Campbell v. Wallace

PaRker, C. J.

It may be questionable whether the validity of the partition of the estate of George Burns is of importance in the decision of this case. But we are of opinion that after the heirs had acquiesced in it, and an occupation had been had under it for the term of twenty years, the pro *367 ceedings in the probate court must be presumed to have been regular, and be held conclusive. It appears, therefore, that Esther Lovejoy was well seized of the demanded premises, by means of that partition. The execution of the note by her husband transferred no interest to him. If he had paid the money, there would have been no resulting trust for his benefit. The land was set oil’ to the wife, and the husband would have paid the amount for her, having the benefit of the use himself during the coverture. But it seems the payment was made, in part at least, by the conveyance of two other tracts of land which were the property of the wife.

It appears to be conceded by the course of the argument, that the defendant must rely upon the inability of the plaintiffs to make out their case in the first instance. As Esther Lovejoy never had issue, the land, upon her death, descended to her heirs, and the occupation of it afterwards by her husband, and his subsequent conveyance of it to Crosby, were unwarranted. Her heirs were her sister, Mrs. Tuttle, and the children of Mrs. Campbell, or those of them who may inherit.

The statute of limitations interposes no bar to the maintenance of this action. The descent was in 1816. In 1S35, Bowers, at the request of the attorneys of the plaintiffs, made an entry upon the land in their behalf, and the plaintiffs have ratified the act. This is sufficient to prevent the operation of the statute. 2 Fairf. R. 70, Richards & ux. vs. Folsom; Co. Litt. 258, a; 2 Strange 1128, Fitchell vs. Adams; 2 Kent's Com., Lec. 41; Despatch Line of Packets vs. Bellamy Man. Co. & Trustees, ante 205.

If the plaintiffs and Mrs. Tuttle are to be regarded as par-ceners, the entry of Tuttle and wife, if it was a general entry, might perhaps have availed for the benefit of the plaintiffs. Com. Dig., Parceners, A, 3; 2 Cruise’s Dig. 528.

A question is made whether there is any estate in copar-cenery under our statutes; and it is objected that if there is, the plaintiffs must be regarded as tenants in common, and the action therefore not well brought, because they have *368 joined in it; and further, that regarding them as coparceners, it cannot be maintained, because there is another who ought to have been joined.

By the statute of this state, regulating descents, males and females inherit together in equal shares. If there are no sons, and the estate descends to the daughters alone, there seems to be no reason why that does not constitute strictly an estate in coparcenery. And there is no essential difference in the quality of the estate where the descent is to males as well as females. They take in the same manner, and with equal rights. The title partakes of the nature of coparce-nery at the common law, and coparcenery by the custom of gavelkind in Kent, or may be said to be a union of the two. Litt. § 241; Co. Litt. 164; Com. Dig., Parceners, B.; Ditto, A, 7. “ An estate in coparcenery also frequently arises

in consequence of customary descents to all the children, in which case they are coparceners.” 2 Cruise's Dig. 537. The heirs of Esther Lovejoy come, therefore, within the description of coparceners, and might be so regarded if the case required it. The distinction between estates in coparcenery and in’coramon, is undoubtedly of limited importance, and is little regarded here. Chancellor Kent says — “ As estates descend in every state to all the children equally, there is no substantial difference left between coparceners and tenants in common. The title inherited by more persons than one is in some of the states expressly declared to be a tenancy in common, as in New York and New Jersey; and where it is not so declared the effect is the same ; and the technical distinction between coparcenery and estates in common may be considered as essentially extinguished in the United States.” 4 Kent's Com. 363, [367.] But we see no sufficient reason why those who thus take by descent should be imperatively required to sever in an action for the recovery of the land, and are of opinion that they may well be regarded as parceners, for the purpose of their remedy in this respect. If they may be considered as tenants in common, and if they may sever *369 as such, the technical reason why tenants in common must sever does not exist.

