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    Barnum and others vs. Landon and others.
    The statute [section 23, title 12th, p. 478, Ed. 1854,] which provides that whenever a suit shall be instituted against two or more defendants, to compel them to render an account, it shall be by bill in equity, has reference to cases where the defendants are sued to answer severally and not as joint baliffs or partners who have a common defense.
    A declaration charging the defendants as joint baliffs of the plaintiffs of a quantity of iron ore, taken from an ore bed occupied by the plaintiffs and defendants as tenants in common ; was held, after verdict for the plaintiffs, not to be insufficient in not alleging that the defendants had taken more than their share of the ore ; for, however this might be in a suit brought under the statute against a co-tenant for an account, yet here the defendants must be taken to be bailiffs at common law.
    Where a tenant in common is sued by his co-tenant, to compel him to account for rents and profits received by him from the common estate, it is not necessary to allege in the declaration that he has taken more than his share of the rents and profits, for the plaintiff has an interest in all the rents and profits, and the defendant is accountable for the plaintiffs’ share of whatever rents and profits he has received.
    Ordinarily such action will lie only after demand and at reasonable periods.
    A written lease, duly executed, but not recorded, is valid to convey an interest in real estate as against a co-tenant.
    The case of French v Gray, 2 Con. Rep., 92, referred to and disapproved.
    A lease for a term of years by a tenant in common of his interest in the estate held in common, makes the lessee, who takes possession under the lease, and receives the rents and profits, a co-tenant with the other tenants in common, and as such liable to account to them.
    Where the defendants, who were lessees in possession of one twenty-fourth of an ore bed, had accounted to their lessor for all the ore dug by them ; it was held, that this did not discharge them from their liability to account to the other tenants in common, the lessor being entitled to only one twenty-fourth of the profits of the ore so dug, and the other tenants in common to twenty-three twenty-fourths.
    Whether in such case the defendants or their lessor would he the party to account to the other tenants in common, must depend on the question of fact as to which of them was in possession, receiving the rents and profits.
    Where in an action by certain tenants in common, against their co-tenants to compel them to account for rents and profits, it appeared that an undivided part of the int-rest of which the plaintiffs were in actual possession, claiming title, was owned at the time the suit was brought by a mortgagee, who had foreclosed, but had never taken actual possession; it was held, that such mortgagee was not a co-tenant in possession, so as to make it necessary that he should have been joined as a plaintiff.
    This was an action of account, brought by Milo Barnum, Leonard Richardson, and William H. Barnum, partners, doing business under the name of Barnum, Richardson and Company, against Horace Landon, Schuyler Pratt and Charles E. Botsford, as partners under the name and firm of Landon & Co. The declaration contained three counts, on the first and third of which only was a verdict rendered.
    In the first count the plaintiff called upon the defendants to render their reasonable account for the time during which they were bailiffs of the plaintiffs; alleging, that, from the first day of April, 1853, until the first day of January, 1854, the defendants, as such partners, as bailiffs of the plaintiffs, had possession of twenty-three undivided twenty-fourth parts of two thousand tons of iron ore, situate in said Salisbury, of the value of five thousand dollars, which the plaintiffs, as partners aforesaid, and the defendants, as partners aforesaid, owned together as tenants in common; and the defendants, as partners aforesaid, had possession of the other one undivided twenty-fourth part of said iron ore, in their own right. And, during all that time, the defendants had the care, management, and use of said iron ore, to sell and dispose of the same for the advantage and profit of the plaintiffs and defendants, and to render a reasonable account thereof to the plaintiffs when the defendants should be thereto requested.

      The third count after alleging that the defendants as bailiffs of the plaintiffs, had the possession and care of a certain ore bed as tenants in common, with the plaintiffs, was substantially like the first.
    The defendants pleaded the general issue upon which the canse was tried at the term of the superior court holden in January, 1856.
    On the trial among other evidence, the plaintiffs offered a lease, under which they claimed a portion of their interest in said ore and ore bed ; the execution and delivery of which lease to the plaintiffs, and their occupation of said ore bed under it, were not denied; but the defendants objected to its admission, because it was not acknowledged and recorded. The defendants did not claim that they were injured or affected by said omission to record, nor did they claim any interest under any of the lessors; but they insisted that the lease was a nullity unless recorded. The plaintiffs insisted, that as against the defendants it was good as a lease and a license; and, as connected with their possession, was admissible to support the averments in the declaration. The court admitted the lease, and it was read to the jury.
    To prove that the defendants were tenants in common with the plaintiffs, as alleged, the plaintiffs offered in evidence a lease from Forbes Munson to the defendants, which was as follows:
    Know all persons that I, Forbes Munson, of Canaan, in consideration of the agreement of Horace Landon, Schuyler Pratt, and Charles E. Botsford, of Salisbury, dealers in company, by the name of Landon & Co., do demise, lease, and to farm let, to said Landon, Pratt, and Botsford, the one undivided one-fourth part of one-sixth part of that certain ore bed, situate in said Salisbury, called the Davis Ore Bed, of which Samuel Forbes, late of Canaan, deceased, died seized; to have and to hold the same for the period of two years, from the first day of April next. And the said lessess shall have the right, in the same and as ample manner as I the said lessor have, to enter upon said premises and take ore therefrom, and may during said term, dig and carry away from said bed, all such quantities of ore as they may find convenient, under my right, exercising said right in a prudent manner, according to the usages of digging ore in said Salisbury. But said lessess shall not underlet, and are to surrender up said premises at the expiration of said two years.
    And the said Landon, Pratt and Botsford, in consideration of the premises, agree to commence digging on said right sometime in April next, being first put into possession of the same by said lessor, and to use all proper and reasonable means, to raise at least one thousand tons of ore from said bed, each of said years, provided they may have the lawful right to do so, under this lease; and for all the ore obtained at said bed under this lease during the first year, said lessess agree to pay said lessor, the sum of fifty cents per ton, provided the quantity so obtained shall amount to one thousand or more; but if it shall fall short of one thousand tons, then they agree to pay seventy-five cents per ton, for the quantity so obtained the first year. And they also agree to pay the like sum of fifty cents per ton, for the quantity obtained the second year, provided the same shall amount to one thousand tons or more; but if the quantity so obtained the second year, shall fall short of one thousand tons, they agree to pay the like sum of seventy-five cents per ton, for the quantity obtained the second year, — payments to be made at the end of each year. And said lessees agree to use reasonable means and diligence, to obtain at least the quantity of ore from said bed above named, and, in case they shall omit to use such diligence, this lease shall be void, and said Munson may re-enter and take possession of said premises. And it is agreed that said lessees may from time to time, require the directions and instructions of said lessor, as to the use and occupancy of said premises. And if they 'follow the directions of said lessor, and shall thereby be subjected to any law-suit or costs of litigation,.said lessor shall pay and bear all expense thereof. And it is also agreed, that said lessees shall commence digging ore on said right, under this lease» during the month of April next, as aforesaid ; and continue to exercise said right, in the manner before specified, unless hindered or obstructed in such manner as to make it unprofitable for them to pursue said business; in which last named case, said lessees may abandon and surrender this lease to said lessor, paying him according to the terms of this lease, for all the ore taken from said bed.
    In witness whereof, &c.
    The defendants objected to the reception of this lease, claiming it to be merely a license, and that it did not prove that the defendants were co-tenants with the plaintiffs, but that the defendants, under it, were mere servants, and that said Munson was co-tenant with the plaintiffs of the l-24th part. It was proved, that the defendants were put into possession of the said l-24th part of said ore bed upon the execution of said lease by Munson, and that the defendants had ever since enjoyed said right upon the terms of said lease. The court overruled the objection, and the lease was read ; and it was held by the court to be a proper lease, vesting a definite interest in the defendants, and that thereby, and with actual enjoyment and possession by the defendants, they were not mere servants of said Munson, but might become and were co-tenants with the plaintiffs.
    It was proved that the manner of using said ore bed had ever been, for the lessees and owners to dig ore annually, and to pay the agreed rent in cash in January, each one receiving his own share; and that rent was paid, for said 23-24th parts so occupied by the plaintiffs, for the year 1853, to one Adams — that said use of said bed was the usual and only use to which it could be put — that during that.year the defendants did not, but the plaintiffs only, did dig ore in said bed, and raised and placed at the mouth of the pit, in a pile, some 10,000 tons, of which the defendants took and carried away about 1,400 tons, and more than their l-24th part of said pile, insisting that the ore belonged to them as tenants in common with the plaintiffs. The plaintiffs did not deny the right of the defendants, but insisted that they must account for it, and pay for what they had taken beyond their share. The defendants insisted that it did not appear that the 1,400 tons so taken by them, was more than their l-24th part of their interest in the entire ore bed which they held under their lease from said Munson, being some five acres in extent; and hence they claimed, and asked the court to instruct the jury that the defendants could not be required to account. The court did not so instruct them.
    It was proved that in the year 1842, Thos. Fenn, received of one Joclyn, a mortgage deed of a small interest in said ore bed, viz.: l-4th of l-5th of l-6th, which was thén owned by said Joclyn; after which the plaintiffs purchased of said Joclyn, or her legal assigns, all her interest as mortgagor in said portion. The said mortgagee did not take possession of the interest so mortgaged, nor do anything about the same, until in 1852, when he obtained a foreclosure. The plaintiffs insisted that said Fenn had never taken possession, but had left his mortgagor, and the plaintiffs, as her assigns, in possession, and that they had for years previous to, and down to, the date of the writ, and since, held possession of, and used as their own, all the rights in said ore bed, except the l-24th part vested in the defendants, by their lease from said Forbes -Munson. The defendants insisted, notwithstanding the facts claimed aforesaid, that said Fenn was, during all the time, from the 1st day of April, 1853, to the 1st day of January, 1854, a co-tenant in the use of said ore bed, and, as such, was interested in all the ore dug during said time, and should have been joined as a plaintiff in the case. The court held that all who were co-tenants must unite; but that the question was, who were the real co-tenants during said time, viz.: from 1st April to 1st January — that a mere mortgagee of an interest in such ore bed, whether before or after foreclosure, who had done nothing towards taking possession, but left the mortgagor and her assigns in possession, was not a co-tenant in the use of said • ore bed. And the facts in relation thereto were left to the jury-
    The defendants further claimed that they had, for their use of said ore bed, under their said lease from said Munson, paid him according to the terms of the lease, and, therefore, could not be obliged to account with the plaintiffs. The court held that the real co-tenants, who, as such, took the ore during the time in question, must account among themselves; and that if the defendants paid their lessor, yet they must still account with their co-tenants for all they had got beyond their own proportional share.
    The plaintiffs offered evidence to prove, that in January, 1854, they paid to one Adams, of Salisbury, the rent of the entire ore bed, for the whole year 1853, during which the plaintiffs occupied it under said lease to them, including said interest mortgaged to Fenn, but not including the said l-24th part occupied by the defendants. That for some years before 1853, the plaintiffs had occupied said 23-24th parts as during said year 1853, and paid said annual rent to Adams, who had acted, and still continued to act, as agent to receive said rent for all the owners, except the defendants; that in June, 1854, said Adams paid to Fenn, the amount of his interest in the rent of said ore bed for 1853, as expressed in said lease, and Fenn received the same from Adams in said character. The plaintiffs claimed that this reception of rent by Fenn, tended to prove that the plaintiffs had occupied said 23-24th parts as lessors or owners in their own right, and had paid therefor, and that it tended to prove other matters alleged in the declaration. The defendants objected to it, because the receipt of said money by Fenn, through said Adams, was subsequent to the date of the plaintiffs’ writ. The court overruled this objection, and the evidence was received.
    It was proved that the defendants had taken from a pile of ore, dug by the plaintiffs as lessees as aforesaid, in 1853, 1,400 tons of ore which they had disposed of by using it in their own furnace, and not otherwise. The defendants objected to this evidence, as not conducing to prove the declaration. The court overruled the objection, and admitted the evidence.
    The jury returned a verdict that the defendants should account. The defendants thereupon moved for a new trial. They also moved in arrest of judgment on the ground of the insufficiency of the declaration.

