Lane v. Dobyns

• Decision Date: 31 October 1847
• Citation: 11 Mo. 105
• Parties: LANE v. DOBYNS.
• Court: Missouri Supreme Court

11 Mo. 105

LANE

v.DOBYNS.

Supreme Court of Missouri.

October Term, 1847.

ERROR TO ST. LOUIS COURT OF COMMON PLEAS.

In this case the plaintiff sued the defendant in an action of trespass, and the declaration alleged that the plaintiff was legally entitled to the possession of certain premises, but that defendant entered thereupon and ejected plaintiff and took possession of the premises, and the rents and profits thereof for the space of four years, to the damage of the plaintiff five hundred dollars. To this declaration, defendant pleaded in abatement, that at the time when the trespasses mentioned in the declaration were committed, Cyprian Clamorgan and Henry Clamorgan were tenants in common of the premises whereon, &c., together with the plaintiff, and that both Henry and Cyprian were, at the time of bringing this suit, living in the city of St. Louis, and State of Missouri. This plea was by consent admitted without affidavit. To this plea, there was a demurrer, and at the hearing thereof, the court overruled the same and gave judgment that the writ be quashed, &c. To reverse this judgment, plaintiff sued out a writ of error.

GANTT, for Plaintiff.

1. Tenants in common cannot join in ejectment by the common law; they must sever. 1 Mo. R. 224; Chitty on Pl. 75, 76. 2. In action of trespass for mesne profits, tenants in common may join or sever. Raper v. Landsdale, 12 East, 39; Martin v. Crampe, Ld. Raym. 340; 5 Durn. & East, 248, and cases there cited: 1 Bing. N. C. 713 (27 Eng. Com. L. R. 555); Blacks. R. 1077; Cutting v. Derby, 14 Serg. & Rawle, 370; Ross et al. v. McJunkin, 2 Wils. 232; Heatherly v. Weston, 2 Caine (N. Y. Term R.) 175; Chitty on Pl. 75, 76. 3. Our enabling statute, first passed in 1839, merely allows tenants in common to join in an action of ejectment, but does not compel them to do so, or take from them the power of suing severally; and the law of Missouri allows a plaintiff suing in ejectment to recover not only the land sued for, but also the proportion of the profits to which he may show himself entitled, by way of damages. It is submitted that the same rules and principles should govern the action of trespass for mesne profits which are applicable to the action of trespass, and this is expressly declared in Blacks. 1077, to be the rule in a similar case

FIELD, for Defendant. It is a long established rule of the law that in all personal actions, including actions of trespass to real property, tenants in common must join. The following authorities are cited: Littleton, § 315, and Coke's Com.; Austin v. Hall, 13 Johns. 286; Decker v. Livingston, 15 Johns. 479; Sherman v. Ballou, 8 Cowen, 304; Hill v. Gibbs, 5 Hill's N. Y. R. 56, and note; Daniels v. Daniels, 7 Mass. R. 135; Murrill v. Beakshire, 11 Pick. 269; May v. Parker, 12 Pick. 34; Gilmore v. Wilbur, 12 Pick. 120; Bradly v. Boynton, 22 Maine R. 287. See also to same effect the recent work of Roscoe on Actions relating to Real Property, p. 665, and cases cited. The plaintiff in error is understood to rely on the text of Chitty's Pleadings. This is not sustained by the cases. See the remarks of the Judge, in Shearman v. Ballou, supra. There are cases in which one tenant in common can maintain trespass against his co-tenant, but these cases are nothing to the present purpose. The cases stand on different reasons. The ground on which tenants in common are required to join against a stranger is founded in public policy to prevent multiplicity of suits. This reason...