May v. Slade , 24 Tex. 205 ( 1859 )

Wheelee, C. J.

It is settled by the decisions of this court, that one tenant in common may maintain an action of trespass, to try title, without joining his co-tenant. (Watrousv. M‘Grew, 16 Texas Rep. 506; Croft v. Rains, 10 Id. 520.) And this is in accordance with the well settled doctrine of the common law. Tenants in common, are separately seised, and there is no privity of estate between them. “ They are deemed to be seised per my, but not per tout; and consequently, (it is said,) they must sue separately, in actions that savor of the realty. But they join in actions, relating to some entire and indivisible thing, and in actions of trespass relating to the possession.” (4 Kent, Com. 368.)

The reason assigned for requiring them to sever, in real actions, is, that “tenants in common, are of several titles, and therefore, the freehold is several; and if they are disseised, they shall be put to their several actions; as, therefore, the lands of tenants in common, are to be considered as different estates, depending on different titles, the plaintiff shall not recover, because that were to allow the plaintiff to try two several and different titles, in one issue, at the same time.” (Bac. Abr., vol. 5, tit. Joint Tenants, R.) Whether that reason would require them to sever, in our practice, which admits of the trial of several issues, at the same time, has not been decided. It has been decided only, that they may sever m actions, for the trial of the title, which partake of the nature of real actions.

But it is well settled, that they must join in actions of trespass relating to the possession. Because in actions of this nature, though the estates are several, yet the damages survive to all; and it is deemed that it would be unreasonable, when the damage is thus entire, to bring several actions for a single trespass. Thus, it is laid down, that “ tenants in common, shall join in actions personal, as trespass in breaking into their houses, breaking their enclosure, or fences, feeding, wasting, or defouling their grass, cutting down their timber, fishing in their piscary, &c., and shall recover jointly their damages ; because in those actions, though their estates are several, yet the damages survive to all; and it would be unreasonable to bring several actions, for one single trespass.” (Bac. Abr., vol. 5, tit. Joint Tenants, R.)

That tenants in common, must join in the action of trespass, quare clausum fregit, is well settled. (Austin v. Hall, 13 Johns. 286 ; Decker v. Livingston, 15 Id. 479; Murray v. Webster, 5 N. Hamp. 391.) There is nothing in our practice, to require a departure from this rule of the common law; but there is great reason to adhere to it, to prevent multiplicity of suits, and the inconvenience that would arise from the bringing of several suits, and allowing several recoveries for the same trespass. The objection of the non-joinder of the co-tenant, it is true, can, in general, only be taken by plea in abatement, or by way of apportionment of the damages on the trial. (1 Chit. Pl. 66.)

But here the objection was apparent upon the face of the petition, and was therefore well taken by exception. It was not obviated by the amendment; for although the plaintiff did amend, by joining the alleged co-tenant, yet, it appeared upon the trial, that the latter had no interest or estate, at the time of instituting the suit, and consequently could not maintain the action. His joinder, therefore, was no answer to the plea, or exception. If one who has a good cause of action, join, in trespass quare clausum fregit, with one who has no cause of action, the suit cannot be sustained. (Murray v. Webster, 5 N. Hamp. 391.)

We are of opinion, that the court erred in holding the action maintainable by the appellee alone, and that the judgment be reversed and the cause remanded.

Reversed and remanded.