Clapp v. Pawtucket Inst. for Sav.

• Decision Date: 05 March 1887
• Citation: Clapp v. Pawtucket Inst. for Sav., 8 A. 697, 15 R.I. 489 (R.I. 1887)
• Parties: CLAPP v. PAWTUCKET INSTITUTION FOR SAVINGS.
• Court: Rhode Island Supreme Court

8 A. 697

15 R.I. 489

CLAPP

v. PAWTUCKET INSTITUTION FOR SAVINGS.

Supreme Court of Rhode Island.

March 5, 1887.

Assumpsit. Heard by the court, jury trial being waived.

William H. Clapp, pro se ipso.

Oscar Lapham and John P. Gregory, for defendant.

MATTESON, J. This is an action of assumpsit for money had and received. The plea is the general issue. It appeared in evidence at the hearing, jury trial having been waived, that Daniel D. Sweet, Ephraim W. French, and Harrison Howard, copartners in business as D. D. Sweet & Co., executed and delivered to the defendant a mortgage deed, dated November 1, 1866, conveying certain real estate therein described, owned by the mortgagors, and used by them in carrying on their partnership business. This mortgage contained a power of sale authorizing the mortgagee, in case of a breach of the condition of the mortgage, to sell at public auction the mortgaged estate, and to receive the proceeds of sale; and requiring it, after payment, from such proceeds, of the expenses of sale and the mortgage debt, to account to the mortgagors, their heirs and assigns, for the surplus. It also appeared in evidence that, subsequently to the making of this mortgage, Daniel H. Arnold was admitted into the firm of D. D. Sweet & Co., and received from his copartners a conveyance of one-fourth of the mortgaged property, which was thenceforth, until the sale thereof by the mortgagee hereinafter mentioned, held by the owners thereof in fourths; that early in 1870 Daniel D. Sweet withdrew from the partnership, and conveyed his one-fourth to Frederick Sherman, who then became a partner with the other persons named above in the place of Sweet; that on May 1, 1879, Daniel H. Arnold also withdrew from the partnership, and conveyed his one-fourth to Charles Moies; that on August 30, 1883, Harrison Howard assigned his one-fourth to the plaintiff; that on August 9, 1884, the defendant sold the mortgaged property under the power above mentioned; and that, after payment of the expenses of sale and the mortgage debt, there remained in its possession a surplus of $2,248.75. It further appeared that after the sale, on the same day, the plaintiff demanded from the defendant one-fourth of this surplus, and that, payment being refused, he subsequently brought this suit to recover said one-fourth, with interest.

The defendant takes the point that the plaintiff cannot recover because the evidence shows that French, Sherman, Moies, and the plaintiff are equally entitled to the surplus as tenants in common, and that one tenant in common cannot sue separately from his co-tenants. We think the point is well taken. Pub. St. E. I. c. 230, § 1, relating to suits by tenants in common, extends only to actions of ejectment, or other actions where possession of the estate claimed is the object of the suit, and authorizes the bringing of suits by all, or by any two or more, or by each for his particular share. At common law the rule in relation to suits by tenants in common was that in real actions they should sue separately; the reason being, it is said, that serious embarrassment might otherwise often arise, because, though the possession of tenants in common is joint, they hold by distinct titles; and as, in many cases, these titles were required to be stated, and were subject to be traversed, it might often happen that numerous issues would be introduced into a suit to which some of the plaintiffs would be strangers, but which they nevertheless would be bound to maintain, or fail in the action. Stevenson v. Cofferin, 20 N. H. 150. In personal actions, on the other hand, this, difficulty did not exist, and hence, in such actions, whether arising ex delicto or ex contractu, tenants in common were required to join. The purpose of this latter rule is to prevent a multiplicity of suits, and it applies unless there has been a severance of the claim; as, for instance, where the defendant has previously to the suit promised to settle or has settled with one of the claimants for his share, (Austin v. Walsh, 2 Mass. 401,405; Baiter v. Jewell, 6 Mass. 460,461; Beach v. Hotchkiss, 2 Conn. 697; Stedman v. Shelton, 1 Ala. 86-88; Parker v. Elder, 11 Humph. 546, 547;) or whereone of the co-tenants has previously brought an action, and, the non-joinder of the others being waived, the suit has been tried upon its merits, and has resulted in a judgment for the defendant, in which case, as such co-tenant is precluded, by the principle of res adjudicata, from suing again, his co-tenants are permitted to sue without him, (Brizendine v. Frankfort Bridge Co., 2 B. Mon. 33;) or where one co-tenant has previously brought suit, and has, by the failure of the defendant to take advantage of the non-joinder of the others, recovered judgment for his share, and can therefore maintain no further suit, in which case, also, the others may sue without him, (Sedgworth v. Overend, 7 Term R. 279; Starnes v. Quin, 6 Ga. 84, 87.)

Hill v. Qibbs, 5 Hill, 56, was a case very much in point. It was a motion to set aside the report of referees in an action for money received to the plaintiff's use. The facts as they appeared before the referees were as follows, viz.: The plaintiff's wife and her sister, a Mrs. Bennett, as two of the five children and heirs at law of John F. Lossley, claimed each one undivided fifth of a tract of land containing 600 acres. They, with the consent of their husbands, employed the defendant, an attorney at law, to recover the land. The defendant brought actions of ejectment against the tenants in possession of the land, one of which was tried, and resulted in a verdict for the plaintiffs. A compromise was then made by which the claimants released their interest in the land to the tenants, and the tenants agreed to pay the claimants $4,000 and the taxable costs of suit. A part of the money was paid down, and for the residue securities were given, payable in installments. Some of the securities were made payable to the plaintiff and wife, some to Bennett and wife, and others in a different form, but without reference to the respective shares or interest of the two wives. The defendant made this arrangement as the agent of the claimants, and the securities were left in his hands for him to receive the money when it became payable. Out of the first moneys received, the defendant was to be paid his expenses and charges, beyond the taxable costs, and these were subsequently adjusted between the parties at $881.86. The defendant received the money on the securities as it became due, and made remittances to the plaintiff from time to time, amounting in the whole to $1,250. What payments he had made to Bennett did not appear. It was agreed between the parties that Mrs. Bennett was entitled to the larger share of the money, for the reason that the claim of Mrs. Hill to a part of the land had been barred by the statute of limitations; and the arrangement was that the defendant should decide between the two women, as to their respective shares, when the parties should all be together. The parties, however, lived in another state, and no meeting was had until after the suit was brought, when the plaintiff refused to have the defendant make the division. The whole business with the defendant was conducted by the wives, with the consent of their husbands. Mrs. Bennett testified that the moneys received by the defendant were the joint moneys of herself and Mrs. Hill; that she and her sister were both agreed that she was entitled to the larger share, but could not agree upon the proper division. The referees decided that they could not report any sum for the plaintiff, upon the ground that the deposit of the securities with the defendant was the joint act of Mrs. Hill and Mrs. Bennett, and no proceedings had been had between the parties to enable the referees to decide what particular sum either party was entitled to receive, or whether the defendant had accounted to the plaintiff for as much of the fund as was his due, and they therefore made a general report that nothing was due the plaintiff. The court denied the motion to set aside the...