the widow, being entitled to dower in the whole tract, might join both these owners of the fee, who were also the occupants, as defendants in the same action. The rule is not confined to proceedings for the recovery of dower. Where it was alleged that one defendant claimed to be owner in fee of the whole premises, and that the three other defendants were his tenants, and that they all" unjustly withheld from the plaintiff the possession of the said premises," and it appeared on the trial that each of these four defendants actually occupied a separate portion, it was held that all these persons were properly united as codefendants in the action. When the land is in the actual possession of a tenant, the landlord may be joined with him as a codefendant, independently of any express provision of the code authorizing such a course, if the landlord has in any manner interfered to resist the plaintiff's claim, or has aided and abetted the tenant in his resistance, or has asserted the right of ownership to be in himself as against the plaintiff.3 § 296. Persons, however, whose rights cannot be at all affected by a recovery against the party in actual possession, whose interest is entirely distinct from his, and under or from whom he does not derive any title, are neither necessary nor proper codefendants with him in an action brought to recover the possession as against his special title; as, for example, the remainder 1 Galbreath v. Gray, 20 Ind. 290. It was held that the respective liabilities of the two defendants could be arranged and determined in the judgment. 2 Fosgate v. Herkimer Man. Co., 12 N. Y. 580. See Fisher v. Hepburn, 48 N. Y. 41, 55, per Earl J. session his own; and, if wrongful, he was thus, with his tenant, responsible therefor,"-citing Fosgate v. Herkimer Man. Co., supra; Pearce v. Ferris's Executors, 10 N. Y. 280; Fosgate v. Herkimer, &c. Co., 12 Barb. 352. This decision is not based upon the last clause of § 118 of the Abeel v. Van Gelder, 36 N. Y. 513. New York code. See also Finnegan v. One S. was the tenant in possession, and Carraher, 47 N. Y. 493, which was very Van G. was the landlord. The court, similar to Abeel v. Van Gelder, supra, in after reciting the facts that Van G. all the facts. The landlord alone was claimed to be the owner, that the entry sued. Court held the tenant was also a was made, and the possession was retained proper and perhaps a necessary party, by his command, that he asserted title but objection to his nonjoinder had been in himself, and declared that possession waived by not demurring or answering. should not be surrendered, proceeds, at In Iowa, it is held that when the defendp. 514: "This was certainly enough to ant is only a tenant, the landlord may be constitute him a tort feasor with his ten- substituted; but this is not necessary. ant, whose action he assumed to control. If substituted or notified, he is bound by He knowingly and purposely took upon the judgment; otherwise he is not. State himself the burden of supporting his ten- v. Orwig, 34 Iowa, 112, 115. ant's possession, and thus made the pos man in fee after a life estate, when the action is merely for the purpose of recovering possession during the continuance of such life interest. Thus, in an action against a husband, tenant by the curtesy in actual possession, brought not to establish an absolute title in fee, but to recover the possession during the husband's life, the heirs of the deceased wife-who are the reversioners in fee-are neither necessary nor proper parties defendant. On the same principle, an action by the grantee in a sheriff's deed of lands given on an execution sale, the judgment debtor having died, should be against the latter's heirs alone, and not against them and his widow; her dower right could not be affected by the recovery, and being as yet unassigned, it did not entitle her to possession as against the plaintiff.2 Lands having been given to a tenant for life, with remainder in fee to another, the former leased the premises for a term of years, with a covenant of quiet enjoyment. The life tenant died before the expiration of the term, and the remainder-man thereupon entered and took possession. The lessee brought an action upon the broken covenant against both the executors of the life tenant and the remainder-man. The action in this form was plainly without any foundation; the remainder-man was improperly joined, as he was in no manner liable on the covenant.3 § 297. II. Actions against Owners or Possessors of Chattels. The actions which fall under this subdivision, and which have any distinctive features, are very few in number. Those brought to recover damages for a tortious act, trespass, or negligence, committed by means of a chattel, and those brought to recover damages for the conversion of a chattel, properly belong to the subdivision which treats of actions for torts in general. The common-law rules as to parties defendant in an action to recover possession of chattels have not been in any manner affected by 1 Allen v. Ranson, 44 Mo. 263. 