Sanford v. Button

Reeve, J. (after stating the case.) Whether the; co-verture of Lydia can protect her right or not since her title accrued to her whilst a minor unmarried, I do not find necessary to determine. This is a joint suit by several heirs; and it is claimed that the minority or coverture of one saves all the rights of the other heirs. There can be no' question but the rule of the common law on a joint suit is, that the minority, &c. of one will save the rights of those of full age; for the recovery must be joint, and no one without the other can recover. And as the rights of the minor are secured, he must recover; and yet he cannot recover, but with all the joint proprietors: of course, they must recover also. The rights of those of full age are preserved, that the minor may have the benefit of liis privilege; and the rights of those heirs that are n«t [312] femes covert, are preserved, that the/emeHow she is ⅛*» covert, may have the benefit of her privilege. Rut such a provision would never have been made, if those of full age, &c. could have asserted their rights without joining the minor. We find no intimation of the rights of an adult or feme discovert being saved, except where the suit must be joint. Amongst tenants in common, where, by the rules of the common law, they cannot join, we find no such rule, that because the rights of a minor tenant in common are preserved, the rights of his fellow tenant, who is an adult, are also preserved. And there is no reason why they should. There never was any impediment to his asserting his own claim. The only reason that can exist why such a rule should obtain, is, that the suit must be joint; and the privileged person cannot recover without joining others in the suit. By our practice, which has been long since settled, from which no inconvenience has arisen, any one joint tenant or coparcener may sue and recover without joining any others. Why, then, do they not assert their claims seasonably ? There is nothing to prevent them. And why should they avail themselves of the privilege of othérs ? No reason can be assigned why they should. On this record it does not appear but that all the plaintiffs except Lydia, were persons who did not labour under any disability, and might have asserted their claims at any time. They can, therefore, never have a right to recover ; and Lydia cannot recover in a suit where she has joined those who have no right to recover. The suit being joint, the judgment must be joint also. For these reasons, I should advise a new trial. In this opinion the other judges severally concurred. New trial to be granted.