McLean County Coal Co. v. Long

Citations

• 91 Ill. 617

Syllabus

<p>1. Parties—when executor must sue—not devisee. The sole devisee of a deceased person can not maintain an action in his own name for a tort, or conversion of the property of the testator in his lifetime, but the suit must be brought in the name of his executor or administrator.</p> <p>2. Where a party died pending an action by him to recover for a quantity of coal the defendant had mined, removed from the plaintiff’s land, and converted, and after his death his sole devisee suggested the death, and by leave of court was substituted as plaintiff, no letters having been taken out, and recovered judgment, it was held, that no recovery could be had in the name of such devisee, and that the judgment should have been arrested.</p> <p>3. The appointment of an executor to carry out the provisions of a will vests the legal title to the goods, chattels and choses in action of the testator in the executor, as a quasi trustee for the use of the creditors, distributees and legatees, and he alone, when qualified, can maintain the proper actions for the recovery of such property, or for injury thereto or its destruction.</p> <p>4. Same—holder of legal title must sue. An equitable title never confers the right to sue at law, but the action must be in the name of the person invested with the legal title.</p> <p>5. Practice—when wrong person sues. Where a person not having the legal title sues at law for an injury to property, the defendant need not plead in abatement to take advantage of the want of a proper party plaintiff, but the error is fatal under the general issue, and if apparent on the face of the declaration, on demurrer or motion in arrest of judgment.</p> <p>6. Pleading—errors cured by verdict. Where a declaration, on its face, discloses no cause of action, the defect will not be cured by the verdict.</p>