#### SHELL v. WEST.

(Filed April 15, 1902.)

1. LANDLORD AND TENANT — Estoppel.

A tenant is estopped from denying the title of his landlord.

2. AMENDMENTS — A otions.

An amendment making an additional party, which essentially changes the nature of the action, should not he allowed.

3. PARTIES — Nonsuit.

One can not be made a party to an action after nonsuit therein.

4. EXECUTORS AND ADMINISTRATORS^ — Rents—Succession—

Descent and Distribution.

The rents on devised land may be. subjected by the personal ■representative to thé payment of the debts of the deceased.

Douglas, J., dissenting.

Action by O. P. Shell, executor of Ií. 0. Avera, against W. 0. West, beard by Judge W. 8. O’B. Robinson and a jury, at November Term, 1900, of tbe Superior Court of Harnett County. From a judgment for tbe defendant, tbe plaintiff appealed.

McLean & Clifford, and Steivarl & Godwin, for tbe plaintiff.

No counsel for tbe defendant.

Clark, J.

Tbe plaintiff, executor of H. C. Avera, began this proceeding before a Justice of tbe Peace to recover tbe rents on a tract of land rented by him to tbe defendant, and which bad belonged to the plaintiff’s testator. Tbe plaintiff recovered before tbe Justice, but upon appeal bis Honor intimated that plaintiff could not recover, in deference to which he took a nonsuit and appealed.

*172It appears from tbe statement of tlie case on appeal tbat the defendant rented tbe land from- tbe plaintiff; tbat tbe •estate is largely involved, and tbat tbe rents on tbe land are necessary to- be applied to save tbe creditors harmless. After tbe case had been beard in tbe Superior Oourt, Narcissa Barnes was made a party on allegation tbat she was tbe landlord. Tbe record does not, state bow, but it was agreed on tbe argument here tbat she was a devisee of tbe realty. She did not interplead, but was made a party on motion of defendant.

Tbe defendant being a tenant of tbe plaintiff, was estopped to deny bis title. Tbis is elementary law, and bas been reaffirmed in tbis Oourt as late as Pool v. Lamb, 128 N. C., 1. At tbe time tbe Court intimated tbat tbe plaintiff could not recover, it was error to so bold, and sucb error could not be •corrected and tbe costs thrown upon plaintiff by making a new party of tbe devisee, upon tbe motion, too, of tbe defendant. If it bad any effect, it materially changed tbe nature of tbe action, and if tbe motion could be tolerated at all, justice required tbat it could only have been allowed upon payment of •all costs up to that time. Tbe effect was to change a'simple action by a landlord against a tenant for recovery of rent into a totally different controversy whether rents upon devised lands should be applied to tbe debts of an insolvent testator. Such amendment should not have been granted (Merrill v. Merrill, 92 N. C., 657; Clendenin v. Turner, 96 N. C., 416), for it was an entire change in tbe nature of tbe action, making it one of which tbe Justice’s Oourt bad no jurisdiction. Besides being made; after tbe hearing, and, therefore, after tbe nonsuit was taken, there was no pending action to which tbe additional party could be made. It is sufficient to say tbat there was eiTor, both in granting the nonsuit and in making tbe additional party after tbe nonsuit, or when to make sucb party essentially changed the nature of the action.

The defendant being estopped to deny bis lessor’s title, the *173plaintiff was. entitled to judgment. It was then open to the-devisee, claiming the land, to have brought an action to hold the executor responsible for such rents. But if the facts are as stated in the case on appeal, to-wit, that the estate is insolvent, and that the rents are necessary for payment of the creditors, such action, if brought, would be nugatory, for it is well settled that the rents on devised land can be subjected by the personal representative when required for payment of' debts. In Moore v. Shields, 68 N. C., at page 332, it is said that inasmuch as the land can be sold to make assets to pay debts, it is the interest of the heir or devisee that the rents-should be first so applied and save the land; and on page 331 it is said, “The general rule that the creditors of the ancestor-are entitled to all the rents and profits received by the heir, since descent cast must now be considered established by Washington v. Sasser, 41 N. C., 336. It is supported by other authority. 2 Story Eq. Jur., 1216, and Curtis v. Curtis, 2 Bro. Ch. Cases, 633.” This has been always followed since — among other cases are Hinton v. Whitehurst, 71 N. C., 66; Jennings v. Copeland, 90 N. C., bottom of page 577, and cases cited; Coggins v. Flythe, 113 N. C., 119. The same seems universally held. Woener Admr’s, Sec. 513; 2 Williams Ex’rs, 51; 3 Williams Ex’rs, 182.

Inasmuch as this would be the law, if in regular course the plaintiff had recovered against the defendant tenant, and the devisee of the land had brought her action against the plaintiff to recover the rents, certainly the plaintiff could not be put at a disadvantage and the rents adjudicated not liable to be applied to the debts of'the testator because the devisee is made a party to the action in this irregular way. . If there can be any criticism for turning an action of claim and delivery by a lessor against a tenant into a proceeding to adjudge rents on-devised lands applicable to debts of the testator, it must .be leveled against the defendant, not against the plaintiff. The-*174laud having been rented by the plaintiff to the defendant, the only question was as to whether thei property taken in claim and delivery was due as rent, and if the devisee can come in at all as a party to that action on the allegation that the rents are due to her, certainly it is open to the plaintiff to show as a defense that the rents are required to pay debts of the testator, which is here admitted.

It is time the plaintiff might have begun a proceeding in the first instance against the devisee to subject the rents, but why do so when the devisee, apparently aware that the rents were necessary to pay the debts of the testator, has stood aside and acquiesced in the plaintiff renting out the land. To the direct proceeding to recover the rent of the tenant, the devisee has not made herself a party nor filed any answer, nor interposed any defense. She has been merely made a party at the instance of the defendant.

Error.

Douglas, J., dissenting.