2 Cavender v. Smith, 8 Iowa, 360. If the dower had been assigned so that the widow was in actual possession of part of the land, her possession, as long as it continued, would, of course, have been under a title paramount to that of the plaintiff; and, although not yet assigned, she could establish her dower against the plaintiff after he had obtained possession of the entire tract in his action. 3 Coakley v. Chamberlain, 8 Abb. Pr. N. s. 37. The complaint was dismissed as to the remainder-man, and judgment was rendered against the executors. The action was in every respect remarkable. Where a lessee assigns his term, the lessor may join the lessee and the assignee in a suit for the rent. Tabue v. McAdams, 8 Bush, 74. the new procedure. Such action must be brought against the party or parties in actual possession of the chattel demanded by the plaintiff. If this actual possession is in one, he must be the sole defendant; if in two or more jointly, as, for example, in a partnership, they must all be made defendants. There is a particular case in which the action may be maintained against one in constructive possession, as well as against the party in actual possession.2 If the original taking of the goods was wrongful, and the wrong-doer has subsequently parted with the possession by assignment, the action will still lie against him, or it may be prosecuted against both himself and the assignee whose possession is actual. Possession by the party, however, and not the claim of ultimate ownership, is in general the ground for making him a defendant. If the possessor is sued, and a third person also sets up a claim of title, the conflicting demands may be determined by means of an interpleader between the plaintiff and this claimant, ordered by the court at the instance of the defendant, if he in fact admits that he himself has no right in and to the goods.* § 298. The liability of ship-owners for supplies furnished or repairs made, or upon other contracts, express or implied, in respect to the vessel itself, gives rise to rules which properly fall under this subdivision. I do not now stop to inquire when, how, or by whom the owners may be bound, nor what are the powers of the master or other agent in managing the vessel. It is assumed that the power exists and has been properly exercised, and that a liability has arisen for the supplies, repairs, or other aid to the ship; and the single question is, What is the extent of the liability, upon whom does it rest, and against whom should it be enforced? When a liability has been created by the master or other agent for supplies furnished to the vessel, the part-owners 1 Code of New York, § 207; Ohio, § 175; Indiana, § 129; Wisconsin, ch. 128, § 2; Minnesota, 2 Stats. at Large, p. 876, § 56; Missouri, art. 6, § 1; Iowa, § 3225; California, § 510; Oregon, § 131; Nebraska, § 182; Kansas, § 177; Florida, § 156; 1 Ch. Pl., pp. 122, 123 (Springfield ed., 1840). 2 Nichols v. Michaels, 23 N. Y. 264, 270, 271. See Haughton v. Newberry, 69 N. C. 456. 8 Nichols v. Michaels, 23 N. Y. 264, 268, 270, 271, per James and Selden JJ. 4 See code of New York, § 122; Ohio, § 42; Indiana, § 23; Wisconsin, ch. 123, § 22; Minnesota, § 116; Iowa, § 2572; Kentucky, § 42; California, § 386; Kansas, § 43; Nebraska, § 48; Florida, § 77; South Carolina, § 145; North Carolina, § 65; Nevada, § 17; Oregon, § 39; Dacotah, § 75; Washington, § 12; Wyoming, § 47; Montana, § 19. are responsible in solido, and should all be joined as defendants; the nonjoinder of some is a defence by those sued;1 and the same is true in the case of repairs and of all other expenses properly incurred in sailing her. An action to recover compensation in the nature of salvage for services rendered in saving and securing a disabled steamboat under circumstances entitling the plaintiff to such compensation, was held to be properly brought against all the persons and corporations who owned interests in the boat, even though their interests were distinct and unequal, and even though some of them were separate insurers of her by different policies, to whom an abandonment had been made on account of a total loss. Although their interests and their liabilities were unequal, they might all be sued in a single action, and a separate judgment could be rendered against each in proportion to his or its liability.3 § 299. III. Actions upon Contract: Joint Liability. Notwithstanding the general intent of the codes - which, I think, is very plain to substitute the equitable in place of the legal doctrines upon the subject of joint liability and of the necessary defendants in actions brought thereon, this intent has not guided the courts in the decision of the particular cases as they have arisen. The overwhelming weight of authority, in passing upon the subor dinate and practical questions, has determined that no such change has actually been made, and that the common-law rules are left controlling in all legal actions. The only modification and it is rather formal than real seems to be in the manner of raising the questions. In an action against joint debtors, or to enforce a joint liability arising out of contract, all of the joint debtors or joint contractors that are living must be united as codefendants; and a neglect to make such union of parties, if properly taken advantage of, will be fatal to the action. In other - 1 Sager v. Nichols, 1 Daly, 1. 