Opinion
No. 4074.
Decided December 4, 1951.
A bill in equity by a tenant in common against one of several other cotenants for an accounting and for an injunction may be maintained, although a remedy at law is available under R.L., c. 384, s. 8, to avoid a multiplicity of suits by the other cotenants having similar claims, provided they present their claims upon notice. If no claims are made by the other cotenants the plaintiff may be permitted to amend the bill to an action of special assumpsit.
BILL IN EQUITY, by one tenant in common against another, and against the administrator of their common predecessor in title, for an accounting by the defendant cotenant, and for an injunction restraining the administrator from making any distribution of the estate to him pending a decree. The plaintiff is the widower of the decedent intestate, and elected to take his statutory share of her estate. She was survived by five children of whom the defendant Bonenfant is one. Another has conveyed her interest in the real estate to the plaintiff. The bill alleges in substance that the plaintiff has been ousted by the defendant of joint possession with him, and that the defendant has since continued in exclusive possession of the premises without accounting for the value of his occupancy.
The defendant Bonenfant moved to dismiss upon the ground that the three other cotenants are necessary parties to the action, that the plaintiff has an adequate remedy at law, and that the bill sets forth no grounds which would entitle him to the relief sought.
The motion to dismiss was granted subject to the plaintiff's exception. All questions of law presented by the exception were reserved and transferred by Goodnow, C.J.
Paul B. Urion (by brief and orally), for the plaintiff.
Cooper, Hall Cooper for the defendant administrator, furnished no brief.
Hughes Burns and Donald R. Bryant for the defendant Bonenfant.
At the hearing upon the motion to dismiss, the pendency of certain other actions was disclosed. It was stated that the defendant administrator has petitioned the probate court for authority to sell the real estate in question. It also appeared that there is pending in that court a petition for partition brought by the plaintiff against all of the cotenants. Whether sale of the real estate is necessary to pay debts of the decedent does not appear from the record before us.
It is apparent that the plaintiff has an adequate remedy at law. Revised Laws, c. 384, s. 8, provides that "one cotenant of real estate may recover [in assumpsit] of another taking the income thereof without his consent, and wrongfully withholding the same, all damages he may sustain thereby." In its earlier and somewhat more comprehensive form, the statute provided for the recovery of damages occasioned by the holding of exclusive possession of real estate by one cotenant without the consent of a cotenant so excluded. C.S. (1854) c. 191, s. 6. The report of the commissioners who revised the laws in 1867 discloses that no change other than a verbal one was intended in the revision of the language of this section. The holding in Mooers v. Bunker, 29 N.H. 420, serves establish the plaintiff's right to maintain an action of special assumpsit based upon the statute (Smith v. Woodman, 28 N.H. 520) without joinder of his cotenants.
The brief of the defendant Bonenfant suggests however, that the plaintiff has a cause of action, so also do the other cotenants; and that if the bill in equity may be maintained, they are necessary parties. The argument suggests the propriety of maintenance of the bill in order to prevent a multiplicity of suits (Page v. Whidden, 59 N.H. 507), relief which is available to the defendant as well as the plaintiff. See Smith v. Bank, 69 N.H. 254, 255; Pomeroy, Eq. Jur. (5th ed.) ss. 245, 269. If the other cotenants are not barred by consent from maintaining similar claims (cf. Berry v. Whidden, 62 N.H. 473), actions in their behalf would present substantially identical issues. Allbee v. Elms, 93 N.H. 202.
Under the circumstances, we are of the opinion that the bill should not be dismissed, if the defendant chooses by appropriate pleading to seek a joinder of the other cotenants. Suitable notice may be ordered, requiring them to present their claims in the pending proceeding, or be barred from maintaining them. Smith v. Bank, supra, 257. If no claims are made by other cotenants, the plaintiff may be permitted to amend the bill to an action of special assumpsit. Cf. Gage v. Gage, 66 N.H. 282, 296. Otherwise the order of dismissal may stand.
Maintenance of the plaintiff's action in some form would not seem to be precluded by the pendency of the petition for partition in the probate court, an issue not presented to the court below. Although the petition is said to contain a prayer for an accounting, "the power of the court of probate to make partition of real estate is derived wholly from the statutes" (Pickering v. Pickering, 20 N.H. 541, 542), and appears to be limited to a division in kind (R.L., c. 410, ss. 18-21), or in case of a division among heirs, to division in kind or an assignment of the whole. R.L., c. 361. Thus any right of the plaintiff to an accounting would not be determinable in that proceeding.
Case discharged.
All concurred.