Robinson v. Robinson, 173 Mass. 233

173 Mass. 233 | Mass. | 1899

Holmes, J.

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 Farrington v. Lee, 1 Mod. 268; 2 Mod. 311; S. C. nom. Harrington v. Leech, Freem. 229, 234, 242. It seems more like the accountability of a trustee, — a liability for an identified fund, which would be discharged by showing that the fund had been lost without the accountant’s fault, as is clearly stated in a case between tenants in common by Parke, B. Thomas v. Thomas, 5 Exch. 28, 33. See Fitz. Abr. Accompt, pl. 40; Woodlife’s case, Moore, 462; S. C. Owen, 57; Co. Lit. 89 a. The relation between the parties is fiduciary. An action does not lie without privity, which in this instance is created by the statute. Sargent v. Parsons, 12 Mass. 149, 152. Bracebridge's case, 1 Leon. 264, 266. Tottenham v. Bedingfield, Owen, 35, 83; S. C. 3 Leon. 24. Thomas v. Thomas, 5 Exch. 28, 33. Of course, as in other cases of fiduciary relations, the liability may be made absolute by the accountant’s appropriating the fund or repudiating the trust; as if the tenant in common wrongfully cuts and sells trees. Miller v. Miller, 7 Pick. 133. So, after demand and refusal, debt or assumpsit would lie, and the statute of limitations Avould begin to run. Frowike in Keilwey, 77 a, 77 b, pl. 25. Langdell, 2 Harv. Law Rev. 253, 254, where the subject is discussed with Mr. Langdell’s usual ability. But it is plain from the nature of the duty created by the statute of Anne that the time of limitation ought not to begin to run when there has been no demand or refusal, and nothing to notify the plaintiff that the defendant has repudiated the relation, or that it has come to an end. Jolly v. Bryan, 86 N. C. 457. See Dickinson v. Leominster Savings Bank, 152 Mass. 49, 52, 54; Campbell v. Whoriskey, 170 Mass. 63.

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 Clark v. Moody, 17 Mass. 145, stands on its own circumstances, and in Vail v. Durant, 7 Allen, 408, 410, was invoked as authority for the right of a factor to mingle the proceeds of goods consigned to him with his own funds, and the correlated proposition that he becomes at once a debtor for such proceeds. In this view, it has nothing to do with the liability of the defendant as bailiff. See Lincoln v. Parr, 2 Keble, 781. In Dickinson v. Williams, 11 Cush. 258, the tenancy in common continued when the action was brought, but the transactions out of which the claims arose were at an end. It was stated by the court that “ this judgment, when rendered, will be a final settlement between the parties.”

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 were left with the register, and indorsed by him as presented for allowance on May 7, 1898. We are of opinion that this was equivalent to beginning suit, and avoided the bar. See Pub. Sts. c. 137, §§ 2-4, 10; Guild v. Hale, 15 Mass. 455, 458; Aiken v. Morse, 104 Mass. 277; Tarbell v. Parker, 106 Mass. 347, 349; Morrell v. Old Colony Railroad, 158 Mass. 69.

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.