McPherson v. McPherson

• Decision Date: 31 December 1850
• Parties: JOHN McPHERSON et al. v. ALEXANDER McPHERSON et al.
• Court: North Carolina Supreme Court

11 Ired. 391

33 N.C. 391

53 Am.Dec. 416

JOHN McPHERSON et al.

v.ALEXANDER McPHERSON et al.

Supreme Court of North Carolina.

December Term, 1850.

In the action of account there are two judgments; first, that the plaintiff and defendant account together; secondly, that the plaintiff or the defendant recover the balance found to be due from the one to the other.

In order to obtain the first judgment, it is not necessary for the plaintiff to shew that the defendant is indebted to him as bailiff, &c. He need only shew that he is bound to account with him as bailiff, or as a tenant in common, who has been in the pernancy of the profits, and the right to this judgment can only be barred by proof on the part of the defendant that he has already accounted, or by a denial, uncontradicted on the part of the plaintiff, of the existence of any such relation between the parties, as gives the plaintiff a right to call for an account.

Where there are several tenants in common, some of whom have been in the receipt of profits and some not, each of the latter must bring his own action of account for what he claims--they cannot bring a joint action in the names of two or more, to recover their several shares.

So where several tenants in common receive the profits, unless it can be shewn that they received them jointly as partners, an action of account cannot be brought against them jointly, but each must be sued separately.

If either of these cases appear upon the trial, the Court will order a non-suit??

Every tenant in common, who has been in the enjoyment of the property, is liable to account; and it is not material what was the mode of enjoyment, whether he used it merely for shelter, or as a means of supporting himselfand family, or made money by selling the products, or received money as rent.

The case of Powell v?? Mathis, 4 Ire. 83, cited and approved.

Appeal from the Superior Court of Law of Cumberland County, at the Spring Term 1850, his Honor Judge SETTLE presiding.

This is an action of account, brought by the plaintiffs, alleging that the defendants were tenants in common with them of a certain tract of land, which had descended to them from a common ancestor, and received more than their proper share of the rents, and profits, for which they had refused to account.

The proof was, that Alexander McPherson died more than twenty years ago, leaving his widow and eight children--all of whom had gone off and left their parents, except the three daughters, who, with their mother, remained on the land until 1836, when the defendant, Alexander, purchased a place of his own, and moved off, leaving his sisters still there.

It appeared, that in the year 1841, Mrs. McPherson died: That in 18--, Mrs. Rhodes, formerly Margaret McPherson, died, leaving a husband, and several chidren suviving her: that in the year 1838, Hugh, one of the brothers died intestate, and without issue, or ever having been married: that in the year 1839 Neill, one of the brothers, released all that interest in the land which he had acquired by descent from his father, to his two sisters the defendants, and that, by a deed without date, and it did not appear when made, he released his interest as heir at law of his deceased Brother Hughes, to one of the plantiffs; that in the year 1831, Martin McPherson released his interest as heir at law of his father, to his sisters the defendants, but it did not appear that he had ever released his right as heir at law of his deceased brother Hugh.--It also appeared that Rhodes, the husband of Margret, died in 1848, pending this action, and that his administrator was made a party plaintiff in his stead.

The defendants denied that they were the tenants in common of the plaintiffs or that they were their Bailiffs; and also pleaded and relied on the statute of limitations. They further objected to the plaintiffs' recovery, upon the ground, that although one tenant in common may maintain an action of account, for his separate share, against any one or more tenants in common, who jointly receive more than his or their share of the rents and profits of the common property; yet he cannot bring a joint action against several cotenants, who, without any concert, each takes more than his share of the common profits. Again, the several tenants in common cannot join in a common action against several other tenants in common, without some contract, whereon to have such an action. And again?? that if several tenants in common may join in an action against several others, who occupy the property, all the tenants in common, out of possesion, must join in such action againt those in possession, and that, in this case, Martin McPherson, who has clearly not parted with his interest as heir of his brother Hugh, and Neill, who had not been proven to have parted with his interest before the bringing of this action, were not parties. It was further objected, that the mere perception of the products of the land, not turned into money by sales, by one tenant in common, would not enable his cotenant to maintain the action against him. It was further objected, that Rhodes and his administrator were not the proper parties in this action. It was further objected, that no demand had been made before bringing the action.

