Mayo v. Jones, 1279--I

• Decision Date: 26 December 1972
• Docket Number: No. 1279--I,1279--I
• Citation: 8 Wn.App. 140,505 P.2d 157
• Parties: Jacque L. MAYO, Respondent, v. K. Dennis JONES and Jane Doe Jones, his wife, Appellants.
• Court: Washington Court of Appeals

Page 140

8 Wn.App. 140

505 P.2d 157

Jacque L. MAYO, Respondent, v. K. Dennis JONES and Jane Doe Jones, his wife, Appellants.

No. 1279--I.

Court of Appeals of Washington, Division 1, Panel Two.

Dec. 26, 1972.

Jack England, and Kay Dennis Jones, Seattle, for appellants.

Jackson, Ulvestad & Goodwin, Daniel G. Goodwin, Seattle, for respondent.

SWANSON, Judge.

K. Dennis Jones and wife, hereinafter referred to as Jones, appeal from a judgment awarding Jacque L. Mayo $4,002.73 on plaintiff Mayo's suit for an accounting based on an alleged partnership between the parties. The primary question presented in this appeal is, where a divorced couple holds a chose in action as tenants in common, may one of them prosecute that action and obtain a judgment without joining the other in the lawsuit?

Appellant Jones assigns error to the trial court's refusal to grant his motion to dismiss one-half of Mayo's complaint on the ground that Mayo is a tenant in common to the chose in action and therefore may not recover more than one-half of the claim. Appellant's argument is based upon the long-established rule in Washington that community property not disposed of in a divorce decree becomes property held by the former spouses as tenants in common. Ambrose v. Moore, 46 Wash. 463, 90 P. 588 (1907); Witzel v. Tena, 48 Wash.2d 628, 295 P.2d 1115 (1956). This rule is applicable to all community property not disposed of in a divorce decree, regardless of whether it is realty or personalty. Harvey v. Pocock, 92 Wash. 625, 159 P. 771 (1916); Barkley v. American Sav. Bank & Trust Co., 61 Wash. 415, 112 P. 495 (1911). It is conceded by the parties that the partnership interest which is the subject of this action was personal community property not disposed of by the decree granting the divorce of respondent Jacque Mayo and his then wife Rae Mayo, and therefore the respondent Mayo's interest in the partnership is that of a tenant in common.

It is also well settled that the interest of a tenant in common is presumed to be an undivided one-half interest in the common property, although that presumption is rebuttable. Iredell v. Iredell, 49 Wash.2d 627, 305 P.2d 805 (1957). To award Mayo only one-half of his claim would be to divide an indivisible interest. This cannot be done except in a suit for that purpose joining all tenants and initiated by one of their number, or by agreement of the tenants. We conclude the trial court correctly denied appellant's motion to dismiss one-half of Mayo's complaint. See generally 2 H. Tiffany, Real Property §§ 468--83 (3d ed. 1939).

Jones's next assignment of error presents a different question, namely, whether or not the trial court erred in refusing to grant Jones's motion to amend his answer to add the affirmative defense that all of the parties that should have been plaintiff were not before the court. Specifically, Jones contends that Mayo's former wife, as cotenant holding the common property, should have been joined as a party plaintiff to the lawsuit. We agree.

The underlying question presented here is whether or not one tenant in common, acting independently of his cotenants, may prosecute a cause of action against third parties, which action is the common property of the tenants. In an early case, our state Supreme Court held that a tenant in common could not maintain an independent cause of action of replevin to recover grain raised by the tenants but in the possession of a third party. Vermont Loan & Trust Co. v. Cardin, 19 Wash. 304, 53 P. 164 (1898). It is generally said that one tenant in common cannot maintain a replevin action without joining his cotenants because in such an action the plaintiff's right to possession must be exclusive in order to warrant a delivery of the property to him. Brandt v. Hershey, 198 Pa.Super. 539, 182 A.2d 219 (1962); See also Annot., 110 A.L.R. 353 (1937).

Further, and more directly analogous to the situation presented in the instant case, in Schneider v. Biberger, 76 Wash. 504, 136 P. 701 (1913), it was held in a wife's action seeking damages for an indecent assault, the husband was a necessary party to the lawsuit even though the suit was filed following the couple's divorce. The wife argued that it was unnecessary to join her former husband in the suit inasmuch as the decree of divorce had been entered prior to her bringing the tort action. The Supreme Court disagreed:

The divorce did not change the situation so far as property rights were concerned. The cause of action having arisen during the existence of the community, the damages would be community property, as the community status of property is determined and fixed at the time the property is acquired. . . .

