
    Watts’s Heirs v. Robson and another.
    Where the clerk of the Probate Court was appointed a commissioner to sell property of an estate for the pm poso of effecting partition, and for the purchase-money took a bond payable to himself and his successors in oiiice, the heirs brought suit against the clerk and the purchaser in the District Court after the bond became due, in which they alleged that the clerk had failed to collect the bond and the purchaser had failed to discharge it, and prayed that they might have judgment against the purchaser for the amount due from him and against the clerk for any amount he might have collected, and in case the bond hud beeomo worthless by reason of the neglect of the clerk, then that they might have judgment against him for the amount so permitted to be lost; Meld, That the suit was well brought.
    Appeal from Colorado. The appellants brought suit against the appellees in the District Court, alleging that they were the only heirs of William Watts, deceased ; that in tho course of administration upon the estate of said deceased the Probate Court ordered William B. Perry, cleric thereof, as commissioner, co sell certain property of the estate of said Watts in order to effect a partition of the effects ol the deceased among liis said heirs; that said Perry acted as said commissioner, and made the sale accordingly on the 5th day of November, 1S44 ; that Robert Robson became the purchaser thereat, and executed his promissory note for the purchase-money, payable to said Perry, eierlc of said Probate Court, and liis successors in offiee, in tho sum of eight hundred and thirty-one dollars and fifty cents; that said note was given for the use and benefit of the plaintiffs; that the said Perry had neglected to collect and pay over to the plaintiffs the money intended to be secured by said note; that said Robson had not paid the same to the plaintiffs, nor to said Petty,’nor to any person authorized to receive the same. Both Robson and Perry were made defendants. Th<? plaintiff's prayed judgment absolute against Robson, and judgment against Perry “ should it appear on the trial that the said William B. Perry has lawfully collected said note or any part thereof, so that said collection would operate as a payment of said note and diminish (.heir claim against said Robson, or if said Perry, by neglect or mismanagement, had permitted said petitioners’ claim and right against said Robson to be lost, that then and in that case they may have judgment against the said Perry for such sum as he may have so collected or permitted to be so lost to the plaintiff's,” &c. The defendants demurred to the petiiiou. The demurrer was sustained and. the case dismissed, and the plaintiffs appealed.
    ■ /. B. Jones, for appellants.
    
      J. Rivers, for appellee.
   Wheeler, J.

The ground on which the judgment of the court dismissing the case is sought to be maintained is that the note described in the petition, being payable to Perry, one of the defendants, the action can be maintained only in his name; that the heirs, in whom is the equitable interest, cannot maintain tire action in their own name.

We have repeatedly decided that the action may be maintained in the name of the party in whom is vested either the legal title or the equitable ownership. The plaintiffs here do not assert a legal title to the note, nor do they rely upon the note as their sole cause of action; but they set out specially the facts bjr which they are constituted the beneficiaries in the note, and which render the defendants answerable to them for its contents. It is sufficient cause for not having brought suit upon the note in the name of the party in whom is the legal title that the plaintiffs seek to hold him responsible in this action, as they may well do, for not having collected and paid over to them its contents. Tlie suit appears to have been well brought in the name» of the present plaintiffs; and the petition contains averments sufficient to charge the defendants, and put them on their defense as co-defendants to the action.

We are of opinion that the judgment be reversed and the cause remanded for further proceedings.

Judgment reversed.  