Ragan v. McCoy

Scott, Judge, delivered the opinion of the court. This suit was commenced whilst the practice act of 1849 was in force • consequently it should have been conducted according to the provisions of that act. It was an action for the recovery of money, and therefore under the said act was properly triable by a jury. The prayer for a discovery did not the less make it a case to be tried by a jury. We have held that the act of 1849 abolished the bill for a discovery. (Worley v. Bond, 26 Mo. 253.) The case, then, being one for a jury, the court had no right to share its functions and take upon itself a portion of its duties. In cases to be tried by juries, the jury tries all the issues and the court gives the law. If parties waive a jury trial, and the cause is submitted to the court, then the court without a jury finds the facts and declares the law of them. We are speaking of the act of 1849. In this case, indeed, the court seems to have taken to itself the trial of the facts, and put the finding out of the law upon the jury. Whether the plaintiffs and defendants were tenants in common under the facts of the case was purely a question of law. We will not undertake to say whether the sale in partition was valid or not on account of the deed having been executed by one commissioner only, the other two having died. It appears that the fact of the death of two of the commission [366] ers was brought to the knowledge of the court before the deed was perfected, and it is strange that the vacancies in the board of commissioners were not supplied. Why has it not been done since and another deed executed; or, if that is now impracticable from deaths and alienations, why not call upon the general assembly to make valid the first deed ? This would not make matters any worse, and it might help them. In a supplementary answer the defendant set up as a de-fence the first dedication in 1839 of the street which gives rise to, this controversy. If there was an actual dedication at that time, the property could not afterwards be resumed by those making the dedication. There is strong evidence of such a dedication; and the proprietors of the town can not take advantage of their violation of the law in not making the dedication in the manner prescribed by the statute. They may have subjected themselves to a penalty, and yet in favor of third persons their act will be binding. (The City of Hannibal v. Draper, 15 Mo. 638.) If this suit is again tried, it will be determined whether there was a dedication in 1839. The plat of April 30,1846, is not in the record. We can, therefore, give no opinion as to its conformity to law. But we do not see, in the words of the statute, any foundation for the objections that it was not signed by the proprietors, and that the justice did not certify, in the acknowledgment taken, that they were known to him to be the persons they represented themselves to be. We see no error in the ruling of the court in refusing permission to the witness to testify as to the advantage of the ferry to the town at large. As the plaintiffs claimed a sum of money, which they alleged was due them, we do not see how that circumstance could affect the amount claimed. The important question in this case is whether, admitting that the plaintiffs and defendants are tenants in common of the ferry privilege, or street, or space of ground where the ferry was kept, the plaintiffs can maintain this action ? It is [367] said that if one tenant in common occupies the whole estate, without any claim on the part of his co-tenants to be admitted into the possession, and without hindrance by him of such possession, he is not liable to his co-tenants in an action of account. (Coke Litt. 200, b.; Bacon’s Abrid, tit. “ Joint Tenants,” letter L.; Sargent v. Parsons, 12 Mass. 149; Woolever v. Knapp, 18 Barb. 266.) The modern English •authorities are to the same effect. (Henderson v. Easom, 9 Eng. Law & Eq. 337.) Our statute giving an action of account to joint tenants and tenants in common against each other is similar to the statute of New York and the statute of 4 Anne. The tenant is only liable as bailiff or receiver, and this relation can only arise by contract. Each tenant is entitled to the possession, and may enter and enjoy if he will. As each tenant is entitled to his share of every part of the undivided premises, one tenant can not gain an exclusive right to any part of them. He may enter and enjoy a portion less than his share, yet the other tenants will be entitled to, their share of that portion, as each tenant is seized of his portion of every part of the undivided premises ; so that if the law were otherwise, one tenant might refuse to enter, and the other could not enjoy any portion, even one less than his share, without making himself liable to the others for a share of the profits, and that without regard to the fact whether the occupation was beneficial or otherwise to the premises. Of course, if one co-tenant ousts another, he will be liable in an ejectment, or subject himself to the law of forcible entries. But where the land is free to all, and each may enter if he will and enjoy his rights undisturbed, there is no reason in compelling him, who does enter, to pay rent to him who neglects or obstinately refuses to do so. But how much stronger is the ease before us than the one put ? Here are tenants in common of a parcel of land on which a ferry may be kept. One of them obtains a license and actually keeps a ferry, an employment that nowise lessens the value of the common property, but on the contra^y?^ heightens it. Each of the tenants may do the same tl'jjngj- y [368] They neglect it, however, and yet would enjoy the profits of him who does. Licenses to keep ferries continue for one year.. It does not appear that the license granted the defendant has obstructed the enjoyment of the right of the others, or but that redress might have been had if application had been made to the proper tribunal. The right to keep a ferry is a personal privilege sold to the person obtaining the license, and is not transferable. (Stark v. Milber and others, 3 Mo. 330.) Suppose two were tenants in common of a private stream, which afforded as many fish as both could take, and one of them made the taking of fish his business, from which he reaped a profit, would the other be permitted to share that profit ? It may be that the expenses would be diminished, and thereby their profits increased by uniting in the employment ; but if they will not do this, and one is at all the expense, why should they share the profits, when the employment has not at all affected the value of the common property ? As the plat of 1846 is not before us, we will hazard no opinion as to the effect of it between the proprietors. As we suppose this suit was brought to try the right of the' parties to the ferry privilege, the cause will be remanded so that the parties may amend their petition in a way that their action may be adapted to that end. The mode of trying the cause, and the error in the instruction in relation to the dedication in 1839, are sufficient to reverse the judgment. Reversed and remanded. The other judges concur.