Bradley v. Boynton
22 Me. 287
Me.
1843
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The opinion of the Court was afterwards prepared by '

Shepley J.

— This is an action of trover' brought to recover the value of certain mill logs cut and carried away from township numbered one, in the ninth range, by Thomas. J. Grant,. as a trespasser; and by him delivered to the defendants in payment of advances made to him. The plaintiff and Stephen Chase being at that time-mortgagees and tenants in common of that township, a settlement for the trespass was afterwards made with Grant by Chase, who released him from all liability, as well for himself as for his co-tenants. The question presented is, whether the settlement and release of one tenant in common binds his co-tenant, and transfers the property to the trespasser.

In actions ex delicto and for injuries to their real property, tenants in common must join. 1 Chitty Pl. 52. Low v. Mumford, 14 Johns. R. 426. Rich v. Penfield, 1 Wend. 380. In Ruddock’s case, 6 Co. 25, (a) it is said, that' when the ground of action is a joint interest and the plaintiffs seek to recover for any personal thing, as in an action, of debt or trespass, the release of one shall bar the others. In the case of Razing v. Ruddock, Cro. Eliz. 648, the rule of law was stated to be, that when an action is brought by several to charg'e another, the release of one bars the others, while it would not thus operate in a case, where they sought to discharge themselves by the action of a judgment, wherein they had been defendants. The same doctrine was held in the case of Blunt v. Snedston, Cro. Jac. 117. The case oí Austin v. Hall, 13 Johns. R. 286, was an action of trespass quare clausum *291brought by tenants in common. The defendant, among other pleas, pleaded releases by two of the plaintiffs; and the plaintiffs demurred. The Court said, “ the action is strictly a personal one, and the plaintiffs were bound to join in it. The release therefore by two of the plaintiffs is a bar to the action.” In the case of Decker v. Livingston, 15 Johns. R. 481, it is said, “ there can be no doubt, that when there is such a unity of interest as to require a joinder of all the parties interested in a matter of a personal nature, the release of one is as effectual as the release of all.” In the case of Baker v. Wheeler, 8 Wend. 505, it was decided, that a license given by one tenant in common to cut timber, having himself a right to cut timber on the estate held in common, bound his co-tenant. In the case of Sherman v. Ballou, 8 Cowen, 304, a discharge of rent by some of the tenants in common was adjudged to bind their co-tenant. This action might have been defeated by a plea in abatement for the non-joinder of Chase; and if he had been joined his release would have been a bar to the action. The same would have been the result, if the plaintiff had waived the tort, and brought an action of assumpsit for the money received from the sales of logs or lumber. Gilmore v. Wilbur, 12 Pick. 120. He had therefore no legal remedy for the injury but upon his co-tenant. The omission of the defendants to defeat this action by a plea in abatement, cannot change the legal effect of the release by one of the tenants in common. The right to release the action arises out of the right to control and discharge the ground of action. And if the cause of action may be released after action brought, it may be, after it has arisen and before that time. A settlement and release of a trespass necessarily operates as a transfer of the property to the trespasser. And when a release of one tenant in common discharges tin cause of action, it must have a like effect. The plaintiff would avoid this result by shewing, that the mill logs, after they were cut, became the property of the plaintiff and of Chase ; that one tenant in common of personal property can sell his own share only, and that the settlement and release of Chase was an attempt to sell the whole *292property; and that it could not therefore destroy the right of property in the plaintiff. These positions are correct, so long as the common property exists unaffected by the illegal acts of others and subject to the possession of the tenants in common. But when they have been deprived of the possession and enjoyment' of it by a wrongdoer, their right to compensation for that injury is a joint one; and their remedy is by a joint action. And hence it is, that one of them may release and discharge both the joint right of action and the action itself.

Default taken off and new trial granted.