      J. H. Hubbard, Granger and Russell, in support of the motion.
    1. The declaration is insufficient, because it does not aver, that the defendants have received, used, or taken the benefits of the common property, in greater proportion than their interests in the principal estate. A declaration is always bad when it does not show all the grounds necessary to a final recovery on the part of the plaintiff. 10 S. & R., 221.
    The defendants have a right to take ore from the ore bed in common with the plaintiffs, and are not liable to account, until they get more than their share of the common property. If they would be, they might be sued for the first load drawn from the bed. Rev. Stat tit. 1, Ch. 15, § 207.
    By the-plain words of the statute, the defendants are not liable, unless they have taken the benefit of the property in greater proportion than their interest in the principal estate. 1 Bac. Abr., 32. 3 Hill, 59, 70, 71. '
    The declaration is also bad because it shows that five persons hold the estate, instead of two. Partners always hold as joint tenants, or tenants in common.
    2. The unacknowledged, and unrecorded lease to the plaintiffs, was not evidence to prove their title and ownership, as set up in their declaration. The averment is, that the plaintiffs and defendants are owners of the ore and ore bed as tenants in common; and, of course, in such manner that the'plaintiffs could maintain account against the defendants. A license to work in the bed and take ore therefrom, and account to the lessors at a specific rate per ton, for every ton taken away, does not authorize the plaintiffs to maintain account against the defendants, for other ore taken by the defendants on Munson’s rights.
    The plaintiffs have not the whole interest of the lessors.
    3. The lease from Munson to the defendants does not dissever his interest in the rents and profits of the ore and ore bed, from the interests of the plaintiffs and their lessors, and he should have been made a party. It authorizes the defendants to work and improve the mine, and to take ore therefrom under the direction of Munson; and they are to pay him fifty cents per ton, for every ton they take from the bed. If Munson has received more than his share of the rents and profits of the principal estate, he is liable to account to the plaintiffs and their lessors. He ownes the whole of an undivided share, and the lessors of the plaintiff could not, by their lease, affect his interest. Upon every principle he should have been made a party.
    4. The court erred in not instructing the jury that the defendants could not be required to account for ore, which they had taken under the admitted claim that it belonged to them as tenants in common, unless they had taken benefit of, received, or used said estate, in greater proportion than the amount of their interest in the principal estate. The motion finds that the defendants took the ore in their own right, as tenants in common of the ore bed. It is obvious that the ore bed is the principal estate. The whole quantity of ore, covered and uncovered, is the principal estate.
    5. The defendants claimed that they had paid Munson for their use-of the ore-bed, under his lease to them, and could not be obliged to account with the plaintiffs; and the court erred in not instructing the jury on this point, as they requested.
    Tenants in common must join in all personal actions where the profits of the land, or some indivisible thing is in question, or for rent; and, where common property is leased, the rent may be paid to one tenant in common, and his release will be a bar to the rest. 1 Sw. Dig,, 108. 13 Johns, 286. 1 Bac. Abr., 32.
    6. The plaintiffs, to prove that they were the lessees of Fenn, from the 1st of April, 1853, to the first of April, 1854, offered to prove that in June, 1854, four months subsequently to the commencement of the present action, said Fenn accepted 40 dollars, as the amount of his interest in the rent of the ore-bed for 1853. To this evidence the defendants objected; but the court admitted it for the purpose for which it was offered, and for other purposes.
    In a suit between the plaintiffs and Fenn, the acts and declarations of the latter, as to the reception of rent, would be evidence in favor of the plaintiffs to prove the relationship of landlord and tenant. But Fenn is not a party; and to sanction the ruling upon the circuit, would be to encourage a plaintiff to collude with a stranger and make evidence for himself, after the commencement of a contest in a court of justice. Even the acts and declarations of deceased persons, as to boundaries and customs, made post litem motam, are not admissible. Phil. Ev., 183. It is mere hearsay. A lease from Fenn, executed four months after the commencement of the suit, would not have been admissible.
    7. A copartnership can not be a tenant in common. It is not a person, within the meaning of the statute. Two co-partnerships are not two persons, under the statute relating to the action of account between tenants in common. Rev. Stat., 122.

      Woodruff., Warren and Peet, against the motion.
    1. The counts in the declaration are in accordance with the common forms of declaring in similar cases in this state. 2 Sw. Dig., 454, 455. 1 Day, 263. 16 Conn. R., 332, 340.
    2. The counts are good' at common law, charging the defendants as bailiffs, and as bailiffs by appointment. Co. Lit., 172. 1 Sw. Dig., 579. 16 Conn. R., 341, 342.
    3. But the counts are good even under the statute. Rev. Stat., 108. It is not necessary to aver that one co-tenant has taken more than his proportion of the common property. If it is necessary to aver it, it is necessary to prove it, thus submitting the state of the account to the jury.
    The mere relation of the parties, gives the right to the action. The right to recover depends on the auditor’s finding that the defendant has received more than his share.

      But if such averment is necessary, it is in substance averred that the defendants had used more than their share, viz., the whole.
    4. If the averments are defective, they are cured by the verdict. Hendrick v. Seeley, 6 Conn. R., 176. Hale v. Dean, 16 Conn. R., 579.
    5. The lease to the plaintiffs was admissible, though not recorded. A parol lease or license, executed, gives the lessee a good title to the products. It is evidence of a license to occupy and use according to its terms. 1 Sw. Dig., 131, 132. 8 Conn. R., 226. It is good against the lessors and their heirs, being in writing, and bad only against those claiming title. Statute Title 29, section 14. 7 Conn. R., 121. 2. The lease from Munson was admissible to prove that the defendants were co-tenants with the plaintiffs. It has the operative words of a lease — “ demise, lease, and to farm let.” And the words used are proper to convey all Munson’s interest to the defendants for two years. 3. The action is brought to compel the defendants to account for the ore they have taken, — not to account for the use of the bed. 4. A mortgagee has no right to the rents and profits until he obtain possession. The mortgagor and. his assigns in possession are entitled to the rents and profits. They are tenants and may call their co-tenants to account. Lacon v. Havenport, 16 Conn. R., 340. The question was properly submitted to the jury to ascertain who were in possession. 5. If the plaintiffs and defendants were co-tenants, they must account to each other. It is no answer for the defendants to say that they have paid their grantor. The issue was whether the defendants were bailiffs; not, have they fully accounted.
    6. The reception of rent at any time tends to prove a lease to the party, of whom it is received. It is in the nature of an acknowledgment of the relation of landlord and tenant. The evidence was therefore admissible.
   Ellsworth, J.

