hold under different titles, they must still join, as, for example, the heirs-at-law and devisees of the same land, in an action for injuries done to the inheritance, or the owners in common of a mill, who derive their rights under different conveyances, in a suit for the diversion of water from their mill.2 The owners in common must also join in an action to recover damages for fraud practised in the sale of the land to them; a separate suit cannot be maintained.3 Administrators or executors cannot sue for trespasses or other injuries done to the land after the death of the owner whom they represent; the heirs or the devisees, as the case may be, are the only proper plaintiffs.4 § 137. * 220. Same Subject. Owners in common need not not unite in an action to recover possession;5 each may bring a separate suit for his undivided This is a very familiar The remainder-man and life tenants may join as co-plaintiffs in suit for a nuisance, e. g. a dam. Schiffer v. Eau Claire, 51 Wis. 385; Seymour v. Carpenter, 51 id. 413. The separate owners of separate lands each injured by the same nuisance, e. g. a dam, or diversion of water, cannot join as co-plaintiffs in an action for damages; but they can join in an equitable action to enjoin and remove the nuisance. Palmer v. Waddell, 22 Kan. 352; [Younkin v. Milwaukee, etc. Co. (1901), 112 Wis. 15, 87 N. W. 861; Linden Land Co. v. Milwaukee, etc. Co. (1900), 107 Wis. 493, 83 N. W. 851; Strobel v. Kerr Salt Co. (1900), 164 N. Y. 303, 58 N. E. 142; Beach v. Spokane Ranch Co. (1901), 25 Mont. 379, 65 Pac. 111; Brown v. Canal and Reservoir Co. (1899), 26 Colo. 66, 56 Pac. 183; Rounow v. Delmue (1895), 23 Nev. 29, 41 Pac. 1074; McDonough v. Carter (1896), 98 Ga. 703, 25 S. E. 938;] Foreman v. Boyle, 88 Cal. 290; Hellams v. Switzer, 24 S. C. 39; Spanish Fork City v. Hopper (Utah, 1891), 26 Pac. Rep. 293 (tenants in common of water). [But where a domestic animal breaks into a pasture field and injures live stock belonging to one of the tenants in common of the field, such tenant may maintain an action against the owner of the animal without joining the other co-tenants; Morgan v. Hudnell (1895), 52 O. St. 552, 40 N. E. 716.] See also § *269, post, and cases cited. share. 1 Van Deusen v. Young, 29 Barb. 9. 2 Samuels v. Blanchard, 25 Wis. 329. Lawrence v. Montgomery, 37 Cal. 183, 188, per Crockett J. See Foster v. Elliott, 33 Iowa, 216, 224. 4 Aubuchon v. Lory, 33 Mo. 99; Hart v. Metrop. Elev. Ry. Co., 15 Daly, 391. In a suit by tenants in common, the personal representative of a deceased co-tenant is properly joined to recover damages up to the time of the death of the decedent; and the heirs to recover damages subsequent to that date: Shepard v. Manhattan Ry. Co., 117 N. Y. 442. [Indianapolis, etc. R. R. Co., v. Price (1899), 153 Ind. 31, 53 N. E. 1018: Where a piece of real estate is appropriated by defendant, while plaintiffs and plaintiffs' ancestor are tenants in common therein, and plaintiffs' ancestor dies before suit is brought, and suit is brought by plaintiffs both for the damages to their own interest and as heirs of the deceased tenant, the fact that they have no right to sue as heirs for the injury sustained by decedent does not render their complaint bad on demurrer.] 5 [But where an action is joint, if it appears that the defendants have a good defence against one of the plaintiffs, the action must fail: Wooding v. Blanton (1900), 112 Ga. 509, 37 S. E. 720.] 6 Brown v. Warren, 16 Nev 228; Hart v. Robertson, 21 Cal. 346; Touchard v. Crow, 20 Cal. 150; Thames v. Jones, 97 N. C. 121; Yancey v. Greenlee, 90 N. C. rule, and such actions are constantly brought by widows to recover their dower before it has been set out to them or admeasured, and by individual heirs. Of course all the owners may join, and must join if the design is to recover possession of the entire tract over which the common ownership extends, as a separate parcel of land; when one sues, he can only demand and obtain a judgment for his own undivided portion of the common premises. The election between modes of instituting the action goes no further, however; it cannot be prosecuted by a portion of the co-owners less than all; it must be by all or by one. In 317; Weese v. Barker, 7 Colo. 178. Cruger v. McLaury, 41 N. Y. 219. One K. had a given lease in fee of lands, reserving rent, with a clause of re-entry on non-payment. One of his six children and heirs-at-law sues to recover an undivided sixth part of the premises, on account of the condition broken. The Court of Appeals held the action properly brought; that all the heirs need not be joined; and, also, that each of the heirs might have maintained an action for the rent. This last proposition settles the doubt expressed by Comstock J. in Marshall v. Moseley, cited in note to § *219, so far as the law of New York is concerned; and in that State, although the rent is entire, and accruing to all the owners in common, each may sue. See Fisher v. Hall, 41 N. Y. 416, in which it may seem to be intimated that all must join in a suit to recover possession of the land; but there is actually no discrepancy in the two decisions. In the case last cited all the owners but one united in a suit to recover possession of the entire parcel of land; and in such an action a joinder of all the owners is, of course, necessary. The court did not intimate that one co-owner may not sue for his undivided share. See also Hasbrouck v. Bunce, 3 N. Y. Sup. Ct. 309, 311; 62 N. Y. 475. The above conclusions are supported by Mattis v. Boggs, 19 Neb. 698; Gray v. Givens, 26 Mo. 291. [It is held in North Carolina that a tenant in common may maintain eject ment against his co-tenant: Ricks r. Pope (1901), 129 N. C. 52, 39 S. E. 638. Same doctrine obtains in Georgia: Thompson v. Sanders (1901), 113 Ga. 1024, 39 S. E. 419. Under the North Carolina code, § 627, a tenant in common may bring an action for waste against his co-tenant, and, by analogy, he may bring an action to restrain waste: Morrison v. Morrison (1898), 122 N. C. 598, 29 S. E. 901.] 