Smith v. Aldrich , 94 Mass. 553 ( 1866 )

Bigelow, C. J.

The receipt bearing date March 5th 1828 Was clearly admissible. It appeared on its face to have had reference to the property in controversy; it was signed by the person under whom the plaintiffs claimed to have derived their title; it was in the handwriting of the testator of one of the plaintiffs, who was also one of the persons to whom it purported to have been given; it was found among the papers belonging to the parish of which said testator was an officer at the time it bears date; and it was in the custody of the present clerk of the parish, he having received it with the records and other documents belonging to the parish from Chester Smith, who was a former clerk of the parish, and whose administrator is one of the plaintiffs. Under these circumstances, the document was competent on two grounds; it was, in view of the facts proved in relation to it, in the nature of an admission respecting the subject matter of the suit by persons whose immediate representatives are plaintiffs in the action; it was also a link in the chain of evidence relating to a transaction which took place nearly forty years ago, directly connected with the title to the property in controversy. It cannot be said that it was an attempt to affect the plaintiffs’ alleged title by a writing or declaration made subsequent to the time when their title accrued. The point of time when the original owner parted with the property was not proved or agreed by the parties, but was a material fact in issue between them, and this evidence tended to show that the title claimed by the plaintiffs did not accrue at the time alleged by them. It seems to us, therefore, that the objections urged against the competency of the receipt are untenable.

But upon another point the ruling of the court was erroneous. The declarations of Preston concerning the title to the property in controversy were inadmissible. He is not a party to the record, nor do any of the plaintiffs claim title under him. The suit is not prosecuted for his interest in the property by his executor or administrator ,• nor in the name of the surviving joint owners of the property for the interest of said Preston therein, as well as for their own, under Gen. Sts. c. 127, § 11. By the amendment to the writ, which was allowed by agreement of parties, the name of said Preston is stricken out of the record. His death does not appear to have been suggested, nor does the amendment in any way indicate that it was made in consequence of his death, or that the suit is prosecuted by those whose names remain as plaintiffs, as surviving joint owners of the property for the interest of all. Looking at the record only, the action stands in the names of the persons as plaintiffs who are designated in the amendment, prosecuting the suit for their own interest in the property, in like manner as if Preston was still living, or had died before the commencement of the action. For aught that we can see, the executor or administrator of Preston may well maintain a separate action to recover for his proportion of the property which the defendants are alleged to have converted. If some of several part owners of a chattel sue for a tort, omitting to join all the owners as.plaintiffs, and the defendant does not plead in abatement, the damage will be apportioned, so that the plaintiffs can recover for their own interest only, and the other part owners may afterwards sue alone for the injury to their undivided portion of the property, to which last action the defendant cannot plead in abatement. 1 Chit. Pl. (6th Amer. ed.) 66. Sedgworth v. Overend, 7 T. R. 279. Bloxam v. Hubbard, 5 East, 407.

It would seem to be clear, therefore, that the declarations of Preston were inadmissible as against the plaintiffs. He was • not a party to the record, nor did the plaintiffs represent his interest in the property. He could not affect their rights by statements in the country to which they were not party or privy, Exceptions sustained.