Regarding the children of Mrs, Campbell as coparceners, George B. Campbell ought to have been joined, if he is not an alien, and the descent was to him along with the others. Stearns on R. A. 197; 7 Mass. R. 136 , Daniels vs. Daniels. But the objection should have been taken in abatement. Co m. Dig., Abatement, E, 8 ; Co Litt. 164, a. This appears to be the settled rule, although the following paragraph, in a late treatise on real actions, by a distinguished jurist, seems to indicate an opinion that it ought to be otherwise. “ In the class of pleas to the person of the demand-ant, Comyns includes those which show that another ought to have joined as demandant in the writ. It is now well settled that in personal actions this defect need not be pleaded in abatement. If the fact appears in evidence on the general issue, or on any issue on which the plaintiff is put to show his title, or cause of action, as set forth in his declaration, he will be nonsuited, or have a verdict against him ; and there seems to be no reason why the same rule should not have been adopted in real actions.” Jackson R. A. 68. What class of personal actions is here referred to, is not said. If it be actions arising on contracts it is true, but there is little analogy between a writ of entry, founded on a disseizin by the defendant, and an action on a contract. In personal actions ex delicto, which have some similitude, the rule is otherwise. 1 Chitty’s Pl. 52, 53; 9 N. H. Rep. 74 , Wilson vs. Gamble.

In the view we have taken of the case, it is not important to consider whether the recovery by Tuttle and wife, of hei share of the land, was not a severance of the coparcénery.

If the plaintiffs were treated as tenants in common, the result must be the same. Viewed in that light, they ought not to have joined. 6 N. H. Rep. 330 , Hills vs. Doe; 1 Pick. R. 228, Rehohoth vs. Hunt.

The reason why the common law should have required tenants in common to sever in real actions is not perhaps per *370 fectly apparent. Although seized by several titles, so that they may be regarded as having several freeholds, a common ownership and a common wrong done might well have furnished the ground of a common action. They must join in trespass or nuisance to their land, (1 Chitty's Pl. 53; 13 Johns. R. 286, Austin vs. Hall,) and in detinue for charters. Co. Litt. 197, b. If one sue alone, it may be pleaded in abatement. Com. Dig., Abatement, E, 10. And it can be taken advantage of only in that way. 8 Johns. R. 151, (117, 2d Ed.,) Bradish vs. Schenck. So they must join in case, for the destruction of their charters or title deeds. 7 Mass. R. 135 , Daniels vs. Daniels.

In Massachusetts, Maine, and Virginia, they may join in real actions by statute. 1 Hilliard's Abr. 454, and cases cited; 12 Pick. R. 38, May vs. Parker; 2 Fairf R. 180, Swett vs. Patrick. And in Connecticut they may join by the common law of that state. 4 Day 298 , Bush vs. Bradley; 3 Conn. R. 191, Clark vs. Vaughan. In Vermont they may join in ejectment. 4 Cranch R. 164, Hicks vs. Rogers. Whether by the practice of that state, or by statute, was not settled. And in this state, where joint tenants sued, it was held to be no defence that they had since, by operation of law, become tenants in common. 6 N. H. Rep. 328 .

These cases may serve to show that the objection is one which cannot be extended by any equitable consideration. It is to be taken as matter of authority, on a technical reason.

In what manner the objection, that tenants in common have joined, is to be taken, does not very distinctly appear in the books. Comyns says that in a real action by two, when one only ought to sue, it may be pleaded in abatement. Com. Dig., Abatement, E, 15. But it seems that it is not always necessary to plead this matter specially, either in abatement or bar. Jackson R. A. 70.

In personal actions ex delicto, if too many be made plaintiffs, and the objection appears on the record, it may be the ground of demurrer, arrest of judgment, &c. If not appa *371 rent it may be taken on a motion for a nonsuit. Chitty's Pl. 54. The same principle seems to be applicable in real actions, if the objection is not required to be taken in abatement. There is nothing on the record here on which to arrest the judgment. The misjoinder was not moved as a ground of nonsuit, at the trial, and we are of opinion that it is too late to take the exception after verdict.

There is nothing in the case on which we can determine that George B. Campbell is an alien. The fact that he was born in Nova Scotia does not necessarily make him such. If, as was suggested in the argument, Robert Campbell, the father, was a British subject, the children may all be aliens. 2 Laws U. S., Story's Ed., 853; 4 Dane’s Abr. 700; 3 Peters' Rep. 242, Shanks vs. Dupont; 1 U. S. Digest 134, pl. 21; Ditto 135, pl. 28; 21 Wend. R. 392, Young vs. Peck; 17 Pick. 70 , Charles vs. The Monson & Brimfield Man. Co. But that fact does not appear, and is not to be presumed. The case shows him to have been a resident in this country, and to have married here: and the plaintiffs were bom here. His subsequent removal to Nova Scotia is, of itself, immaterial. The plaintiffs, therefore, as the case stands, make title to six-sevenths of the demanded premises.

Judgment for the plaintiffs.