in this case, the counsel who insisted on this point were not without respectable authorities to sustain them. Thus, in an early case in Massachusetts, the Court said: "The demandant, upon production of her title, shows that she is coheir with five others: she will therefore have justice done to her, if she is allowed to recover an undivided sixth part. The tenant, being in possession, ought not to be disturbed, except by those who have the right. Non constat that the other coheirs are not as willing that the tenant should occupy the land, as that the demandant should." So in Missouri, it is still maintained that "as the right of possession, which depends on title, is several, a recovery by one will restore him only a moiety of the disseizor, who will hold the other moiety with him in common."2 A like doctrine is established in Pennsylvania.3

344. Actions of forcible entry and detainer may be brought by each tenant in common separately. Thus, where L and B, tenants in common, were forcibly dispossessed, L alone brought his action, and the defendant insisted that B also should have been joined as plaintiff. But the Court said: "This objection cannot be sustained. Any one tenant in common may sue though his cotenants do not join in the action. And this may be done either in ejectment or in forcible entry and detainer. L had been put out of possession, and he might well maintain his action to regain it, without joining his cotenant B. Actions for personal property must be in the names of all the joint owners, but not so in real actions." So, it is said, one coparcener or joint-tenant may, without joining his or her companion in interest, recover possession of the whole premises, in an action of forcible entry and detainer, against a stranger to the title; because, 1st: "The possession of one is the possession of both, in contemplation of law. Hence, a recovery in this form of action by one would enure to the benefit of both, and the pendency of the judgment might be pleaded to a

2

Dewey v. Brown, 2 Pick. 387.

Gray v. Givens, 26 Mo. 303.

Dawson v. Mills, 32 Pa. St. 302.

Turner v. Lumbrich, Meigs, 11; Allen v. Gibson, 4 Rand. 477.

proceeding of the other for the same cause."

2d, because: "The only question is whether plaintiff is entitled to possession as against the defendant; and as against all others than his companions, a joint-tenant, tenant in common, or coparcener, is entitled to the possession of the whole."2

2345. For Insurance.-If two cotenants effect an insurance upon their common property in their joint names, "upon familiar principles, both the joint contractors should join in bringing an action for a breach of the contract, and the omission to join them is a good defence.""

4

2346. For Rents.-"If two tenants in common make a lease of their tenements to another for terme of years, rendring to them a certaine rent yearely during the terme, if the rent be behind, &c., the tenants in common shall have an action of debt against the lessee, and not divers actions, for that the action is in the personalty." This rule is confined to a joint lease made by the tenants in common, in which there is a joint reservation of rent. "If there be separate reservations to each, then there must be separate actions."5 So if the original lease be made reserving an entire rent, and afterwards the lessee has notice to pay a moiety of the rent to each of the cotenants, and the rent is so paid and receipts given accordingly, it becomes "a question of fact, upon the whole evidence, whether the parties thereby meant to enter into a new contract, with a separate reservation of rent to each, or whether they meant to continue the old reservation of rent, each receiving his own moiety." Where a joint lease was made by two tenants in common, and a memorandum was annexed to the lease as a part thereof, stipulating that one-half of the rent reserved should be paid to each of the lessors, and all the covenants in the lease were to and with both lessors, the Court held that: "The effect of the memorandum was not to abrogate that covenant in the lease," (i. e.

Rabe v. Fyler, 10 Smedes & M. 446.

Allen v. Gibson, 4 Rand. 477.

Tate v. Citizens' Mutual Fire Ins. Co. 13 Gray, 81.

* Litt. sec. 316; Wilkinson v. Hall, 1 Bing. N. C. 717; Decker v.. Livingston, 15 Johns. 482; Sherman v. Ballou, 8 Cow. 308.

5 Powis v. Smith, 5 Barn. & Ald. 851; S. C. 1 Dowl. & R. 490; Last v. Dinn, 28 L. J. Ex. 94.

C. & P.—26

the covenant to pay rent,) "but only to regulate the mode of payment, and to prescribe the manner in which the lessee was to fulfil his covenant. Instead of performing his agreement, by a payment or tender of the whole rent to one of the joint lessors, as he might well do in the absence of a special agreement, he was required to pay a moiety to each. But this does not make the previous contract several, so as to change the remedy of the lessors for its breach into separate actions. *** It is not to be overlooked that all the covenants in the lease are made to the plaintiffs jointly; that the demise itself is joint, and the remedy of expelling the lessee in case of nonpayment of rent is also joint. It cannot be reasonably supposed that it was the intention of the parties, by the memorandum, to bind the lessors to pursue each a separate remedy for breach of one covenant in a lease, in which all the other cotenants were made to them jointly, and for breach of which they could pursue a joint remedy.' "The owner of an undivided portion of a ground-rent may maintain a separate action of covenant for his proportion of rents in arrears. "Joint-tenants being seized per mie and per tout, and deriving by one and the same title, must sue jointly on their joint lease, and they must join in an action of debt or in an avowry for rent;"3 and the same rule seems to be equally applicable to coparceners. A tenant in common though, as against a stranger, entitled to the possession of the entire premises, cannot recover rents for more than his moiety. If a reversion is severed by the death of the lessor and the consequent descent to his heir at law, the rent will thereby be apportioned, and each of the heirs may separately bring actions for his proportion. On the death of the lessor, the rent has to be apportioned among the heirs on whom the estate is cast. In all cases of apportionment of rent, it is the duty of the tenant to pay each party the proportion of rent to which he is entitled. This liability of the tenant forms an exception to the

66

Wall v. Hinds, 4 Gray, 268.

