5 Gill 132 | Md. | 1847
delivered the opinion of this court.
This is an action of assumpsit. The declaration contains three counts. The first, for use and occupation; the second, on an account stated; and the third, for money had and received. The defendant pleaded non assumpsit and limitations.
Ellen M. Hoffar, the wife of Jlncus M. Hoffar, the plaintiffs in this action, was one of the four children of Joseph N. Stonestreet, who died intestate, seized of the real estate, to recover for the use and occupation of which, by the defendant’s testator in bis life-time, this action was instituted. The county court decided, that the plaintiffs could not recover on the first count in the declaration, because all of the heirs of Joseph N. Stonestreet should have been made plaintiffs; and because there was no evidence from which the relation of landlord and tenant could be inferred between the plaintiffs, and the defendant’s testator; and that there was no evidence in the cause which entitled them to recover under the second and third counts.
There is no evidence in the record of any express agreement or demise between these plaintiffs, and the defendant’s testator, for the use and occupation of the lands mentioned in the declaration; but the proof is, that the defendant’s testator entered upon the premises under a contract of purchase from Nicholas Stonestreet.
The first question to be disposed of, is, whether the county court erred in deciding that the plaintiffs could not recover upon the first count in the declaration ? We think they did not. The defendant’s testator entered upon the land under a purchase from Nicholas Stonestreet, subsequent to the death of Joseph Stonestreet; there is no evidence of any express demise or agreement, to rent by the heirs of Joseph Stonestreet,
Tindal, C. J., in the case of Decharms vs. Horwood, 10 Bingham’s R., 526, expresses his opinion in this unequivocal language: “The authorities all agree, that whatever be the number of coparceners, they all constitute but one heir—they are connected together by unity of interest, and unity of title.” In Maryland, the children of parents who die intestate, seized in fee of lands, tenements, or hereditaments, take as coparceners, and are so treated by the act of 1820, ch. 191, sec. 5; and the conclusion is irresistible, that if they cannot separately maintain an action of assumpsit, for money had and received, against a person who had received the rent in the character of trustee, (as was decided in the case of Decharms vs. Horwood,) that they cannot recover in separate actions upon an implied demise or agreement to rent, upon a count for use and occupation.
It was insisted in the argument on the part of the appellant, that the non-joinder could be taken advantage of by plea in abatement or demurrer only, and not upon evidence at the trial. This position is not tenable upon authority. “As where an action is brought by one of several with whom a contract has been made, the defendant may take advantage of it upon evidence at the trial, upon a plea of non-assumpsit.” 1 Saund. R., 153, note 1. 1 Chit. Pld., 7. 2 Strange, 820.
The county court decided that there was no evidence which entitled the plaintiffs to recover on the second count. The evidence given by William B. Stone, a witness on the trial, of admissions of the defendant’s testator made to him, will not maintain the second count in the plaintiffs declaration, upon an account stated.
There is no evidence in the record to show that the witness, Stone, to whom the admissions relied on were made, was the agent of the plaintiffs, or had authority to make a demand, or
' An admission in conversation to a third person, not the plaintiff’s agent, is not sufficient to sustain a count upon aninsimul computassent. Greenleaf on Evidence, 105.
• There is no proof which even tends to maintain the issue on ■the third count.
judgment affirmed.