Robinson v. Robinson

• Decision Date: 16 May 1899
• Citation: 53 N.E. 854,173 Mass. 233
• Parties: ROBINSON et al. v. ROBINSON.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

173 Mass. 233

53 N.E. 854

ROBINSON et al. v. ROBINSON.

Supreme Judicial Court of Massachusetts, Hampden.

May 16, 1899

COUNSEL

J.B. Carroll, W.H. McClintock, and J.F. Stapleton Jr., for appellants.

Frederick H. Stebbins, for appellee.

OPINION

HOLMES J.

The most important question in this case is whether the statute of limitation (Pub.St. c. 197, § 1) runs upon a claim of one tenant in common against another for a just share of the profits of land, when there has been no demand, and no termination of the tenancy, or of the defendant's management of the land, or any other event to change the relations between the two.

The liability arises from the statute of 4 Anne, c. 16, § 27 which gave an action of account to one tenant in common against the other as bailiff for receiving more than comes to his just share or proportion.However it may have been in its origin, this liability to an action of account long has been regarded as different from bailment on the one side (Year Book, 20 Hen. VI.p. 16;Fitzh.Nat.Brev. 116q, note d) and from debt or an absolute liability for money on the other (Holt, C.J., 11 Mod. 92).SeeFarrington v. Lee, 1 Mod. 268, 2 Mod. 311, sub. nom. Harrington v. Leech, Freem.229, 243.It seems more like the accountability of a trustee,--a liability for an identified fund, which would be discharged by showing that the fund had been lost without the accountant's fault, as is clearly stated in a case between tenants in common by Parke, B., Thomas v. Thomas, 5 Exch. 28, 33.See Fitzh.Nat. Brev.Abr."Account," pl. 40; Woodlife's Case, Moore, 462; Owen, 57;Co. Litt. 89a.The relation between the parties is fiduciary.An action does not lie without privity, which, in this instance, is created by the statute.Sargent v. Parsons,12 Mass. 149, 152; Leon. 266, pl. 357;Tottenham v. Bedingfield, Owen, 35, 83, 3 Leon. 24;Thomas v. Thomas, 5 Exch. 28, 33.Of course, as in other cases of fiduciary relations, the liability may be made absolute by the accountant's appropriating the fund or repudiating the trust; as if the tenant in common wrongfully cuts and sells trees.Miller v. Miller, 7 Pick. 133.So, after demand and refusal, debt or assumpsit would lie, and the statute of limitations would begin to run.Frowike, J., in Keilw. 77a, 77b, pl. 25; Langdell, in 2 Harv.Law Rev. 253, 254, where the subject is discussed with Mr. Langdell's usual ability.But it is plain from the nature of the duty created by the statute of Anne that the time of limitation ought not to begin to run when there has been no demand or refusal, and nothing to notify the plaintiff that the defendant has repudiated the relation, or that it has come to an end.Jolly v. Bryan,86 N.C. 457.SeeDickinson v. Bank,152 Mass. 49-54, 25 N.E. 12;Campbell v. Whoriskey,170 Mass. 63, 48 N.E. 1070.

The action of account has been abolished in Massachusetts, and therefore an action of contract necessarily is resorted to.We are not aware that the attention of the court ever has been directed to the question whether a demand and refusal are generally necessary in this class of cases.But the nature of the duty created by the statute is not affected by the disappearance of the action, and what follows from the nature of the duty we already have stated.Cases where, by mutual understanding, the relation has terminated, and nothing remains to be done except to pay over a balance, have no application.Jones v. Harraden,9 Mass. 540, note;Currier v. Hallowell,158 Mass. 254, 256, 33 N.E. 497.So Clark v. Moody,17 Mass. 145, stands on its own circumstances, and in Vail v. Durant, 7 Allen, 408, 410, was invoked as authority for the right of a factor to mingle the proceeds of goods consigned to him with his own funds, and the correlated proposition that he becomes at once a debtor for such proceeds.In this view it has nothing to do with the liability of the defendant as bailiff.SeeLincoln v. Parr, 2 Keb. 781.In Dickinson v. Williams,11 Cush. 258, the tenancy in common continued when the action was brought, but the transactions out of which the claims arose were at an end.It was stated by the court that "this judgment, when rendered, will be a final settlement between the parties."

Apart from what has been said thus far, we are of opinion that, as was held in Dickinson v. Williams, just cited, the account was "a mutual and open account current," within the saving of Pub.St. c. 197, § 8.The defendant's intestate, Ethan C. Robinson, received rents and profits on the one side, and on the other paid, not merely for repairs, insurance, etc., but for taxes, in respect of which he had a personal claim against his co-tenants.Dewing v. Dewing,165 Mass. 230, 42 N.E. 1128.

We are of opinion that nothing has barred the claims of the present tenants in common.It is true that some tenants have sold their shares, and that, if an account had...