CHAPTER II.

PARTIES TO ACTIONS.

Section 1. The Real Party in Interest.

"The general rule is, that the action should be brought in the name of the party whose legal right has been affected, against the party who committed the injury, or by or against his personal representative; and therefore a correct knowledge of legal rights, and of wrongs remediable at law, will, in general, direct by and against whom the action should be brought." -Chitty's Pleadings, 5 Am. Ed. 1.

CODE PROVISIONS:

"Every action must be prosecuted in the name of the real party in interest, except that an executor or administrator, a 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 person, with whom or in whose name, a contract is made for the benefit of another, is a trustee of an express trust within the meaning of this section." -N. Y. Code Civ. Proc. § 449.

"Every action shall be prosecuted in the name of the real party in interest, except as otherwise provided in the next succeeding section; but this section shall not be deemed to authorize the assignment of a thing in action not arising out of a contract."-R. S. 1899 (Mo.), § 540

An executor or administrator, a trustee of an express trust, or a person expressly authorized by statute, may sue in his own name without joining with him the person for whose benefit the suit 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.-R. S. 1899 (Mo.), § 541.

RICHARDSON v. MEANS.

22 Mo., 495. [1856.]

This was an action commenced June 17, 1853, by Maria L. Richardson (the husband having afterwards been made a party by an amended petition) for the recovery of a female slave and her two children, alleged in the petition to have been wrongfully taken by the defendant, May 1, 1849, and unlawfully detained by him.

Defendant, in his answer, denied the title of the plaintiff, and claimed title in himself, and relied upon a bill of sale to himself, dated May 1, 1848, of the negress and one child, executed by Thomas R. Richardson, husband of plaintiff, Maria, and co-plaintiff in this action.

To sustain the wife's right, she relief on a deed of gift from her father, William C. Bruce, dated April 1, 1845, by which, in consideration of love and affection toward the plaintiff, his daughter, he conveyed the female slave in controversy to one Littleton Jozner, "upon trust, that the said Jozner, his executors, etc., shall permit my said daughter to hold possession of and take the use, hire and profits of the said Maria and her increase to her sole and separate use during her life, independent of her said husband; and at the death of my said daughter, the said Maria and her increase to be equally divided between her children, etc."

The jury found for the defendant, and judgment was given accordingly. Plaintiffs appealed.

LEONARD, J., delivered the opinion of the court.

We cannot reverse this judgment, no matter how much we may regret that parties, by a slip in the form of proceedings, should subject themselves to costs and delay in the judicial enforcement of their rights. The instructions given are correct in point of law, and this seems to be admitted; but the objection is, that the one given by the court upon its own suggestion was not warranted by an evidence in the cause, and that, although correct in the abstract, it had the effect of misleading the jury. If this could be made apparent to us, it might furnish sufficient ground for reversing the judgment in a case where the reversal would avail the party. Here, however, the plaintiffs have stated themselves out of court, and, therefore, if the jury were misled, it resulted in no injury to them; for the reason that, ac

cording to their own showing, they had no case entitling them to recovery. The plaintiff's title is derived from the instrument of gift executed by the father, which vests the legal ownership in the trustee for the use of the wife during her life, and upon her death for the use of her children, and the action is to redress a wrong done to the legal ownership, being substantially an action for the conversion of the plaintiff's slaves. Under the old form of proceeding, this suit must have been brought by the trustee at law; but if, from any cause, the legal ownership could not have been made effectual for the protection of the wife's equitable right, the courts would, at her suit, upon a proper statement of facts, all the necessary parties being before them, have administered the appropriate equitable relief. But it is supposed that all this is changed by the new code, which is true to some extent. It must be observed, however, that the code has not changed the rights of parties, but only provided new remedies for their enforcement; it has not abolished the distinction between equitable and legal rights, but the distinction between legal and equitable remedies, so far at least as to provide that one form of suit shall be used for the enforcement of both classes of rights. The case made upon the record was for legal relief; but the case made by the plaintiffs, in proof, was of a different character.

*

It was the duty of the trustees to protect the legal ownership from violation, and to preserve the property for the use of the parties beneficially interested as they should respectively become entitled; and if, as before remarked, there were any obstacles in the way of the legal remedy, or the trustee refused to do his duty, then, upon a proper case stated, and the proper parties being made, the courts would, in a civil suit under the code, afford relief according to the principles of equity; and the present judgment cannot be pleaded in bar of any equitable relief that shall be thus sought by the wife.

The judgment must be affirmed.

