Strong v. Richardson

The opinion of the court was delivered by Davis, J. It is not doubted, that, under our statute, the action of account is a proper mode to equalize the reception of rents and profits between tenants in common of an estate, where one tenant has received more than his just share. If the interest of each is not sufficiently set forth in the declaration, or if the fact of the receipt of an undue proportion is not properly stated, the proper course on the part of the defendant is to demur. In the present case, although the defendant contends, that the plaintiff’s declaration is vicious in both of these particulars, yet, instead of demurring, he chose to plead in bar, that he was not the bailiff of the plaintiff for the period claimed, and that the parties were not the joint and equal owners of the land in question, (being lot No. 24 of the third division of lands in Mendon,) and that he was not bound to account for whatever * timber he cut and removed, — adopting negatively the language of [197] the declaration. The issue was thus formed, and, by consent, was tried by the court, and was found for the plaintiff. This closes the controversy, so far as the facts are concerned, in respect to the obligation to account. The ulterior proceedings have determined, as is to be presumed, the true state of the accounts between the parties. The defendant now falls back upon the declaration, and insists that it is so defective, that no judgment ought to be given upon it in favor of the plaintiff. Had the objections now urged been taken seasonably by demurrer, we have no doubt they must have prevailed. In the light of the cases of Brinsmaid v. Mayo, 9 Vt. 31, and Ganaway v. Miller, 15 Vt. 152, we are satisfied the declaration could not have withstood a demurrer, upon either of the points above indicated. The tenancy is stated in these words, “ were the joint and equal owners of lot ” &c. Here is no distinct statement of the amount of interest of either, whether a moiety, or a less quantity, nor, consequently, whether they were the only tenants in common of the lot, or whether others were associated in interest with them. There is an equal, if not a greater, want of explicitness in stating the reception by the defendant of an undue proportion of the profits; it being merely said, that he had the charge and administration of the land and the possession thereof, and cut, sold and used timber to a large amount, and of a large value, “to render account fpr the, same” to the plaintiff. As was said by the court in Brinsmaid v. Mayo, this is, at most, stating the requisite point by way of inference; and if the matter had been presented here as it was there, the result must have been the same. After a plea filed, however, which presented an issue of fact, and that found by the court for the plaintiff, which is equivalent to a verdict of a jury, the case is in the same situation, as if it were upon a motion in arrest, after verdict, for deficiencies of the declaration. In such a stage, the party has lost the advantage of many objections, which would have availed him, if insisted upon at an' earlier period. The ordinary rule, in such case, is familiar to every one. The only difficulty is in the proper application of it to the almost infinitely diversified circumstances which may arise. We are of opinion, upon mature consideration, that the objections urged to this declaration fall within that class which are foreclosed by a verdict. The documentary evidence in respect to the tenancy, [198] made a part of the case, leaves no doubt, that the parties were tenants in common, each of a moiety ; and all other circumstances necessary to charge the defendant appear upon the face of the auditor’s report. On both points the declaration is not entirely silent, but certainly inartificial and inexplicit. The result is, the judgment of the county court is affirmed.