Gulf Red Cedar Co. v. Crenshaw , 138 Ala. 134 ( 1902 )

TYSON, J.

The opinion upon a former appeal in this case is reported in 131 Ala. 117. Upon the return of the case to'the chancery court, the bill, was amended in two particulars only. One, to eliminate the aspect founded on the claim that the power reserved by the grantor, Thomas O. Crenshaw, did not extend to a sale of timber separately from the land, which we decided was an inadmissible construction of the particular deed under consideration; but this, of course, did not affect the- right to relief under the other aspect of the bill as to which we affirmed the decree overruling the demurrers.' The other amendment simply altered the allegation as to the age of the youngest child of Thomas C. Crenshaw at the date of the sale or lease to the Steiners; the amendment stating that the youngest child was then of age, whereas the original bill only averred that the youngest child was of age when the extension agreement was made. It is thus evident that the bill is the identical one which on the former appeal we held to be unob j ecti onable.

1. The first of the present demurrers is that the plaintiffs below have a plain, adequate and complete remedy at law. There is no doubt that the defendants, no matter what may be the facts in reference to whether the interlineation in the deed of Thomas’ C. Crenshaw, changing the limit of the power reserved from the arrival of the youngest child to the age of twenty-one years to the life of the grantor, was before or after delivery, and no matter whether the youngest child became of age before or after the conveyance to the Steiners, were tenants in common with the complainants of the timber upon the lands. Whether the rights of the parties were greater or less will depend, of course, upon those facts. The question then is, do the circumstances disclosed in the bill, make a case within the jurisdiction of the chancery court, or must the complainants, each for himself, bring a separate suit at law, and settle before a. jury the liability of the defendants for the share of each tree belonging to him or her, converted by the defendants during the long course of years they have been using the cedar timber.

Courts are organized to administer justice. The law is not attached to, nor does it shrink from any particular formula in performing this duty. There are ordinarily two tribunals for the redress of wrongs; one, at law, before a jury, when the remedy there is plain, adequate and complete; the other, in chancery when there is either no remedy, or one not plain, adequate and com- ■ píete in the law court.

Our statutes have provided no special remedy for suits between tenants in common. We have not even adopted the statute of 4 and 5 Anne, correcting the defect of the common law in this regard. We can see from that statute, which allows the action of account to be brought by one joint tenant or tenant in common against another for more than his share of actual receipts of profits, and not for mere use and occupation, what was the defect of the common law. Indeed, the common law afforded no remedy in such case, unless one tenant, made the other his bailiff. — Freeman on Co-tenancy, §§ 269, 270; Gayle, v. Johnson, 80 Ala. 400. There was always a right to hold a co-tenant to account in equity. Speaking on this point, Mr. Story, in his work on Equity Jurisprudence, says: “Although there was no remedy at the common law, yet a bill in equity might be maintained for an account against the personal representatives of guardians, bailiffs, and receivers; and such was the usual remedy prior to the remedial statute of Anne. And no action of account lay at the common law against wrong-doers; or by one joint tenant, or tenant in common or his executors or administrators against the other as bailiff for 'receiving more than his share, oh against his executors or administrators, unless there was some special contract between them whereby the one made the other his bailiff; for the relation itself was held not to create any privity of contract by operation of law.”

In 11 Ency. PI. & Pr., in the article on “Joint Tenants and Tenants in Common,” the author after stating the rule as we have stated it with reference to the liability at common law of one joint tenant or tenant in common to another for rents and profits, says this (p. 769) : “The common law rule, as hereinbefore shown, not permitting one joint tenant or tenant in common to have an action ex contractu against his companion unless as bailiff, his only remedy was by bill in equity; but the change in the rule, giving an action, did not abridge the remedy in equity in proper cases, and where a case is presented involving a variety of adjustments, limitations, cross-claims, or other complications, a court of equity will afford the parties superior facilities for effecting distributive justice between them.”

We understand the rule in reference to the right to proceed in equity, rather than at law, when the jurisdiction is concurrent, to be, in order to exclude the remedy in equity, the remedy at law must be “as complete, as practical and as efficient to the'ends of justice and its prompt administration as the remedy in equitv.” —Walla Walla v. Walla Walla Water Co., 172 U. S. 12; Boyce v. Grundy, 3 Peters, 210; Ins. Co. v. Bailey, 13 Wall. 616, and cases cited in 3 Bose’s Notes, p. 49.

In the matter of accounting, between tenants in common or other co-tenants, the rule, quoting from Freeman oii Cotenancy, is stated in McCaw v. Barker, 115 Ala. 549, to be: “Courts of equity have concurrent jurisdiction with courts of law of all matters of account between tenants in common or other cotenants. Either cotenant may invoke the assistance of equity to compel an accounting upon showing a necessity therefor, and cannot be deprived, of this assistance because he has an adequate legal remedy by an action of account. In fact, the superior facilities offered by courts of equity, where an accounting has become necessary, are such that these courts are almost universally resorted to, in preference to the tribunals of the'law. But, it has -been determined, that where the accounts are all on one side and are very simple, and no discovery is sought, courts of equitv will decline taking jurisdiction of the case.” See Story’s Eq .Jur. 454-458.

