Opinion
FEBRUARY TERM, 1807.
Bradley, (of Vermont,) for the plaintiffs, contended,
1st. That by the common law of Vermont, the words "equally to be divided between them," do not make a tenancy in common, because a tenancy in common is not thereby necessarily implied. Joint heirs in Vermont hold as coparceners.
2d. That if the plaintiffs are tenants in common, yet they have a right, by the common law to maintain a joint action for an injury to their lands holden in common — (3 Bac. Ab. 216.)
3d. That even if the plaintiffs are to be considered as tenants in common, and could not by the common law join in an action to recover possession, yet by the statute of Vermont of 2d of March, 1797, ( Laws of Vermont, p. 118. s. 88.) they must join in an action for the mesne profits, or rather no other action is given for the mesne profits than an action for the possession itself, in which the plaintiffs shall recover the possession as well as damages.
The words of the act are, "and in every such action," (ejectment,) "if judgment be rendered for the plaintiff, "he shall recover as well his damage as the seisin and "possession of the premises." As therefore the action for the mesne profits cannot be severed from the action of ejectment, and as, upon every principle of law, tenants in common must join in the action for the mesne profits, it follows that they must join in the possessory action also.
The principle has also been admitted by the legislature of Vermont, by the act of 29 th of October, 1806, s. 4. which declares "that tenants in common of any "lands, c. may join in any action which concerns "their common interest in such land."
There was no argument on the part of the defendant.
February 23.The court decided that the action was well brought, and that the will ought to be received in evidence to support the declaration.
THIS was a case certified from the circuit court for the district of Vermont, the judges of that court, being opposed in opinion upon the question, whether the plaintiffs, devisees of a tract of land to be equally divided between them, could, under the will, support a joint action of ejectment. The declaration did not set forth the title of the plaintiffs, otherwise than by the following averment — "Of which tract or parcel of land, the plaintiffs " on the 6th day of April, in the year of our Lord " Christ, one thousand eight hundred and four, were " well seised and possessed in their own right, and so " continued thereof possessed until the 8th day of April, " in the year last aforesaid, when the defendant, without " law or right, and contrary to the will of the plaintiffs, " thereinto entered and ejected, expelled, drove " out and amoved the plaintiffs therefrom, and ever " since hath, and still doth keep out the plaintiffs from " the premises, taking the whole profits to himself, which " is to the damage of the plaintiffs six hundred dollars, " to recover which, and the quiet and peaceable possession " of the said premises, and just costs, they bring " this suit."
The honourable W. Paterson, late associate justice of the supreme court of the United States, and the honourable Elijah Paine, district judge.