Dube's Heirs v. Smith's Heirs

• Decision Date: 31 May 1823
• Citation: 1 Mo. 313
• Parties: DUBE'S HEIRS v. SMITH'S HEIRS AND EASTON.
• Court: Missouri Supreme Court

1 Mo. 313

DUBE'S HEIRS

v.SMITH'S HEIRS AND EASTON.

Supreme Court of Missouri.

May Term, 1823.

ERROR FROM ST. LOUIS CIRCUIT COURT.

MCGIRK, C. J.

This was an action of ejectment, in the Circuit Court of St. Louis county. Verdict and judgment for the defendants in the court below; to reverse which the cause is brought here. We are of opinion there are several errors in the record; but if the judgment is, on the whole matter, for the right party, it cannot be reversed.^(a) This brings us to the consideration of a matter arising out of the record, which is that these plaintiffs are, by the statute of descents, tenants in common. The common law is that tenants in common cannot join in an action of ejectment. These three plaintiffs are females, and, by the common law, would be co-parceners of the joint inheritance of their ancestor; but the statute says they shall inherit and enjoy, as tenants in common, in equal parts. It is argued that the reason why tenants in common could not join at common law fails here, namely: that it would bring into investigation several titles in one suit, but that with respect to parceners and joint tenants, they must all join in these cases, there is but one title, and but one investigation as to title; and, also, that each one is seized of all. In this case there is but one title, and one investigation as to title would only be required. But let us consider if there could be any reasons worthy of legislation to induce the Legislature to change the nature of the estate, as well as the matter of the remedy.

But two objects can be perceived to induce the Legislature to change the nature of the enjoyment of this sort of estate: one seems to have been to prevent survivorship; the other to enable each tenant to go to law about his right, without being subject to the inconvenience of summons and severance, if his co-tenant should be unwilling to join him. And the latter reason may have been, indeed, the only one; for it will be remarked that this statute was passed January 21st, 1815. At this same session the Legislature adopted the common law of England. But prior to this period the act of Congress required that judicial proceedings should be according to the common law; so that, at the time this statute of descents was passed, the common law and its consequences were in full view before the Legislature. It is not enough to say this statute was only made to avoid the jus accrescendi. This survivorship would not have taken place here if ...