The motion, in arrest is placed on two grounds, First, the want of jurisdiction in the court, and second, the insufficiency of the allegations in the declaration. As to the first, it is said, our statute requires, that “ whenever an action shall be instituted against two or more defendants, to compel them to render an account, it shall be by bill in equity,” Rey. Stat., 478, and as there are here three defendants, the plaintiffs have mistaken their remedy, which was in equity, and not at law. This objection proceeds upon an entire misapprehension of the statute. The statute has reference to cases where the defendants are sued to answer severally, each one upon his own individual responsibility, and not as joint bailiffs or partners, where the defence is one and the same, and the defendants strictly but one defendant. What has this action, or what have these plaintiffs to do with the relations of the defendants among themselves ? That matter has no bearing upon the joint duty of the defendants to account with the plaintiffs for what they have taken as joint bailiffs or partners, of the use and profits of this ore bed, beyond their proportion of one twenty-fourth part. If the plaintiffs are obliged to go beyond their own claim on all the defendants, and to bring in here for adjustment matters about which they care nothing, the relations of the defendants among themselves, the plaintiffs can never recover in this court or any other. As we have said, the liability to account is joint, and each defendant can avail himself of whatever goes to save himself or the other defendants, from the cause of action stated in the plaintiffs’ declaration. To go beyond this would be irregular and absurd.

As to the objection, that it is not stated in the declaration, that the defendants have taken, as tenants in common of the ore bed, more than the amount of their interest, (one twenty-fourth part) in the principal estate, we think it entirely groundless. Cases have been cited, to show that such an averment is necessary where the action is brought on the statute which gives a tenant in common an action of account against his co-tenant. However this may be in the cases cited, which we are not called to consider, there is no propriety in urging it here, especially as, the objection arises after verdict, for in the counts on which there is a verdict for the plaintiffs, the defendants are sued as bailiffs of the plaintiffs, of a certain quantity of ore. Now, a bailiff is defined to be “a servant that has the administration and charge of lands, goods and chattels, to make the best benefit for the owner, against whom an action of account lies, for the profits which he has raised or made, or might by his industry or care have raised or made.” Co. Lit., 172. This allegation is found to be true by the verdict, and therefore the defendants have no right to say, that they are not bailiffs at common law, and are not called to account as such.

We come now to consider the supposed errors in the charge of the judge. The plaintiffs, in order to prove their title to their twenty-three parts of the ore taken by the defendants, and their title to the ore bed itself, (the. whole being twenty-four parts) offered in evidence a lease, for four years from the 1st of January, 1851, of most of their interest, from persons admitted to be owners of the estate, conveying to the plaintiffs the ore bed for the four years. The lease was in due form of law, and in all respects complete and perfect, except only that it had not been recorded in the town records of Salisbury, the town in which the ore bed lay. This was the only objection to the lease. The defendants insisted that it was by the statute declared to be absolutely void, except as to the lessors ; not that they claimed anything themselves under the plaintiffs’ lessors, or were deceived or in any way injured, by reason of the lease, but it was not recorded and therefore an imperfect and void instrument. Our answer to this is, the instrument was not imperfect and void. It had every legal requisite of a conveyance, and if a legal and perfect instrument between the parties, what have the defendants to say against it, when the plaintiffs come forward to assert their rights under it, rights which none but creditors and purchasers can properly deny or resist ? Recording is no part of the conveyance itself, and to allow a stranger who has no manner of interest in the question, to set up a statute, which requires deeds and leases to be recorded, merely to give public notice, that creditors and bona fide purchasers may not be deceived and cheated, is unreasonable and preposterous. A majority of the judges in the case of French v. Gray, 2 Conn. R., 92, held this extraordinary doctrine, but that decision has never been satisfactory to the profession, and at the time it was made, it was opposed by some of the ablest members of the court; Swift, Ch. J., Goddard, Hosmer, and Gould, Justices.

Again, it is said that the defendants were not occupying the ore bed as co-tenants with the plaintiffs, or in their own personal right, but as the mere servants or licencees of Forbes Munson, and that the plaintiffs should have sued him as the real co-tenant in the possession and enjoyment of the rents and profits. Not so. In March, 1853, the defendants took a lease from said Munson, of all his interest and right to dig in said ore bed, for the next two years, and were put into possession of said share in their own right. The lease was most full and formal in its language, and was a complete transfer of the interest of the lessor to the lessees. It follows from this, that the defendants were the co-tenants of the plaintiffs, and liable to account for the rents and profits.

Again, it is said that the court should have charged the jury, that the plaintiffs could not call upon the defendants to render their account, unless they proved that the defendants had taken more than one twenty-fourth part of the entire ore bed. If this were true, it would destroy the value of this bed, and of such joint property as this, every where; for in effect, the smallest interest in one tenant would thereby be as available and as valuable as the greatest interest in another. This bed embraces some five acres of land, and how deep the ore extends, and what is its quality and productiveness, no man can know, and if no co-tenant can be called upon to account for what he obtains more than his share, until all this ore bed is exhausted, there will be no accounting at all, and one twenty-fourth part as we have said, would be as good as the other twenty-three parts. The error of the defendants lies in this; they contend that they own absolutely whatever they get out of the ore bed, if it is not too much, whereas they own only one twenty-fourth part of what they get out, and must account, at reasonable times, for the other twenty-three parts, to the plaintiffs; and the objection that this will subject them to account from day to day, and for each load or pound of ore, is equally applicable to all bailiffs and receivers, where the property taken, is taken in parts or parcels, as where one tenant takes from day to day the entire use and profits of a farm or of a wood lot. Whenever the relation exists, it gives rise of necessity, to a liability to account, but an action will not lie ordinarily, until after demand, and then only at reasonable periods. In most cases the parties who severally occupy property owned by a joint title, as an ore bed, quarry, &e., find it necessary to enter into some mutual arrangement, for the use and occupancy of it; or where each digs and carries away at his own pleasure the soil or ore, for the time of reckoning with each other, and adjusting balances either annually or oftener, if circumstances require it; just as had always been done with this ore bed, until the defendants took their lease of a very small interest from said Munson; and if now the defendants will not come into any proper arrangement for the enjoyment of this ore bed, the law will hold them liable to account at reasonable times, for whatever use they make of the common property for their exclusive benefit. Besides the record shows, that in the present case, the manner of enjoying this ore bed had ever been, for the owners or lessees of the shares, respectively, to pay a premium per ton, on the first of every year, into a common treasury, which sum was divided among the owners according to the number of shares owned by them, and that such use and enjoyment of said ore bed, was the only and usual use and enjoyment to which it could be put. It is a convenient time for accounting, and the usual practice we believe, for joint owners of real estate, to reckon the annual rents and profits, at annual periods or times, and this rule is a very fair and reasonable one in reckoning and dividing the rents and profits of ore beds, quarries, fisheries and the like. This question however, was passed over by the judge in his charge, because, it may be presumed he could not, according to his view of the law, charge in favor of the defendants; but further, it is not certain that the question necessarily arose in the view of the judge, for if the defendants were bailiffs of certain ore already dug by the plaintiffs, the plaintiffs’ claim to that, did not of necessity depend upon a solution of the question, at what time and in what manner the joint owners of an ore bed should render their accounts for their enjoyment of it in severalty.

