186 Ky. 71
Court of Appeals of Kentucky.
Nov. 28, 1919.
ACTION: Reversed.

Appeal from Circuit Court, Bell County.
Action by C. Hurst, trustee, and others, against Lucy Taylor and others.
Judgment for plaintiffs, and defendants appeal.

July 5, 1902, Harrison Taylor (now deceased) and his wife entered into a contract with appellee C. Hurst, as trustee, whereby the Taylors, in consideration of the sum of $4 per acre, agreed to sell and convey to Hurst, trustee, the mineral rights in about 3,000 acres of land in Knox county. It is provided in said contract that:

"The party of the second part is to forfeit and lose all payments made on said land, and this obligation is to become null and void unless all of the purchase money is paid within six months from date hereof, and in case the second party fails to pay one-half the aforesaid purchase money within 60 days from date, then and in that event this obligation is to become null and void; otherwise, to remain in full force and effect."

December 20, 1902, in another paper signed by Harrison Taylor, it is recited that Hurst, trustee, had assigned his interest in said contract to J. J. Gibson, trustee, and that Gibson had paid the sum of $390 on the purchase price. Gibson was to have the land surveyed, and the balance of the purchase price to be paid by May 1, 1903. This seecond paper was attached to the first one. On the margin of the original contract is this indorsement, signed by Gibson:
"Without recourse on me in any event, I hereby assign to C. Hurst and J. C. Slusher all right, title, and interest of mine in the within bond. November 10, 1906."

Both writings were recorded July 30, 1906. This suit was filed by appellees, seeking the specific performance of the foregoing instruments. From a judgment granting the relief prayed for, this appeal is prosecuted.

Many reasons are assigned for a reversal. We find one of them meritorious, viz. that appellees have not shown any right to maintain this suit. In the original title bond Hurst was trustee for himself, J. J. Gibson, and J. C. Slusher. In the extension, Gibson was trustee for C. Hurst, J. C. Slusher, Vincent Boreing, and D. B. Logan. Boreing, Gibson, and Logan disposed of their interests, but the exact dates of these transfers or assignments do not appear. Slusher transferred his interest to Robert Vanbever. He thinks this was after the present suit was filed. About the same time W. G. Colson purchased a one- half interest in the property, and Hurst disposed of his interest to Vanbever.

The facts as to the status of the title to or the interest in this contract are gleaned from the depositions of appellees. They show rather conclusively they have no interest in this controversy, and either the special demurrer or the motion to dismiss, because plaintiffs (appellees) were not the real parties in interest, should have been sustained. Since we have reached the conclusion that for this reason a reversal must be had, a few excerpts from the second deposition of appellee Hurst on this question might not be inappropriate. Referring to certain letters written to Gilbert Taylor, Hurst says:

"Yes, I told them all about it; J. C. Slusher, and Mr. Colson, and, I think, Mr. Vanbever. I sold my interest to Mr. Vanbever, and I was trying to get him and Mr. Colson to put up the money and settle this lawsuit as indicated in these letters there; but they did not do it, as I had sold out to Vanbever. * * *

Q. But you do remember, as you claim, of talking with Gilbert Taylor, and having an arrangement with him whereby he was to bid off the land of Emmett Taylor that was to be sold at the Knox circuit court?
A. I didn't have any arrangement, but he told me he was going to bid it off, and Smiths had agreed with him they would sell the land when they got the title clear for so much, and I told him, if they would do that, I would try to get Mr. Colson and Vanbever to take it and settle the suit.
Q. And I believe you say when all this was taking place you had no interest in this land at all?
A. I had none in any way, except Vanbever owed me some money. I had transferred my interest to Vanbever; but all the money had not been paid.
Q. Didn't you swear, in answer to Mr. Patterson's question, that at the time you had no interest in the land?
A. Yes, sir; I had no interest, except in getting my money. I had sold out to Robert Vanbever.
Q. Haven't you any idea when that transaction took place?
A. Well, I don't know that I could state exactly; but I know that I sold out to Vanbever, because I was trying to work this deal to get Vanbever and Colson to take this matter over and make this deal with Gilbert Taylor, because I thought it would be better to settle the lawsuit than to go on with the suit.
Q. How much did he pay them?
A. I don't remember; I have not had a statement. He claimed to have paid some on that. I sold him some other land at that time, and I sold him my interest in the mineral right in this Taylor land, and he was to give me $1,000 profit. I wish you would call Mr. Vanbever up, and have him come down here and bring that title bond. If he has the title bond, we can get it; if not, we can get it from the records.
Q. I believe you say that the arrangements as you now remember between you and Mr. Vanbever were that, if you cleared this title and won the suit, he was to pay the $1,000.
A. Not if I cleared it; he was to clear it himself and pay the expenses.
Q. Who is to pay the counsel fees and cost of this litigation under your contract and arrangement with Mr. Vanbever?
A. I think Mr. Vanbever was to pay it, and Mr. Colson, together. In the first place, J. C. Slusher and I sold certain interest, and had a contract or title bond with W. G. Colson; afterward Mr. Slusher and I both sold out our interest that we retained under the Colson contract to Robert Vanbever, and I can't remember just all of the bond now. It has been some time, and have not read it for a long time.
Q. Did you and Mr. Colson enter into this agreement with Mr. Vanbever?
A. No, sir; just me and Mr. Slusher. Slusher and I sold our interest to Vanbever. As I understand it, Mr. Colson owns one-half and Mr. Vanbever one-half interest in this lawsuit."

Civil Code, �� 18, 21, provide as follows:

Section 18: "Every action must be prosecuted in the name of the real party in interest, except as is provided in section 21."

Section 21: "A personal representative, guardian, curator, committee of a person of unsound mind, trustee of an express trust, a person with whom or in whose name a contract is made for the benefit of another, a receiver appointed by a court, the assignee of a bankrupt, or a person expressly authorized by statute to do so, may bring an action without joining with him the person for whose benefit it is prosecuted."

It is not claimed the contract sued on was made, or that appellees are suing, for the use or benefit of Colson or Vanbever. They are not shown to have had any interest in the contract at the time of its execution. It was some years later, probably between 1908 and 1912, that they purchased the interests of Slusher and Hurst. Unfortunately the agreements between these parties are not in the record, and it is impossible to tell just when these transactions occurred.

"The test of whether one is the real party in interest, within the meaning of the statute, is: Does he satisfy the call for the person who has the right to control and receive the fruits of the litigation?"

We do not deem further citation or comment necessary. Whether Hurst and Slusher had such an interest in the contract sued on as made them proper parties, it is certain that Colson and Vanbever were the persons actually and substantially interested in the subject-matter of the controversy, the ones to be benefited by the judgment; hence were necessary parties, and the court erred in failing and refusing to require them to be made parties.

Wherefore the judgment is reversed, for further proceedings consistent with this opinion.

Ky.App. 1919.
216 S.W. 95, 186 Ky. 71

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