1 [But see Winborne v. Lumber Co. (1902), 130 N. C. 32, 40 S. E. 825, where the court said: “One tenant in common can recover the entire tract against a third party, for each tenant is entitled to possession of the whole, except against a cotenant." So in Shelton v. Wilson (1902), 131 N. C. 499, 42 S. E. 937.] 2 [In Winborne v. Lumber Co. (supra), it was held that the court erred in directing the jury to respond to the first issue "Yes, one-fifth of the land," if they believed the evidence; whereas the defendant had no right to have the amount of the plaintiff's right to possession determined, for, as against defendant, the plaintiff was entitled to recover possession of the whole.] 8 Fisher v. Hall, 41 N. Y. 416. See Hubbell . Lerch, 58 N. Y. 237, 241; Hasbrouck v. Bunce, 62 N. Y. 475. [The doctrine announced in Hasbrouck v. Bunce (supra) has been rendered obsolete in New York by statute, Code Civ. Pro. § 1500, which reads as follows: "Where two or more persons are entitled to the possession of real property, as joint tenants or tenants in common, one or more of them may maintain such an action, to recover his or their undivided shares in the property, in any case where such an action might be maintained by all." See Deering v. Reilly (1901), 167 N. Y. 184, 60 N. E. 447, where this statute is construed.] One co-tenant may, in general, sue alone for pursuance of this general principle, the same rule has been extended to actions brought to recover a fund, or a portion thereof, when by reason of some judicial proceedings this fund stands in the place of the land itself. Thus, where the land of two coowners had been taken for public purposes, and the amount awarded as compensation had not been paid over, because the owners were at the time unknown, one of them was permitted to recover his portion of the whole sum in a separate action, the money representing the land, and the action itself being analogous to one brought to recover an undivided share of that land.1 In certain States, the subject now under consideration is regulated by express statute.2 Thus, in California, joint owners and owners in common may sue jointly or severally, or any number his share. 262. Morenhaut v. Wilson, 52 Cal. But in an action to recover land for a breach of a condition subsequent, all the grantors or their heirs must join; an action cannot be maintained by one of the co-tenants for his share. Cook v. St. Paul's Church, 5 Hun, 293. It seems that in South Carolina a joint action for recovery of possession may be brought by a portion of the co-owners less than all to recover their shares. See Bannister v. Bull, 16 S. C. 220. Two tenants in common joined in an action to recover possession of land, making the remaining tenants in common, who refused to join, defendants. It was held that a verdict for the whole land was improper, and should have been for the undivided shares of the plaintiffs only. The joinder as defendants of the nonconsenting co-tenants was unnecessary for the recovery of the partial interest, and ineffectual for the recovery of the whole. [A joint grantee in a deed is not a necessary party in a suit in ejectment by the other: McNear v. Williamson (1902), 166 Mo. 358, 66 S. W. 160. Where the land of a deceased person is sold for taxes and one of his heirs is not made a party to the suit, such heir may maintain an action for the whole tract and recover his aliquot part: Walcott v. Hand (1894), 122 Mo 621, 27 S. W. 331. Where an action for the recovery of land is brought by three plaintiffs jointly, and the evidence does not show title in all of them, none of them are entitled to re cover: Towns v. Mathews (1893), 91 Ga. 2 [California and Idaho have the following statute: All persons holding as tenants in common, joint tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party." California, Code, § 384; Idaho, Code Civ. Pro, 1901, § 3173. Utah and Montana have the following statute: "All persons holding as tenants in common or as joint tenants, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party. In all cases one tenant in common or joint tenant can sue his co-tenant." Utah, Rev. St., 1898, § 2919; Montana, Code, § 586. The Connecticut statute reads as follows: " Any joint tenant or tenant in common of land may maintain an action in his own name for any injury thereto; but the non-joinder of the other tenants may be shown by the defendant in reduction of damages, and the plaintiff shall only recover for the damage to his interest." Gen. St., 1902, § 589. of them may sue, and in like manner they may be sued.1 Under this statute a portion of the co-owners of a mine were suffered to unite in an action, and recover possession of their shares from intruding wrong-doers.2 § 138. * 221. II. Legal Actions by Joint