Los Angeles herald., 1893-01-13
DIFFICULT TO FIND THE ISSUE,
Judge Clark Decides the Suit
of Dalton VS.. Martz.
What 1t Cost Hreciach to C0nsign
Court to Hades.
He Gets q Severe Sentence for Con-
tempt-Notes of Cases in Court
Yesterday The New
Suits Filed.

Yesterday Judge Clark rendered de
cision in the case of W. A. Dalton ct al
vs.. Philip Martz, in which some inter
ssting points were raised. The text O
the opinion handed down by the cour
was as follows:
This is suit brought by the heirs o.
Henry Dalton, deceased, and by M
Guadalupe q. de Dalton, his widow and
the executrix of his last will and tesla
ment, against the defendant upon con.
tract executed on January Q, 1888, by
the terms of which the defendant agreed
to convey to said deceased certain
tract of land in the Rancho Azusa.
Pursuant to this contract, on Septem-
ber "a 1886, and after. the death of the
said Henry Dalton and after the said NJ
G. q. de Dalton had been appointed and
had qualified as executrix aforesaid, the
defendant executed a deed of the
premises to her "as executrix of the
last will and testament of Henry Dal-
ton, deceased" The habendum thereof
reads: "Doth by these presents grant,
bargain, sell and convey unto
the party of the second part
and to her heirs and assigns forever as
such exeSutrix only" The suit is an
amicabl One and it is not easy to un-
derstand just what the issue is between
the parties. Plaintiff would seem to
contend that because upon the death of
the ancestor the title to property passes
to his heirs, subject only to the right of
possession in the executrix for the pur-
poses of administration &c. @. Sec. 13S4),
that therefore the heirs only are the
proper parties to bring suit; that the
executrix had no authority to sue upon
the contract of January 2, 1888, and
therefore the deed to her was improperly
made and should have been made to
the heirs, naming them.
If this be the contention do not
think it can be supported. Section
1902, @. @. p, reads; ACTIONS for the
recovery OF any property, real or per-
sonal, or for the possession thereof, and
all actions founded upon contracts, may
be maintained by and against executors
and administration in all the cases in
which the same might have been main
tanned by or against their respective
testators or intestates." In all such
actions the executor may sue without
joining the persons for whose benefit
the action is prosecuted.-C. @. P, sec.
800.
1t is true that under the
provisions of section 1852, heirs
or devisees may themselves or
jointly with the executor maintain an
action for the possession of real estate
or for the purpose of quieting title there
to, but the section provides that it shall
not be construed as requiring them so
to do. Prior to the adoption Of this Sec
ton heirs were not proper parties.
Crosby vs. David, 81 CAL, 900.
Plaintiff cites the case of James vs..
Throckmorton, 81 CAL, 1868, but that
case as read it only holds that the
heirs of cestui que trust are proper
parties plaintiff in an action to enforce
she trust; that the administrator of such
cestui que trust has not the power to
compel a conveyance of the title to the
property to himself l think it clear
that as decedent would have cause of
action upon the contract of January 2,
1888, to enforce specific performance, 30
too would his executrix have such cause
of action under the provisions of section
1852, G. @. p, supra.
That the heirs as devisees might also
be proper parties plaintiff is not mate
rial. If such suit had been brought by
the executrix it would, of course, be for
the benefit of those who were entitled
to succeed to the estate of the deceased
vendee, and a proper decree in the
action would require conveyance to
them if their rights had been
ascertained, subject to admins
tration. If their rights had not
been ascertained then the decree would
have required conveyance to the exec
utrix or to some other trustee in trust
for the heirs or deyisees when their
rights had been ascertained upon dis
tribution or otherwise. This would
seem to be what the parties at
tempted by the deed of September
"a. 1886, supra. I am inclined
to think it sufficient, and that the title
will pass to plaintiffs upon the decree of
distribution being made and entered. If
not, then the grantee named in said
deed should convey to them. At all
events it is clear that the defendant has
now neither the legal or equitable title,
and am at loss to see how a deed from
him would be of value.
If the point made in brief of plaintiff
that the execution of the deed was de-
MED by the pleadings and not proven,
be insisted upon, then, the suit being an
amicable one. the defendant should be
permitted to offer evidence to establish
that allegation of his answer.
Decree is ordered in accordance here.
with.