His Honor charged, that if the defendants, or any of them, had received more than their share of the profits of the land either in money or fruits of the earth or otherwise, within three years before the bringing of this action, the plaintiffs were entitled to their verdict: That merely living and breathing on the land would not subject the defendants to account, if they did not exclude the plaintiffs from a like enjoyment: Nor would the use of no more than their proportionate share of the land in any way subject them. But if they used more than their own share of the land, and derived any thing from such use, they would be liable.

The plaintiffs' counsel then asked the Court to charge the jury, that, if one of the defendants was seen bringing wood from the land to market apparently to sell, and the jury believed it was so sold, the defendants would be liable. His Honor declined so charging, but said, unless it appeared that the defendants or one of them had received more than his own share, the action would not lie.

A verdict being rendered generally for the defendants and judgment rendered thereon, the plaintiffs appealed.

Banks, with whom were Mullins, W. Winslow and Kelly, for the plaintiffs , submitted the following argument:

Three several and distinct technical objections are raised by the defendants' pleadings; either of which, it is contended, will prevent the plaintiffs obtaining a new trial, notwithstanding there may be error in the Judge's charge.

It is said, 1st. There is a non joinder of plaintiffs. 2nd. There is a mis joinder of plaintiffs. 3rd. There is a mis?? joinder of defendants.

On the first point. It is contended by the defendants, that Martin McPherson should be a party plaintiff, and that the non joinder is cause of non-suit.

On the part of the plaintiffs, it is admitted that the non-joinder of a party, who ought to sue, “is fatal on demurrer, or on motion in arrest of judgment; or on error; or by plea in abatement; or as a ground of non suit on the trial; as a variance upon non est factum, if the action be a specialty; or, if it be upon any other contract, upon the plea of “general issue.” ” 1 Chit Pl. 14.

In this cause there has been no “ demurrer,” no “plea in abatement. The action is not upon a specialty. Hence the defendants cannot claim the benefit of a variance.--They have obtained judgment, and neither wish to movefor its arrest, or to have it vacated for “error,” and could not, if they would-- the plaintiffs being the appellants.

This narrows the question down to one single point-- Can the plaintiffs in this action be non suited, on the plea of “ general issue?” It is submitted they cannot, for the following reasons:

In an action of account, there is no “ general issue.” 1st Chitty's Pl. 524. In an action of account, there is not, and never was any “ general issue. ” Pulling on Mercantile Accounts, 120, 121.

It is submitted further, that as Martin McPherson was unwilling to join in the action as plaintiff, there was no process of compulsion: and he could not be sued as a defendant, because the evidence shows he was not in possession.

The following cases are submitted, as authority, to justify the positions assumed.

“A. alone, declared against B. as bailiff of 3. It was held good; for perhaps A., only, entrusted his share to B. 1st Comyns Digest Accompt. 122, E. 12. 1st. Viners Ab. sec. 20, 145.”

Again--“In an action of account by A. against the defendant as bailiff of one; it appeared by the plaintiff's own showing, he was bailiff of two. It was held good, for there was no repugnancy in the counts, and it might be mischievous, if one tenant in common could not have his action, without the other joining.” Cro Jac. 410. 1 Vin. Ab. sec. 7, 176.

There is “no repugnancy in the count,” for if he was “tenant in common” and bound to account with three, so is he bound to account with two.

To the second objection, viz: That there is a misjoinder of plaintiffs--the suit being in the name of two--when only one should have sued.

It is insisted by the plaintiffs, that “tenants in common,” may in this action sue jointly, or severally, at their option; and it is contended, that, in cases of misjoinder, if the objection appear on the face of the pleadings, advantage of it can only be taken “by plea in abatement,” ““demurrer,” “motion in arrest of judgment,” or by “writ of error,” 1st Chitty Pl. 484. 1st. Saunders Pl. Ev. 14. In this case the objection of misjoinder appears upon the pleadings, and, as neither of the above remedies can be applied to this case, it follows, that the second objection fails, as the statute of Jeofails after verdict cures defects. It is admitted, that in cases of...