It is further claimed, that the defendants had already accounted to their lessor, Forbes Munson, for all the ore they had taken and carried away from the plaintiffs’ pile of some ten thousand tons, and that they could not be obliged to account for the same a second time. Whether the defendants had paid Forbes Munson, any more money than the purchase price they agreed to give him for his right to dig, being one twenty-fourth part, does not appear from the case; this of course they were bound to pay him; but if they have paid him for more than the one twenty-fourth part entitled him to, they have paid him in their own wrong, for this was all which said Munson owned or claimed to own, and his tenants could acquire nothing more than he had a right to give. The question, whether the defendants must account as co-tenants, depends upon the question whether the defendants or Munson were in fact in possession of that one twenty-fourth part. The plaintiffs were in possession of twenty-three twenty-fourth parts and if Munson had leased his share to the defendants and they had taken possession of that share, the defendants were co-tenants with the plaintiffs, and Munson was not a co-tenant, and so the defendants were the proper persons and the only persons to be sued. The money which the defendants paid Munson, whether it was a gross sum, or so much per ton, was for a different purpose than to pay for common profits which were to be divided among the owners of the ore bed for the year in question according to their respective interests. Everything turned on the question who were in possession — who received the rents and profits that year. So the judge left it to the jury-

There is nothing in the objection that Fenn was a co-tenant of the plaintiffs for 1853, and should have been joined with them in this suit. The judge decided correctly, that if he was as claimed a co-tenant in 1853, he must have been joined or the action would fail. So that every thing turned on the matter of fact. Was he in possession ? The jury found that he was not, and on the facts conceded they must have so found or a new trial would have been awarded. It appears that in 1842, Fenn had a title as mortgagee to a certain small interest in said ore bed — that the plaintiffs had become the owners or lessees of the equity of redemption of that interest, and as such owners or lessees had for years been in the possession and enjoyment of that interest, and indeed of the entire ore bed, except in 1853, of the said twenty-fourth part belonging to said Munson. In 1852, Fenn foreclosed, his mortgage but did not take possession of his interest, nor interfere with the plaintiffs’ possession and enjoyment. Under the charge, the jury found, that in 1853, Fenn was not in possession, but that the plaintiffs were, and were exclusively taking the rents and profits. Now, upon these facts, it is impossible to hold, that Fenn was a co-tenant in possession; he had a certain legal right and that is all, and he could neither sue nor be sued on that account.

Nor was the testimony of Fenn’s receiving money in January, 1854, for his share of the rent for 1853, in any way objectionable. It is said it was received after the commencement of this action. So it was by Fenn, but not by Mr. Adams who professedly acted as his agent in the matter. Adams received it from the plaintiffs in January, before the suit was commenced, at which time they paid him as the common treasurer of all the share-holders in this ore bed, the annual rent, as had been the practice for many years before. Besides the evidence conduced to show the character of Fenn’s relation to this property, and that' Adams was his agent in leasing or controling the property.

We advise that the declaration is .sufficient and that there be no new trial.

In this opinion, the other judges, Stores and Hinman, concurred.

Declaration sufficient, new trial not to be granted.


source: Caselaw Access Project

author: Ellsworth, J.

license: Public Domain

text:
    Riley and another vs. Riley.
    The husband may be the trustee of the separate property of his wife.
    Where personal property is given to a married woman for her separate use, and no trustee is appointed, the husband will in equity be regarded as the trustee of such property for her.
    A husband may make a suitable provision during coverture, out of his estate, for his wife; and such provision will be sustained in equity against him and his heirs.
    The case of Dibble v. Hutton, 1 Day, 221, commented on.
    A. about seven years before her marriage to B. loaned him $320, for which he gave her his two promissory notes, and in an interview with her, in contemplation of marriage, and shortly before that event, he promised her, that if she would not enforce the payment of the notes, they should remain good and collectable against his estate. He also, after the marriage, directed her to keep the notes, and said they would be good against his estate. A. always retained possession of the notes until after the death of B. — Held, that the promise of the husband was an antenuptial agreement made in consideration of forbearance to collect the notes, and that after his death, a claim for their amount by his wife, was properly allowed against his estate. — Held also, that such agreement was not within the statute of frauds, and might be proved by parol.
    This was an appeal from the doings of the commissioners on the estate of John C. Riley deceased, tried at the term of the super or court, holden at Litchfield, in March 1856.
    The widow of the deceased, whose name before marriage was Sally Phelps, presented to the commissioners, for allowance, two notes, which were in the following words t
    On demand, and interest, I promise to pay Sally Phelps, three hundred dollars, value received.
    (Signed) John C. Riley.

      lAtchfield, Sept. 25th, 1837.
    On demand, and interest, I, for value received, promise to pay Sally Phelps, twenty dollars.
    (Signed) John C. Riley.

      Litchfield, April 1th, 1837.
    Six dollars paid April 28th, 1837.
    The claim on said notes, amounting, on the 13th of December, 1855, to $627.85, was allowed by the commissioners, from which allowance the appeal was taken.
    On the trial in the superior court, the execution of the notes was admitted, and it was proved that they were given for money lent, which money was received by the said Sally in part from her father’s estate, and in part from her own earnings. The money was lent, and the notes given, before a marriage was contemplated between the parties. The marriage took place October 6th, 1844. It was proved that, shortly before the marriage, and in contemplation of that event, said Sally spoke to the deceased about the payment of the notes: he replied that it would be inconvenient for him to pay them then, — that they would be good against his estate. She told him that she did not want to be left in the hands of his relatives, and he replied that she should not be. It was proved that the deceased told said Sally, both before and after the marriage, to keep the notes, and they would be good against his estate, and that the notes were always kept by her; that two or three years before his death, she showed the notes to him, and he said, “All right; keep them, and they will be good.” It was also proved that, during coverture, the deceased told a brother of the said Sally, that he calculated to pay said notes, and if he did not, they would be good against his estate; and to the wife of her said brother he said, that he owed said Sally, and if he did not pay in his life-time, it would be paid on his death.

      The notes in question were read in evidence on the trial, but the other foregoing facts were proved'by parol evidence only, which was objected to, but received by the court, subject to the objection.
    The questions whether such evidence was admissible, and whether the doings of the commissioners, in allowing said claim of the appellee, ought to be set aside, were reserved for the advice of this court.

      Woodruff and E. W. Seymour, for the appellants.
    1. By the marriage the notes held by the wife against the husband were discharged. 1 Sw. Dig., 28. Chit, on Cont., 782. Co. Lit., 264, Sec. 445.
    2. The testimony is insufficient to establish any definite arrangement between the parties.
    3. The parol evidence offered to show that there was an agreement by the husband, that the notes should remain good was inadmissible.
    Such agreement if there was any, was “ in consideration of marriageand all promises in the nature of settlement, advancement or provision in view of marriage, are within the statute of frauds. They must therefore be in writing, and signed by the party to be charged therewith. 2 Pars, on Contr., 310. Comyn on Contr., 457.
    4. The case is not taken out of the statute by the subsequent marriage, on the ground of part execution. Such a construction would annul and abrogate the statute. The doctrine of part performance seems to have been applied only to agreements for sale of lands.
    It was never held, that a mere marriage exempted the case from the operation of the statute.
    A subsequent marriage is not sufficient to take the case out of the statute, even in equity, in the absence of actual fraud. 1 P. Wms., 618. 1 Strange, S. C., 236. 1 Pars. on Cont., 554. 2 Pars. on Cont., 310. 1 Sw. Dig., 257. Jenkins v. Eldridge, 3 Story, 290, 291. Reade v. Livingston, 3 Johns. Ch. R., 481. Comyn on Cont., 457. Addison on Cont., 96. 2 Sw. Dig., 34. 2 Root, 164, 165.

      5. The statutes of 1849, Ch. 20,1854, Ch. 37, and 1855, Ch. 43, are prospective merely in their operation, and have no bearing on the present case,

      Hubbard and Gatlin, for the appellee,
    1. It is a general rule of the common law, that where a feme creditor marries her debtor, the debt is discharged; the existence of the wife being considered as merged in that of her husband, or suspended during coverture.
    It may well be doubted whether this rule should ever be adopted, in all its rigor in Connecticut, as our statutes recognize the separate existence of, and protect the property owned by a feme covert at the time of her marriage. Rev. Stat., p. 375, 377. Stat. 1855, Ch. 43.
    It would seem more consonant to the spirit of our laws, that the operation of the marriage should be limited to a suspension of the remedy during coverture.
    2. But to the common law rule, there are exceptions ; as in all cases of contracts to be performed after the dissolution of the marriage; and chancery has so modified the rule, as to protect contracts intended to be performed during coverture.
    In this case, there was a good and valid contract extending the time of payment of the notes until after the dissolution of the marriage, which has been fully performed on the part of Mrs. Riley.
    It is true the statute of frauds requires all promises in consideration of? marriage to be in writing. But the consideration of this promise was not marriage alone.
    It was, at least in part, forbearance to collect the note. The case is not like that, where a man, in contemplation of marriage, promises to make a settlement out of his own estate; nor like a promise to secure to the wife her own property already in her own hands.
    3. But, if the declarations made by the deceased are void as a promise, his administrator is estopped from saying that the notes are discharged by the marriage. Mrs. Riley relied upon the truth of the declaration, that “ if she would keep the notes in her own hands, they would be good against his estate.”
    4. The husband became the trustee of the wife, upon the marriage, and the case is not within the statute of frauds; for the rule in equity always has been, that the statute is not to be allowed as a protection of fraud, or, as a means of seducing the unwary into false confidence, whereby their interests are betrayed. Jenkins v. Eldridge, 3 Story R., 296, 1 Story, Eq. Jurisp., §§ 252, 256, 768, 1265. Morris v. Nixon, 17 Pet. R., 109. 1 How. R., 118. Montacute v. Maxwell, 1 P. Wms., 618, 620, and 1 Str. R., 236. 1 Paige, 147.'
    The appellee was induced to forego making any other disposition of her notes, than retaining them in her own hands, as her separate estate, by the express declaration, that if she would keep them, they would be good against the estate of the deceased.
    5. A court of chancery will always grant relief, by creating an implied, or resulting trust, where it would be contrary to the principles of equity, that the husband should hold the estate otherwise than as trustee. 2 Sw. Dig., 112. 1 Vern., 365. 2 Barb. & Har. Eq. Dig., 464, 477, 478.
   Ellsworth, J.

