Berry v. Whidden , 62 N.H. 473 ( 1883 )

The bill can be maintained. Equity jurisdiction extends to matters of account where discovery is sought, and to the adjustment and apportionment of rents and profits between tenants in common. G. L., c. 209, s. 1. And equity will not be ousted of its jurisdiction because the courts of law have adopted equitable principles. Heath v. Derry Bank, 44 N.H. 174; Walker v. Cheever, 35 N.H. 339.

It appears that neither John G. Berry in his lifetime, nor the plaintiffs after his decease, ever demanded the possession of one half or any portion of the farm, or made any claim to a share of the income before the filing of the bill in the action Page v. Whidden, September 9, 1878. There is no evidence that John G. Berry or the plaintiffs, prior to that time, were deprived of the occupation of their share of the farm or excluded from it, or that the occupation of the farm by the defendants was against the will and without the consent of the plaintiffs; or that there was any understanding that the defendants should account for the profits; nor does it appear that the defendants had received any sum in money, as rent or income, beyond their share, for which they should account to the plaintiffs. One tenant in common cannot make his own omission to occupy the joint estate a ground of action against his cotenant; and the plaintiffs are not entitled, upon the facts stated in the bill, to a share of the income of the farm prior to September 9, 1878. Webster v. Calef,47 N.H. 289; Badger v. Holmes, 6 Gray 118; Peck v. Carpenter, 7 Gray 283.

The filing of the bill in the action Page v. Whidden, September 9, 1878, was a demand of possession of a share of the farm; and from that date the occupation of the entire estate by the defendants was against the will and without the consent of the plaintiffs, and the plaintiffs were entitled to a proportionate share of the income. The decree in Page v. Whidden is a bar to any claim in this action for rents or income accruing prior to the date of that decree, November 16, 1880, because there might have been an accounting and recovery therefor in that action. Ashuelot R. R. v. Cheshire R. R., 59 N.H. 409. If no such accounting and recovery were had, the plaintiffs, at the trial term, may apply to bring forward that action, vacate the decree, and amend so as to recover for income from September 9, 1878, to November 16, 1880. In this action the plaintiffs are entitled to a decree for three eighth parts of the income of the farm from November 16, 1880.

Case discharged.

BLODGETT, J., did not sit: the others concurred.