65 S.E. 953 | S.C. | 1909
Lead Opinion
October 22, 1909. The opinion of the Court was delivered by The plaintiffs above named brought this action to recover possession of the tract of land described in the complaint, containing thirteen hundred and thirty-five acres. In the original complaint the allegation was made that the plaintiffs owned the land in fee simple. *30 The defendants answered by a general denial, and by setting up as affirmative defenses the statute of limitations and purchase of the land for value, without notice of plaintiffs' alleged title. Thereafter the Circuit Court granted the motion of the plaintiffs to amend the complaint by adding in the title of the cause, after the names of the plaintiffs, "in behalf of themselves and for the benefit of those deriving their title in common with plaintiffs from John Chestnut, deceased," and by inserting the words we have italicized in these portions of the complaint: "The plaintiffs, complainingon behalf of themselves, as tenants in common of the landshereinafter described, and all others who are tenants incommon of said lands with plaintiffs, and deriving their titlefrom John Chestnut, deceased, allege: * * * V. Thatthose deriving their title in common with the plaintiff fromJohn Chestnut, deceased, are very numerous, and that it isimpracticable, therefore, for plaintiffs to bring them allbefore the Court in this action; therefore, they sue for thebenefit of all."
The motion to amend was made under section 140 of the Code of Procedure.
"Of the parties to the action, those who are united in interest must be joined as plaintiffs or defendants; but if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint; and when the question is of a common or general interest of many persons, or whenthe parties are very numerous, and it may be impracticableto bring them all before the Court, one or more may sue ordefend for the benefit of the whole."
The appeal of the defendants depends on whether one tenant in common may bring in all his cotenants as plaintiffs, under the above italicized clause. The section was under discussion in Bannister v. Bull,
"The heirs of Margaret refused to join in the action, and we know of no rule of law which authorizes the Court to make parties sue for what may be supposed to be their rights, or to withhold their rights from those who do sue, only for the reason that others having similar interests in the same property do not join. They had the right to refuse to sue. They may wish to have a separate suit for their interests, or they may not intend to set up their rights at all. It was not necessary that they should be joined, either as plaintiffs or defendants, to enable Martha Jane Bannister and Edward F. Reese, who did sue, to recover to the extent of their shares." *32
On first view, this language may seem to be conclusive of the question here involved; but it is not really so. In Bannister v. Bull, the plaintiff alleged that his cotenants, who owned a one-third interest in the land, had refused to join in the action as plaintiffs, and they had been made defendants. There was a demurrer to the complaint, on the ground that there was a fatal defect of parties, in that all the cotenants did not join as plaintiffs. The question before the Court was whether section 140 forbade one tenant in common to sue to recover possession of his interest in the land, unless he joined all his cotenants as plaintiffs. The only point decided, therefore, was that cotenants have no such common or general interest, as makes all of them necessary parties to a suit instituted by any one or more for the recovery of the land. That all cotenants are proper parties to such an action, either as plaintiffs or defendants, there seems to be no doubt, and this Court so held.
Bannister v. Bull is cited as authority in Wilson v. Kelly,
Analysis of section 140 shows that it provides that one or more persons may sue for the benefit of the whole in either of two separate conditions — first, when the question in the cause is one of common or general interest of many persons; or, second, where the parties are united in interest, but are very numerous, and it may be impracticable to bring them all before the Court. As already indicated, the cases of Bannister v. Bull and Wilson v. Kelly decide that cotenants do not have such a common or general interest as to bring them under the first condition. Whether tenants in common fall under the second condition depends on whether one tenant in common is so united in interest with the others as against a stranger that he has the right to make all of them parties, either as plaintiffs or defendants, to an action brought against such stranger to recover possession of the land. This is the test laid down in Pomeroy's Rem., sec. 392, cited with approval in Faber v. Faber,
It seems clear that one cotenant does have the right to make all his cotenants parties to such an action under the last clause of section 139 of the Code of Procedure, which provides: "Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the questions involved therein; and in an *34
action to recover the possession of real estate, the landlord and tenant thereof may be joined as defendants; and any person claiming title or right of possession to real estate may be made parties, plaintiff or defendant, as the case may require, to any such actions." If a plaintiff has a right to make his cotenants parties to such an action when the number is small, then there can be no doubt that he may bring them in as beneficiaries of the suit, when it is impracticable to bring them all before the Court on account of the number; for the design of the last portion of section 140 was to provide a mode of obtaining a complete determination of the rights of the parties in just such cases, when the number is so great as to make it impracticable to bring them all in by actual services. There are few adjudications of the point, but the exact question was decided in accordance with our conclusion in Thames v. Jones (N.C.),
The judgment of this Court is that the judgment of the Circuit Court be affirmed.
Dissenting Opinion
The decision of the majority of the Court in this case seems to me to be at variance with the decision of this Court in the case of Banister
v. Bull,
This is an action at law for the recovery of land, as was the case of Bannister v. Bull. The plaintiffs sue as tenants in common, and it was distinctly held in Bannister's case that it was not necessary to make all the cotenants of the land sought to be recovered parties plaintiff, but that any one cotenant might sue and recover his share. Under the authority of that case, there is no reason why these plaintiffs may not maintain their suit for their shares without undertaking to bring in all their cotenants merely by representation. Moreover, the defendant may be prejudiced by such *35 a course of procedure, for certain defenses, for instance, title by prescription, may avail them against the adult plaintiffs, when it would not against infant plaintiffs. When parties are brought before the Court in this way, it cannot be known who they are, or whether they are adults or infants.
For these reasons, and because I do not think the section of the Code under which the amendment was allowed was intended to apply to a case like this, I dissent.