Owners of Chattels. At Common Law. Under the Codes. The ownership of chattels by two or more persons is quite different in its incidents from the similar ownership of lands, and it must be described rather than defined. It is not a joint ownership in the pure commonlaw signification of that term, since it does not involve the right of survivorship there is no survivorship among the co-owners of chattels, whether partners or not, and at the death of one his interest passes to his personal representatives. On the other hand, this united interest of the co-proprietors is so close that it cannot be separated except by mutual consent. The common law provides no mode of partition. The right of either co-owner may be transferred by any valid act inter vivos, and it may be devolved at his death; but it is impossible by any legal compulsory means for one to enforce a partition against his fellowowners, even when such a division would be physically possible, unless it be true, as said in one case, that such owner may manually separate, and afterwards hold for his own exclusive use, when the chattels themselves are capable of being weighed or measured, so that an accurate division can be easily made, in the case of grain. Even in the settlement of a partnership, the only judicial mode of a final division is a sale of all the assets, and their consequent conversion into money, which is distributed among the partners. In this respect, the ownership as an action brought to recover damages, being the value of the land which had been sold on a judgment obtained by the defendant, which judgment had been subsequently reversed on appeal. If one of the co-owners dies, his executor or administrator may be joined with the other co-owners in California. 3 Tripp . Riley, 15 Barb. 333. See also Channon v. Lusk, 2 Lans. 213; Stall v. Wilbur, 77 N. Y. 158, 164 (a crop of grain), Lobdell v. Stowell, 37 How. Pr. 88 (grain); and see Potter v. Neal, 62 How. Pr. 158 (cattle). 2 of chattels by two or more persons is more joint in its nature than the joint ownership of lands. From this notion of the oneness of the interest residing in the owners of things personal, it follows that a joinder of all in any actions founded upon the property in the chattels is even more necessary, and is less open to exception, than in the case of an ownership of land, since one co-owner of a chattel has no right to its exclusive possession as against the others, and cannot recover its possession from them by action analogous to replevin,1 or its value in actions like trover or trespass; and since a direct judicial partition of the interests is unknown, it follows by the clearest logic that such exclusive possession, or such partition, cannot be permitted indirectly by means of an action against a third person in the name of one coowner, the result of which, if successful, would be to give him an exclusive, or an apparently exclusive, right. When the object of the property is land, the interest of each co-owner is regarded as separate for all purposes except possession; and, in strict accordance with this notion, he is permitted to sue alone, to recover his undivided part of the land, or his part of the rent payable for the use of it; but when the object of the property is 1 ["One tenant in common cannot maintain replevin for the possession of any of the common property against his cotenant, nor against one in possession of the property as the joint agent of the tenants in common:" Smith-McCord DryGoods Co. v. Burke (1901), 63 Kan. 740, 66 Pac. 1036] Cross v. Hulett, 53 Mo. 397; Mills r. Malott, 43 Ind. 248, 251; Davis v. Lottich, 46 N. Y. 393; Balch v. Jones, 61 Cal. 234; Bowen v. Roach, 78 Ind. 361; Spooner v. Ross, 24 Mo. App. 599; Carle v. Wall (Ark. 1891), 16 S. W. 293. As to suits by one co-owner of chattels against the other for a conversion, see Hewlett v. Owens, 51 Cal 570; Stall v. Wilbur, 77 N. Y. 158 in last note. 2 [But see Sullivan v. Sherry (1901), 111 Wis. 476, 87 N. W. 471, where the court said: "The general rule is that one tenant in common cannot maintain trespass or trover against his cotenant or the latter's licensee of the joint property in respect thereto. The trial court, supposing that such rule was controlling in this case, sustained the demurrer. It is not infrequent that courts are misled into giving a general the effect of a universal rule. There are but few of the former that are not subject to exceptions as well estab lished and important as the general principle; and the rule in question does not belong to that few. It is subject to several exceptions, one being that if a cotenant or his licensee destroys the common property or converts it to his own use, he may be sued in trespass or trover to redress the wrong wherever such a remedy would exist in the absence of the relationship between cotenants . . . The authorities clearly indicate that the exception we have stated to the general rule is not a modern creation. It has been recognized by courts and law writers at least from the time of the Year Books." So in Wood v. Steina (1896), 9 S. D. 110, 68 N. W. 160, it was held that a tenant in common of chattels may maintain trover against his co-tenant who appropriates them to his own use so as to render any future enjoyment on the part of the complaining tenant impossible.] See Schouler Pers. Prop. 200; compare Waller v. Bowling, 108 N. C. 289, and cases cited. |