The manifest equity of Mrs. Riley’s claim, so strongly commends itself to our favorable regard, that we are happy to find that its allowance can be sustained by undoubted principles of law. Commissioners on insolvent estates are clothed with both legal and equitable powers, so that, if the principles of either jurisdiction are sufficient to uphold Mrs. Riley’s claim, the appellant can not succeed in his appeal.

It appears, that some seven years before the marriage of Riley with Mrs. Riley, she made a loan to him of $320, for which he gave his two notes of hand. On the eve of the marriage, the parties, being aware that if the notes remained as they then were, they would be extinguished by the marriage, undertook to guard against this result, by his solemn promise, that if she would forbear to insist upon payment before marriage, the notes should not be extinguished by the marriage, but should remain good and collectable, out of his estate. She complied with his request, and now, since he is dead, she seeks against his heirs that his promise may be recognized and performed.

Our interpretation of Riley’s language, is not, we admit, free from all question or doubt, but, as it was certainly the expectation and intention of the parties that the notes should remain in force after the marriage, which could not be done but by the new promise founded on forbearance, we attach much force to the arrangement which they made, and adopt our interpretation of it as just and reasonable. We look likewise to what Riley said after marriage to Mrs. Riley and her friends, whenever these notes were alluded to, or made the subject of conversation. She too always kept the notes in her possession, as her own, with his entire consent, and on one occasion, when she showed them to him, he said to her “keep them and they will be good.” We think that Riley undertook and agreed by an ante-nuptial promise, that the notes should not fall into his estate, but remain and survive to Mrs. Riley, like any other of her choses which he should forbear to collect during the coverture, and that these notes should at all times be, and continue her sole and separate estate, and that he would hold himself and his heirs, to be estopped from claiming the contrary to her injury. This is what the parties intended, judging from what they said and did. Now why can not this arrangement be upheld and enforced? Considered as an ante-nuptial promise, founded on the consideration of forbearance, it can be enforced at law, for it is a promise to be performed after coverture ceases, and is excepted from the common law maxim, that marriage releases subsisting contracts. Brown v. Slater, 16 Conn. R., 192. Baldwin v. Carter, 17 Conn. R., 201,

As to the objection derived from the statute of frauds and perjuries, we think there is no ground for it. The ante-nuptial promise was made in consideration of forbearance, and not in consideration of marriage, though it was made in contemplation of marriage, which is not inconsistent with the claim of the appellant’s counsel, that a promise in consideration of marriage must be in writing. Marriage was not the meritorious cause of Riley’s promise; the marriage obligation was already perfect, and the promise in question was made upon the assumption that it was so, and for the exact purpose of saving the notes from the effect of the marriage, when the marriage contract should be executed. No advancement or benefit was to accrue to either party in the event of the marriage, any more than if it did not take place, and hence it is not possible to consider marriage as the consideration of the promise. It was the debt — the forbearance of it; and, this forbearance having been extended upon the request of Riley, and continued until his death, there is no reason why his estate should not be liable.

This is all we need decide, in order to make a final disposition of the case ; but we go further. We see not why, in equity, Riley did not waive his right to have the notes treated as released by the marriage, and why he could'not prevent the notes from being treated as paid and cancelled; and so kept alive for the benefit of his widow after his death, like the note of a stranger which she might have held at the time of the marriage. Such a note uncollected, would have survived to Mrs. Riley; and why not these, if the parties designed, and provided for it ? This might be so, unless we are bound in this instance by the case of Dibble v. Hutton, 1 Day, 221, respecting which, we will express our views in the sequel. Why are not Riley and his heirs estopped from avoiding these notes, by his declarations and conduct both before and during the coverture ? Had there been fraud on his part, there would be no doubt of the estoppel, and it is virtually a case of that character, if his estate is not now to be held liable for the payment of the debt. It is not unlike Chamberlain v. Chamberlain, 2 Freem., 34, where a father, about altering his will to provide for his daughter, was told by his son that it was unnecessary to do it, for that if he would let the will stand, he, the son, would see that she had the provision designed for her by the father's bounty. The will was left as it stood, and equity compelled the son and-heir to do as he had agreed to do. Montacute v. Maxwell, 1 P. W., 518. 2 Eq. Ca. Ab., 43. Pre., Ch. 43. New. on Cont., 179. This last book goes into this subject at great length and fully sustains the above doctrine.

We ask again, why, in the absence of creditors, these notes may not be held to be the separate and sole estate of Mrs. Riley, and her husband a trustee for her benefit ? This court has held that in a clear case of trust in favor of a married woman, the trust shall not fail for want of a trustee, and that the husband may be held to be the trustee of his wife if necessary. Baldwin v. Carter, 17 Conn. R., 201. Brown v. Slater, 16 Conn. R., 192. Winton v. Barnum, 19 Conn. R., 171. This is the law every where else, and we know of no doctrine of the law, which is better settled, than that where property is given to a married woman, for her sole and separate use, and there be no trustee, the beneficiary interest will not for that reason be lost, but her husband will be held to be her trustee if necessary. Bennet v. Davis, 2 P. Wms., 316. Parker v. Brooks, 9 Vez., 583. Rich v. Cockell, 9 Vez., 375. Newland v. Paynter, 10 Sim., 377. 4 My. & Craig, 408.

What language in a grant or gift to the wife, for her sole and separate use, will be sufficient to show that intent, is not in all cases clear of doubt, but so much is certain, that the meaning of the language made use of is not to be sought for, by applying any absolute or technical rule of law, nor any fixed rule at all. The question is always one of good sense, of the true meaning and intention of the grantor or donor, in creating an interest in the wife, separate from the husband. Certain language in the books has been decided to be sufficient, and beyond this the courts have not had occasion to decide, while all the cases recognise the general rule to be as has been already stated. In "White’s Leading Cases in Eq. Vol. I., p. 367, it is said that no particular technical form of words is necessary to create a trust for the separate use of a married woman. It is enough if there be a clear and unequivocal intent to exclude the rights of the husband. If it be plain from the language of the instrument, or from all the circumstances disclosed in it, that the intention was to create a separate estate in the wife, the intention will be maintained and carried out. Stewart v. Kissam, 2 Barb. Sup. Ct., 494, 496. West v. West, 3 Randolph, 373. Perry v. Boileau, 10 S. & R., 208. Ballard and wife v. Taylor, 4 Dessau., 550. Davis and wife v. Cains and wife, 1 Ire. Ch., 305, 307. Beaufort v. Collier, 6 Hump., 487,490. We need not say, that where the intention is not entirely clear, that the wife shall enjoy the estate to the exclusion of the husband, he will take it of course, according to the ancient principle of the common law, growing out of the fact that the husband and wife are one person, and that a gift to the wife is a gift to the husband. Now, to apply these principles to this case, we can not doubt that both before and after the marriage, Riley declared to Mrs. Riley, and intended that she should understand, that in consideration of forbearance, the debt should be paid out of his estate at his death, and that it should be hers exclusively, until it was so paid. Let it be remembered too, that it was the language of a debtor about to marry his creditor.

There is another question in the case, most worthy of consideration, if it may be considered an open question in this state at this day. We mean the effecfin equity of a clear gift of property by the husband to his wife for her separate use, where there are no creditors to be injured ; especially if the gift is a suitable provision for the comfort and maintenance of the wife. The doctrine of the books is certain and uniform, that he may not only give his wife pin money and her paraphernalia, but we believe other valuable gifts and grants which will be upheld in equity. He can be her trustee in case of a gift or grant from a stranger in this state, as elsewhere, irrespective of any antenuptial agreement, and irrespective of any such meritorious consideration as is claimed to exist in the present case, which is said to heighten the moral propriety of the appellees claim. In Shepard v. Shepard, 7 Johns. Ch. 57, it was held, that a deed directly from a husband to his wife, though void at law, yet if given for the purpose of making a suitable provision for the wife, such as a deed of certain lands, parcel of his estate, during her widowhood, is good in equity, and that that court will lend its aid to enforce the provision, and especially if there be other meritorious considerations, like those which exist in the case on trial. The chancellor, after reviewing the cases, says that the deed to the wife of certain lands, being part and parcel of his estate, for and during her widowhood, was therefore no more than a just and suitable provision, .and one that a court of equity can enforce consistently with the doctrine of the cases. The defendant does not stand in the light of a creditor or of a purchaser for a valuable consideration without notice. In Jones & ux. v. Obenchain & al., 10 Gratt., 259, there is a case decided as late as 1853, by the highest court in Virginia, displaying great research, and accompanied with unanswerable argument. The marginal note of that case is this. “ A deed from a husband to his wife conveying to her all his property real and personal, under circumstances showing a strong meritorious consideration, may be set up in equity against a nephew, the heir at law of the grantor.” The meritorious consideration was this: A lady who was very young, married the grantor who was much older than herself and who had a family of children by a former wife; a consideration not more meritorious than the one in the case on trial. In Sto. Eqt., vol. 2, § 1375, it is said that if the circumstances of the gift or grant, whether it be express or implied, are such that there is no ground to suspect fraud, but it amounts only to a reasonable provision for the wife, it will, though even made during the coverture, be sustained in equity; it might be otherwise, if there were creditors who were not paid. So in Livingston v. Livingston, 2 John. Ch., 537, the chancellor decided that “ a husband and wife may contract for a bona fide and valuable consideration, for a transfer of property from him to her.” So in Neufville v. Thompson, 3 Edw., Ch. 92, the vice-chancellor held, that “ a gift to a married woman, whether by her husband or other person, and without the intervention of a trustee, will, in equity, be protected when made in good faith, and when the rights of creditors are not affected.” 1 Barb. Sup. Ct., 9. 6 Whart., 571. 17 Mass., 57. 20 Pick., 556. 5 Met., 280. 2 Sto. Eq., § 1204. 3 P. Wins., 338. 5 Vez., 71, 79. 21 E. L. & Eq. R., 556.

