Sharp v. Conkling

The opinion of the court was delivered by Redfieed, J. This action is covenant broken, founded upon a deed inter partes, and the only question seems to be, whether the plaintiff can sustain the action in his own name alone, or must join all the parties of the same part. The cases upon this subject are numerous, and not wholly reconcileable with each other. The general principles upon the subject may, however, we think, be clearly deduced from a comparison of all the cases. There is one class of cases, which seems to have been considered in connection with this subject, which has properly nothing to do with it, — viz. the case of covenantors. I make no doubt that the law upon that subject is well enough settled. The rule is, I apprehend, the same in regard to covenantors, — as to whether they are jointly or severally liable, or in both forms, — that it is as to all contracts. It depends altogether upon the form, of the contract. Doubtless in regard to the liability of covenantors, much, in many cases, may depend upon construction, and this construction, as to covenantors, may be affected by considerations similar to those which influence the construction of covenants in regard to the liability of covenantees. As it regards the number of covenantees, who must be joined as plaintiffs, the earliest case which I have seen is Slingshye’s Case, 5 Coke’s R. 19. The general rule there laid down is, that in a “ tripartite indenture, all the covenantees must join in an action of covenant broken, notwithstanding the words of the instrument are joint as well as several, that is, with all and each of the covenantees.” But in that ease it is said, if the interest of the covenantees be several, and the words of the covenant joint and several, the action shall be several; but, even when the interest of the covenantees is several, if the demise or contract be joint only, the action must be joint. The rule laid down in Eecleston et al. v. Clipsham, 1 Saund. [359] 153, is substantially the same. But Serjeant Williams’ note (l) to ‘this last case introduces an important qualification, viz. that although the covenant be joint only, yet if the interest be several only, (t the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant are joint.” The cases referred to by Serjeant Williams do not all seem very fully to sustain the rule laid down by him. Windham's Case, 5 Co. R. 8, which was decided two years later than Slinsgbye’s case, certainly inclines very much to the view taken by Serjeant Williams. Dyer I have not seen. Wilkinson v. Lloyd, 2 Mod. 82, is a blindly reported case, from which nothing certain can be made. Tippet v. Hawkey, 3 Mod. 263, is a case fully in point. Buller’s N. P., 157, recognizes the same rule, almost in the same words. All the modern cases agree, that, where the interest is several, and the covenant joint and several, the action should be severa!. Owston v. Ogle, 13 East 538. Some of the modern cases say, that, if the covenant is joint, the action must be joint, notwithstanding the interest is several. Anderson v. Martindale, 1 East 496. Rolls v. Yate, Yelv. 177, is of the same tenor. See also Servante v. James, 21 Eng. C. L. 98. But the case of James v. Emery, 8 Taunt. 245, the note of Serj’t Williams to 1 Saund. R. 153, and B. N. P. 157, (the two last being by this court esteemed books entitled to high consideration,) and Withers v. Bircham, 10 Eng. C. L. 6S, and some other cases, perhaps, fully establish the rule, that, where the interest in the subject matter secured by the covenant is several, although the terms of the covenant will more naturally bear a joint interpretation, yet if they do not exclude the inference of being intended to be several, they “shall be so taken,” — they shall have a several construction put upon them. This is just and sensible, and a rule by which this court are-willing to abide. This rule will enable the plaintiff to recover upon those covenants intended to secure him from damage in taking the water through his land. For here the interest being manifestly several, and the contract capable of a several interpretation, w’e should so construe it as to effect the probable intention of the parties. But in regard to-other portions of the contract, the terms of the contract and the interest more naturally implying a joint obligation, we should leave the parties to such a remedy as they seem to have themselves provided. [360] The judgment b'elow is reversed, arid the-court adjudge the declaration sufficient, and the cause is remanded for assessinent of damages on the several covenants. Note by Redfield, J. Stevens, in his Ntsi Prius, a late work, and one, I judge, from a hasty examination, of more than common accuracy, lays down the rule on this subject in these words, vol. 2, p. 1132 : “ If the words be joint, but the interest several, the action may be either joint or several, at the election of the covenantees, — joint in respect ofthe express contract, and several in respect of the interest.” I have not been able to find that the cases justify this proposition to the full extent. It is doubtless true, that, in some cases, a joint action has been maintained, where the terms of the contract and the interest of the parties were much the same as in others, where a several action has been brought and maintained. But this has not been done upon the avowed ground, I apprehend, that the parties had an election as to how many plaintiffs should be joined, as there undoubtedly is in regard to defendants in covenants joint and several, where one may be sued, or all. But the different conclusion, to which the courts have come in cases apparently much the same, has arisen from the different construction they have put upon the terms of the contract, — in one case fixing exclusively upon the terms of the covenant, which were more obviously joint, and in the other interpreting them according to the intenst, so as to make them speak what was the probable intent of the parties. But these cases are not intended to conflict with each other, or, as I apprehend, to establish the rule that the action may be brought in the name of one or all the covenantees, at their election. So this case is not intended to overrule the case of Catlin v. Barnard, 1 Aik. 12, although, perhaps, in some respects, the rule of construction here adopted is different from the one mainly relied upon in that case.