34 So. 2d 580 | Ala. | 1948
This is a suit by certain tenants in common against one of them for the failure to comply with the terms of his purchase of certain lands belonging to the heirs of John H. Gore, which were ordered to be sold for division by decree of the circuit court, in equity, and bid in by appellant. Upon such failure another sale was ordered to be made, and at such sale a less amount was bid by another, whose bid being the *419 best, the sale was made to him and confirmed.
The land was inherited by four children in equal parts: Robert Gore, Will Gore, Martha Jane Cox, and Albert Gore, deceased, whose heirs represent his share.
This suit was begun by the heirs of Albert Gore against Robert Gore, another tenant in common, who was the purchaser who failed to comply with the terms of his bid. Martha Jane Cox came in voluntarily and made herself a party plaintiff. Pending the suit Will Gore, who was not a party at the beginning, was brought in as plaintiff by amendment over his refusal voluntarily to do so, and upon compliance with section 135, Title 7, Code. Later he died, and his heirs were likewise brought in as parties plaintiff. During the progress of the trial plaintiffs' counsel stated that plaintiffs were not claiming any money out of Robert Gore (defendant) for Will Gore or his estate.
The court charged the jury that plaintiffs' counsel were not asking to recover except for the pro rata amount to which the heirs of Albert Gore, deceased (as plaintiffs) are entitled, which is one-fourth of the damages: that the other heirs are waiving their right to claim any damage, which would not bar the other plaintiffs who are the heirs of Albert Gore from recovering their interest. And gave the jury a form of verdict if they find for plaintiff, in substance to find for the Albert Gore heirs, by name, and to assess their damages at some amount, and "we further find for plaintiff Martha Jane Cox and plaintiffs who are heirs of Will Gore, deceased, but do not assess any damages as each have waived their right of recovery." The jury returned a verdict for the plaintiffs (naming the heirs of Albert Gore) and assessed the damages at $58.00; and "we further find for plaintiff Martha Jane Cox, and plaintiffs who are heirs of Will Gore, deceased, but do not assess any damages as each have waived their right of recovery." A judgment was entered accordingly. Defendant appeals.
Appellant seems to recognize the necessity of having Martha Jane Cox and Will Gore parties plaintiff, but contends that the verdict and judgment cannot split up the recovery so as to award damages to some and not to other plaintiffs. Appellant's counsel seem to think that Jones v. Adler,
But those cases are distinguishable from the rule expressed in section 126, Title 7, Code, whereby in certain actions, including contracts expressed or implied for the payment of money, suit must be prosecuted in the name of the party really interested. The cases which justify an action by the heirs against a defaulting purchaser under the circumstances do not tag the suit with any specific name. Howison v. Oakley,
But it is clearly a suit on the promise of the purchaser implied by law to pay the amount of his bid. It is not as for a tort, nor a penalty or debt created by law. It is not an obligation to do anything, but to pay money. It is based on a contract expressed or implied for the payment of money (not a commercial instrument). Suits on contracts to perform services, and on covenants, must be in the name of the legal owner of the contract, which may be for the use of the beneficial owner. Bohanan v. Thomas,
But where several persons are each entitled to a proportionate share in an ascertained sum, one of them ordinarily may sue alone to recover his share. 47 Corpus Juris 60, note 74; Davis v. Orme,
The situation is somewhat like it was in Smith v. Wiley,
It has been held in many cases that where there has been a conversion of personalty owned by tenants in common, they may sue jointly or severally either for the tort, or on the implied promise for money had and received. Lufkin v. Daves,
One tenant in common can sue another as though he were a stranger for a conversion of the property, and recover for his interest or his share of the money received. Section 101, Title 7, Code; Cowles v. Garrett,
In the case of Howison v. Oakley, supra, there was a demurrer to the complaint by the heirs as plaintiffs because it did not allege that they were the only heirs. The court merely observed that the allegation was sufficient to show that they were the only heirs of deceased. But in doing so, there is no declaration that in fact all were necessary parties. That was merely one way of responding to the demurrer.
The promise of the purchaser implied by his bid was to pay the commissioner as the agent of the court, and therefore to the court. The owners were the beneficiaries of the promise, each to the extent of his proportionate interest in the land. Either the commissioner can sue because he is thus qualified as the representative of the court, or the tenants in common, each separately, or all together could sue because of their beneficial interest. Greil v. Randolph, supra; Hutton v. Williams, supra.
In the latter case it is said that the sale was made through the agency of the commissioner, and that because the commissioner could sue, it did not follow that the tenants in common, as the owners of the land offered for sale, could not sue. The statute, quoted above, now section 126, Title 7, Code, was not mentioned, but it might have been. The commissioner could sue evidently because the court was the seller, and the commissioner was the court's agent in making the sale and collecting the money. But that did not infringe, it was said, upon the right of the tenants in common to sue. Having that right, it vested in them not jointly for their interest was not joint, but several, because the interest of a tenant in common is in severalty. Their right to sue is joint and several. There is a common interest, but each is distinct from the other. It comes within the principle of the cases cited *421
above where one collects rents belonging to tenants in common, they may sue jointly or severally. Smith v. Wiley, supra. One tenant in common can release or waive or transfer any claim he has under the circumstances, but not that of the others. To make him a party after he has done so, as was done here, was unnecessary and created a useless complication, in fact a paradox. For the rule is that all plaintiffs at law must have a community of interest and right to recover, or none can. McLeod v. McLeod,
Exception was taken by defendant to that feature of the court's charge which prescribed the form in event the jury found for plaintiffs. A motion for a new trial was also made raising that question. The motion was overruled. We think the court was in error, and the judgment must be reversed.
Reversed and remanded.
GARDNER, C. J., and LAWSON and STAKELY, JJ., concur.