173 Mass. 233 | Mass. | 1899
The most important question in this case is whether the statute of limitations, Pub. Sts. c. 197, § 1, runs upon a claim of one tenant in common against another for- a just share of the profits of land, when there has been no demand and no termination of the tenancy or of the defendant’s management of the land, or any other event to change the relations between the two.
The liability arises from St. 4 & 5 Anne, c. 16, § 27, which gave an action of account to one tenant in common against the other as bailiff for receiving more than comes to his just share or proportion. However it may have been in its origin, this liability to an action of account long has been regarded as different fi’om bailment on the one side, (Y. B. 20 Hen. VI. 16, and F. N. B. 116, Q. n. (d),) and from debt or an absolute liability for money on the other. Holt, C. J., Anon. 11 Mod. 92. See
The action of account has been abolished in Massachusetts, and therefore an action of contract necessarily is resorted to. We are not aware that the attention of the court ever has been directed to the question whether a demand and refusal generally are necessary in this class of cases. But the nature of the duty created by the statute is not affected by the disappearance of the action, and what follows from the nature of the duty we already haAe stated. Cases where by mutual understanding the relation has terminated, and nothing remains to be done except to pay over a balance, have no application. Jones v. Harraden, 9 Mass. 540, n. Currier v. Hallowell, 158 Mass. 254, 256. So
Apart from what has been said thus far, we are of opinion that, as was held in Dickinson v. Williams, just cited, the account was “ a mutual and open account current ” within the saving of Pub. Sts. c. 197, § 8. The defendant’s intestate, Ethan C. Robinson, received rents and profits on the one side, and on the other paid, not merely for repairs, insurance, etc., but for taxes, in respect of which he had a personal claim against his cotenants. Dewing v. Dewing, 165 Mass. 230.
We are of opinion that nothing has barred the claims of the present tenants in common. It is true that some tenants have sold their shares, and that if an account had been sought in equity, the parties to the bill would have varied according to the tenants during the period in question. But such collateral changes do not affect the continuity of the remaining tenants’ substantive rights, and we see no reason why they should affect their remedies. One tenant in common has a right to sell his share when he likes, and may do so without the knowledge of other tenants. The sale does not dissolve the relation between the remaining tenants, as in the case of a partnership. The fact that different bills in equity may be required in order to take all the accounts that are necessary to settle the whole business does not prevent the account between two continuing tenants from being one account from beginning to end.
The two years from the filing of the administrator’s bond within which a suit must be begun in order not to be barred by the special statute of limitations, Pub. Sts. c. 136, § 9, expired on May 11, 1898. Statements of the appellants’ claim
The statements as to the payments to the widow are somewhat vague. But while we cannot draw inferences of fact upon an agreed statement, we must use reasonable discretion in interpreting what is admitted. The only reasonable understanding of the entries is that the widow was paid as provided by Pub. Sts. c. 124, § 13. If we were not to give that interpretation we should discharge the statement, and, if the same facts came before us as evidence, should draw an inference of fact to the same effect as we now construe the statement.
Decree accordingly.