In Sanders v. Robertson, 57 Ala. 471, this court quoted approvingly the language of Chief Justice Pearson in Darden v. Cowper, 7 Jones’ Law, 210: “If a tenant in common receives more than his share of the profits, by an excessive use of the property,'as. by wearing out the land, or by an improper use of it, as by cutting down the timber and selling it, he cannot be treated as a tortfeasor, but the remedy of the coteriant is by an action of account, or a bill in equity for an account.” And in the case of Sanders v. Robertson, no discovery was asked for, as liere, but the court sustained the jurisdiction of the chancery court because of the complication of the account, which, as here, was all on one side. In the case under consideration, it will be difficult to imagine a more complicated transaction than is likely to result in the settlement of the liability of the respondents for the timber converted by them; besides, discovery is sought by (he bill. Furthermore, there would be no right to an injunction at law against future waste, as there might be in equity, as is prayed for in this case, and as might be granted on the final hearing. — Freeman on Cotenancy, § 305; Johnson v. Johnson, 29 Am. Dec. 72. And this, according to Lords Hardwicke and Eldon, was a ground for equitable interference in the case of cutting timber. — Jesus College v. Bloom, 3 Atk. 262; Pulteney v. Warren, 6 Vesey, 89.

If suits at law were brought by the several complainants, they would, after such suits, have to bring new suits for every succeeding conversion, for there would be no right to recover in a pending cause for anything done after suit brought. And i E defendants cut any amount of timber without selling it, there might at law be no accountability, whatever until there was a sale, and then where there have been innumerable sales, an account and a discovery might he necessary. Here, one suit by the joint plaintiffs settles against all the defendants multitudinous transactions or items extending for a series of years, and perhaps for every day since the filing of the bill, which .might well furnish material for a multiplicity of suits at law, even if that tribunal was capable of giving in the end full and adequate relief. The case at bar presents a complication equal to, if not far in excess of that in the case of Sanders v. Robertson, supra, in which the question is discussed and a number of authorities are cited holding that the court had jurisdiction in the premises. Without pressing the subject further, we refer to that case and the authorities there cited. The remedy at law is neither as complete, as practical and as efficient as the remedy in equity. See, also, Va. & Ala. M. & M. Co. v. Hale, 93 Ala. 442; Autrey v. Fricze, 59 Ala. 587; Pope v. Harkins, 16 Ala. 321.

2. It is next insisted that complainants claim in different rights, and that there is a misjoinder of parties.

The complainants all claim under the deed of Thomas -C. Crenshaiv as donees or derivatatively from such, and they sue for the common purpose of adjusting their relations with the defendants growing out of a continuous series of acts in cutting and disposing of timber in which all parties, plaintiffs and defendants, were interested. There is, therefore, no misjoinder-, of parties plaintiff. It makes no difference that one plaintiff may recover more, or a larger share than another, any more than it. does in creditor’s bills or partnership settlements that one may be entitled to more than another. Turner v. City of Mobile, 135 Ala. 73; 33 So. Rep. 132.

3. It is next insisted that there is a misjoinder of causes of action, in the fact that, besides the timber in which the parties are tenants in common, the bill seeks to hold the defendants liable for timber cut in which they had no interest. Here is a single contiguous tract of land, and a tenant in common of part of the timber, in exercising his right to cut timber, gets across the line, we will suppose, as we have a right to suppose, without any purpose to commit trespass, and cuts timber in which he is not interested, and being sued for the whole, says, “you must sue separately for the timber across the line.” What right has he to say so? It is substantially one transaction or part of a continuous series, one account only is needed. It is a single cause of action. The defendant cannot complain that the plaintiffs waive the tort and claim the value or proceeds of the timber. If defendants are equitably bound to pay for such timber, the law raises an implied promise to do so. If there had been an adverse claim and possession of the land or timber across the line on the part of the defendants, of course, there would be no right to an account in this suit for such timber. But when the cutting appears to be the result of an inadvertent trespass as to timber admitted to belong to the complainants, and part of the same transaction as the cutting of the timber owned jointly by the parties,-it seems that the defendants have no right to restrict a full settlement by insisting on a multiplicity of suits against themselves. The settlement for the joint timber draws in its train' an account for all the timber cut. If the defendant can show that the two cuttings are wholly distinct and separate matters, it can be pleaded, but the bill makes all the cuttings in effect one. If the plaintiffs should take the defendants at their word, and sue at law for each tree cut across the line, while suing in equity for the remainder, the case would perhaps appear in a different light to them. — 1 Daniel Chancery Prac. 330; Ware v. Russell, 70 Ala. 174; Hooper v. S. & M. R. Co., 69 Ala. 529; Price v. Carney, 75 Ala. 546; Va. & Ala. M. & M. Co. v. Hale &. Co., 93 Ala. 542.

4. It is next insisted that the claim in the bill is barred by staleness and by flic statutes of limitations. Staleness, as a bar, is never, without special circumstances, fixed at a period loss than the statute of limitations. There are no special circumstances appearing in the bill making it inequitable for complainants to prosecute their rights at any time within the period of the statute of limitations. And as the demurrer of limitations goes to the whole bill it is bad, since it does not appear that the entire claim occurred six years prior to the filing of the bill.

5. It .is next insisted by the defendant corporation, that it may be prejudiced by the answers made by the persons joined with it as its officers, and that defendant has a right to answer according to its own will. Counsel seem to labor under the impression that the answers of corporate officers should be used as evidence against the corporation. This is a mistake. The disclosure made by officers is only for the purpose of enabling the complainants to know who to examine as witnesses. The defendant corporation will not be prejudiced by answers of corporate officers until the parties verify their disclosures under oath when examined as witnesses. — 1 Daniel Chan. Prac. 144; Wych v. Meal, 3 P. W. 310; s. c. 24 Eng. Rep. (Pull Report), 1078. Lord Chancellor Tam or said, in the case of Wych, supra, that no such demurrer had ever been allowed. — Moodamay v. Morton, 1 Bro. C. C. 469; Le Texier v. The Margravine of A., 15 Ves. 159; Fenton v. Hughes, 7 Ves. 288; Gibbons v. The Waterloo B. C., 5 Price, 491; Dummer v. The C. of C., 14 Ves. 245.

These are the only objections to the bill which have been argued, and we see no merit in any of them. The decree of the chanellor is, therefore, affirmed.