But to all this it is said .that our law is otherwise, as was decided fifty years sincp; in Dibble v. Hutton, 1 Day, 221. In that case the judges adhered to the early doctrine of the common law, that thusband and wife are but one person, so that she can not have property, during the coverture, without the interposition of a trustee, other than the husband, and that the husband and wife can not contract with each other, nor can he give or grant to her property under any circumstances whatever, even in equity. We are not called upon, at this time, to review the entire doctrine of that case, but we are satisfied that if it is intended to assert at this day, that in equity, the husband can not give or grant unto his wife,.during coverture, that which is suitable for her maintenance and comfort, where there are no creditors to be affected, the position is at variance with the entire current of authorities in England and in this country. Besides our court has repeatedly broken in upon one of the main doctrines of that case, in holding that the husband shall be a trustee for his wife, if property is given directly to her, for her sole and separate use, thereby fully recognizing their individuality in conformity to the law of equity elsewhere. The question can no longer be considered as standing where it stood fifty years ago. That case is an anomaly in the law; and its doctrine is not at this time, nor was it then altogether satisfactory to the profession ; and further, it has been so materially encroached upon and modified by more recent decisions of this court, and more especially assailed by the widespread sentiment of the community and the legislation of this and other states, that the doctrine of the case is viewed, as an illiberal and obsolete relic of the ancient law of baron and feme. Our legislature has, if we mistake not, well nigh repudiated the essential doctrine of that case by the statutes of 1849 and 1855, which provide that all the personal estate which the wife has at the time of the marriage, or which accrues to her during coverture, by devise or inheritance, not only is to remain hers, but that her husband, by force of law, shall be her trustee and may be compelled to give bonds for a faithful execution of the trust; and also provides that the husband’s creditors can not take his life interest in her real estate. This is quite beyond the doctrine of the rights of married women, as they were held when Dibble v. Hutton was decided, and in some respects quite beyond the'doctrine in equity at this day. Whether the statute law has not, in its desire to protect the property of the wife as if it was all to be to her ultimate sole and exclusive use, carried the doctrine too far, and given to the wife too much individuality, we will not inquire; experience will be our best instructor.

We need hardly remark, that by the above coursé of argument, our conclusion is, that the parol evidence which was objected to on the trial, was admissible, and that we advise judgment for the appellee.

In this opinion, the other judges, Storrs and Hinman, concurred.

Report of commissioners established.


author: Storrs, J.

text:
    Grannis vs. Cummings.
    The statute which provides that “ every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all the damages done hy such fire ” [Rev. Stat. tit 1, Ch. 15, § 277,] contemplates a case where a fire is set on the land of one person, and thence runs upon the land of another, and not where the fire is set upon the land injured.
    Where in an action founded upon such statute for damages occasioned to the plaintiffs’ lot of land, hy a fire which originated near a coal-pit which the defendant was burning on said lot, in pursuance of an agreement between the plaintiff and defendant that the latter should cut and burn into coal certain wood standing on said lot, the plaintiff claimed that the defendant was in the possession of that particular part of the lot on which the fire was set; and the court instructed the jury, that if the defendant was in the use of the plaintiff’s land only for the limited purpose of cutting wood and making it into coal, under a contract, and the plaintiff was in possession for all other purposes, it was not a case where the fire was set upon the land of the defendant, and thence ran upon the land of the plaintiff, and that consequently such action could not be maintained. Held, that such instruction was correct.
    This was an action of trespass, brought to the superior court for the county of Litchfield. The declaration contained three counts, the third of which was founded on the 277th “ section of the act for the regulation of civil actions,” which provides that, “ every person who shall set fire on any land, that shall' run upon the land of any other person,' shall pay to the owner all the damages done by such fire, to be recovered in an action of trespass.”
    Said third count alleged substantially that, “ on the first day of October, 1853, the plaintiff was, and ever since had been, possessed of a certain tract of wood-land, situated in the town of Warren, in the county of Litchfield, containing about one hundred acres; and that the defendant, by leave and license of the plaintiff, on said first day of October, 1853, was, and ever since has been possessed of a certain tract of land situated in said town of Warren, containing about one-fourth part of an acre, and bounded, &e. That on the 20th day of October, 1853, the defendant, with force and arms, unlawfully set fire to certain combustible materials then lying and being on said land possessed by the defendant; which said fire ran from said land of the defendant into and upon the above described land of the plaintiff, and then and there consumed a large quantity of wood and trees belonging to the plaintiff, then standing and being on said lot of wood-land, and killed a large number of other trees standing and growing on said lot, — all of the value of two hundred and fifty dollars: whereby, and by force of the statute in such case provided &c.”
    The defendant pleaded the general issue, and the cause was tried at the term of said superior court, holden in November, 1855.
    On the trial it was proved, that the plaintiff was the owner of the land described in his declaration; and that the defendant had agreed with him to cut and burn into coal on the land, certain wood then on said land of the plaintiff. The defendant was to give the plaintiff one dollar for every hundred bushels so burned; or, if the defendant should choose, the plaintiff was to give the defendant three dollars for every one hundred bushels of coal burned as aforesaid, and to take the same on the pit bottom.
    The defendant, in accordance with said agreement, entered upon said land, and cut wood enough for two coal-pits; set the same upon said land, and was keeling off one of said pits, when from some cause, the rubbish leaves and brush around the said pit, caught on fire, and about twenty acres of the plaintiff’s said land were burned over, causing the damage complained of.
    There was no evidence that the defendant was any more in possession, or that the plaintiff was any more out of possession, of one part of said lot than another, than would follow from the carrying on of said business by the defendant.
    The plaintiff claimed to have proved, that, while the defendant was keeling said coal-pit, he took brands of fire therefrom and carelessly threw them on the ground near by, and that the fire so kindled, ran on to the other portion of the plaintiff’s said land, not in the possession of the defendant, and did the injury complained of.
    The plaintiff requested the court to charge the jury, that, if they should find that the defendant was in possession of the land where said coal-pit stood, and also of sufficient land around the same to perform all the acts necessary to the burning of said coal-pit, and that, while the defendant was so in possession of said land, he caused a fire as aforesaid, on said land, and that the same after being kindled by the defendant, ran on to the said land of the plaintiff not in the possession of the defendant, and did the injury complained of, the plaintiff, by virtue of the 277th section of the act, entitled “ An Act for the Regulation of Civil Actions,” was entitled to recover on the third count in his declaration, and that their verdict must be for the plaintiff.
    The defendant insisted that if the facts were as claimed by the plaintiff, still he was not entitled to recover on said third count, and asked the court so to charge the jury.
    The court did not charge the jury as requested by the plaintiff, but charged them that said statute applied only to cases where the fire was set upon the land of one person and ran upon the land of another, and where that other person upon whose land the fire ran, should bring a suit for the damages done by the fire on his land. That in this case the court did not understand that it was claimed by the plaintiff that the defendant was any more in possession, or that the plaintiff was any more out of possession, of one part of said lot than another, than would arise from the carrying on of the said business of the defendant; and should the jury find that the defendant was in possession of said lot for a limited purpose, to wit: the cutting of certain wood and manufacturing it into coal, and this possession extended to the entire lot, and that for all other purposes the plaintiff was in possession of the said lot, that it could not be said that the fire was set upon the land of one person and ran upon the land of the plaintiff, and that the third count could not be maintained as a count on the statute.
    The jury returned a verdict for the defendant, and the plaintiff moyed for a new trial.

      J. H. Hubbard and Todd, for the plaintiff.

      Hollister and Beman, for the defendant.
   Storrs, J.

The third count of the declaration in this case, on which alone the questions, which have been made before us, arise, is founded on the statute which provides that “ every person who shall set fire on any land, that shall run upon the land of any other person, shall pay to the owner all the damages done by such fire.” Rev. Stat. tit. 1, § 27?, p. 148.

