De Johnson v. Sepulbeda

Murray, C. J., delivered the opinion of the Court. Heydenfeldt, J., concurred. It is insisted by the Respondents’ counsel that this case comes up on the judgment roll, and that we cannot consider anything else, as there is no statement signed by the Judge of the Court below, or agreed upon by the parties; although not necessary to a decision, we have determined to settle the practice on this point, to avoid further difficulties and misapprehensions. On the trial in the Court below the appellant tendered several bills of exceptions to the decisions of the Court, which were signed by the Judge and filed by the Clerk, and thus became records in the case. As before decided, the object of a statement, as provided by our statutes, is to make that record, which before was not record, but rested only in the recollection of the Court, or counsel, or the minutes of the Clerk; and it never has been considered necessary to embody matter of record in a bill of exceptions. For these reasons this Court held that it would not review a case'on testimony taken down at the trial, and certified to us by the Clerk, or upon errors purporting to have ieen noted in the Clerk’s minutes, but, that the same should have been embodied in a bill of exceptions and signed by the Judge, or agreed to by the parties. [151] It is said that if this Court should entertain appeals upon bills of exceptions taken at the trial and signed by the Judge, without compelling the party to make and serve a statement upon the opposite party within the time allowed by law, embracing such exceptions that every case can be reversed upon some abstract or irrelevant point, Which, if it had been properly pointed by a statement, would have been wholly immaterial. No such result can be properly apprehended. Every intendment must be in favor of the decision of the Court below, and we have repeatedly held upon unquestionable authority that we would not reverse a cause upon an error of law unless it appeared from the statement or the pleadings in the case, that the party complaining was injured by such error. Besides, it is an easy matter for either party to see that the bill of exceptions states the error correctly. This practice is frequent in many of the States, and commends itself as a safe mode of preserving everything occurring upon the trial. Having thus alluded to the question of practice we will consider the main point in this case, viz: the right of the plaintiffs to maintain this action. It appears from the declaration that they are tenants in common with several other co-tenants not made parties. As such they cannot join in an action of ejectment under the form of pleading adopted in this suit. Tenants in common hold by several and distinct titles, but by unity of possession, because none knoweth his own severalty, and therefore they all occupy promiscuously. 2 Black., § 191. The rule which determines whether tenants in common should sue jointly or severally depends upon the nature of their interest in the matter or thing which is in controversy, for injuries to their common property, as trespass, quare clausum fregit, or nuisance, &c., they should all be joined, but they must sue severally in real actions, generally, as they all have separate titles. See Coke's Litt., 197. In England an action of ejectment founded on a joint demise of several tenants, in common, cannot be sustained. I am aware that in some States a different practice obtains, but this is where the old fictions of the action of ejectment are preserved and the plaintiff declares on a demise; for, as it would be competent for tenants in common, to convey by deed, their interest in the land to a third person, they may demise it for a term of years; thus the plaintiffs lessors, who are incompetent [152] to sue jointly, may by a fiction of law maintain their action in the name of their lessee. It is contended that this disability is removed by our statutes, which allows all persons interested in the subject matter to join in one action. Granting that this provision extends to actions of ejectment brought by tenants in common, in this case the declaration shows upon its face that all the parties so interested have not been joined. For these reasons the cause is reversed.