¶1Section one hundred and eleven of the Code declares that an action may be maintained by a grantee of land in the name of a grantor, or his or her heirs or legal representatives, when the grant or grants are void by reason of the actual possession of a person claiming under a title adverse to that of the grantor at the time of the delivery of the grant; and the plaintiff shall be allowed to prove the facts, to bring the case within this provision. (Code, § 111.) This statute is too explicit to doubt its meaning. It says, in terms, that the grantee may maintain the suit in the name of the grantor, in such a case; not that the grantor may bring the suit, but that the grantee may, in the name of the grantor. No effect whatever can be given to this statute, if the construction is to be put upon it that such suit may be brought in the name of the grantors, where they assent to the bringing of the same. This could be done before this statute was passed. Such a construction is not to be indulged. It is a familiar rule in the construction of statutes, that they should be so construed as to have some effect given to them; for it is to be presumed that something was intended by the lawgiver in their enactment. (Smith's Com. on Statute Con. p. 632, § 488.) If any effect is to be given to this statute, it is, that it authorizes the grantee, in such a case, to sue in the name of the grantor, without consulting him. There is nothing very unreasonable in this, when the grantor makes a conveyance which the statute forbids him to make, and declares void if he does make it, and which, in short, the statute makes a criminal offense in the grantor to do. (2 R.S. p. 691, § 6.) It appears from the papers used on this motion that the appellants Hamilton and Livingston did convey the premises in question in this action to William S. Gleason, when the defendant Wright was in the actual possession, claiming under a title adverse to them, and that the said Gleason brought this suit in their names, as we have already shown he lawfully might. These attorneys certainly incurred no personal responsibility in prosecuting this suit in the name of these appellants upon the retainer of Gleason. *509
¶2The will of Mrs. Livingston is not before the court on this motion, but I infer, from the deed and other papers used on this motion, that these appellants held this title in trust, as executors, and I am not able to perceive that it can make any difference with the case that this suit was brought in their names without describing them as executors or trustees. The suit could be as well maintained in their individual names, and their responsibility was in no manner increased thereby; and, as they were, in fact, the grantors, and it was their act in making this illegal conveyance in direct violation of the statute, that created the necessity of bringing the suit in their names, I do not think they can complain. The suit did not fail because it was not brought in their names as executors, but for the reason that the defendant Wright was proved to have held the premises under a title adverse to them for more than twenty years. In short, the defendant's defense, of adverse possession for over twenty years, was sustained, and the case went off upon that ground. I advise the affirmance of the order appealed. The appellants have now the order of the Supreme Court, that this judgment for costs be collected of Gleason in the first instance, if collectible of him. It is very questionable, I think, whether the appellants are in a position in this court where they can insist upon what are the real merits of this appeal, to wit, that the plaintiffs' attorneys should pay these costs, because they brought this suit in the name of these appellants, without their consent, or any authority from them. The order of the Supreme Court, from which this appeal is taken, does not determine the question whether these attorneys shall pay these costs or not, but, after ordering that the judgment shall be collected of Gleason in the first instance, the order expressly declares, that the question of the liability of the plaintiffs' attorneys for these costs is not determined, but left open. Now, if there shall be a failure to collect these costs of Gleason, the Supreme Court will undoubtedly require and order these attorneys to pay them, if it be lawful that they should do so. The appellants should have waited until the court below had passed upon this question. *510 They have no right to bring this appeal from this order, and ask this court, in the first instance, to make the order. I advise the affirmance of the order appealed from with costs.
¶3HUNT, Ch. J., and WOODRUFF, J., are of opinion that the grantee has the right to bring this suit in the name of the grantors, without their consent, but that this one hundred and eleventh section of the Code was not intended to give such authority, but to remove the difficulty which the Code imposes by requiring suits to be brought in the name of the party in interest.