SMITH'S EXECUTORS vs. WILEY, 22 Ala. 396

CHILTON, C. J. Wiley brought his action of debt against Joseph W. Smith, in the County Court of Perry, which, after the late statute abolishing the civil jurisdiction of that court, was removed into the Circuit Court of that county, upon a refunding bond given by said Smith to him in 1844, in the penal sum of five thousand dollars, the condition of which recites, “ that, whereas the said Thomas H. Wiley, as guardian of the said Joseph W.

Smith, has accounted for and paid over to said Smith the sum of seventeen thousand four hundred and eighty-nine dollars and eighty-eight cents, (including his account for support and maintenance during his guardianship:) Now, if it shall hereafter appear that the sum of $17489 TW is more than the said Joseph W. Smith is entitled to receive of and from the said Wiley, his guardian as aforesaid, from the settlement of his said guardian’s accounts in the Orphans’ or County Court of Perry county, and the said Joseph W. do, in case of such excess so appearing, immediately repay and refund such excess to said Thomas H.

Wiley, then said obligation to be void,” &c. The plaintiff below read said bond in evidence, and then produced a transcript of the record of the final settlement of his guardianship, made on the 25th day of October, 1845, with the Orphans’ Court of Perry county, by which it appears that he had over paid the said Joseph W. the sum of one hundred and fifty dollars, which was stated by the Orphans’ Court as due to the guardian from the said Smith, who had then arrived to full age, and the said Wiley was thereupon fully discharged as said guardian. The plaintiff here rested his cause.

The defendant then (now the plaintiff in error) offered proof conducing to show, that Wiley bad become the administrator of Robert Smith, deceased, in 1841; that said Robert died seized and possessed of certain real estate in Monroe county, in the State of Mississippi, and that said Wiley, from December, 1841, to the 81st of January, 1846, had collected rents due on account of said real estate in Mississippi, amounting to $8844 TW, of which sum eight hundred and ninety-seven dollars and fifty cents had been collected by him after the settlement of his accounts as guardian of said Joseph.

Defendant further offered to prove that said Wiley, on a settlement with the Orphans’ Court of Perry county of his administration of said Robert Smith, made on the 12th day of October, 1844, had charged himself with the rents received on account of said land up to that time; but that on a subsequent application to the same court, made on the 18th May, 1847, he obtained a decree in said Orphans’ Court, correcting the error, and giving him credit for said sum so received as rent, and that he had never accounted for the same; that there were four heirs of said Robert Smith, the said Joseph W.

Smith being one of them. This proof was excluded, and the defendant excepted; and the only question before us is, whether the interest or portion to which Joseph W. Smith was entitled, in the rents collected by Wiley, constitutes a good set-off in this action. This resolves itself into another question, as to whether Joseph W. Smith could have brought a separate action of debt or indebitatus assumpsit, or whether he must unite with the other heirs of Robert Smith in an action to recover.

If he could have sued for his proportion of the sum received by Wiley, without joining the other heirs, then it is clear the proof was improperly rejected, as in that event the sum due would constitute a valid set-off. It is conceded that the heirs of Robert Smith were entitled to the rent of the Mississippi lands; and that such rents constituted no part of the assets of his estate, was decided by this court in Smith’s Heirs v. Smith’s Adm’rs, 18 Ala. Rep. 829. Neither could the Orphans’ Court of this State confer upon the administrator of Smith the authority to receive them.

It follows, therefore, that the rents for the Mississippi lands were not received by Wiley as administrator. Neither do we think the Orphans’ Court of Perry county could have conferred on Wiley, as guardian for one or all of the heirs, the authority to rent the land situated without the limits of this State; for we see no difference, in principle, between an administrator and guardian, so far as respects the extra-territorial powers of the court.

As, therefore, he could not have been vested with a rightful authority to lease the land and receive the rents in Mississippi, it follows that Wiley received them in his own wrong. 13 Ala. Rep. 329; 7 ib. 906 ; 8 ib. 380 ; Story’s Conflict of Laws, 414. Having received the money in his own wrong, the law implies an undertaking on his part to pay it to the persons who in justice and equity are entitled to it.

