Gorham v. Gorham. debt contracted by her before marriage. But his honor decided that the effects of the wife, vested in her trustee for her separate use, were to be considered as the property of a feme sole. He therefore ordered the stock belonging to her separate estate to be appropriated to the payment of the complainant's debt and costs. The husband, in this case, was a necessary and proper party, not only to defend the suit for the wife, but also as the trustee of his wife, whose concurrence in the sale and transfer of the trust property was necessary to vest the legal title in the purchaser. For, as there was no other trustee, the legal title was vested in him, for the benefit of the wife, by the transfer of the stock into her name for her separate use. And as he had no beneficial interest in the property, the legal title did not pass to the assignee in bankruptcy. The decretal order appealed from was not erroneous; and it must be affirmed with costs. GORHAM and others, committee, &c. vs. GORHAM. Where a bill is filed by the committee of a lunatic, to set aside an act done by such lunatic, upon the ground of his incompetency, it is not necessary that the lunatic himself should be made a party; but he may be joined, as a party, with his committee. In all other cases, the settled practice in England has always been, either to join the committee with the lunatic, in bringing suits in chancery for his benefit, or to file the bill in the name of the lunatic, by his committee. And where the lunatic is not made a party to the bill, or information, in his behalf, it is a good cause of demurrer. The same rules are applicable to suits brought in the courts of equity in this country, for the benefit of lunatics. When it is said, by English writers, that idiots and lunatics must sue by their committees, it is not meant that the suit is to be brought by the committee in their own names merely describing themselves as the committee of the lunatic; but that the suit is to be brought in the name of the lunatic, stating that he sues by the committee of his estate, naming them, as in the case of an infant suing by his next friend; or that the suit should be prosecuted in the names of the lunatic, and of his committee. Gorham v. Gorham. A bill filed by the committee of a lunatic, in their own names, in which they only describe themselves as his committee, is a bill by the committee alone; and is not the bill of the lunatic, by his committee. And a decree in favor of the complainants would not be a decree in favor of the lunatic. A bill filed by a committee, in that manner, praying for a partition of lands and for an account and payment of rents and profits of the share of the land belonging to the lunatic, is defective in form. And if the objection that the lunatic is not made a party to the suit, with his committee, is set up by the defendant, as a special cause of demurrer, no part of the bill can be sustained. The objection that the lunatic himself is not made a party complainant, in a suit brought by his committee in relation to personal estate, may be waived by the defendant's neglecting to set it up by demurrer or answer; and it cannot be raised merely by a general demurrer for want of equity. The court of chancery, during the continuance of the lunacy, by statute, has the whole control of the personal estate and choses in action of the lunatic. And it can transfer the title to the same, by directing a sale by the committee; and it may direct the committee to release any right of action in relation thereto, as may be equitable and just. So that when a matter relating to the personal estate of the lunatic has been fairly litigated by the committee, in that court, and decided against them, the court may protect the defendant against a new suit, by the lunatic or his representatives, although the lunatic was not a formal party to the suit brought by his committee; by directing the committee to transfer the property which was in litigation, to the defendant, or to release him from any further claim on account thereof. The question whether a suit can be commenced in the name of a committee of a lunatic, for the recovery of real estate, or to establish the title to the same, or whether a suit in partition can be instituted in the name of such committee without joining the lunatic as a party, is wholly unaffected by the act of 1845, authorizing committees to sue in their own names. A lunatic is a necessary party to a bill, filed by his committee, for the partition of Lis real estate. For a decree in partition, upon a bill filed by the committee alone, and to which the lunatic is not a party, will not transfer the legal title to his undivided share of that portion of the premises which is set off to the defendant in severalty. There is no statute, in this state, authorizing the committee of a lunatic, or of an habitual drunkard, to prosecute a suit for partition in their own names alone; or authorizing another person to prosecute a partition suit against them without making the lunatic, or the habitual drunkard, who is an actual owner of an undivided part of the premises, a party to the suit. And the only way in which a legal partition can be made of the real estate of a lunatic, or an habitual drunkard, except by an agreement between the committee and the other tenants in common, with the concurrence of the court, is to make him an actual party to the suit for partition. By making a lunatic, or an habitual drunkard, a party to a suit for partition, his legal title to that portion of the premises which may be set off to the adverse party, in severalty, will pass, without any conveyance, either from the lunatic, or the haVOL. III. 4 Gorham v. Gorham. bitual drunkard, or from his committee; under the provisions of the revised statutes relative to the partition of lands. The cases of The Executors of Brasher v. Van Cortland, (2 John. Ch. Rep. 242, 400,) and of Beach v. Bradley, (8 Paige's Rep. 146,) commented on and explained. THIS was an appeal from a decretal order of the vice chancellor of the seventh circuit. The complainants were the committee of the