The respondent (wife) could have had this cause of action awarded to her in the divorce decree had she submitted it to the court; but not having done so, its character is not disturbed by the decree. The community having been dissolved, there can now, of course, be no community property strictly speaking; but such property as was community property prior to the decree and not disposed of thereby would become common property, in which husband and wife would retain all the interest vested in them prior to the decree. (Citations omitted.) So that, whether the cause of action and the damages recoverable be now regarded as community or common property, the necessity for joining the husband in the action would be the same.

Schneider v. Biberger, Supra at 507, 136 P. at 702. Subsequent cases have cited Schneider primarily for the proposition that under the community property law then in effect the husband is the only necessary party for a wife's cause of action for her own personal injury. Hammond v. Jackson, 89 Wash. 510, 154 P. 1106 (1916); Ostheller v. Spokane & Inland Empire Ry. Co., 107 Wash. 678, 182 P. 630 (1919); Hynes v. Colman Dock Co., 108 Wash. 642, 185 P. 617 (1919); Clark v. Beggs, 138 Wash. 62, 244 P. 121 (1926); Erhardt v. Havens, Inc., 53 Wash.2d 103, 330 P.2d 1010 (1958). But see RCW 26.16.030.

It is apparent, however, that the Schneider court also based its holding on the proposition that the husband was a necessary party to the wife's action because her tort action was characterized as personal property held by the husband and wife as tenants in common. See Wampler v. Beinert, 125 Wash. 494, 216 P. 855 (1923). In this connection, the following statement in 2 H. Tiffany, Real Property 295 (3d ed. 1939), is helpful:

As a general rule, tenants in common should sue separately in a real action, since each has a separate and distinct freehold, while in trespass and other personal actions based on injury to the possession, which they have in common, they must join, unless there has been a severance of the claims, in the absence of statutory provision to the contrary.

Neither counsel for appellant or respondent has cited any authority or analysis on this subject, but our research indicates that there is no clear Washington authority on the applicability of the above-quoted rule and that the rule has not been uniformly applied in other jurisdictions.

Thus, it has been held that one tenant in common need not join his cotenants as party plaintiffs in an action for damages in trespass. Kitchens v. Jefferson County, 85 Ga.App. 902, 70 S.E.2d 527 (1952); Carlson v. McNeill, 114 Colo, 78, 162 P.2d 226 (1945). See Anchorage Yacht Haven, Inc. v. Robertson, 264 So.2d 57 (Fla.App.1972). But see Haught v. Continental Oil Co., 192 Okl. 345, 136 P.2d 691 (1943). There is, however, substantial authority to support the proposition that a tenant in common may sue in real actions without joining his cotenants because each has a separate and distinct freehold interest. Thus, a tenant in common may sue a stranger for possession of common realty. Lathem v. Lee, 249 Ala. 532, 32 So.2d 211 (1947). Accord, Garrett v. Oddo, 261 Ala. 172, 73 So.2d 761 (1954) (suit to enforce equity of redemption); Ayers v. Ayers, 261 Ala. 421, 74 So.2d 250 (1954) (suit for vendor's lien). Similarly, a tenant in common may maintain an independent action to remove a cloud from the title to the common property, Velasco v. Mallory, 5 Ariz.App. 406, 427 P.2d 540 (1967), or to enforce a restrictive covenant. Baton v. Key Prod. Co., 315 S.W.2d 59 (Tex.Civ.App.1958). But see Bryan v. W. T. Smith Lbr. Co., 278 Ala. 538, 179 So.2d 287 (1965); Lewis v. Romine, 128 Ind.App. 564, 151 N.E.2d 156 (1958). See generally 86 C.J.S. Tenancy in Common § 142 (1954).

The distinction between real and personal actions involving tenants in common becomes more clearly apparent in cases involving leaseholds. Thus, although one tenant in common may sue in ejectment to recover his interest in common land without joining his cotenants because in such an action he is seeking to recover his separate right in the land, all tenants in common must join in a suit by one of their number to cancel or rescind a lease because the lease contract is an entire and indivisible interest. Kentucky Nat. Gas Corp. v. Duggins, 165 F.2d 1011 (6th Cir. 1948). Accord, Sadler v. Public Nat'l Bank & Trust Co., 172 F.2d 870 (10th Cir. 1949); LaFargue v. LaFargue, 210 Ark. 97 194 S.W.2d 438 (1946); Needleman v. American Clothing Co., 115 Vt. 426, 63 A.2d 201 (1949).

In London v. Kingsley, 81 F.Supp. 83 (M.D.Pa.1948), it was held that as to suits by tenants in common against third persons, all tenants must join in personal actions concerning the common property or based on a common right growing out of the property, unless there has been a prior severance of claims. The London court also indicated that it considered tenants in common to be indispensable parties to personal actions under the criteria set forth in State of Washington v. United States, 87 F.2d 421 (9th Cir. 1936). It has also been held that a statute authorizing the addition of new parties at any stage of a lawsuit does not abrogate the common law rule that tenants in common must be joined in actions...