Smith v. Shackleford
| Decision Date | 28 May 1840 |
| Citation | 39 Ky. 452 |
| Parties | Smith <I>et al.</I> <I>vs.</I> Shackleford. |
| Court | Kentucky Court of Appeals |
Decided by Judges Ewing and Marshall — the Chief Justice not sitting in the case.
[TX]C
THIS case was formerly before this Court, when the judgment rendered against the plaintiff, on the demise of Rachel Shackleford, was reversed. Reference is made to the opinion then delivered (5 Dana, 232,) for a statement of the general facts on which the controversy depends, and of the principles then decided. On the trial which was had after the return of the cause to the Circuit Court, a verdict and judgment were rendered against the defendants, and the cause is brought here now upon their appeal.
Two of the questions made in this case, partaking somewhat of a formal character, will be considered before we proceed to notice other points more intimately connected with the merits of the controversy.
I. It is contended that, admitting the evidence to have authorized or required a verdict against each of the defendants, it did not authorize a joint verdict against them all, because it clearly appeared that each claimed and defended for a separate and distinct portion of the land described in the declaration, and that they neither had any joint possession, nor were guilty of any joint trespass. And it is said that this case is distinguished from the general mass of the cases in which several defendants occupying distinct parcels of land, are sued in one action of ejectment, by the manner in which the defendants in this case have appeared and pleaded. The record states that "on motion of Benjamin Smith, John Moran, James Hagan, &c. the tenants in possession, they are admitted as defendants in this suit, in the room of Richard Roe; and thereupon, by their attorney, they severally enter into the common rule, confess the lease, entry and ouster in the declaration supposed, and agree to insist on the title only at the trial, and severally come and defend the force and injury when &c. and say they are not guilty, in manner and form as the plaintiff against them hath declared, and of this they put themselves upon the country."
In the case of Abney vs Barnet, 1 Marsh, 107, where it is decided that after having jointly entered into the common rule and pleaded jointly the defendants could not avail themselves of their being tenants in severalty of distinct portions of the land in dispute — it is intimated that, "at a proper stage of the case, they might perhaps in strict propriety have required the plaintiff to proceed separately against each of them." But, conceding that this might be done on application in proper time, we do not admit that the entry in this case, showing a merely formal severance by the defendants, is sufficient, either to require, or of itself to indicate as proper, a separate proceeding against each. Although the opinion quoted refers to the joint plea &c. as of itself decisive, by precluding the defendants from the right to avail themselves afterwards of the circumstance of their not being in fact connected in the tenancy or in the trespass, it refers to an application in proper time, and not merely to the form of the plea, as being essential to secure a separate proceeding. And here there was not only no application for a separate proceeding, but none even for a separate finding; nor does it appear that the supposed right of the defendants was in any manner insisted on, or even suggested, in the Circuit Court. In the case of Abney vs Barnet (supra,) the point was made by way of motion to instruct the Jury; and if as then decided, it was then too late, when the defendants had pleaded jointly, we are satisfied that it is too late in this case, after verdict and appeal, although the form of entering into the common rule, and of the plea, may not in this case be strictly joint.
If, as we need not deny, tenants holding in severalty may, when sued in one action of ejectment, require a separate proceeding against each, it can only be upon showing the fact which would render such a mode of proceeding proper. And this, as it seems to us should be done by entering into the consent rule, to confess for the distinct tenements or parcels in possession of each, or for which all mean to defend. Upon this being done, it seems to have been the ancient practice for the plaintiff to deliver to each defendant, a several declaration, that each might make his defence, and relieve himself from costs if he could. 7 Term Rep. 331; 2 Keb. 524, 531. It was said by the Court, in Goodright, on dem. Balch vs Rich &c. 7 Term Rep. 327, that the consent rule would show for what each defends. But neither the entry into the consent rule, nor the plea in this case, shows, either for what parcels of the land each defendant means to defend, or that each means to defend for any distinct portion less than the whole. Each confesses the lease, entry and ouster supposed, which is of the whole land. And each says he is not guilty as charged, which is as to the whole or any part of the land. And it is not until the trial, that it appears whether they are joint or several tenants, or what part of the land is claimed or defended by either.
The practice of suing several tenants in the same action of ejectment, is generally prevalent in this country, and where the questions are substantially the same, the opposite practice would be oppressive, and has been discountenanced. The practice of delivering a new declaration after the defendant has been admitted, has fallen into disuse here, and that might not be the mode of separate proceeding which should now be adopted where the defendants make a timely application for that purpose. The Courts doubtless possess the power of so moulding the proceeding in this respect, as to secure the ends of justice in such cases, in the least burthensome manner. But this end would not be promoted by permitting defendants, after they had gone three times into a joint trial, and had passed through a tedious litigation without asking for a separate proceeding, to set aside a verdict against them, on the ground that it appeared on the trial, that they held in severalty separate parcels of the plaintiff's land. And it seems to us, that, if such a fact ought not, as matter of evidence, or as a ground of variance, to prevent a joint verdict against all, on a joint confession and plea, it should not have that effect on the confession and plea in this case. The difference is in form only, and not in substance. The jury are at liberty, in either case, and in the one as much as in the other, to find separately as to each defendant. And we do not perceive, why the consequences which may follow from a joint verdict and judgment, should prevent such verdict and judgment in the one case, more than in the other.
II. It is further objected to this judgment, that, as there was evidence conducing to show that two of the defendants, Smith and Hagan, were not themselves in possession of the land, or any part of it, when the declaration was served on them, but that their tenants, upon whom the declaration was not served, were in possession at that time, the Court erred in not instructing the jury, as moved by these defendants, that, if they were not in possession when served with the declaration, they should find for them, and in instructing the jury, on motion of the plaintiff, that if, in addition to other facts mentioned as necessary to her right of recovery, they should find that these defendants or their tenants were in possession at the time of the service of the declaration, they should find for her, as to them. It should be stated that both Smith and Hagan were in the actual possession of portions of the land sued for, before the declaration was served on them, and that within a year or two afterwards, their tenants having quit, each resumed the possession. The sheriff in his return of service, upon the declaration, stated each to be a tenant in possession, and each, as has been already shown, was admitted as a defendant as tenant in possession; entered into the common rule as such, and pleaded not guilty. And the question is whether these defendants were entitled to a verdict and judgment, on the sole ground that their tenants, and not themselves, were, at the commencement of the suit, actually in possession of the tenements claimed by them respectively, and that the declaration was not served upon the tenants?
In the case of Balch vs Rich, 7 Term Rep. 327, the plaintiff having proved title to the premises sued for, the defendant proved that he was not, and never had been, in possession of the premises or any part thereof, and the question was reserved, whether after the defendant had entered into the conditional rules, such evidence was admissible? If admissible, a nonsuit was to be entered, and if not admissible, the verdict for the plaintiff was to stand. The reservation of such a question shows that the practice was at that time unsettled in England. And Lord Kenyon, in delivering his opinion upon it, after argument in the King's Bench, said it had been vexata questio; that believing the doctrine laid down in Buller's Nisi Prius, 110, (Jesse vs Barbee,) to be correct, he had ruled, in a case which had come before him on the home circuit that, if one defendant be sued as tenant in possession, the plaintiff need not prove him in possession. But upon consideration, he was surprised that any question could be made upon it. And upon the ground that the action is a contest for the possession, which it could not properly be if one of the parties were not in possession, and upon the further ground that, from the uncertainty of the description in the declaration, the person on whom it was served might suppose himself called on to defend the lands in his possession,...
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