#### BURNETT v. LYMAN.

(Filed May 22, 1906).

Ejectment — Transfer of Interest Pendente Lite — Parties— Peal Party in Interest — Substitution of Plaintiffs.

1. In an action of ejectment, where the plaintiffs after the institution of the action conveyed the land by deed in fee simple and their grantee was not made a party, the court erred in refusing defendant’s motion for a judgment of nonsuit, and in instructing the jury that “if they believed the evidence to find that the plaintiffs were the owners and entitled to the possession.”

2. In an action of ejectment, the rule that the plaintiff must have the right to the possession not only at the institution of the suit, but at the time of trial also, is.not changed by Revisal, section 415, which provides that the action shall not abate by death or transfer of interest, as this section must be construed in connection with section 400, that “Every action must be prosecuted in the name of the real party in interest,” and with the following provision in section 414, “When a complete determination of the controversy cannot be had without the presence of other parties, the court must cause them to be brought in.”

3. The bargainee of the land, pendente lite, may not only be substituted as party plaintiff, but if the original plaintiffs remain in the case, such bargainee, having become the “party in interest” (section 400), is necessary to a complete determination of the action, and it is the duty of the judge, certainly if objection is made, to have him “brought in.”

ActioN by W. B. Burnett and another against A. H. Lyman and another, beard by Judge Walter II. Neal and'a jury, at tbe May Term, 1905, of tbe Superior Court of Bun*501combe. Erom a judgment for tbe plaintiffs, tbe defendants appealed.

Frank Carter for the plaintiffs.

Tucker & Murphy for the defendants.

Clark, C. J.

This is an action of ejectment begun by W. B. Burnett and W. E. Burnett. After it bad been pending for some time tbe plaintiffs conveyed tbe land by deed in fee simple to one Rawls, wbo before tbe trial conveyed to Mattie G. Moore, a married woman. Neither Rawls nor Mrs. Moore were made parties. Upon tbe above facts appearing in evidence, tbe defendants moved, for judgment of nonsuit. Tbe court refused tbe motion and directed tbe jury, if they believed tbe evidence, to find tbe issues in favor of tbe plaintiffs.

In Arrington v. Arrington, 114 N. C., 120, Burwell, J says: “In an action to recover land, tbe rule is that tbe plaintiff must have the right to tbe possession not only at the institution of tbe suit, .but at tbe time of trial also,” quoting 7 Lawson R. & R., sec. 3708, which lays this down as tbe universal rule, save, be says, one ease in Vermont, which Judge Burwell further shows was not in truth any exception. Arrington v. Arrington is cited to sustain this proposition. Morehead v. Hall, 132 N. C., 123. To same effect is 15 Cyc., 29, and cases there cited.

Tbe defendants admit that this proposition was unquestionably true under tbe former practice, but contend that this is changed by Revisal, section 415, which provides that “No action shall abate by tbe death, marriage or other disability of a party, or by a transfer of any interest therein, if tbe cause of action survive or continue. * * * In ease of any other transfer of interest, tbe action shall be continued in tbe name of tbe original party, or tbe court may allow tbe person to whom the transfer is made to be substituted in tbe action.” Aside from tbe fact that this section, enacted in 1868, was in *502force wben tbe¡ above cited cases were decided, it must be noted that tbe general principle of tbe reformed procedure is that “Every action must be prosecuted in tbe name of tbe real party in interest,” Eevisal, 400, and that tbe above quoted section 415 does not refer to tbe parties wbo may maintain an action, but to “abatement of actions,” and must be construed in connection with section 400, and with tbe following provision in section 414, “Wben a complete determination of tbe controversy cannot be bad without tbe presence of other parties, tbe court must cause them to be brought in.” Certainly a complete determination cannot be bad wben tbe true owner of tbe land is not a party to tbe action.

Construing sections 400, 414 and 415 of tbe Eevisal, together, and recalling that tbe last relates to tbe “abatement of actions” only, it would seem that tbe provision therein that tbe action may be continued in tbe name of tbe original plaintiff means simply that tbe abatement does not act automatically upon tbe transfer of tbe interest, and that if the action is continued without objection, tbe judgment shall not be void, but, none tbe less, tbe judge should cause those in interest (section 400) to be “brought in” (section 414), and upon objection made, as in Arrington v. Arrington, supra, and in this case, it was error not to require them to be made' parties; else sections 400 and 414 would be useless. Tbe bargainee of tbe land pendente lite may not only be substituted as party plaintiff (Talbert v. Becton, 111 N. C., 543),. but if tbe original plaintiffs remain in tbe case, such bargainee, having become tbe “party in interest” (section 400), is necessary to a complete determination of tbe action, and it is tbe duty of tbe judge, certainly if objection is made, to have him “brought in.” Section 414. In Davis v. Higgins, 91 N. C., 388, relied on by tbe defendants, there was no objection for failure to make tbe bargainee a party, but the-court held that if tbe assignment bad been brought to tbe attention of tbe court, it should ex mero motu have dismissed *503tlie action, unless a prosecution bond bad been filed by tbe bargainee.

That section 415 does not bave tbe effect of permitting tbe original plaintiff in ejectment to recover, after conveying his interest, without either joining bis grantee as a party or substituting him as a party, is clear from tbe language of section 415 that “no action shall abate by tbe death, marriage or other disability of a party, or by tbe transfer of any interest therein.” Certainly upon tbe death of a party, though tbe action does not abate, judgment cannot be bad without making bis personal representative a party. So when there is a conveyance by tbe plaintiff, bis bargainee must either be “brought in” (section 414) as an additional party or “substituted”- — being necessary to tbe determination of tbe action —because be is now tbe party in interest. Section 400.

If this were not so, tbe judgment would solemnly record an untruth “that tbe plaintiff is tbe owner and entitled to tbe possession” of tbe property. There might be cases where-tbe defendant could urge an equity against tbe grantee, and from this be should not be cut off. Also, tbe defendant has tbe right to bave tbe bargainee “brought in” that be may be liable for the costs, if unsuccessful. Tbe action “does not abate” by death or transfer, but in both cases other parties must be made, and in case of a transfer, though tbe action may be continued in tbe name of tbe original party, the true party in interest, tbe bargainee, must be “brought in” if objection is made.

It was error in the court to instruct tbe jury that “if they believed tbe evidence to find that tbe plaintiffs were tbe owners and entitled to tbe possession.” If they believed tbe evidence, tbe jury were compelled to find just tbe opposite and that tbe plaintiffs were not tbe owners, and were not entitled to possession, because it was shown that they had parted with all the rights they bad possessed.

Error.