Mooers v. Bunker

Bell, J.

The provision of the Revised Statutes upon which this action is founded, and on which alone it can be supported, is as follows: “ Any co-tenant of real estate may recover, by action of assumpsit, against any one or more of his co-tenants, his just share of the value’of any trees destroyed, cut or carried away by such co-tenant, which were standing, lying or growing on such real estate, or of any other property attached thereto, and destroyed, severed or carried away by such co-tenant.”

It is urged by the plaintiffs’ counsel that this section is merely a revision of the second section of the act of 1834, entitled “ An act relating to co-partners,” &c., (Laws, 1834, p. 150,) and should, therefore, receive the same construction. The general principle relied on in support of this view, that where, a section of a former statute is merely abridged, with such changes of phraseology as are necessary to effect such abridgement, it will not be taken that there was any design, on the part of the Legislature, to change either the effect or the construction of the statute, is, in our view, correct and sound. If this should be found, on examination, to be the character of the alteration in these provisions, we shall yield our assent to the conclusions of the plaintiffs. But, we think, there are manifest indications that the Legislature did not intend to reenact the statute of 1834, with such verbal alterations only as were designed to give it a more condensed and concise form.

By the statute of 1834, it was provided that the actions of assumpsit might be actions for money had and received or otherwise. This provision is entirely omitted. The action *428 now authorized is for the co-tenants’ just share of the value of the trees destroyed. By the statute of 1834, the action was for the full amount of the damages the co-tenant or co-tenants may have sustained by the cutting. There seems an apparent design materially to change the provisions of the statute of 1834, and no inference can, therefore, be drawn from one, as to the just construction of the other, except as to those parts where the phraseology is substantially the same. In other cases, the statute provisions of 1842 are to be construed as original enactments.

This action is brought by four tenants in common, coheirs of one* share of the estate of Paul Eaton, deceased, under whom they claim, there being other tenants in common of four other similar shares not joined in the action. It was objected that the plaintiffs cannot recover, jointly, in this action. The action should be brought by each co-tenant, severally; or, if not by each, then it must be brought by all; that it cannot be brought by more than one, unless all join. It is not questioned that this is the rule in actions of assumpsit at common law. But, it is said, that this being a statutory remedy, an action of assumpsit for what is, in its own nature, a tort or trespass, the rules applicable to the ordinary action of assumpsit ought not to be applied, but rather those proper to actions of tort, where, if exceptions are not taken for nonjoinder of parties by plea in abatement, they cannot be taken under the general issue. It seems to us, however, that the argument of the defendant’s counsel is much more cogent, that, when the Legislature authorize an action of assumpsit, in a case where there is no contract, in fact, where the injury to be redressed is, in its nature, a tort, for which trespass or trover, would be the natural remedy, they must have regarded the action as having qualities more suitable than the others, in this particular case, and must have designed to preserve those peculiarities. It is not, however, necessary to resort to either of these views, since, we think, the language of the statute *429 perfectly decisive. The co-tenant is to recover his just share of the value. The rule is clear, that in construing these statutes, words in the singular’number may be construed to include more than one, if the sense requires or admits of it. Rev. Stat. ch. 1, § 1. But, in this connection, the sense does not admit of if. If several owners could have among them a just share in common, there is nothing in the language to prevent their bringing a joint action for it; but the difficulty is, there is no common interest in these shares. The share of each co-tenant is his alone. None of the others have any interest in that share, though they have similar interests in their own shares. Several co-tenants have, therefore, no common interest in the amount recovered. Each has his own share in severalty. And if two join in an action and recover, they recover not their joint shares, but their separate shares. The wrong done to one is not a wrong done to his fellow, and, therefore, each must, at law, according to the principles adopted in all forms of action, bring his action severally. There is no analogy between this ease, of an action by one tenant in common against his co-tenant, and the ease of co-tenants suing a stranger, for a wrong done to the common interest. The damages resulting from such an injury are, like the property affected by the injury, common. They, and every part of them, belong, in just proportion, to each of the co-tenants. Each of these is equally entitled to the extent of his interest in the sum to be recovered, and all may reasonably and properly join in the action. Until some partition is made, their right of action is joint, and they have no separate interests. But as between themselves, the shares and rights of the co-tenants are entirely distinct, and neither has any right to complain, except of an injury done to himself.

