Reynolds v. Thomas

Skinner, J. This was an action of forcible entry and detainer. On motion of defendants below, the court dismissed the suit for want of a sufficient complaint, and this decision is assigned for error. The complaint alleges that on the first day of April, 1855, the plaintiff was the owner and in the actual possession of a certain town lot (describing it), and a two-story building there.on; that while so in possession, one Breed forcibly entered and turned the plaintiff out of the possession thereof; that said Breed and others (named), conspiring together to keep the plaintiff out of possession, leased the lower story of the building to Amos and Harvey Gaylord, and the upper story to one Wells, and that they entered and hold possession against the plaintiff after demand, &c.; that defendants, at the time of taking their leases and taking possession, knew of the forcible entry of Breed, and hold under and maintain the possession of Breed. The complaint shows that the defendants entered into and hold separate portions of the building in severalty, and not in common ; that they entered and hold under separate leases and distinct portions of the premises. An injury to or disturbance of the possession of one tenant would not give an action therefor to the other, nor to all of them jointly. Their interests and possessions are distinct, and the portion occupied by each tenant is as much his castle in law as if in a separate building and on different ground. This being an action in tort the plaintiff could have entered a mile prosequi and so have avoided the misjoinder, but not choosing to do so, and the misjoinder appearing from the complaint, the court properly dismissed the suit. In this case the complaint shows two distinct causes of action, each against different persons, and all are sued jointly. This is not like a case where the parties go to trial without objection, and there is a special finding as to each defendant; but the objection is taken in nature of a demurrer, and the error appears upon the plaintiff’s own showing. The following cases hold—under a statute similar to ours that an action of forcible detainer cannot be maintained against two or more who hold in severalty: Kerr v. Phillips, 2 Southard’s R. 818; Snedeker v. Quick, 7 Halstead 129. Courts of law will not take cognizance of separate causes of action against different parties in the same suit. 1 Chitty’s Pl. 73; ibid. p. 1. Judgment affirmed.