Shepardson v. Rowland

28 Wis. 108 | Wis. | 1871

Cole, J.

It seems to us very clear tbat tbe plaintiff bad no cause of action against any one for tbe rents received on tbe lease dated May 26, 1864. By tbat lease tbe guardian of tbe infant heirs of John Eowland demised “tbe undivided balf” of tbe lot. This undivided balf descended to these hebs on tbe death of their father, subject to tbe dower of their mother; that is, each took an undivided one-eighth. And we suppose the guardian could demise this interest for the heirs. A demise or conveyance of an undivided share of an estate by a tenant in common is valid, because each tenant is considered to be solely and severally seized of his share. 4 Kent, 368.

By the lease of October 1, 1861, the guardian undertook to lease a distinct portion of the lot, namely, the “ west half ” thereof. This lease was manifestly inoperative as against the plaintiff, for the reason that, there never having been a partition of the lot, one tenant in common could not demise a distinct portion by metes and bounds, as was attempted to be done by that lease.

The circuit court found that the occupancy of the west half of the lot by the tenants of the guardian was under an implied understanding between her and the plaintiff, that she might occupy the west half, and he 'the east half, of the lot. We are unable to say, upon the evidence, that there was any such “ implied understanding ” between the parties as the circuit court found. But still we cannot see upon what ground this joint action can be maintained, conceding that the plaintiff has a cause of action against some one for his just proportion of the rent received upon this lease. This is an action under the statute (section 38, chap. 89), for money had and received. It is brought against the four children of John Rowland. They did not receive this rent themselves, but it was received by their mother, who was their general guardian, and who testified that she used this money for the support of herself and children. The defendants, in fact, were all minors when this money was paid on the lease; and two of them were infants when this suit was instituted. Now the difficulty which presents itself to our minds against maintaining this action, is this : that there is no joint liability shown on the part of the defendants. It cannot be successfully claimed that a joint liability arises from community of title. These defendants are each separately seized of one-eighth part of the lot, it is true. But the money paid upon tbe lease of 1861 was received by tbeir mother — then tbeir guardian,— and was applied to tbe support of herself and her children. Upon what principle of law can a joint action be maintained against these children? Is it because they have had the benefit of this money, — that it has been expended for their use ? But does a joint liability arise from that fact? Suppose the money was applied in unequal portions to the support of the different children: shall a child who received little or nothing be liable to pay the entire amount due the plaintiff ? It seems to us that in the most favorable view for the plaintiff, he must proceed separately against the heirs, and can only recover from each such portion of his money as they have respectively had the benefit of, and which has been expended for their use. Besides, it is by no means clear that the children are liable in any event for money which their guardian improperly received upon the lease, even if it was applied to their use. Wilkinson v. Filby, 24 Wis., 441. But upon the whole record we think the judgment of the court below was right, though for a somewhat different reason from that assigned by the circuit judge.

By the Court.— Judgment affirmed.