4 Blackf. 331 | Ind. | 1837
Wilson Grimes, an infant, by his next friénd and guardian, and Charles Grimes, filed a bill in chancery against Allen Wilson and Henrietta his wife.
The bill states that Noble Grimes, the father of the complainants, died intestate, seised and possessed of “ all that messuage or mansion-house, land, tenements, and hereditaments, known” as two certain half-quarter sections of land, (describing them,) leaving the complainants and seven other children, (naming them,) his next of kin and heirs at law, to whom the premises descended, subject to the right of dower of his widow Henrietta Grimes; that after the death of Noble Grimes, two of his heirs deceased, leaving the complainants and his other surviving children their next of kin and heirs at law, to whom descended their respective estates in the premises described in the bill; that on those premises there were, at the time of the death of Noble Grimes, 40 acres of cleared land fit for cultivation; that the widow of Noble Grimes, one of the defendants, upon the decease of her husband, entered upon the premises, cultivated the cleared ground, and received the rents and profits thereof to her own use until her intermarriage with Wilson, the other defendant; that since that event, to the filing of the bill, Wilson had been in the receipt of the rents and profits; that in addition to the proceeds of the cleared land, the defendants had received profit from wood-land, a sugar-camp, and an orchard on the premises; that the complainants were each-entitled to a share o'f the rents and profits so received by the defendants; and that they had demanded an account and payment of the
General demurrer to the bill for want of equity; demurrer sustained, and bill dismissed.
In support of the demurrer, it is contended that the bill does not present a case showing a right in either of the complainants to hold the defendants responsible in' any manner; but that if such right does exist, the remedy is at law and not in equity.
The first position is based upon the construction given by the defendants to our statute regulating dower.
That act, after providing that the widow of an intestate shall be endowed of one full and equal third part of the real estate, whereof her husband was seised during coverture, provides “ that until such dower shall be assigned, it shall be lawful for her to remain and continue in the mansion-house and messuage thereunto belonging, without being chargeable to pay the heir any rent for the same”
We cannot concur in giving to the phrase in question a meaning so extensive. It is difficult to define with precision the signification of the legal term messuage. Authors have differed in their understanding of its import. The best writers, however, represent it as synonymous with house, and as embracing within its meaning an orchard, garden, curtilage, adjoining buildings, and other appendages of a dwelling-house; but they limit the ground which may be appropriated to these purposes to a small quantity, not exceeding an “ acre or more.” 1 Thom. Coke, 215, 216, and notes.—1 Shep. Touch. 94.—2 Saund. 401, n. 2. Our statute, by using the words mansion-house and messuage, cannot be supposed to have designed to
This statute leaves the right of dower of the widow of an intestate, as it stood at common law, excepting -that it is extended to equitable as well as legal titles, and that the privilege of remaining in the possession of the mansion-house and messuage thereunto belonging, rent free, until assignment of dower,, is substituted in the place of her right to occupy the chief mansion of her husband 40 days after his decease—which is called her quarantine
The next inquiry is, whether the remedy for such an injury is at law or in equity?
There is, however, one feature in the bill which entitles one of the complainants, Wilson Grimes, to a hearing in chancery; and that is his infancy. An infant has a right to consider any person who may enter upon his land, and receive the proceeds thereof, as his guardian, bailiff, or trustee, and compel him to account for them in a Court of equity. 1 Story’s Eq. 487.—1 Madd. Ch. 74.—1 Atk. 544.—Newburgh v. Bickerstaffe, 1 Vern. 295.—Cary v. Bertie, 2 id. 342.—Hutton v. Simpson, 2 id. 722.-3 Atk. 129, 130.
It remains to inquire, what is the consequence of conjoining in a bill one plaintiff who is entitled to sue in a Court of equity, with another who has no such right? Independently of the objection to such a practice, arising from the great inconvenience which would attend it, this point rests on authority. In the cases of the King of Spain and others v. Machado and others, 4 Russ. Rep. 225, and Cuff v. Platell, Ibid. 242, it was held that the conjunction of a plaintiff having an interest in the subject of the suit, with another without such interest, was fatal on general demurrer for want of equity. The same principle was recognised in Makepeace v. Haythorne, 4 Russ. Rep. 244, in which the objection to the misjoinder was taken by plea. It is true that in the case at bar, both the complainants show an interest in the rents and profits received by the defendants, but their rights are perfectly distinct; they have no connection
There is no privity between these plaintiffs. Were they connected in interest,—one holding the legal, and the other the equitable interest, as is the case with assignor and assignee, principal and agent, and in other cases of like character, they might join. In such instances, but one claim is sought to be enforced by parties claiming one under the other. Here two independent demands, the one a proper subject of equitable, the other of legal jurisdiction, are attempted to be coerced conjointly. We think the principle governing the decision of the cases, in which one plaintiff had an interest in the subject-matter of the controversy and the other had none, is applicable to this case; and that, therefore, the demurrer was well allowed by the Circuit Court.
But in consideration of the infancy of Wilson Grimes, the bill should not have been dismissed as to him. The cause should have been ordered to stand over, that he might strike the náme of Charles Grimes from the bill, and proceed alone.
The decree is reversed.. Cause remanded, &c.
Rev. Code, 1831, p. 209. Accord. Rev. Stat. 1838, p. 239.
Tlie widow has now a right of dower in the equitable estate to which her husband was entitled at the time of his death; and the husband is, for this purpose, considered equitably entitled to any real property for which he had contracted, in proportion to the purchase-money which he had actually paid. Rev. Stat. 1838, p. 238, 239.