Gray v. Johnson, 14 N.H. 414

14 N.H. 414 | Superior Court of New Hampshire | 1843

Gilchrist, J.

In this case the lessors, seven in number, have demised to the two defendants certain real and personal property, “ yielding and paying therefor the yearly rent of sixteen hundred dollars, in the proportion following : that is to say, to the said Gray four hundred dollars; to the said Willard two hundred dollars, &c., to be paid to each of the said lessors, severally.” And the defendants covenant to pay the rent reserved punctually at the time agreed on. The suit is brought by one only of the lessors to recover his share of the rent. The defendants object that all the lessors should have joined in the action; and the question arises, what is the proper construction of the covenant ?

The rule is well settled by the decisions, that though a man covenant with two or more jointly, yet if the interest and cause of action of the covenantees be several, the covenant shall be taken to be several, and each of the covenantees may bring an action for his particular damage, notwithstanding the words of the covenant be joint. 5 Rep. 7, Windham’s case ; Eccleston vs. Clipsham, 1 Saund. 153; James vs. Emery, 8 Taunt. 245. In Withers vs. Bircham, 3 B. & C. 254, it was held that where each of sundry covenantees had a distinct interest in a certain annuity payable to him, his interest was several, and the action must follow the nature of the interest, although the language of the covenant was joint. A co-obligee may alone maintain an action, on a joint bond where the interest or cause of action is several ratione suhjectce materias. Ehle vs. Purdy, 6 Wend. 629. In the present case, although the covenant is in terms made with all the lessors, yet the interest of each of them is distinct from that of the others. The proportion which each of them is to have of the sum of sixteen hundred dollars is specified, and this proportion is to be paid to each of them, severally. The interest being several, the action properly followed the nature of the interest, and the objection of nonjoinder cannot be sustained.

The defendants’ second petition is, that the plaintiff cannot recover in his own right, because the declaration contains no averment that the defendants owe the plaintiff, except the sum stated under the assignment of Willard to the plaintiff.

The first count states the assignment from Willard, and avers that on the 5th day of September, 1840, the sum of six hundred dollars, payable according to the terms of the demise, to Willard, was due the plaintiff by virtue of the assignment, whereby an action had accrued to the plaintiff' to recover said sum of six hundred dollars.

The second count alleges an indebtment from the defendants to the plaintiff in the sum of eighteen hundred dollars for the use and occupation of the premises. In this count the assignment by Willard is not stated. The sum alleged to be due includes both the sum payable to Willard, and that payable to the plaintiff. The defendants also object that there is a misjoinder of counts, and that there is no allegation where the lands are located. All these three exceptions depend upon the question whether the second count be a good count in debt for use and occupation.

Debt will lie for use and occupation generally, without setting forth the particulars of the demise. Wilkins vs. Wingate, 6 T. R. 62. In such a form of action it is unnecessary to state the place where the premises lie, or any of the particulars of the demise. King vs. Fraser, 6 East 348. In that case, Lawrence, J. said, “ the case has been argued by the defendants’ counsel as if this were an action founded upon locality; but no authority has been cited to show that an action for use and occupation is a local action. If a party have enjoyed the use and occupation of land in Kent, that is a good consideration for a promise in Middlesex.” “Lord Coke even says, that in debt, if a man declare upon a lease for years in one county, of land in another county, he ought to bring his action where the lease was made, and not where the land lies, for the action is grounded on the contract.” Bulwer's case, 7 Rep. 1; Davies vs. Edwards, 3 M. & S. 380; Kirtland vs. Pounsett, 1 Taunt. 570. The opinion of the court is, therefore, that these exceptions must be overruled.

We do not perceive that the verdict was taken for too large a sum. The rent due Willard for three years amounted to six hundred dollars, and the rent due the plaintiff by the terms of the demise, amounted, for the same period, to twelve hundred dollars. Both these sums the, plaintiff is entitled to recover, and there is no reason why he should not recover the interest upon them from the time they became due, by adding which to the rent, we understand the sum of $ 1926.80, the amount of the verdict, is made up.

It is said that the deposition of Plumer is inadmissible because he is interested with the plaintiff in the contract made with the defendants. But he has no interest in this suit, and cannot call upon the plaintiff for any portion of the sum the plaintiff may recover, nor is he in any way liable to the plaintiff on account of the rent. His interest is several, as has been before stated, and not joint, and he is a competent witness.

The defendants except farther, because that part of the deposition of Plumer which went to show that the lessors had no title to the premises was excluded by the court on motion by the plaintiff. If the part thus excluded contained matter of which the defendants could not avail themselves as a defence to this suit, it was properly excluded, unless the alleged matter of defence be admissible because it appeared frorp the plaintiff’s own case.

The general rule is, that where a tenant has recognized the title of his landlord, and treated him as such, either by-accepting a lease, by payment of rent, and the like, he is precluded during tile term from showing that the plaintiff had no title at the time of the demise. Carpenter vs. Thompson, 3 N. H. Rep. 204; Hayne vs. Maltby, 3 T. R. 441, per Lord Kenyon; Palmer vs. Ekins, 2 Ld. Raym. 1550. Nil habnit in lenementis at the time the plaintiff permitted the defendant to occupy them, is a bad plea to an action of assumpsit for use and occupation ; there is no occasion for the plaintiff to show any title upon these contracts. Lewis vs. Willis, 1 Wils. 314. In Hodson vs. Sharpe, 10 East 350, where a lessee who had enjoyed under the lease almost to the end of the term, objected that the lease was void because it was not registered, it was held that the objection eould not be sustained.

Another inquiry is, whether it makes any difference that the lessor’s want of title appears from his own evidence. This exception was taken in Barwick vs. Thompson, 7 T R. 488. Raine, for the plaintiff, contended for the application of the common rale that a tenant shall not be allowed to dispute the title of the landlord under whom he holds. Holroyd, contra, answered that even if the defendants did hold under the lessors oí the plaintiff, there was no reason why they should not be allowed to inquire into the validity of their title, as all the evidence of title was given by the plaintiff himself, and that in this respect this case differed from the ordinary one where a tenant is not suffered to bring evidence to impeach his landlord’s title, the evidence given by the lessors of the plaintiff here having negatived their own title. But the court were of opinion that as the defendants held under the lessors of the plaintiff, their title could not be disputed. A similar decision was made in the case of Dolby vs. Iles, 11 Ad. & E. 335. The defendant objected that even assuming him to have recognized the plaintiffs as his landlords, they could not recover because their own case showed that the legal title was not in them. White, for the defendant, said that in cases where the title is merely doubtful, a recognition by the party charged as tenant may remove all difficulty, but here the plaintiffs showed by their own evidence that they had no title on which the action could be supported. (Coleridge, J. You have made a payment of rent in fact to them. Gan you, then, because they show that they have not the legal estate, allege that rent is not due to them ? There has been an occupation by the sufferance and permission of the equitable tenant for life. Littledale, J. You cannot say that cestui que trust has no right to sue.) To this it was answered that if he himself shows that he has not the legal estate, the tenant may avail himself of the fact. (Coleridge, J. Suppose they are merely in possession, and suffer you to come in, and you accept possession under them ; if they afterwards admit they have no title, can you take advantage of that ?) Lord Den-man then said, that the court were satisfied that this defence was not open to the defendant.

In the present case, as the defendants have accepted a lease, they are estopped from showing that the lessors had no title, and from availing themselves of any evidence tending to show that fact, although it appeared from a deposition offered by the plaintiff. The objection, then, that it was excluded by the court, is invalid, and must be overruled.

Judgment on the verdict.