By receiving rent for the land from the person to whom he had leased it without authority, Wiley occupies no better condition, in respect to such rent, than the tenant himself; and as the tenant was a wrong doer, and liable separately, as we shall presently see, to each of the owners of the land, who were tenants in common, for his share, so Wiley, who has taken his place, as respects the payment of the rent, cannot complain that he has subjected himself to the separate actions of the respective tenants in common.

As a general rule, tenants in common of land are entitled to the rent, each for his share, so that each may take a separate distress, or maintain a separate action. 3 Bou. Inst. 137. Judge Kent, in the fourth volume of his Commentaries, page 368, mar., says: “If tenants in common join in a lease, it is, in judgment of law, the distinct lease of each of them; for they are separately seized, and there is no privity of estate between them. They ma) enfeoff and convey to each other, the same as if they dealt with a stranger.

They are deemed to be seized per my, but not per tout; and consequently they must sue separately in actions which 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, and in debt for rent, though not in an avowry for rent.” We cannot well understand how the joining in a lease by several tenants in common, leaves the lease in judgment of law the distinct lease of each, and yet that one of them should be able to release the rent due upon such lease to the others; nor how it is, in legal contemplation, the lease of each of the lessors, and yet that each should not be entitled to his action upon it.

Such, however, is clearly the doctrine asserted by Judge Kent, and by the Supreme Court of New York. In Austin et al. v. Hall, 13 Johns. Rep. 286, two of several heirs executed a release to'the defendant, of all claim to damages for a trespass upon land descended to the heirs from their father, which release was in consideration of six cents.

Held, in an action of trespass quwre clausum fregit, for a trespass on the land and an eviction of the plaintiffs, the release was a bar to the action, as they were all bound to join, and the release constituting a good bar as to the tenants in common who released, was a complete defence as to all. The same doctrine was afterwards affirmed by that court in Decker v. Livingston, 15 Johns. Rep. 479, and Hill v. Gibbs, 5 Hill 56 ; in which latter case, it is conceded that the English cases say tenants in common may join, while the New York cases hold they must.

According to the rule established by the English adjudica-tives, if the lessors be joint tenants, all must join in the distress for rent, — 5 Mod. Rep. 73; but one of several joint tenants might distrain in the name of all. 4 Bing. 562 ; (S. C. 13 Eng. C.L. R.) So likewise of parceners, who were considered in law as constituting but one heir. 5 Mod. 141; 1 Lord Ray. 64. But it is said, “ tenants in common, as they have several titles, may distrain severally, each for his own share of the rent.” Arch, on Landlord and Tenant 110 ; citing Whitley v. Roberts, McLel. & Y. 107; Willis v. Fletcher, Cro.

Eliz. 530; and that one may distrain likewise in the name of all, if not forbidden by the others to do so, and may afterwards in replevin avow as to his own moiety, and make cognizance as bailiff for his co tenants as to their proportion of the rent. Arch, supra; Cully v. Spearman, 2 H. Black. 386. Where a person holding under two tenants in common, paid all the rent to one, after notice by the other not to pay his moiety to any but himself, it was held by the court, that the latter, notwithstanding such payment, might distrain upon the tenant for his share of the rent. Harrison v. Barnby, 5 T. Rep. 246.

It seems to be further the well settled rule, that if tenants in common join in making a lease, the instrument does not operate as a joint demise of the whole, and cannot be pleaded as such, — 2 Wils. 232 ; Cro. Jac. 166; Comb. 213 ; Arch. L. & T. 10; 1 Adolp. & El. 750; but as to A’s moiety, it is the lease of A, and the confirmation of B ; and as to B’s moiety, it is the lease of B, and the confirmation of A. Rol. Abr. 877. Mr. Crabb, in his work on Beal Property, holds the same doctrine.

