present application. .

The language of the act of 1835, is, uIn all cases where the action of, trespass to try titles would, under the present laws, be the proper action, the plaintiff, at his election, shall have either said action of trespass to try title or the action of ejectment; aiid when the action of ejectment shall be brought, it shall be lawful, and shall be the duty of the jury trying the same, to assess the damages in favor of the real plaintiff, as in actions of trespass to try titles.” — Clay’s Digest 320 § 46.

By a previous act, passed in 1821, the fictitious proceedings in the action of ejectment had been abolished, and the action of trespass to try titles substituted for it. — Clay’s Digest 320 § 43. By the act of 1835, the action of ejectment is restored, hut it expressly provides that it shall ho the duty of the jury trying the same, to assess the damages in favor of the real plaintiff, as in actions of trespass to try titles. This act evidently contemplates the existence of a real plaintiff in court, whenever a judgment is rendered for the damages.

We do not now decide that the nominal plaintiff might not have a sufficient standing in court, in case of the death of his lessor, for the recovery of the premises sued for 3 but, under the act, a judgment for the damages or mesne profits could only bo rendered in favor of the real plaintiff. In the case before us, no judgment seems to have been rendered for the land, but one in favor of the nominal plaintiff for the damages and costs.

We say in favor of the nominal plaintiff, because it is admitted of record that the actual plaintiff was dead, and therefore the only party plaintiff in court was the nominal plaintiff. Such a judgment the court had no power to render, and it was not voidable merely, but void. Before a judgment for damages could have been rendered, parties should have been made; and this raises the question, as to who were the proper parties to be brought before the court. In the case of the State ex rel.

Nabor’s Heirs, 7 Ala. 459, which was an action of trespass to try titles, the plaintiff having died pending the suit, it was decided that the action ought to be revived in the name of the heirs or personal representatives, according to the nature of the estate sought to be recovered. If it was the freehold that was in litigation, then the heirs were the proper parties ; but, if it was a chattel interest merely that was involved in the action, then it should be revived in the name of the personal representatives. In the case of Jordan v.

Abercrombie & Thompson, 15 Ala. 580, which was an action of trespass to try titles, the defendant in the suit, after the judgment in the court below, and after he had sued out a writ of error to this court, died. The question was, in whoso name the writ of error should bo revived. It was decided that both the heirs and personal representatives were necessary parties, in order to represent the entire interest involved in the litigation.

The decision goes' upon the ground, that the lands, at the death of the defendant, descended to the heirs, and they were therefore necessary parties to represent that portion of the recovery below. The damages recovered were a charge upon the assets of the deceased, in the hands of the representative, and therefore he was also a necessary party.

By parity of reasoning, it would seem to follow that, where the plaintiff died pending the suit, in an action of trespass to try titles, both the heirs and personal representatives would in like manner be necessary parties ; for the lands would in like man - ner descend to the heirs, and the damages and mesne profits, for which the defendant was liable prior to such death, would belong to the personal representativo. This conclusion would be in harmony also with

article 2158 of the new Code, which says : “ Real actions to try the title, or for the recovery of the possession of lands, and actions for injuries to lands, survive in favor of heirs, devisees, tenants or personal representatives, and against heirs, devisees, tenants or personal representatives, aocording to their respective rights; and the court must direct the record and judgment to be so framed as to secure their rights, and declare their respective interests.” We deem it important in this connection to notice our act of the legislature of 1839, which says: “It shall be lawful for administrators and executors to rent, at public outcry, the real estate of any decedent, until a final settlement of the said decedent is effected, and the proceeds shall be assets in the hands of such executors or administrators.” — Clay’s Digest 199 § 36.

The new Code has also a similar provision.

Section 1751 is as follows: “Administrators and executors may rent the lands of the deceased at public auction, and hire out the slaves of the deceased, either at public auction or by private contract, in each case securing the payment of the rent or hire by notes or bonds with two good and sufficient securities; and the proceeds thereof are assets.” The act of 1889, giving to the personal representatives the right to the possession of the lands of the decedent until the final settlement of the estate, seems to have been entirely overlooked in the ease of Jordan v. Abercrombie & Thompson, supra.

At all events, we find no notice there taken of it. If the question were now presented for the first time, since the passage of that act, as to who were the proper parties in case of the death of the plaintiff or defendant in the action of trespass to try titles, it might be urged with much plausibility that the personal representative was the only necessary party to be brought before the court, in order to revive the suit.

This action of trespass to try titles was intended as a substitute for the action of ejectment, and the latter was a possessory action merely, the verdict and judgment not being conclusive as to the title, even between the parties to the record, so but that another suit could be instituted by the defeated party, immediately after the pending suit was terminated.—Camp v. Forest et al., 13 Ala. 114.

If, then, the personal representative has the right to the possession of the lands of his decedent until the final settlement of the estate, and the rents and profits arising therefrom during his administration are to be assets in his hands, it might be asked why he would not sufficiently represent the whole interest involved in litigation, in all cases of ejectment or trespass to try titles, where either the plaintiff or defendant dies pending the litigation.

In either action, if damages are sought to be recovered as mesne profits, and either plaintiff or defendant dies, the representative, if plaintiff, would be entitled to them, and if defendant, he would ho chargeable with them. So, if possession of the lands is sought by the suit, he is equally entitled to have it under the act, if plaintiff, and, if defendant, he would seem to be the proper party to yield it.

This conclusion, however, necessarily involves the construction of the act of 1839 to mean that it becomes the imperative duty of the representative to take possession of the lands of the decedent, and rent them out until the final settlement of the estate ; whereas we consider the proper construction of the act to be, that he may rent out the lands, or leave them to the heirs, as he thinks proper.

Besides, in the action of ejectment or of trespass to try titles, tho plaintiff must recover on the strength of his own title, and it would seem to be neeessaiy to bring those parties before the court, in whom the title had vested by the death. Our action of ejectment would seem to be compounded of the two common law actions, ejectment proper and the action for mesne profits; and that portion of it taken from the latter action is divested by our statute of the privileges which it possessed at common law, so far as it could ho carried on by the fictitious plaintiff.

By our statute, tho jury are required to assess the damages to tho real plaintiff in the cause. Our conclusion, therefore, is, in an action of ejectment, when damages are sought as mesne profits as well as the lands, if the lessor of the plaintiff dies pending the suit, the personal representative, as well as the heirs, is a. necessary party, in order to revive the suit.— In all cases where damages are sought as mesno profits, the representative is an indispensable party. This is, in effect, adopting the same rule as that laid down in Jordan v. Abercrombie & Thompson.

Tho only difference between the two cases is, that in that case the defendant died, whilst in the case at bar it is tho lessor of the plaintiff. The same principle, we think, governs in both cases. This rule we adopt tho more readily, as it will be perceived from the

article of the new Code above quoted, that the rule which we now establish is tho one there laidjdown, and is, we are satisfied, tho only one that can meet the wants and exigencies of the action of ejectment, as regulated by our statute. The application of the petitioner must, therefore, prevail, and a rule must be issued to the Circuit Court, to set aside and vacate the aforesaid judgment, and to reinstate the cause upon the docket, so that the necessary parties may be made, if those in interest see fit further to prosecute their suit; and, on the failure of said Circuit Court to comply with said rule, to show cause why a peremptory mandamus should not issue.'