person and estate of an habitual drunkard. And the bill in this cause was filed for the partition of lands, owned by the drunkard and the defendant as tenants in common; and also for an account and payment of the drunkard's share of the rents and profits of the premises which the defendant had received, including the drunkard's share of the wood and timber which had been taken from the premises by the defendant. The bill described the complainants as the committee of the person and estate of the drunkard. But it did not purport to be the bill of the drunkard himself, by his committee. Nor was he joined with the committee as one of the complainants therein. The defendant put in a general demurrer for want of equity; but without stating as a ground of demurrer, that the drunkard himself was not made a party, or making any other specific objection to the form of the bill. The vice chancellor overruled the demurrer. And from that decision the defendant appealed. W. Porter, Jun. for the appellant. The bill in this cause is improperly filed in the name of the committee. The habitual drunkard should be the complainant. The revised statutes (2 R. S. 242, § 1, 2d ed.) declares who may be parties complainants in partition suits. The 80th section of the same title, (Idem, 253,) declares that the same rules as to parties shall apply in chancery as at law. In a case of that kind, the intention of the legislature was that the lunatic should be made a party. (Idem, 256, § 96, 97, 98.) The complainants, as the committee of the habitual drunkard, are mere bailiffs, or receivers, and have no personal or representative interest in the drunkard's property; and should not be complainants in a case Gorham v. Gorham. 1 like this. (Shelf. on Lunacy, 179, 180, 339, 395. 1 Collinson on Lunacy, 270. 1 Cas. in Ch. 112, 153. Petre v. Shoemaker, 24 Wend. 85. 3 Salk. 300. Lane v. Schermerhorn, 1 Hill, 97, 98. Willis' Eq. Pl. 5, note (u). Fonb. Eq. 67 and 68, note (n). Story's Eq. Pl. 67, note 1.) The case of Ortley v. Messere, (7 John. Ch. Rep. 139,) is not hostile to this position, but falls within one of the exceptions mentioned by Fonblanque. The doctrine of Judge Story, (Story's Eq. Pl. 65, 67, 68,) as to committees filing bills in their own names, derives its principal strength from the case of Ortley v. Messere; which is aliter so far as the doctrine sought to be established by Judge Story is concerned, and it is in conflict with all previously adjudged cases. There seems to be no necessity for departing from the well established general principle, in equity, which limits parties to those persons who are interested in the proceeding, or whose names are necessary to a decree, by making the case of the committee of a lunatic, &c. an exception to the rule. Allowing such committees to file bills in their own names, as sole complainants, would be increasing the already too great discrepancy in the principles and proceedings which prevails between the courts of law and courts of equity; which should be avoided. But even if it would have been regular, under the permission and in the exercise of discretion of the court, for the committee to file this bill in their own names, such permission or direction surely should appear upon the face of the bill. Otherwise the complainants appear as naked agents; prosecuting in their own names, and having no statutory or judicial authority so to do. The defendant is not liable to his co-tenant for the occupancy and enjoyment of all the premises, except where such occupancy has been under a lease from such co-tenant, or in defiance of his rights. This bill does not allege that there were any rents, issues or profits of the premises during the time the defendant is alleged to have occupied the premises; but simply that the defendant by himself or his tenants occupied and enjoyed all the premises, &c. Even had the bill alleged that there were rents and profits of the premises and that the defen Gorham v. Gorham. dant had received them, this of itself would not lay a foundation for a suit here, for an account; without alleging that there was some obstacle to a recovery at law, or that there were mutual accounts. The charge in the bill that the defendant during the time of his occupying the premises, cut and sold wood and timber growing thereon, and received the pay therefor, amounts to a charge of waste; for which a bill in chancery cannot be filed. (Winship v. Pitts, 3 Paige, 259.) And the charge that the defendant cut and sold the wood and timber on the rail-road land, amounts to nothing more than a conversion by one tenant in common of the joint property; for which an action of trover is the proper remedy. When the statute creates a right and at the same time gives the remedy, that remedy must be pursued. (Durant v. Supervisors of Albany, 26 Wend. 89. 5 John. Rep. 175. 3 Hill, 41. 3 Mass. Rep. 307. 5 Id. 514.) The right of a tenant in common, or of a joint tenant to an account against his co-tenant, does not exist at common law, but was first given by the statute of Westminster, which statute has been re-enacted in our own statutes. (1 R. S. 2d ed. 741, § 9.) The only remedy there prescribed is by an action of account, or an action for money had and received. This court may decree an account as incidental to a decree for partition; for the reasons stated in Winship v. Pitts, (3 Paige, 259.) But the portion of the bill for partition failing, for want of proper parties, that portion relating to the account of the rents and profits and for the waste, must fail with it; it appearing that the complainant has a remedy at law for the rents and profits. The jurisdiction of chancery in partition cases is statutory, and the statutory directions, especially as to parties, must be strictly followed. This bill, therefore, should be dismissed with costs, and proceedings de novo commenced, under the provisions of the revised statutes relative to the partition of lands F. G. Jewett, for the respondents. The practice of the court in this state does not make it necessary that idiots, lunatics, or persons who are duly found incapable of conducting |