Grady v. Maloso

92 Wis. 666 | Wis. | 1896

PiNNey, J.

It is reasonably clear that the interest in the-lots which the plaintiffs took by descent from their father, as one of the eight heirs, was not less than one undivided eighth part of the whole, and, whether one eighth, one seventh, or two sevenths, they have ever since retained it. They, therefore, became seised with their co-heirs of the lots in question, as tenants in common; and they had an undivided interest and title, as such, in and to every part and portion of both lots, and, as against their cotenants and others interested in said lots, or either of them, or any part of either of them, had a right to maintain an action for partition, and to have their share or interest set off to them respectively, in severalty; and they have this right still, as against all persons who have acquired an undivided interest in said premises, or any part of the same, as subsequent purchasers, from any or either of their cotenants. The plaintiffs • and their cotenants acquired their rights by descent from and under the same intestate. ; The complaint for partition in this case states but a single cause of action, and, though it relates to two lots, still it relates to matters of the same nature, and having a connection with each other, and in which all of the defendants are more or less concerned, though their rights in.the general subject may be distinct; and the defendants who demur and who are interested only in lot 3 were, we think, properly joined as defendants in this action to set off to the plaintiffs in severalty their respective interests in both lots. As stated in Douglas Co. v. Walbridge, 38 Wis. 179, 189: “All the matters are more or less connected, and all the defendants are more or less concerned or interested in them.” The point in issue being the right of the plaintiffs to have their interest thus acquired in both lots set off to them in severalty, all the defendants have a common interest centering in this point in issue in the cause. Fellows v. Fellows, 4 Cow. 682, 701. The grounds upon which the action rests are not, for the reasons stated, entirely distinct and unconnected by reason of the fact that partition is sought of two lots and in one of them only the defendants demurring are interested as tenants in common with the plaintiffs. As was said by Mr. Justice DowNER, in Blake v. Von Tilborg, 21 Wis. 673: “According to all the authorities, a complaint does not improperly unite several causes of action which relates to matters of the same nature all connected with each other, and in which all the defendants are more or less interested or concerned, though their rights in respect to the general subject of the action may be different, and some may be directly interested only in a part of the general claim.”

In Brinkerhoff v. Brown, 6 Johns. Ch. 139, the subject is fully discussed by Chancellor Kent, and the same conclusion is maintained; and the case of Douglas Co. v. Walbridge, 38 Wis. 179, 189, is really decisive of the question involved. Winslow v. Dousman, 18 Wis. 456. The precise point in question was decided in Parker v. Harrison, 63 Miss. 225, wbicb was a suit for partition, where the complainant was. a cotenant of all the lands sought to be partitioned, and she brought before the court the grantees of her former coten-ant, so that their interests would be protected; and the court held that it is the right of one of several cotenants to convey his interest in the whole or a part of the joint estate, but it is not allowable for a cotenant to split the joint estate into fragments, and to necessitate as many suits for partition as there may be conveyances, and that he who has a joint interest in the several parcels may proceed as though no conveyance had been made by any of his cotenants, and bring all the parties in interest before the court, which will do justice between the parties according to their several rights. The same rule, substantially, is stated in Story, Eq. Jur. §§ 656c, 657; Story v. Johnson, 1 Younge & C. Exch. 538; S. C.2 Younge & C. Exch. 586. In Massachusetts and other states, where proceedings in partition are by petition with substantially the same scope as an action for that purpose, the same doctrine prevails; and it is held that a conveyance by one tenant in common of his interest in part only of the common estate will not authorize a cotenant to enforce partition of such part against the grantee, leaving the residue unpartitioned. Barnes v. Lynch, 151 Mass. 510; Barnes v. Boardman, 157 Mass. 479; Bigelow v. Littlefield, 52 Me. 24.

The statements as to the time of the deaths of some of the parties, and the date of some of the conveyances, and in other respects, are so vague and uncertain that it is impossible to say, under the statute of descents governing the case, how much greater interest, if any, than one eighth the plaintiffs have in the two lots. The complaint ought to have been more definite and certain.

The demurrer was improperly sustained.

By the Court.— The order appealed from is reversed, and the cause is remanded for further proceedings according to law.