Morning appeal. [volume] (Carson City, Nev.) 1877-1906, 1899-11-12

When he has properly asserted his
right to the possession, he may maintain
pOSSessOry action in his own name, even
against the heirs or devisees, or recover
the rents, incomes or profits, or for in
jury to the land, or anything severed
from it, or for injuries committed before
he took possession and after the death OF
the dccedent. (Id. Sec. 337).
An executor or administrator, may
maintain an action to recover timber
logs cut and removed by q trespasser
from the lands of the estate, although the
heir Or devisee may also maintain an ac-
ton, on failure Of the personal represent
tative to assert his statutory rights"
(Leatherwood w. Sullivan, 81 Ala. lbs
"A personal representative who has
taken possession of the real estate Of the
dere lent can maintain an action for
injuries to such r4slty committed
post mortcm ,fcccdsoti<. This is 50,
even ifthe injuries were committed be
f, re he took possession, and before his
letters Of Reconsideration were granted"
lNo.n ~. "~irnigan, p MInn. SD
"IttIo premises are vacant ANA uuocru-
flitu- lIlt tlIi'l0lil@ u Stl'lt t'tIViI NN''L''
be equivalent to taking p"ssession.'
"a. p MINI. 4i8.)
The whole estate real and personal
under our system is assets ANA may be If
required, applied to the payment Of the
dents OF tie estate
Nyashiugron " Black, 50 Gal. 291.J
think said contention Of counsel and
H.. ;,F,.n,.c -,,-i+ - 1.-,, .I-..
from against the rights OF the aimiu!s-
TRAITOR in this case are without merit,
1t is argued by the trial court and by
counsel tina; a decree declaring said deed
to be a mortgage and requiring the De
PENDANT to execute a deed to the Plaintiff
by the District Court of Wash0e County,
would he modelling or interfering with
the ~devOlution Of the property Of the
estate in the State where it is located,
and that the courts of that state would
disregard such decree and deed, and that
the Defendant would he still Liable to
an action for waste by an administrator
appointed in California.
The answer to this contention is first:
That such deed would in no manner
NEEDLE with the devOlutiOn of the prop
erty of the estate situated in California,or
interfere with the administration Of the
estate there. A deed from the Defend
ant to the Plaintiff as administrator
would simply take the title ont of the
Defendant and place it in the Plaintiff as
administrator, showing that the property
belonged to the estate of tie deceased.
whereas, it now appears of record in the
Recorders office of Nevada County, Cali
itornia, to belong to the Defendant.
1t would form the basis for, and facili-
tate the administration of the estate OF
William Price in that State.
Second: There would be 10 occasion
for the Administrator when appointed in
California to bring a suit to have said
Iced to the Defendant decreed to be a
mortgage and thus determine the true
ownership of said land.
J Third: Such administrator could not
!, recover a judgment against the Defend
. ant for waste OF for the value of sail
!, lumber and timbers converted as afore-
, said unless the Defendant voluntarily
, placed himself within the jurisdiction OF
= a California court.
+, The contention that the courts of Cali
e forria would pay nO attention whatevel
! to any such deed from the Defendant is
t simply an assumption of counsel.
q 1t seems well established by the
\ authorities cited by Appellants counsel
that when the court has acquired juris
: di"tiOn efthe parties in a matter of prOpe
t equitable cogniZance, it may by acting
> IN persOndnl, compel the conveyance 0
t interests in real property, and administel
n other relief in the furtherance of justice
r notwithstanding G the property or interes
involved may be situated within tn
n State.
From the allegations of the complain
e it appears that the Defendant has unlaw
fully appropriated a portion Of said prop
!, erty Of said estate. The deed prayed 70
n would be a means to prevent further un
n lawful appropriation and preserve the re
mainder Of said property to said estat
which equity and good conscience de
a and
That the complaint shows that som
one is entitled at least to recover a per
sonal Judgment against the Defendan
lOI SAUL dlut VI Sbio uIlpO I'll" VIM
bers, less the said sum due the Defend
, ant, and a decree declaring that said dec
. to Defendant is a mortgage, and requir
=, ing him to execute a deed to said Ian
and to give up said promissory note,
70 think cannot be reasonably disputed.
+ The vital question in the case is: l
"a the Plaintiff entitled to such a judgmen
i. and decree? If so he can prosecute thi
# action therefor. The moneys COLLECTED
v on such judgment by the Plaintiff woul'
# properly be assets of said estate and sub
ject to the payment of resident and non
resident creditors of the interstate VIII
have presented, or who may presen
d their claims in pursuance of the pro
= visions of the statute. The policy OF tn
v Ia y in every State is to subject all tn
7. property of the decedent, real and pei
.r senal, to the payment OF the cred
itors Of the decedent, except certai