Stevens v. Thompson

| Superior Court of New Hampshire | Jul 15, 1845

Parker, C. J.

The objection to the admission of the report of the auditor was rightly overruled. If the defendant wished to prevent the statement of facts in the report from being laid before the jury, he should have made a different motion. The statute authorizes the appointment of auditors, to state the account between the parties, and provides that if either party is dissatisfied with the report, the case may be tried by jury, and the report given in evidence subject to be impeached. Rev. Stat., ch. 189.

The duty of the auditor is to state the account, and the, statute has not made the report evidence further than it has prescribed the duty. It does not make a statement of the evidence before the auditor evidence to the jury; nor does it make the facts found by the auditor evidence, except so far as a statement of the account contains matter of fact. Nor are the reasons upon which the auditor acted evidence to be weighed by the jury. But the parties often desire that the auditor should report the facts, for the purpose of raising questions of law, and sometimes, when they do not desire it, the report comes in with a mixture of the evidence, facts, and reasons, upon which the auditor founds his conclusions. If this has been done without the assent of parties, it is not a reason for the rejection of the report, hut may he the foundation of a motion to recommit, with instructions to strike out the irrelevant matter, and such motion, made by either party, is granted of course.

But if neither party see fit to make that motion, the report must go to the jury, notwithstanding it contains something beyond what the duty of the auditor required him to place there, and beyond what is, strictly speaking, evidence under the statute. Whether the report contain matter beyond what the statute has made evidence, is known to the parties before -the trial, and the exception must be taken in season, and in tbe proper mode, or it mnst be regarded as waived.

So far as the plaintiff’s claim is founded on his expend, itures upon the property owned by the parties in common, there should have been a special declaration. If the defendant is liable to pay his proportion for the articles purchased and used in those repairs, they do not seem to have been merchandize sold and delivered to him, and do not appear to form the proper subject matter of an action upon an account annexed to the writ. And so of the work and labor performed. It does not appear to have been performed at the request of the defendant. The plaintiff’s claim, if he have any, seems to rest upon an implied promise to contribute, arising out of the tenancy in common between the parties.

We are of opinion that one tenant in common cannot charge his co-tenant with the expense of additions made to the buildings upon the common property, without some agreement or assent on the part of the latter.

Whether a tenant in common of a farm can compel his eo-tenant to contribute to the repairs of a house upon the premises, without any agreement respecting such repairs, we need not settle at this time.

The statutes of this State providing that necessary repairs in any mill, mill-dam, or flume, owned by joint tenants or tenants in common, shall be made by such owners in proportion to their respective interest, contain no provision relative to the repair of houses. N. H. Laws (ed. 1830) 186; Rev. Stat., ch. 136.

But there are some authorities which hold, that at common law one tenant in common of a house may compel his co-tenant to repair. Thus it is said, “If two tenants in common, or join-tenants, be of an house or mill, and it fall in decay, and the one-is willing to repair the same, and the other is not, he that is willing shall have a writ de reparations faciendd ; and the writ saith, ad. reparationem et sustentationem ejusdem domus teneantur ; whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men.” Co. Litt., 200, b. See also to the same effect 11 Co. 82, Lewis Bowles’ Case; Com. Dig., Estates, K, 8; 8 Barn. & Cres. 257 (15 C. L. R. 215), Opinion of Littledale, J. The same law is laid down 1 Fitz. Nat. Brev. 127, A.

In a note to this last work (9th ed.) the editor says, “This writ,” de reparations faciendo., “is grounded on the custom of a place, not on the common law;” for which he cites 2 Ld. Raym. 1093. Perhaps, however, Ch. J. Holt’s opinion did not extend to all cases where that writ was maintained.’

Between tenants in common it seems that contribution could not be compelled except for repairs. “If there be three or four coparceners of lands, and the eldest sister do the suit to the lord of whom the lands are holden, for all the coparceners, and the others will not allow her their proportion for her charges and losses for the same suit, that coparcener who did the suit may have this writ in contribution,” &c.

“ And if there be many coparceners, and the eldest do the suit, and the other coparceners agree with the eldest’ for their proportion; now the writ of contribution shall be brought against the others, who would not contribute, &c.; and if many be. enfeoffed of land, for which one suit ought to be done, &c., now if they agree among themselves that one of them shall do the suit, and that the others shall contribute unto him, if he do the suit, and afterwards the others will not allow him for that suit, according to their proportion, then he shall have the writ of contribution against them, and the writ shall mention the agreement.”

“ But between the feoffees, he that did the suit shall not have the writ of contribution against his companions, without agreement thereof made betwixt them.” 2 Fitz N. B. 162, C.

It seems that one owner of a separate part of a house cannot compel the owner of another part to contribute to repairs beneficial to both; as, where one owned a room on the lower floor of a dwelling-house, and the cellar under it, and another owned a chamber over the room, and the remainder of the house. The roof being out of repair, the latter made the necessary repairs, and it was held that the former was not liable to contribute. 4 Mass. Rep. 576, Loring v. Bacon.

But assuming that one tenant in common of a house, without any agreement may recover of his co-tenant a contribution for the necessary repairs, we are of opinion that he cannot do so except upon notice, and an opportunity to the other to unite in making the repairs, or unless the repairs are made under such circumstances as excuse a want of notice. See 6 Cowen’s Rep. 475, Mumford v. Brown. The reason is too obvious to need elucidation.

In this case there does not appear to have been any previous request, and the auditor’s report states nothing in tho transactions subsequent to the time when the repairs were made, upon which to charge the defendant.

Upon the pleadings before us, the defendant cannot object and claim a new trial because tbe plaintiff was permitted to give evidence to show fraud. The issue joined by the parties raises the precise question, whether the alleged fraud existed or not. If he desired to raise the question whether the proceedings in the district court were conclusive upon the plaintiff in that respect, he should have filed a different rejoinder. But the plaintiff is not estopped nor concluded by those proceedings to which he was not a party. The certificate may be impeached for fraud, and the act seems to contemplate that this may be done when it is pleaded.

Under this issue the schedule filed by the defendant himself was competent evidence, and might be very material.

But the return of the assignee of the property which came to his hands was not evidence. The defendant was not a party to that, and had no control of it. Whether true or false, he may not have had knowledge, nor was he responsible for its correctness.

New trial granted.