¶1By the Court,
¶2Although after the overruling of the demurrer, an answer filed in this case and a trial had upon the merits, resulting in favor of the claim of respondent, yet it is conceded that if the demurrer was in the first place well taken, it may be insisted upon, and would operate as a reversal and a dismissal of this cause upon appeal. (Civil Code, § 70.)
¶3The question in this case is, has an administrator authority, by virtue of his office or position as such, to litigate questions of title, concerning the real estate of his decedent, upon a showing such as is set out in plaintiff’s complaint ?
¶4It is claimed by counsel for respondents that an administrator has such authority, derived from § 29 of the Civil Code, and from the other sections of the statute, cited by *330them in their brief, defining the powers and duties of executors and administrators. On the other hand it is urged, by counsel for appellant, that the only authority over or concern with the real estate of his decedent which an executor or administrator possesses is derived from statute, and is limited to his right to the temporary possession of the same during the course of administration for the purpose of preserving the land from waste, with the right to temporarily lease the same and collect the rents and profits, and, if necessary, after exhausting the personal assets, upon a proper showing, to obtain an order from the County Court to sell the same, or so much thereof as may be necessary to pay claims against the estate and expenses of administration.
¶5The authority of an executor or administrator, over the real estate of his decedent, being in derogation of the common law, we think is, and ought to be, strictly limited to his rights and powers as created and defined by statute. And we think it would be an unwise and unwarranted construction of the authority of executors or administrators to infer from any language found in the statute on that subject that they might, upon their own motion, institute suits to set aside conveyances, or remove clouds from titles to real estate, without any showing as a condition precedent, that the possession of the same was wrongfully withheld, or that there was any necessity for selling the same, or any part thereof, to satisfy claims against the estate.
¶6The rule, as declared by our Practice Act, and conclusively sustained by reason, is that all actions or suits shall be prosecuted in the name of the real party in interest. There can be no question about the wisdom of this rule, and it should be strictly adhered to in all cases which do not come within the exceptions to it, as declared by statute.
¶7No one is better qualified to litigate the title to real estate than the person who owns it. An administrator who has no direct interest in the result of a suit, who personally loses nothing if the suit be injudiciously instituted and adversely determined, is not as safe a person to entrust with the right to litigate as he who is the owner of the property *331which is the subject of litigation and the one who must suffer if the determination of the cause be adverse to him. A due regard for the rights of both heirs and creditors of estates, we think, demands that the limitations of our statute, on the authority of executors and administrators, to institute suits, affecting the title to real estate, should be carefully guarded so that estates may not be subject to be consumed by the costs and expenses of ill-advised lawsuits.
¶8In this case, whatever tli'e facts may have been, so far as anything appears in the pleadings, or any of the proceedings, Boyd, the appellant, never wrongfully or otherwise withheld the possession of the land in controversy from the administrators, and there was no occasion or necessity for the sale of the same, or any part thereof, to pay claims against the estate. In the absence of any showing, by the administrators, that there was some necessity for their interference with the lots in question, for some purpose of administration, recognized by the statute, they had nothing to do with the same, and 'it was by the law the absolute property of the heirs of Vm. M. King, to whom it descended.
¶9But there is another provision of our statute on this subject which is not referred to, in the briefs of counsel which we think is conclusive of this case. Section 1135 of the Code reads: “Whenever the assets of the estate are insufficient to satisfy the funeral charges, expenses of administration, and the claims against the estate, and the deceased shall in his lifetime have made or suffered any conveyance, transfer or sale of any property, real or personal, or any right or interest therein with intent to delay, hinder or defraud creditors, or when such conveyance, transfer or sale has been so made or suffered, that the same is void in law as against creditors, or when the deceased in his lifetime has suffered, consented or procured any judgment or decree to be given against him with such intent, or in such manner as to be likewise void, it is the duty of such executor or administrator to make application by petition to the County Court or Judge thereof for leave to commence and prosecute to final judgment or decree, the necessary and proper *332actions, suits or proceedings, to have such conveyance, transfer, sale, judgment or decree declared void, and the property affected thereby discharged from the effect thereof.” (Civ. Code, U 1136> 1137-)
¶10The object and effect of § 1135 of the Code as above quoted, we are clearly of the opinion is to declare that an executor or administrator shall not, upon his own motion, and without any showing of a necessity therefor, for the purposes of administration, institute or maintain suits to determine questions affecting thé' title to the real estate of decedent. /
¶11We think that appellant’s demurrer was well taken, for the reason that the complaint does not state facts sufficient to constitute a cause of suit in respondents as administrators of the estate of Wm. M. King, deceased. And the decree of the Court below should be reversed and this cause dismissed'without prejudice.