Rogers & Wife v. Arthur

By the Court, Nelson, Oh. J. In Jackson, ex dem. Murray, v. Hazen and others, 2 Johns. R. 438, which was an action of ejectment against five defendants who pleaded [599] jointly, it was held that the plaintiff was bound to prove a joint possession against all, and that two of the defendants who held separately were entitled to judgment. In Jackson v. Wood and others, 5 Johns. R. 278, where the question again came up, it was decided that the plaintiff might recover against all, though the possessions were separate; not jointly, but by taking a separate verdict against each defendant for the part of the premises of which he was proved in possession. The court, upon a full review of the law, were of opinion that the doctrine of the first case was pushed too far, and virtually overruled it» The case of Jackson v. Wood has since been followed, and would be the rule now, had it not been changed by statute. 2 R. S. 307, § 28, 29. 5 Wendell, 96. 7 id. 152. By § 29, it is provided, when the action is against several defendants, if it appear on the trial that any of them occupy distinct parcels in severalty or jointly, and that other defendants possess other parcels in severalty ox jointly, the plaintiff shall elect at the trial against which he will proceed; which election must be made before the testimony is closed, and a verdict shall thereupon be rendered for the defendants not so proceeded against. This section was intended to restore the principle of the case of Jackson ex dem. Murray v. Hazen and others ; the rule adopted in Jackson v. Wood being considered as unnecessarily perplexing the proceedings, and operating to exclude those who would otherwise be competent witnesses. It is urged by the plaintiffs, that inasmuch as they claim an undivided interest in the whole of the premises, unless they are permitted to recover jointly against all the defendants, they will not be able to obtain an undivided portion of the whole, but only of several parts, and be thus prevented from acquiring their legal rights. We do not perceive much force in this objection, because, if a joint recovery should be allowed of an undivided half, partition would still be made with reference to the distinct and separate rights of all the parties concerned, 2 R. S. 322, § 30, and the commissioners be justified in regarding the possession of each occupant. It is sufficient for us, however, that the statute has [600] settled the rule in the action without any qualification ; and even before its adoption, no case had gone the length claimed here. The utmost that was allowed was to take a separate verdict for each separate parcel in possession of the defendants, and thereby avoid the necessity of several actions. The above view supersedes the necessity of discussing the other objection to the recovery, viz. that it was not shown that Montague, under whom the plaintiffs claimed, was the common source of title. The evidence on this point was slight, and clearly imperfect as to some of the defendants. New trial dénied.