
    JOHN R. DAVENPOET, ADM’R OF BRADY, v. THE UNITED STATES AND THE KIOWA AND COMANCHE INDIANS.
    [Indian Depredations 3534.
    Decided June 29, 1896.]
    
      On the Proofs.
    
    The children of a deceased claimant institute suit within the jurisdictional period. Three days after its expiration the administrator applies to he and is substituted as party plaintiff. On the trial it is insisted that no such substitution can he made after the period expires.
    I. Where an Indian depredation suit was instituted in due time by the children of a deceased owner, they being the parties really in interest, hut not authorized by the law of Texas to maintain an action, the administrator of the estate may be substituted at their consent as party plaintiff after the jurisdictional period has expired.
    II. The purpose of the jurisdictional period prescribed by the Indian depredation act is like that of the abandoned and captured property act, to bring all claims before the court within a defined period. Where the party who institutes an action is not authorized to bring it, but possesses some legal relation with the proper party concerning the cause of action, the latter may be substituted as claimant.
    
      The Reporters’ statement of tbe case:
    Tbe following are tbe facts of tbe case as found by tbe court:
    I. At tbe time of tbe depredation hereafter found, tbe decedent, William W. Brady, deceased, was a citizen of tbe United States, residing in Wise County, Texas. Tbe depredation was committed without his consent and without cause or provocation on bis part or that of any agent of bis. Tbe property has never been returned or paid for.
    II. At tbe time of tbe depredation tbe defendant Indians were in amity with tbe United States.
    III. In July, 1867, a party of Indians, belonging to tbe Kiowa and Comanche tribes, made a raid into and through tbe county of Wise, Texas, and took and drove away one pair of mules and four horses belonging to and in tbe possession of the decedent. Tbe fair and reasonable value of the property so taken at tbe time and place of taking was $650.
    
      IY. The present claimant, JohnB. Davenport, bas been duly-appointed administrator of the estate of the said William W. Brady, deceased.
    
      Mr. Silas Rare for the claimant.
    
      Mr. James M. Matthews (with whom was Mr. Assistant Attorney-General Rotury) for the defendants:
    So far as Davenport, administrator, the present claimant, is concerned, his petition was not presented to the court within the period prescribed by this act. He was no party to this proceeding until March 6,1894, three days after the expiration of the said period. He could not, by the adoption of the petition of the heirs of Brady as his own, occupy any higher ground or acquire any g-reater right as a suitor than he would have had if he had filed a new petition in his representative character on the same day that he was recognized by the court as a claimant. The claim he asserts can have no relation back to July 24,1891, when the heirs of Brady filed their petition. If it does, it makes him a claimant from a time that antedates his qualification as administrator. Prior to his qualification he had no legal capacity to sue; after his qualification he had such capacity and could, eo instanti, have filed his petition in this court to recover damages sustained by his intestate on account of the aforesaid depredation; but remained inactive until the statutory period of three years from the third of March, 1891, had fully expired, and three days after appeared in this court, by his counsel, and asked leave to prosecute this suit as administrator,- which the court, through inadvertence, allowed, its attention not being called to the fact that his right to sue was already barred. Between the time of qualifying and the expiration of the period of limitation there were sixty days within which the administrator should have instituted his action. He must fail now because of his own laches, and not because of any legal impediment in his way during the aforesaid intervening period.
    Laws limiting suits are founded in the noblest policy. They are statutes of repose to quiet titles, to suppress frauds, and to supply the deficiencies of proof arising from the ambiguity and obscurity or the antiquity of transactions. They proceed upon the presumption that claims are extinguished, or ought to be held extinguished, whenever they are not litigated in the proper forum within the prescribed period. They take away all solid grounds of complaint, because they rest on the negligence or-ladles of the party himself. (Story’s Conflict of Laws, sec. 576; Lewis v. Marshall, 5 Pet., 470; Hawlcins v. Barney’s Lessee, 5 Pet., 456; Glementson v. Williams, 8 Oranch, 74.)
    Had this action been brought by William W. Brady in his lifetime, and he had afterwards died, upon the suggestion of his death and proof that administration had been granted on his estate it might have been revived in the name of his administrator and there would have been no necessity for a new declaration or petition; but in the case at bar no death of the claimants, or any of them, had occurred, nor had they been placed under any legal disability to proceed in the case to its-finality. There was no law, statutory or otherwise, which, on the qualification of the administrator, abated the action as to-them and authorized its revival in the nam of the administrator, so as to put him in the same plight and condition in respect to the period of limitation fixed by the act of March 3,. 1891, as he would have been placed in had he instituted this-proceeding- on the same day that it was instituted by the heirs.
    The position taken by the defendants does not impinge on the rule that the legal rejiresentative of a decedent’s estate is the proper person to maintain a suit to recover property or debts due to the estate. ■ According- to the statute law of the-State of Texas, where William W. Brady was domiciled at the-time of his death, if is provided by article 1859, Devised Statutes Texas, 1879, as follows:
    “All applications for the grant of letters testamentary or of administration upon an estate must -be filed within four years after the death of the testator or intestate, and if four years-have elapsed between the death of such testator or intestate, and the filing of such application, such application shall be refused and dismissed.”
    In Wallcer v. Abercrombie (61 Texas, 69), it was held that when over three years had elapsed since the death of the intestate and no administration upon his estate had been applied for, and the estate was alleged to be insolvent, and it appeared that the debt which was sought to be recovered was community property between the decedent and Mrs. Abercrombie,, his widow, and was about to be barred by limitation, that she could maintain the action. And in Richardson v. Tanghan (86-Texas, 93), it was held that beirs can not sue without alleging and proving that there is no administration upon the estate, and that there is no necessity for one. To this rule an exception is recognized where suit is necessary for preservation of the estate, as it was in Walker v. Abercrombie (supra).
    Looking at the case at bar as it stood before the administrator of Brady was brought into it as claimant, and while it was being proceeded in in the name of the heirs, and considering it in the light of their petition and the cases cited, it will appear to the court, as it does to the defendants, that the action was not maintainable by the heirs because of their failure to allege in their peti' ion and prove that there was at the time no necessity for administration upon the said Brady’s estate. Had the action been cognizable in the courts of Texas, such allegation in the declaration would have been necessary for the court to take jurisdiction. Without it they would have held, as in the case of Richardson v. Yaughan (supra), that the claimants were not entitled to maintain the action, and dismissed the suit.
    The article of the Revised Statutes of Texas, 1879, which we have referred to and copied, was amended February 27,1893, by adding to it the proviso that it should not apply to the citizens of the State' who have suffered losses by Indian depredations and have died since such loss; and that administration in such cases may be granted u without regard to the date of death when the applicant for letters alleges in the application that the testator or intestate suffered losses by Indian depredations, and that letters are sought for the purpose of enabling him or her to bring suit in the United States Court of Claims to recover compensation for such loss under the act of Congress of March 3, 1891, entitled ‘An act to provide for the adjudication and payment of claims arising from Indian depredations.’ ”
    Under this act as amended, John R. Davenport qualified on January 3,1894, as administrator of the estate of William W. Brady, deceased, but failed, as we have before stated, to bring suit in this court to recover compensation for the alleged loss sustained by his intestate within three years after the passage of the act of Congress of March 3, 1891, which forever thereafter barred the claim.
   Nott, J.,

