Milne v. Cummings

The court stopped Mr. Woods, who was proceeding to argue on the part of the defendant. There is no legal evidence, from which we can infer that Hewes refused to intermeddle with the trust. On the contrary, # o-j *the insertion of his name in the patent, carries with it 5' -• a very different aspect. If the fact really'was, that he would not accept the trust, it would readily be susceptible of proof; but co-trustees inserting it in their deed, cannot be received as evidence of the fact; because otherwise a majority of the trustees might by such a recital remove one of their number from the trust, at their mere will and pleasure. The deed from Vanderin conveyed no beneficial interest, but a mere trust, to be executed by all the grantees. They were joint tenants of the trust estate. In all real and mixt actions, joint tenants generally ought to join; for they have but one joint title and one freehold. Co. Lit. 189, a. 195, b. They must join in trespass, and other personal actions, where they have a joint interest; as in debt or avowry for rent. 5 Mod. 73. Joint tenants are seised per my and per tout of the whole land, and none of them have an exclusive interest therein. And if one joint tenant be sued, he may plead, that he holds jointly with such a one, who is alive and not named. Com. Dig. Abatement. 578 F. 4. E. 9. It follows, that the Court of Common Pleas were right in their decisions upon both points, and their judgment must be affirmed. See 5 Espin. Rep. 151. S. C. 5 East 491. Cited in 59 Pa. 484 in support of the proposition that joint tenants, who are regarded as having one entire and connective right, and are said to be seised per my etper tout, each having the entire possession as well of every parcel as of the whole, cannot sue separately for themselves, or for the joint benefit of themselves and their fellows, but must join and be joined in all actions respecting the estate. I have thus far faithfully reported the several decisions in the Supreme Court, since I came on the bench in April 1791. Mr. Binney having begun to publish his reports, chiefly of cases in'the Eastern District, I do not feel the same necessity of reporting the resolutions in that district, as formerly appeared to me. But X shall proceed in reporting the decisions in the other districts; while I have leisure for so doing. Note. — Most of the cases in the author’s manuscript, within the period of this volume having been reported in the first and second volumes of Mr. Binney’s Reports, such cases only, as are not contained in Mr. Binney’s work, are now offered to the public. All the subsequent cases, one of little importance excepted, having been already published, it becomes expedient to close these reports with the September Term of the Western District 1808. Editor.