Frisbee v. Irvin

• Mr. Justice Sharswood delivered the opinion of the court, January 6th 1879. It is unquestionably true that the Courts of Common Pleas, by the Act of October 18th 1840, Pamph. L. 7, have all the powers and jurisdiction of courts of chancery, in settling partnership accounts, and such other accounts and claims as by the.common law and usages of this Commonwealth have heretofore been settled by account-render. These words' are-broad enough to include accounts between tenants in common,' though this remedy was first given to them by statute 4 Ann., c. 16, sect. 27, reported by the judges to be in force in this state: 3 Binn. 625. It seems, however, very well settled that account will not lie against a.- disseisor or other wrongdoer.' To maintain an action of account, said Lord Coke, before the statute, there must be either a privity in. .deed by the consent of the party, for. against a disseisor or other wrongdoer no account doth lie, or a privity in law ex provisione legis-, made by the law as against a guardian: Co. Litt. 172 a. So if .a joint tenant takes all the profits to his own use, account will not lie: 1 Rol. 117, l. 30. At common law indeed no action of account .lay by one tenant in common against another, unless the latter had been specially constituted the bailiff of the other:. Co. Litt. 172 a. This the statute was intended to remedy: 2 Bl. Com. 194. Yet there is nothing which would seem to change- the well-settled • rule, that one out. of possession has no right to an account against the tenant holding adversely, whether the plaintiff claim the whole or a part. Such an action is not the proper action for trying title. ■ The same principle has been recognised in equity. In Tilly v. Bridges, Prec. Ch. 252, it was held, that when one has title to the possession of land, and makes an entry whereby he becomes entitled to recover [147] damages at law for the time the. possession ..was detained from him after such entry, he shall not turn that suit at law into a suit of equity and bring a bill for an account of the profits, except in case of an infant or some very particular circumstances: So in Norton v. Frecker, 1 Atk. 524, Lord Hardwicke said: “ The proceedings in equity are the same as at law where trespass will not lie for mesne .profits till the possession is recovered by ejectment.” So in Sayer v. Pierce, 1 Ves. Sr. 232, where an account of the profits of coalmines was not decreed, but the bill was retained with liberty to bring ejectment, but that was because there was a prayer to ascertain boundaries, and the plaintiff, if he recovered in ejectment, might want that relief. See also 1 Story’s Eq. Jur., § 511. The question, however, has been put at rest in this state by the North Pennsylvania Coal Co. v. Snowden, 6 Wright 488, where it was held, that a court of equity has no jurisdiction of a bill brought by one tenant in common .against an .alleged co-tenant to obtain the possession and enjoyment of mining rights and privileges, founded on legal title, until those rights have been, established at law. “It has- never been held,” says Mr. Justice Strong, “that equity courts have jurisdiction of actions, founded on legal title, brought by one tenant in common against an alleged co-tenant to obtain possession or enjoyment of land.” See also Norris’s Appeal, 14 P. F. Smith 275; Tillmes v. Marsh, 17 Id. 507; Christie & Scott’s Appeal, 4 Norris 465. That there was in this case an ouster óf the plaintiff by the defendants, on the 28th day of October 1874, by the sheriff’s sale on that day, is substantially admitted by the bill. Certain it is that the plaintiff deemed it necessary then to give notice of his claim. Since then the defendants have refused ,to recognise his title; he so alleges in his bill. We think, in every view of the case, the decree of the court below was right.. Decree affirmed, and appeal dismissed at the costs of the appellant.