Courts v. Happle

PETERS, J. — 1. The first and second grounds of demurrer are the same. It is, in effect, an objection for want of all the proper parties plaintiffs. A demurrer only reaches defects which are apparent on the record. 1 Chit. Pl. 661. Here the record shows a sufficient cause of action in favor of the parties who sue; and it does not show that there, are other named parties, who are entitled to be joined in the action. When this is the case, a demurrer is not a proper answer to the complaint. The objection should be enforced by plea in abatement. A plea in abatement shows cause to the court why the party should not be sued; or, if sued, not in the manner and form he now is. 1 Bac. Abr. 1, Bouv. ed.; 1 Chit. Pl. p. 446, et seq. That there are other necessary parties plaintiffs, who are omitted in this suit, is not admitted in the pleadings. Whether this is so or not, is matter of fact, on which issue may be taken. To raise this issue, and properly present it, is the office of a plea in abatement. The action is wholly in tort, and not on the contract of renting and hiring. The plaintiffs claim that they are entitled to a certain portion of the cotton, which the defendants have taken and converted to their own use, to the damage of the plaintiffs. This is done in sufficient form to present a material issue. Under our system of pleadings this is enough. Rev. Code, § 2629. It does not appear that any one else is entitled to any portion of the damages which the plaintiffs claim, or that they have no such property in the cotton taken and converted as to authorize them to bring this suit. The objection, then, of a want of parties plaintiffs should not have been sustained.1 2. The third and fourth causes of demurrer are too indefinite and general to require this court to notice them. The specific objection is not stated. Such grounds of objection are insuffi-» cient. Rev. Code, § 2656. 3, 4. Such contracts as that out of which this suit has arisen, are not without the deepest interest both to the laborer and the landlord in this State. The courts should, therefore, refrain from taking too narrow a view of the rights of the parties. It is just that the landlord should be paid his rent; and the laws of the State have amply provided for this end. Rev. Code, §§ 2961, 2962, 2963. It is equally just, and quite as [260] important, that the laborer should be paid his hire. Neither should be deprived of what is their own. Guided by the analogies which seem to have been followed in cases similar to this I feel satisfied that the contract in this case constituted thj laborers, who made the crops, and Happle, who rented the lands, tenants in common in the crops. Plapple furnished the land, and the laborers furnished the work and labor necessary for its cultivation; and the produce made on the farm was to be divided in the manner and in the proportions that the parties had agreed. This, it is very clear, was the intention of the parties on both sides of the contract shown in the record. Such a contract is a letting on shares, and creates a tenancy in common in the products agreed to be divided. Williams, v. Nolen, 34 Ala. 167; Smyth v. Tanlcersley, 20 Ala. 212. It is equally well settled, in this court, that a sale of the entire property in the chattel, by one tenant in common, is a conversion for which trover may be maintained by his co-tenant. Smyth v. Tankersley, 20 Ala. 212, supra; Parminter v. Kelly, 18 Ala. 716; Arthur v. Gayle, 38 Ala. 259. The cases above cited leave these propositions without controversy in this State. They are to be regarded as settled law. The evidence offered by the plaintiffs in the comt below, which was received without objection, tends to prove the case made in the counts of the complaint ■; but the charge of the court, in effect, excludes it, or declares that it is insufficient. In neither of - these aspects was it correct. It was, therefore, erroneous. We refrain from saying more, lest it might tend to embarrass the case on a new trial. The judgment of the court below is reversed, and the cause is remanded for a new trial. Footnotes [1] The action in Harrison v. Hazle, to which the court is referred in appellees’ brief, was founded on the contract, to recover damages for a breach of it. Harrison v. Hazle, June Term, 1871 ; head-note, p. 46. This is not, and the rule of law in that case which is here invoked does not apply.