The first question is, whether this statute gives an action to the person whose land has been injured by a fire set on it by another person, or only to a person whose land has been injured in consequence of- a fire running upon it, which was originally set upon the land of another person. The judge below instructed the jury that it applied only to the latter case; and in this we think that.he was correct. Taking the whole language of the statute together, this construction is in accordance with its natural and proper meaning, whereas that claimed by the plaintiff would be very forced and unnatural. The law plainly contemplated an injury to a person from a fire running upon his land which had been set on the land of another person. The act for which it gives an action is, not merely setting fire on land, but the setting fire on any land “that shall rum, upon the land of another.per son; ” and by such “ other person,” was intended a proprietor of land other than the one on whose land the fire was set. The statute first speaks of the land on which the fire should be set, and then of its running upon the land of any other person ; meaning, of course, a different person from the one on whose land the fire should be set. It was intended to provide that the damage which may be recovered shall be that which is occasioned, not to the land on which the fire was set, but to the land of another person upon which it should afterwards run; and contemplated a ease where fire should be set on the land of one person, and from thence run on or spread upon the land of another, which should be injured by such running or spreading of the fire. It is also clear from reading the statute, that by “ the ownerf to whom an action is given to recover his damages, is meant the owner of the land upon which the fire had run after it had been set upon the land of another person.

That this is the true meaning of this law, is yet more clear if we look at the mischief intended to be remedied by it. It is a purely remedial statute, the object of which plainly was, to furnish a remedy to the owner of land where he had previously no redress, in the case of an injury done to it by fire communicated to it, which had been set on the land of another person. By the common law there was no redress in such cases unless the person who set the fire did so for the purpose of injuring the land of another, or was guilty of negligence in not preventing it from spreading beyond his own land. 1 Selwyn N. P., (by Wheaton,) 334, n. Clark v. Foot, 8 Johns., 421. Whether on account of the difficulty of proving that such injury was caused by design or negligence, or because it was deemed more just that the loss should be borne by the person who caused, than by him who suffered from it, the law in question was passed obviously, for the purpose of furnishing redress in all cases to the owner of land thus injured, against the person who caused such injury by setting a fire on the land of another. In the case, however, of an injury done to land in consequence of a fire being set directly upon it, it is difficult to conceive why a more ample remedy should be provided than the common law furnishes.

The plaintiff claimed on the trial, that the defendant was in the possession of that part of the lot of the plaintiff on which the fire was set by him, and that therefore, as to such part, it was the land, not of the plaintiff, but of the defendant. The court charged the jury that if the defendant was in the use of the lot of the plaintiff only for the limited purpose of cutting wood, and manufacturing it into coal, under and according to the contract which has been made between the parties, and the plaintiff was in possession of the lot for all other purposes, it was not a case where the fire was set upon the land of the defendant and ran upon the land of the plaintiff. This instruction was, in our opinion, correct. On the facts upon which it was predicated, the part of the lot on which the fire was set, was not, in any sense, the land of the defendant. The contract impliedly gave him a licence to go upon the lot and do the acts required by it; but it conveyed no estate or interest in the land or any part of it. • It did not amount to a lease, or even to the grant of an easement. Nor did the use of the land by the defendant, for the purpose only of doing such particular acts as those specified in that contract, constitute a possession of it by him, or displace the possession of the plaintiff. It was only a transient and temporary use of the land by him, not as the owner or proprietor of it, or as having any interest or estate in it, but only as a convenient place for the purpose of doing the acts required by the contract, in which the parties had a mutual and equal interest, but which had no reference to the possession of the land, and this is not considered in law as a possession of real estate.

We do not advise a new trial.

In this opinion, the other judges, Hinman and Ellsworth, concurred.

New trial not to be granted.


author: Hinman, J.

text:
    Sears and others vs. Hotchkiss and others.
    The directors of a trading corporation may be restrained by an injunction, upon the application of a party interested, from mismanaging the business of the corporation, or wasting its funds.
    On a bill in equity brought by the plaintiffs who were stockholders of a trading corporation, and a part of them directors, against the remaining stockholders, who held a majority of the stock, and were a majoity of the directors of the corporation, to which the corporation itself was also made a party, charging the defendants with fraudulent mismanagement of the business of the company for their own private benefit, and with being largely indebted to the corporation for funds improperly withdrawn by them, and of which they concealed the amount, — and with a fraudulent combination for these purposes, — and praying for a disclosure, an account, a decree that the defendants pay to the corporation whatever should be found due and an injunction against their selling or wasting the property; it was held, on demurrer to the bill, 1. that it was no objection to the bill, that the corporation itself could have maintained an action at law for the injury against the defendants, nor that the plaintiffs had a remedy at law by a suit against the corporation; 2. that the bill both as to the equity which it disclosed, and as to the parties, was sufficient.
    This was a bill in chancery brought by John Sears, Charles Sears and Alfred Eggleston, of Sharon, and Nathaniel Benedict, of Salisbury, against Asahel Hotchkiss and others, to the August term of the superior court for the county of Litchfield.

      The bill alleged substantially that a corporation had been created under the statute laws of this state, by the name of the “ Jewett Manufacturing Company,” which was located at Sharon and engaged in the manufacture of a variety of articles of common and malleable iron castings. That the capital stock of said corporation was twenty-one thousand dollars, which was divided into shares of twenty-five dollars each. That said Charles Sears was the owner of eighty of said shares, and each of the other plaintiffs of forty of said shares. And that the remainder of said shares were owned by the defendants in the manner specified in the bill.
    That said corporation had been engaged a year and more, in a business profitable in its nature, and which might be conducted to the great advantage of all said stockholders} but for difficulties and disagreements between the plaintiffs and defendants, and the wrongful practices of the defendants as afterward stated. That the directors of said company were John Sears, Nathaniel Benedict and Charles Sears, three of the plaintiffs, and Asahel A. Hotchkiss, John S. Jewett, Myron Dakin, and Frederic A. Hotchkiss, four of the defendants named in the bill, and that said Asahel A. Hotchkiss was the president of said corporation, and said Dakin, the treasurer thereof.
    That the said four last named directors had unjustly combined together to misapply a portion of the funds of said corporation, and take the entire control of the business, money, and affairs of said corporation, without regard to the wishes, and votes of said three first named directors, and were acting unjustly and fraudulently with regard to the effects and business of said corporation, depreciating the value of the stock of the petitioners, and ruining the business of said company.
    That before the organization of said company, said Asahel A. Hotchkiss, B. B. Hotchkiss, Frederic A. Hotchkiss, Andrew Hotchkiss, Vinson G. Sears, John S. Jewett, and Myron Dakin, as partners, under the name and firm of Jewett and company, owned all the real estate and a large portion of the personal estate then belonging to said corporation, which firm, and the aforesaid persons as members of said firm, had for a long time before such organization been engaged in carrying on the same kind of business at said place, as that in which said corporation was then engaged, and thereby became largely indebted to divers persons in divers sums unknown to the plaintiffs.
    That upon the formation of said joint stock corporation, the said firm of Jewett and Company, and the members thereof, sold to said Jewett Manufacturing Company said property. That said Asahel A. Hotchkiss, B. B. Hotchkiss, Frederic A. Hotchkiss, Andrew Hotchkiss, Vinson G. Sears, John S. Jewett, and Myron Dakin, owned a majority of the stock and shares of stock of said corporation, and had not only at all times controlled the votes and election of officers and the affairs of said corporation, without regard to the wishes, votes, and interest of the plaintiffs, but as partners of the firm of Jewett and Company, being liable for the debts of said firm, unjustly and fraudulently, at divers times between the first of November, 1853, and the date of the bill, by themselves and by the said Asahel A. Hotchkiss, John S. Jewett, Myron Dakin, and Frederic A. Hotchkiss, a majority of the directors of said corporation, and by the presidents, treasurers, clerks, and agents of said corporation, used and appropriated, wrongfully and fraudulently three thousand dollars and more, of the money and means of said corporation in the payment and discharge of divers debts of said firm of Jewett and Company, due from said Jewett and Company and said members of said firm to divers persons, whose names were unknown to the plaintiffs, and had misapplied the money and means of said corporation, and wrongfully appropriated the same for their own benefit as members of said firm of Jewett and Company. That by means thereof said firm of Jewett and Company, and the members thereof became indebted to and justly liable to pay and refund to said Jewett Manufacturing Company, said sum of three thousand dollars and more, and the interest thereon; and that said firm of Jewett and Company, were indebted to said corporation, in other sums to a large amount unknown to the plaintiffs for moneys advanced and paid for said Jewett and Company, and for their use and benefit by the defendants, and by divers of the defendants acting as agents, clerks, treasurers, directors, and presidents of said corporation — no part of which the defendants nor said majority of directors who were defendants would permit to be charged on the books of said corporation to said Jewett and Company ; all of which sums th'ey concealed from said corporation and of the amounts of which sums, and the time of their advancement, the plaintiffs were entirely ignorant; that the said Jewett and Company and said members of said firm, wholly refused to refund or pay said debt and moneys to said corporation, and the defendants refused to permit a suit to be commenced for the recovery of said sums.
    The bill proceeded to allege that the members of the firm of Jewett and Company owned a large majority of the stock of said corporation, and for more than twelve months controlled the votes and acts of the meetings of the members of said corporation, and wholly refused to refund, or permit said firm of Jewett and Company to refund said moneys to said corporation, or to pay said debt, and refused to permit said corporation to collect, or sue for, said moneys — by means of which said corporation was embarrassed in its business, and the plaintiffs greatly injured; that said Asahel A. Hotchkiss, Myron Dakin, John S. Jewett, and Frederic A. Hotchkiss, being a majority of said directors, refused to permit said moneys and debts to be charged to said Jewett and Company, and refused to collect the same, or permit any suit to be commenced therefor by said corporation or otherwise, and concealed the appropriation of said moneys; by means of which the stock owned by the plaintiffs was greatly reduced in value, and they injured; that the said last named directors and the defendants threatened to sell and dispose of all the property of said corporation at auction or otherwise, at any and all hazards and at any price it would bring, and intended to buy it in themselves, or procure others to buy it in for them, at prices much less than its real value, and to waste and destroy said prop-" erty ; and that the petitioners had no means of proving the amount of moneys so misappropriated by the respondents, and said directors last named, and said clerks, agents, and other officers of said corporation, or the amount so due and owing to said corporation from said Jewett and Company and the respondents, without the oath disclosure and exhibits of said last named directors, and of the members of said firm of Jewett and Company, and of all the respondents.
    The bill proceeded to allege that the plaintiffs were without adequate remedy at law, and prayed the court on finding the facts alleged- in the bill to be true, to order the members of the firm of Jewett and Company, and all the defendants to disclose on oath, their knowledge respecting the funds of said corporation, advanced to or received by said Jewett and Company, and that they make an exhibit of all their books and accounts, respecting said moneys, and to-order said Jewett and Company, and the persons composing said firm, and all the defendants to settle their accounts with the Jewett Manufacturing Company, and that said Jewett and Company pay over to said Jewett Manufacturing Company, the balances due to the said Jewett Manufacturing Company, from said Jewett and Company, or from the members of said firm — and that the members of the firm of Jewett and Company, give a faithful account of all the moneys belonging to said corporation, which had come into their hands as directors of said corporation or otherwise, and to enjoin the defendants against disposing of the property of said corporation at auction, and at a loss or sacrifice. The bill also contained a prayer for general relief.
    To this bill the defendants demurred generally for want of equity.
    They also demurred specially on the ground that the Jewett Manufacturing Company was not made a party to the bill. Said company was subsequently made a party and the questions arising upon the general demurrer were reserved for the advice of this court.