* Cook v.

5

Brightly, 46 Pa. St. 445. See also Hennecker v. Turner, 4 Barn. & C. 157; Martin v. Crompe, 1 Ld. Raym. 340.

3 Barbour on Parties, 80.

+ Decharms v. Horwood, 4 Moore & Scott, 400.

5 Muller v. Boggs, 25 Cal. 175.

Cole v. Patterson, 25 Wend. 457; Reed v. Ward, 22 Penn. St. 149.

rule that an entire contract cannot be apportioned, and that a debtor cannot be compelled to pay a single demand in parcels to several persons. The exception had its origin in reasons of policy and convenience, and has been long and firmly established. It is in the power of the tenant to avoid several suits and distresses, by the prompt payment of the rent as it falls due." The authorities also generally concur in asserting that the apportionment of rent may be affected by a grant or devise of the reversion to two or more, as well as by descent to several heirs.2

347. Trespass.-The general rule of the common law that tenants in common must join in personal actions, when applied to actions of trespass, requires that all the cotenants must join if all were at the time of the alleged trespass entitled to the immediate possession of the property upon which it was committed. Generally, but not uniformly, this rule of the common law is still regarded as controlling actions of trespass. "That tenants in common must join in the action of trespass, quare clausum fregit, is well settled. There is nothing in our practice to require a departure from the rule of the common law, but there is great reason to adhere to it, to prevent multiplicity of suits, and the inconvenience that would arise from the bringing of several suits and allowing several recoveries for the same trespass. This rule of the common law has not been altered by the Code in New York.' Where the owner of land made an agreement with another person under which the latter was to raise a crop on the lands of the former, and the crop, when raised, was to be divided between the two, it was held that as the two thereby became tenants in common of the crop, they should join in an action of trespass against a third person for cutting and

3

1 Crosby v. Loop, 13 Ill. 627; Jones v. Felch, 3 Bosw. 64; Cruger v. McClaughry, 51 Barb. 644; Ards v. Watkin, Cro. Eliz. 637, 651; Ryerson v. Quackenbush, 2 Dutch. 250; Farley v. Craig, 6 Halst. 273; Rivis v. Watson, 5 Mees. & W. 255.

Cole v. Patterson, 25 Wend. 457; Reed v. Ward, 22 Penn. St. 149. Same authorities as note 1.

3 May v. Slade, 24 Tex. 208; Austin v. Hall, 13 Johns. 287; Winters v. McGhee, 3 Sneed, 128; Selwyn's Nisi Prius, 13th ed. 1248; Com. Dig. Abatement (E 10); May v. Parker, 12 Pick. 39.

De Puy v. Strong. 37 N. Y. 373; S. C. 4 Abb. Pr. N. S. 344.

3

2

carrying it away.' And where mills were worked on the shares, the owner and occupant, it was thought, should be considered quasi tenants in common of the mills as well as of the profits. They were therefore, as such cotenants, entitled to join in an action for injury sustained from the withholding of water from the mills. But where one of the cotenants is in exclusive possession of the property by virtue of a contract of sale with his cotenants, by which contract he is entitled to be and remain in such exclusive possession, he is entitled to maintain in his own name actions of trespass for injuries to such property. Without any permanent severance of their right to possession, and without any change in their title, cotenants may, for purposes of convenience and to avoid any conflict of interests, agree each to exclusively occupy a specific part of the common lands. Pending an occupancy taken and held under such an agreement, a trespass may be committed on some part of the lands, and may, as when it consists of the cutting of trees, result in damages not confined to the occupant of the part trespassed upon, but equally affecting all the cotenants. In such case, the question arises, can an action of trespass be sustained by all the part owners, or must it be prosecuted by the one then entitled to the possession of the lands trespassed upon? The answer which has been made to this question is that so long as an exclusive possession of any part of the lands of the cotenancy is maintained only for purposes of mutual convenience, and is not so hostile to the title of the other cotenants as that, if continued, it could ripen into title in severalty by disseizin, all the cotenants may join. While the parties intend no severance of their cotenancy, "it is not for the defendant, who is a stranger to the title, to give to that matter a legal effect which was never intended by the parties in interest."4

2348. In actions of trespass to try titles, the rule in

Foote v. Colvin, 3 Johns. 216; Moulton v. Robinson, and Ladd v. Robinson, 27 N. H. (7 Foster) 563; Hatch v. Hart, 40 N. H. 97.

2 Rich v. Penfield, 1 Wend. 380.

Sparks v. Leavy, 1 Robt. 530. So where a tenant in common of a crop abandons and relinquishes all his interest, the other cotenant, if he have exclusive possession, may sustain an action against a trespasser. Hatch v. Hart, 40 N. H. 97.

Johnson v. Goodwin, 27 Vt. 291.