Lincoln Trust Co. v. Gaddis & Perry Co.

CUNNINGHAM, J.,

Concurring Specially.—I concur in the result reached by the majority, for the following reasons:

Paragraph 4112, Revised Statutes of Arizona of 1901, provides that, in an action for the recovery of real property: “The complaint may state generally that the complainant is *380entitled to the possession of the premises, describing them, also> the quantity of his estate and the extent of his interest therein, and that the defendant unlawfully keeps him out of' possession, and the damages, if any, which he claims for withholding the same. ...”

The complainant alleges that plaintiff since “August 9,. 1910, continuously has been and now is the sole and lawful owner of the said premises, and of each and every part thereof, and entitled to the possession of the same.” This is: a general statement that the complainant is entitled to the-possession of the premises. In a prior paragraph the premises are described. The quantity of its (his) estate and the-extent of its (his) interest therein are set forth to the effect: as follows: That on and before the ninth day of August, 1910,. one Kate Taylor Grannis was the owner of and in possession, of the described premises. On said date Kate Taylor Grannis died testate, leaving a will bearing date of December 12,. 1906, by the terms of which will the testatrix devised said premises in fee simple to the plaintiff as trustee to the use- and benefit of the next of kin and heir at law of testatrix.. That on the twenty-second day of April, 1912, said last will, of Kate Taylor Grannis, deceased, was duly proved and admitted to probate by the superior court of the county of' Mohave, and at the same time plaintiff was duly appointed,, by an order made and entered in said court, as ancillary administrator of the estate of the said decedent; that letters of' administration were duly issued to it, and it is now the duly appointed, qualified and acting ancillary administrator of' said estate.

The general statements that the premises were devised to it by will, and the will has been duly proved and probated, and the allegations stating that plaintiff has been duly appointed administrator of the estate, and is still such administrator-are allegations of facts showing that plaintiff is a person having a valid, subsisting interest in the real property described,, entitling plaintiff, in that respect, to maintain this action for the recovery of the property described. Par. 4109, Ariz. Rev. Stats. 1901. The quantity of its estate and the extent of interest therein appear from the alleged facts that it claims title-in fee simple, as trustee for the use and benefit of the next *381■of kin and heir at law of testatrix, and also as administrator of the estate.

Appellee contends that the complaint is open to a general demurrer, because upon the face of the complaint it appears that plaintiff is a foreign corporation, but fails to appear upon its face that plaintiff has complied with the laws of Arizona respecting foreign corporations, so that it is now entitled to exercise the prerogatives, of an administrator in Arizona; ■and that appellant’s allegations that it is a foreign corporation, taken with the fact that it fails to allege compliance with said laws of Arizona, is, in effect, an affirmative declaration that every act it has done in Arizona is null and void; that this is an essential defect appearing upon the face of the complaint, and amounts to a failure to state a cause of action, and, for that reason, the complaint is fatally defective. I do not agree to the force of this argument. The complaint upon its face shows that plaintiff has been appointed administrator of the estate by a court of competent jurisdiction, and as such administrator prosecutes this action. Also that it is prosecuting this action as and in the capacity of owner of the property; having acquired title thereto through a will duly established by the judgment of a competent court. The ■question attempted to be raised upon a general demurrer is not the sufficiency of the statement of facts to constitute a cause of action, but it questions the right of the plaintiff to maintain this action at all, in the capacity in which it sues.

If upon the face of the complaint it appears “ . . . that the plaintiff has not the legal capacity to sue,” the defendant may demur thereto. Par. 1351, subd. 2, Ariz. Rev. Stats. 1901.. The objection to this complaint is clearly that, by reason of the failure of the complaint to show on its face that plaintiff has complied with the laws relating to the right of a foreign corporation to transact business in Arizona, the complaint.is demurrable. The failure to state such facts as authorize the plaintiff to maintain the action as administrator is clearly the true meaning of this objection. The general demurrer does not reach this question, but it must be reached by a demurrer in its nature a special demurrer, alleging that from the face of the complaint it appears that plaintiff has not the legal capacity to sue. If such demurrer was in the record before this court, it could not be sustained, for the *382reason the complaint alleges that the plaintiff has been duly appointed, and is the duly appointed, qualified and acting administrator of said estate—a sufficient allegation prima facie to authorize it to maintain this ¿etion in the capacity of administrator, when attacked by a demurrer upon that ground.

The defendant could have raised the question of the plaintiff’s legal right to maintain the action in the capacity in which it sues by answer duly verified, unless the truth of the pleadings appear of record. No such answer has been filed, verified or otherwise. The general demurrer should have been overruled. The complaint sufficiently states a cause of action as measured by a general demurrer.

For the foregoing reasons, I concur in the orders made herein.

NOTE.—For authorities on. the question of foreign corporation as executor or administrator, see note in 24 L. R. A. 291. And on the question of nonresidents as executors, generally, see note in 1 L. R. A., N. S., 341.