2 Bassett v. Crowell, 3 Robt. 72. Liability in solido means a joint liability, where all must be proceeded against, and the judgment is recovered against all, but may be fully enforced against either, and he left to his right of contribution, if any, against his fellows. In reference to the general doctrine stated in the text, consult Smith's Mercantile Law, pp. 237, 238 (Am. ed.), and Abbott on Shipping, pp. 116-118 (marg. pag.). 3 Cloon v. City Ins. Co., 1 Handy, 32, per Gholson J., Superior Court of Cincinnati. 4 This general statement does not, of course, apply in those States whose codes expressly change the common-law rules in respect to joint debtors and joint liability upon contract, and expressly permit any number to be sued, and also the personal representatives of deceased joint debtors to be united with the survivors, &c. See supra, § 118. words, the codes, in the absence of such express provisions as are found in those of a few States, have not changed the nature of joint liability on contract, nor assimilated it to a several or joint and several one. While this doctrine is generally accepted in the States which have adopted the reformed system of procedure, in a few of them, as has been said, the language of the statute is much more specific, and this language, it is held by the courts, substantially abolishes all joint debts and contract liabilities, and reduces them to joint and several liabilities; or, rather, it produces a still greater effect, for, as judicially interpreted, it permits the creditor to sue one, all, or any number he pleases, of the debtors or persons liable on the contract.3 § 300. If one of two or more joint contractors is incapable of entering into a valid agreement, but all are sued jointly in one action, judgment may be recovered against those alone who are 1 Namely, Kentucky, §§ 38, 39; Missouri, § 7; Iowa, § 2550; Kansas, § 39; North Carolina, § 63 a. Bridge v. Payson, 5 Sandf. 210; Wooster v. Chamberlin, 28 Barb. 602; Tinkum v. O'Neale, 5 Nev. 93; Keller v. Blasdel, 1 Nev. 491; Jenks v. Opp, 43 Ind. 108, 110; Kamm v. Harker, 3 Oreg. 208; Aylesworth v. Brown, 31 Ind. 270; Bledsoe v. Irvin, 35 Ind. 293; Hardy v. Blazer, 29 Ind. 226; Braxton v. State, 25 Ind. 82; Shafer v. Moriarty, 46 Ind. 9, 13. See Lane v. Salter, 51 N. Y. 1. In Bledsoe v. Irvin, the court said that the decision there made did not conflict with the doctrine of Goodnight v. Goar, 30 Ind. 418, which was that "the code seems to have re-enacted the rules which prevailed in equity as to who must join as plaintiffs and may be joined as defendants," because, even in equity, such parties (joint debtors) must all be made defendants, and thus brought before the court; citing, in support of this equity rule, 1 Dan. Ch. Prac. 329. In Shafer v. Moriarty, 46 Ind. 9, 13, the doctrine was applied to the members of a corporation, who were made personally liable by the statute for certain debts of the company. But if the stockholders are each made liable in the amount of the stock held by them respectively, the liability is not joint, and each must be sued separately. Perry v. Turner, 55 Mo. 418. If one of two or more joint debtors has been discharged in bankruptcy, he is still a necessary defendant, since his defence is personal, and must be specially pleaded. Jenks v. Opp, 43 Ind. 108, 110, 111. 3 This is the necessary effect of the provision in the code of each State referred to in the text, and named in note (1) last preceding; namely, Kansas, Rose v. Williams, 5 Kans. 483; Board of Commissioners v. Swain, 5 Kans. 376. An action may be brought on a joint note against one or more of the makers; and if all are sued, the plaintiff may dismiss as to any one or more, and take judgment against the others. Whittenhall v. Korber, 12 Kans. 618; Alvey v. Wilson, 9 Kans. 401, 405; Silver v. Foster, 9 Kans. 56, 59. Iowa, Ryerson v. Hendrie, 22 Iowa, 480, an action sustained against one of the partners upon a firm note; the opinion of Cole J. is a very full discussion of the doctrine and of the changes made by the new system, -an exceedingly instructive opinion, but too long for quotation. Kentucky, Gossom v. Badgett, 6 Bush, 97; Nichols v. Burton, 5 Bush, 320. This last case holds that a judgment against one partner on a firm debt extinguishes the demand, and is a bar to any subsequent action thereon against the other partners. This result is expressly guarded against by the codes of certain other States. |