delivered the opinion of the court:

In tlie recent case of Duran (ante p. 353), it was held that the proper Indian defendant might be brought in after the jurisdictional period had expired for bringing actions under the Indian depredation act 1891. The present case presents the converse of the question there considered; it is whether a change and substitution can be made in the party plaintiff.

The facts which present this question are these: The children of a deceased owner of property taken by Indians instituted the suit within due time. After they had brought their action and within the jurisdictional period for bringing suits an administrator was appointed of the estate of their deceased father. Three days after the period for bringing an action in his own name had expired he was substituted as party plaintiff in this case. There was'no antagonism between him and the children of his decedent, they going out and he coming in, to the end that the suit might be prosecuted by the proper party.

The counsel for the defendants contend that under the law of Texas, the domicile of the owner of the property, the children could not maintain an action concerning it. The court is satisfied that this position is well taken, but at the same time is of the opinion that in furtherance of justice the change and substitution of the proper for the improper party may be and should be allowed.

■In numerous cases under the abandoned and captured property act such changes of party were allowed after the jurisdictional period for bringing such suits had expired, provided always that the cause of action was not misdescribed in the original petition and that the party substituted possessed some legal relation concerning the cause of action with the party who in due time had brought the suit. Thus the administrator was substituted for the distributees (Cowan Infant’s Case, 5 C. Cls. R., 107); the executor for the legatees (Thomas Case, 15 id., 335); the assignee for the bankrupt (Payan’s Case, 7 id., 400); the husband for the wife (Green’s Case, ibid., 496). In one of the English cases cited in Green the Court of Exchequer allowed the writ and all subsequent proceedings to be amended by adding the name of the official assignee in bankruptcy as another plaintiff, because “ it appeared that, if the amendment were not made, the statute of limitations would be a bar to the recovery of the debt for which the action was brought.” (Brown v. Fullerton, 13 Mees. & Wels., 556.) And in another English case, also cited in Green, the same court and for the same reason allowed, the plaintiffs to amend the writ by adding as plaintiffs the names of eight new parties, these new parties being in fact copartners in trade with those in whose name the suit originally stood. (Carne v. Malins, 6 L. & Eq., 568.)

Such was the uniform practice under the abandoned and captured property act; and in one case where the point was carried to the Supreme Court that tribunal impliedly upheld the practice and awarded a judgment in favor of such a substituted claimant. (Elgee Cotton Cases; see 15 C. Cls. R., 349, where the history of the cases is given.)

With this judicial record existing, when Congress inserted a similar jurisdictional period in the act of 1891, we must hold that the purpose of the statute was to bring all claims before the court within a defined period, but that it was not the purpose of Congress that a meritorious cause of action should fail for a technical defect of parties where the error came from a mistake of law and not from a misrepresentation of fact.

The amity of the Indians is a subject of contention; but it was determined in the recent case of Gamel. The defendants also contend that the cause of action is not sufficiently proved under the decisions in Stone (29 C. Cls. R., 111) and the recent case of Gossett (ante, p. 325). The court has no intention to depart from the principle laid down in those cases, but is of the opinion that the principal witness here, though interested in the event of the suit, is corroborated by the other witnesses sufficiently to maintain the case.

The judgment of the court is that the claimants recover the sum of $650.  