Tainter v. Cole , 120 Mass. 162 ( 1876 )

Morton, J.

The plaintiff holds two leases executed by Elizabeth Cole, by which she demised to him certain rooms in a building owned by the heirs of Andrew Cole, deceased, for the term of ten years from April 1, 1872.

There are five heirs of Andrew Cole. Before the leases to the plaintiff four of the said heirs had executed a lease of the building and land to Elizabeth Cole for her life. Her interest, when she undertook to lease the plaintiff’s rooms to him, was that of a tenant for life, in four undivided fifth parts of the building and land. Carrie E. Cole, one of the defendants, was a minor when these several leases were made, and did not execute either of them. The plaintiff therefore, at the time his bill was brought, stood in the position of a tenant who held a lease from a part only of several tenants in common who owned the land, in which the other did not join.

Such a lease is not void as to those who execute it, but it is voidable by the tenants in common, who have not joined in it. It is of the essence of a tenancy in common that the tenants have each and equally the right to occupy the property. A lease by one tenant in common of a portion of the estate, in severalty, in which the others do not join, violates the rights of the latter, and as to them is invalid. De Witt v. Harvey, 4 Gray, 486. Cunningham v. Pattee, 99 Mass. 248.

It follows that the plaintiff’s bill cannot be maintained. Its prayer is that the defendants shall be enjoined from removing the ruins of the building, and from dispossessing him of the rooms leased to him. Without considering whether there was such a destruction of the rooms leased as to terminate the leases as between him and Elizabeth Cole, his lessor, it is clear that the relief he seeks cannot be granted without violating the rights of Carrie E. Cole, who is not in any way affected by his leases.

And we are of opinion that the bill ought not to be entertained for the purpose of assessing any damages to which the plaintiff may be entitled against Elizabeth Cole. If there has been any breach of the covenants of his lease, he has a plain adequate and complete remedy by an action at law against her,

In cases where a bill in equity is brought in good faith, and the specific relief sought is defeated by a disability of the defendant to comply with a decree for specific relief, caused after the suit or after the date o'f the agreement relied on, it is the rule in this country that the court will retain the bill and afford relief by way of compelling compensation to be made, provided the plaintiff brought his bill without knowledge of the disability, in good faith seeking equitable relief, supposing and having reason to suppose himself entitled to such equitable relief. And in Milkman v. Ordway, 106 Mass. 232, this court decided that the rule, with the same qualifications, extended to all cases where a defect of title, right or capacity in the defendant to fulfil his contract is developed by his answer, or in the course of the hearing.

But the case at bar does not fall within either of these rules. The specific relief which the plaintiff seeks is not defeated by reason of any disability of the defendants, or of either of them, caused since the suit or since the leases to him. He was never in a position in which he could be entitled to such relief. He is defeated by an original defect in his lease, arising from the want of capacity of his lessor to make a lease binding upon all the tenants in common who own the land. And it does not appear that he was not aware of all the facts when he brought his bill. If he was not, they could have been ascertained by reasonable diligence. He does not show that he brought his bill supposing, and having reasonable grounds to suppose, that he was entitled to the equitable relief he sought.

We are of opinion therefore, without considering the other questions in the case, that the plaintiff cannot maintain either his original or supplemental bill. Bill dismissed.