Gorton v. Potter

• Decision Date: 02 March 1889
• Citation: 16 R.I. 493,17 A. 909
• Parties: GORTON et al. v. POTTER et al.
• Court: Rhode Island Supreme Court

17 A. 909

16 R.I. 493

GORTON et al.

v. POTTER et al.

Supreme Court of Rhode Island.

March 2, 1889.

Exceptions from special court of common pleas, Kent county.

Action of trespass and ejectment by Alma Gorton, administratrix, and others, heirs at law of Benjamin T. Gorton, to recover from the defendants Potter and one Burdick possession of certain lands owned by said Gorton, while living. The first count of the declaration charged a wrongful dispossession by both defendants. The second count charged the defendant Potter with having been tenant of "Alma Gorton, administratrix, and as agent of the plaintiffs," and with holding over after the expiration of the term of tenancy. The tenancy rested on a sealed instrument signed by "Alma Gorton, Administratrix," and by William A. H. Potter. Alma Gorton was widow and administratrix of Benjamin T. Gorton. Judgment was given for plaintiffs, and the defendants excepted.

Dexter B. Potter, for plaintiffs. Samuel W. K. Allen, for defendants.

MATTESON, J. We are of the opinion that this suit should have been brought either by Alma Gorton alone, in which case she, as lessor, would have been entitled to recover possession of the land sued for as against the defendant Potter, the lessee, and also against the defendant Burdick, if holding as a tenant under Potter, on the principle that the lessee and those holding under him are estopped to deny the lessor's title, or that it should have been brought by the other plaintiffs as the owners of the land sued for, who, upon proof of their ownership, would be entitled to recover against both or either of the defendants, if wrongfully detaining the possession. But we do not think that Alma Gorton can properly be joined as plaintiff in the same suit with the other plaintiffs, she having, so far as appears, no interest in the land sued for except a mere right of dower. In ejectment, to entitle the plaintiffs to recover, all of them must have the right to demand possession from the defendant, or the action will fail. Waterman v. Andrews, 14 R. I. 589, 599, and cases cited. We think, too, that the declaration is defective as against the defendant Burdick. The first count charges the wrongful detention of the property by both defendants, but contains no averment that the premises sued for were an estate let. We think such an averment was necessary, the action being in a special court of common pleas. Champlin v. Horton, 12 R. I. 123. The second count sets forth a letting to the...