Shepard v. Richards

Bigelow, J. The general rule of the common law, that one partner or tenant in common cannot sue his copartner or co-tenant in an action ex contractu, but must proceed by action of account, or bill in equity, is not the law of this commonwealth. Long before the action of account was abolished by Rev. Sts. c. 118, § 43, and when the courts of this state had no jurisdiction in equity of suits between copartners and tenants in common, it was held that assumpsit would lie by a tenant in common to recover from his cotenant any surplus in money over and above his share of the profits. This remedy was said to be consonant to the ancient practice in this commonwealth. Brigham v. Eveleth, 9 Mass. 538. Jones v. Harraden, 9 Mass. [427] 540, note. The same doctrine has been since affirmed in several cases. Bond v. Hays, 12 Mass. 34. Wilby v. Phinney, 15 Mass. 116. Brinley v. Kupfer, 6 Pick. 179. And it has been held that the remedy in equity, now given by the statute, does not affect the application of the rule to cases where the remedy by action at law is plain and adequate. Fanning v. Chadwick, 3 Pick. 420, 424. ' But although this is the well settled rule of law in this commonwealth, we think the plaintiff fails to bring his case within its operation. The evidence does not show that the defendant has received more than his share of the proceeds of the entire crops and products of the estates owned in common, or that there is any surplus thereof in his hands for which he is bound to account to the plaintiff or his wards. It is not enough for the plaintiff to show that the defendant has taken more than his proportion of a single article raised on the estate; but it must be made to appear that he has received more than his aliquot part of the proceeds of all the profits of the common property, after deducting all reasonable and proper charges. There must be a balance due, at the commencement of the plaintiff’s action, in the hands of the defendant, as the result of a final settlement of the account between the parties relating to the estate owned in common. »This the evidence on the part of the plaintiff entirely fails to establish. The only fact distinctly proved is, that the defendant gathered and took away more than his "share of the apples which grew on the estate in the year 1852. But it does not appear that the plaintiff did not also receive the full share belonging to his wards, out of those which were left on the estate by the defendant; nor that the defendant has received more than his proportion of the entire products of the estate. Besides; in the present state of the proof, the rights of the other cotenants to the income and profits of the common property are left wholly indeterminate, and for aught that appears they may have claims adverse to those of the parties in this action. In such a case, an action of assumpsit does not afford an adequate remedy. Where a case is complicated by having three or more [428] parties with adverse interests, the only suitable remedy is by a bill in equity, in which the conflicting claims of all persons interested in the joint property can be adjusted and settled. See Report of Commissioners on Rev. Sts. c. 118, § 39, note. The objection urged by the plaintiff, that the defendant cannot be regarded as a cotenant of the estate, is not tenable. By virtue of his mortgage, he had the right to enter and take possession of the estate, to the extent of his title under it, both as against the mortgagor and all other persons. Being in possession under a legal title and seizin, he had the right to the perception of his share of the rents and profits. Goodwin v. Richardson, 11 Mass. 469. Welch v. Adams, 1 Met. 494. It is wholly immaterial that his entry was informal and invalid for the purpose of foreclosure. It is sufficient that it gave him legal possession of the estate under the mortgage. Exceptions overruled,