* A true equitable right exists when a legal right is held by its owner for the benefit of another person, either wholly or in part. Such a right may be defined as an equitable personal obligation. It is an obligation because it is not ownership. That is, it is not ownership of the thing which is the subject of the obligation. For example, when land is held by one person for the benefit of another, the latter is not properly owner of the land even in equity. Of course the equitable obligation itself is as much the subject of ownership as is a legal obligation; and the only reason why such ownership is not recognized by the courts of common law is that the thing itself which is the subject of the ownership (i. e., the equitable obligation), is not recognized by them.-Langdell, Brief Survey Equity Jurisdiction, p. 1.

PECK v. NEWTON.

46 Barbour, 173. [N. Y. Sup. 1863.]

By the court, PARKER, J.: This is an action to recover the possession of land. The plaintiff rests the right of the school district (which he represents) to the land in question, upon an alleged exchange made by the district with Jahiel Parsons, in 1834. The district was, at that time, in possession of a schoolhouse and lot, on the south side of the street, holding under one Parsons by some sort of contract. It became desirable to remove the school-house from that site. Parsons owned the land on the opposite side of the street, and, at a special meeting of the inhabitants of the district, Parsons agreed, verbally, with the district, to exchange with them, and give them a site on the north side of the street for their site on the south side. In pursuance of this agreement he staked out a piece of land, including the piece in question, on the north side. The schoolhouse was, the same year, moved across the street to it, and the contract for the site on the south side, which the district held from Parsons, was given up to him, and he sold the site to an adjacent owner. No deed was given by him to the district for the site on the north side, though he agreed to give one. The land staked out measured nearly a quarter of an acre. The schoolhouse was built upon one corner of it, and the lot was never fenced out by the district. Some twelve or fifteen years before the trial (being ten to thirteen years after the exchange), the defendant, who occupied the Parsons farm, fenced in all of the site so staked out, except the part on which the school-house stands and a small piece in front and rear, and has since occupied it for farming purposes. It is this piece, so fenced by the defendant, that is the subject of the controversy between the parties.

The plaintiff has, as it will be seen, at most a mere equitable title to the piece of land, the possession of which he now seeks to recover. Can he maintain this action on such title? It is observed that this is what, before the Code, was called an action in ejectment. No equitable interest in the premises is set up in the complaint, and no equitable relief is demanded, the plaintiff alleging therein that the district has lawful title as the owner in fee simple, so that the possession is not sought as incidental to a specific performance, or other equitable relief, but the plaintiff

counts upon his title, and demands judgment for the possession of the premises.

Now, although the code has abolished the distinction between actions at law and suits in equity, so far as it regards the forms of procedure, still the principles by which the rights of the parties are to be determined remain unchanged. "The code has given no new cause of action. If under the former system a given state of facts would have entitled a party to a decree in equity in his favor, the same state of facts now, in an action prosecuted in the manner prescribed by the code, will entitle him to a judgment to the same effect. If the facts are such as that, at the common law, the party would have been entitled to judgment, he will, by proceeding as the code requires, obtain the same judgment." (Cole v. Reynolds, 18 N. Y. Rep., 76.) As this case stands, the defendant is a stranger to the transaction between the district and Parsons. He offered to prove himself a grantee of Parsons, but the evidence was objected to by the plaintiffs and excluded. There is no privity, then, between the defendant and Parsons.

Even if Parsons himself were defendant, or any person in privity with him, the equitable rights of the parties could not be determined in this action upon the issues here presented. Under proper pleadings, undoubtedly, the absolute rights of the parties in that case, whether legal or equitable, or both, could be determined in one action. But this action being against a stranger in possession, by the plaintiff, resting not a legal but a mere equitable title, I am unable to see on what principle he is entitled to recover. The defendant is not the party who is bound to convey to the plaintiff; so that the proper parties to litigate the question of the plaintiff's equitable title are not before the court. As between other parties, the rule, I apprehend, is, as it has always been in this action, that the plaintiff can recover only on his legal title. (Doe v. Staple, 2 T. R., 684; Doe v. Wroot, 5 East, 132; Jackson v. Pierce, 2 John. 221; Jackson v. Chase, Id. 84; Moore v. Spellman, 5 Denio, 225.)

Before the code, what would have been the relative rights of these parties? Clearly no action at law could have been maintained by the plaintiff against the defendant. Neither can I see any ground in which a suit in equity could have been maintained. The rights of the parties to the alleged exchange must first have been settled by a court of equity, and a specific per