In the terms of the statute, the action is given to one tenant in common against one or more of his co-tenants. The reason of which seems very apparent. Though several co- *430 tenants, in the nature of things, can have no common interest in each other’s shares, yet several co-tenants may join in committing a wrong upon the common property, and there is, in such case, the utmost propriety in their being, jointly, liable to each of their fellows for the amount of their respective shares.

This action being brought, jointly, by four persons, w7here they have several interests and no right of action in common, cannot, therefore, be supported.

The case of Blake v. Milliken, 14 N. H. Rep. 212 , cited by the counsel, being decided upon the statute of- 1834, which, in terms, authorized the action to be brought by several co-tenants, is not in conflict with this decision.

It is merely a corollary from the principles stated, that the motion to amend cannot be allowed.

In the action Wright v. Cobleigh, 1 Foster’s Rep. 339, we had occasion to consider the question whether the declaration, by one tenant in common against another for a share of any property received and not accounted for, should be special; and we were then of the opinion that the provision of the statute of 1834, which allowed the action for money had and received being repealed, no general count could be supported, but the declaration must be.special. The general principle is clear, that the declaration must allege all the facts which are necessary to be proved, in order to maintain the action, and there is no reason for any exception in that case. The present case is, in this particular, identical with the'case of Wright v. Cobleigh, and must be governed by it. The plaintiffs’ action cannot be sustained in its present form.

In the previous section the action is, in terms, granted in cases where the property sued for has not been accounted for, delivered, &c., on demand. And it was held in Perley v. Brown, 12 N. H. Rep. 493 , that a demand was necessary, to entitle the plaintiff to his actioñj~of some specific property. Butin the seption under which this action is *431 brought, no demand is, in terms, required by the statute, and we do not perceive any thing in the nature of the case to render a demand essential. We think, therefore, the objection founded on the want of any allegation or proof of demand not well founded.

The remaining question relates to the proof of title in Timothy Mooers, the plaintiff. If the defendant would deny that there is any such person as the plaintiff, that, as is contended, can be done only by a plea in abatement. No question can now be made that there are such plaintiffs, and, of course, that-there is such a person as Timothy Mooers, who is competent, if he can establish thentitle he sets up, to maintain the action. That right is controverted by the general issue, and the burden is upon the plaintiff to prove it. If the declaration had been special, as we think it should have been, it would have alleged, substantially, that Timothy Mooers was seized of a certain share or proportion of the real estate upon which the trees in question were cut, in common with the defendant; that the defendant cut, &c., and thereby became accountable to him for his share of the value of the same, and in consideration thereof promised to pay, &c. Under a general count, these facts would be the essential matters to be proved, the ownership in common and the cutting. The first thing to be proved is, that the plaintiff is seized of the share he claims of the real estate. If his name is John Smith or John Jones, or any of the common and frequently recurring names, it would be at once apparent that, to prove a John Smith to be entitled, is but one step to prove the plaintiff’s title, the next is to prove that he is the same person. In the nature of things, the same question must arise in every case. It is not often a matter of controversy whether the identity of the plaintiff is established, because the doubt, if any arises, can generally be readily removed. But if a question is made, a jury is not at liberty to presume that a person even of so peculiar a name as Timothy Mooers, is the same person as the man of the *432 same name who is shown to be entitled to a particular estate.

In a case of some interest in its time, the Berkley Peerage Case, 4 Camp. 401, a failure to establish the identity of the plaintiff’s ancestor, and the son of a deceased peer of the same name, was the only deficiency in the chain of the claimant’s title. Beyond the identity of name, no evidence could be produced that the persons were the same.

The evidence of the witness, French, as it was given before the case was postponed, was that Timothy Mooers, his nephew and the grandson of Paul Eaton, had not been heard of in the family for ten years. The lapse of seven years without a person being heard of, raises the presumption that he is dead. Smith v. Knowlton, 11 N. H. Rep. 191. To rebut this presumption, it became incumbent on the plaintiff to produce some evidence. The evidence he did produce was merely hearsay, and, therefore, inadmissible. The witness who knew the fact should have been produced. Hearsay is, in some cases, evidence in relation to. pedigree, but it is admissible only when it appears that the person whose statements are repeated is dead. Waldron v. Tuttle, 4 N. H. Rep. 378 , and Emerson v. White, decided at this term.

Judgment on the verdict.