      Woodruff and On, in support of the demurrer.
    1. The bill can not be sustained against the members of the firm of Jewett and Company, for they are liable neither in law nor in equity to the plaintiffs, but only to the Jewett Manufacturing Company. Nor can it be sustained against the directors of that corporation. For directors are not the agents of the stockholders and are accountable only to the corporation itself. Story on Agency, §§ 217, 314.
    2. The plaintiffs have a remedy at law. A corporation is liable for the misconduct of its officers, and a stockholder may sustain an action for an injury occasioned by such misconduct against the corporation. Gray v. the Portland Bank, 3 Mass., 385. 2 Bay., 109.
    3. The prayer for a disclosure does not give the court jurisdiction in the case unless it appears from the bill that the plaintiffs are entitled to the relief sought. And as to the relief sought, a stockholder of a corporation, can not by a petion in equity compel a debtor of the corporation to pay his debt, for this is a matter within the discretion of the directors with which the court will not interfere. So likewise the court will not interfere with the discretion of the directors in selling and disposing of the property. If directors abuse their trust they are liable to the corporation, and the corporation is liable to the stockholders.

      Hubbard contra.
    1. The bill states a perfect case for relief in equity. This is apparent from the allegations in the bill itself. It is substantially in the nature of á bill for a specific performance of what was agreed to be done in the formation of the corporation.
    Directors of a joint stock corporation are always considered as trustees; and as such, may be called into a court of chancery by the stockholders. Scott v. Depeyster, 1 Edw. Ch., 513. 1 Bar. & Har. Eq. Dig., 321. Taylor v. Miami Exporting Company, 5 Ham., 165.
    Stockholders in an incorporated bank, may sustain a bill in equity against the directors, the corporation, and other stockholders, upon allegations of fraudulent practices, depreciating the value of the stock ; and may pray for an account, and a restoration of whatever may have been withdrawn. Authorities Supra.

   Hinman, J.

The question in this case arises upon démurrer to the bill for want of equity. The demurrer for want of proper parties has been disposed of by bringing in the Jewett Manufacturing Company, as a party defendant, so that now all' parties in interest are before the court. Without going much into detail, it is sufficient to say that the plaintiffs are holders of stock, and three of them are directors of the Jewett Manufacturing Company, and the defendants are the remaining stockholders, who have a majority of the stock, and also constitute a majority of the directors, together with the corporation itself, which has been brought in since the commencement of the suit. The bill charges the directors who are defendants, with managing the business without regard to the wishes or interest of the plaintiffs, by fraudulently combining to appropriate the funds for their individual benefit, using them in the payment of their private debts, and with depreciating and destroying the business, and the value of the stock ; that, as individuals, and as partners in another private company, they are largely indebted to the corporation for funds improperly withdrawn by them, the amount of which they conceal, and refuse to permit to be charged on the corporation books, or to permit suits to be brought for its recovery; and they threaten to sell the corporation property for less than its value, and to waste and destroy it for their individual benefit. The bill prays for a disclosure and an account, and that the defendants pay whatever may be due to the corporation, and that they be enjoined not to sell or waste the property.

It is obvious from this summary that there is equity enough in the bill, provided the suit is regularly instituted by and against the proper parlies. But the defendants insist that the corporation alone should have commenced the suit; or that the remedy should be sought in actions at law against the corporation. It is said the corporation is the party that has been defrauded, and it should therefore be the party to seek redress. In a technical sense, this is so ; and accordingly it has been held that a stockholder in a bank can not maintain an action at law against the directors, for negligence, by means of which the capital is lost, and the shares rendered worthless; Smith v. Hurd,, 12 Met., 371: and it may be admitted that such an action could be sustained in favor of the corporation; Austin v. Daniels, 4 Denio., 299. Still we think the objection ought not to prevail against a bill in equity to which not only the directors, but the corporation itself, and all the stockholders are made parties.

Courts of equity will interfere to restrain partners from wasting partnership property, and generally from fraudulent practices injurious to the partnership; and bills for an account will lie against joint-stock companies without seeking a dissolution, or making all the shareholders parties. Story on Part., § 224. Bisset on Part., Part 2, Ch. 9.

And joint stdck companies, though formerly mere private partnerships, have now become in England, either under general laws, or by special acts, corporations substantially. Yet the principles applicable to ordinary partnerships have always, to some extent, been applied to them ; and the tendency now is to assimilate them more and more to mere commercial partnerships. 12 Barbour, 27. Bryant v. Warwick Canal Company, 23, E. L. & Eq. Rep., 91.

And what good reason can be given why the members of a partnership should be liable to be restrained from misappropriating the partnership funds, that does not apply to the directors of a trading corporation ? At law there may be technical difficulties; but courts of equity look at the parties in interest, and ought not, as we think, to allow defendants to protect themselves from liability on such grounds. In a case very analagous to this, Chancellor Walworth found no difficulty in sustaining the bill, and he well remarked that upon general principles of equity, no injury the stockholders may sustain, can be suffered to pass without a remedy. Robinson v. Smith, 3 Paige, 222. He considered the directors liable as trustees for a misapplication of the funds, and for gross negligence in the execution of the trust. In this case, the corporation, as well as the directors, is made a party, and what difference in principle is there in restraining it from wasting its funds, and restraining a municipal corporation from a similar act at the suit of a tax payer. New London v. Brainard, 22 Conn. R., 553. In Angel and Ames on Corp. §§ 392, 393, it is said that a shareholder may maintain a bill in equity against the directors and the corporation, to have refunded any of the profits improperly appropriated, and this bill charges a misappropriation of all the property, including the profits which the plaintiffs believe to have been made. But it was said, that the plaintiffs have a remedy at law, by a suit against the corporation, which is not alleged to be insolvent; and Gray v. The Portland Bank, 3 Mass., 364, and other cases, are cited in support of the proposition. We have no occasion to question this doctrine, but it appears to us that more adequate relief can be obtained in equity, and that this is the more appropriate remedy. At law the’ suits must be as numerous as the stockholders, whereas in equity the whole controversy can be settled in one suit, and the remedy in equity is more feasible and not attended with difficulties that would have to be encountered at law. To save expense, as well as obtain move adequate and speedy relief, and to prevent a multiplicity of suits, we are satisfied the bill ought to be maintained, and so we advise the superior court.

In this opinion, the other judges, Storks and Elksworth, concurred.

Demurrer overruled.