Hudson v. Coe

• Decision Date: 05 February 1887
• Citation: 8 A. 249,79 Me. 83
• Parties: HUDSON v. COE.
• Court: Maine Supreme Court

8 A. 249

79 Me. 83

HUDSON

v. COE.¹

Supreme Judicial Court of Maine.

February 5, 1887.

On report from supreme judicial court, Piscataquis county.

Action of indebitatus assumpsit for money had and received, brought by one tenant in common against his co-tenant for his share of rents and profits.

Charles A. Bailey, for plaintiff.

A. W. Paine, for defendant.

FOSTER, J. The parties to this suit are tenants in common and undivided of township No. 2, range 8, north of Waldo patent, in Penobscot county, contaming about 36 square miles. The plaintiff claims to recover as owner of eleven ninety-sixths, his share of stumpage, which the defendant, as part owner of the township, has collected and retains in his hands. The action is general indebitatus assumpsit for money had and received, and is brought, not upon Rev. St. c. 95, § 20, relating to actions between tenants in common, but at common law, based upon St. 4 & 5 Anne, c. 16, which is declared to be a part of the common law of this state. Richardson v. Richardson, 72 Me. 403.

1. The defendant contends that the plaintiff has no remedy at common law, and that, if entitled to any, it can exist only by virtue of Rev. St. c. 95, § 20, after demand in a special action of assumpsit. We are not inclined to this view, and such we think is not the law. The ancient rule of the old common law as laid down by Lord Coke (Co. Lit. 199-206) was that one tenant in common could not maintain an action against his cotenant for taking the whole profits of the common estate, unless he had been appointed bailiff by his cotenant. It was thus stated: "If one tenant in common maketh his companion his bailiff of his part, he shall have an action of account against him. But, although one tenant in common, without being made bailiff, take the whole profits, no action of account lies against him; for, in an action of account, he must charge him either as a guardian, bailiff, or receiver, which he cannot do unless he constitute him his bailiff." Sole occupancy alone was not sufficient upon which to maintain an action. Each was said to occupy per mi et per tout, and had a right to occupy the whole if the other tenant did not see fit to go in and occupy with him. Such occupancy was held to be no exclusion of the other, and no action would lie against the tenant who by such occupancy had taken the entire profits. But by St. 4 & 5 Anne, c. 16, § 27, this old doctrine of the common law of England was changed, and it was therein provided that an action of account might be maintained by one joint tenant or tenant in common against the other, charging him as bailiff for receiving more than his joint share or proportion; but, in order to maintain such action, it was necessary that one tenant should show, not mere occupation of the premises by another tenant in common, but an actual receipt by him of the rents and profits over and above his share thereof, and which actually belonged to his cotenant. To avoid the somewhat tedious proceedings pertaining to the old action of account, an action on the case upon a promise to account was at first substituted, (Brigham v. Eveleth, 9 Mass. 541;) and afterwards Lord Holt, in construing the statute, came to the conclusion that, whenever account could be maintained, indebitatus assumpsit might be also; holding that, the statute being a remedial one, it ought to receive a liberal construction. Jones v. Harraden, 9 Mass. 542. While the right of action was founded on the statute of Anne, and not by any right under the old common law, from the liberal construction placed upon it by a long series of decisions it became as firmly settled that the action of general indebitatus assumpsit for money had and received would lie in place of the old action of account, by one tenant in common against his cotenant, as bailiff, for receiving more than his share of the rents and profits. Such was the doctrine laid down in the cases to which we have referred; and. this form of action was sustained in Miller v. Miller, 7 Pick. 133, and 9 Pick. 34, to recover money due for the share of one tenant in common in the sale of trees from the common estate. It was allowed in Monroe v. Luke, 1 Mete. 459, which was assumpsit by one tenant in common against his cotenant to recover his share of rents; and it was there held that, where it was a claim for money actually received by the defendant, to which in some form the plaintiff has title, it could be conveniently settled in this form of action. It is said in Fanning v. Chadwick, 3 Pick. 424, that the action of account has become nearly obsolete in England, and that there seems to be no necessity for reviving it here, and that assumpsit now has all the advantages, without the disadvantages, peculiar to an action of account. In support of the same principle may be cited Coch- ran v. Carrington, 25 Wend. 410; Richardson v. Richardson, 72 Me. 403; Gowen v. Shaw, 40 Me. 58; Cutler v. Currier, 54 Me. 91; Holmes v. Hunt, 122 Mass. 513; Sargent v. Parsons, 12 Mass. 152; Dickinson v. Williams, 11 Cush. 258. It is an equitable form of action to recover money which the defendant in equity and good conscience ought not to retain. But when resorted to as the common-law action—the outgrowth of the statute of Anne, and independently ol Rev. St. c. 95, § 20—by one tenant in common against his cotenant, it is to be "restricted to cases where the money has been actually received, and the liability to account has resulted in a duty to pay money, or where the defendant holds the share as bailiff of the plaintiff, or the occupation has been by consent." Cutler v. Currier, 54 Me. 91.

2. It is also claimed in defense that this action cannot be sustained because the question of title is involved in it. But we have no doubt the action will lie, notwithstanding there may be a mere dispute raised by the defendant concerning the title, provided the plaintiff is owner of the estate, and was not disseized at the date when the income from the common estate was received in money by the defendant. Such is the conclusion of this court in the recent case of RichardsonV. Richardson, supra. Were it otherwise, the plaintiff in any ease seeking his common-law remedy under the statute of Anne, notwithstanding his title and seizin be complete, might be subjected to the annoyance as well as expense of a nonsuit, whenever the defendant cotenant might see fit to dispute his title. We do not mean to be understood as denying the general doctrine, where it has its proper application, that the title of real estate is not to be tried in an action of assumpsit; but we are satisfied that it has no application in the present case. It must also be borne in mind that this is not an action for use and occupation of the common estate under Rev. St. c. 95, § 20, which is a modification of the statute of Anne, but of indebitatus assumpsit authorized, through a long line of decisions, by the latter statute as the common-law action to recover the plaintiff's due proportion of moneys in the hands of the defendant which he has received from the common estate. Many of the decisions to which our attention has been called, and in which it is held that the title to real estate cannot be tried in an action of assumpsit, are those for use and occupation, depending upon contract express or implied between the parties, and which have no application to the case at bar. There are many cases where the right to recover depends upon the title, yet they are not cases in which the title is tried, within the meaning of the rule. Neither does the rule prevent an action for money had and received in many cases which require an investigation of title, as was held in Pickman v. Trinity Church, 123 Mass. 6.

The plaintiff...