He says: “ Tenants in common cannot properly join in making leases; but if two tenants in common join in making leases for years, this shall be the lease of each for his own part, and the confirmation of the other.” § 2318 a. He further says, that “ although joint tenants must sue and be sued jointly, yet it is otherwise with tenants in common, for they are of several titles and the freehold is several.” Ib.; 2 Went. 214; Carth. 224.

This rule is subject, however, to this qualification, that where the thing sued for is in its nature entire, and incapable of being severed, then, from the necessity of the case, they are permitted to join. Lit. § 314; 1 Inst. 197, a; Crabb’s Real Pr. § 2318, a. Mr. Chitty, in his treatise on Pleading, vol. 1, p. 12, mar., says: “ If tenants in common (who hold by distinct titles) jointly demise premises, reserving an entire rent, they may, and perhaps should, join in an action to recover it.

If the rents be secured to them separately, in distinct parts, they must sue separately; for in such case, as well their estate or interest, as the terms of the contract, are distinct and divisible ; and where there have been separate demises by tenants in common of their interest, or where tenants in common by conveyance become purchasers or landlords, they must sever in action for rent, or double damage,” &c. See, also, Broom on Actions, mar. p. 28; 56 Law Lib. 46.

In this State, it appears to be well settled, that where property belonging to tenants in common is converted by one of them, or is sold by the sheriff or other person as the property of one of them, so as to amount to a conversion as respects the right of the other owner or owners, an action of trover lies, at the suit of such owner, to recover for the conversion; or, if the property has been sold for cash, the tort may be waived, and indebitatus assumpsit may be maintained by the other owner for his proportion of the fund, — Parminter v. Kelly, 18 Ala. Rep. 716; Smytb v. Tankersly, 20 Ala.

Rep. 212 ; and in Price v. Pickett, 21 Ala. Rep. 741, we beld, that tenants in common may sue jointly in assumpsit for money had and received to recover the rent; but we are not apprised of any decision of this court,-which holds that, in the absence of a contract which fixes upon an entire rent to be paid to them jointly, they are compelled so to join. We do not wish to go beyond the case made by the facts before us. Here there was no contract of lease by the tenants. Wiley, without authority, leases the land, and receives the rent, as we have said, in his own wrong.

Each party has a right to waive his want of authority, confirm his act, and treat him, to the extent of his share of the rent, as holding money which, in justice and equity, he should pay over to him. We cannot subscribe to the doctrine, that either one of the four heirs of Robert Smith could have given Wiley a release for the whole. The case of Harrison v. Barnby, 5 T. R. 246, is, in our opinion, opposed to such a view; yet this would be the result, if all must necessarily join in an action to recover.

We think the law implies an undertaking on Wiley’s part, to pay to each his share ; and as he volunteers to receive the money for each, he cannot complain that the law casts on him the duty of apportioning the funds, or subjects him, on his failure, to the suit of each party for his several portion of it. We have fully considered the cases cited by the counsel for the defendant in error, which seem to favor a different conclusion; but we are not disposed to follow them, as we think they cannot be supported on principle, and are opposed by the better English authorities, some of which we have cited.

As, therefore, the said Joseph W. Smith, after he arrived at age, had the right to confirm the act of Wiley, and elected to treat him as holding the proceeds of the rent of the land for him to the extent of his interest, and as he could have maintained indebitatus assumpsit for his share, we see no reason why it may not be set off in this action, as a mutual debt between the parties.

This fund was received by Wiley without the pale of his guardianship; and now that the relation. of guardian and ward has long since ceased, and having by his election, as indicated by his plea of set-off, chosen to treat Wiley as bis debtor, we see no substantial reason for sending tbe party into a court of equity, or for an account between them, as between guardian and ward, as indicated by tbe case of Sherman v. Ballou, 8 Cow. R. 304.

This account has already been taken by the Orphans’ Court, and the guardian has been discharged; and as his indebtedness, by reason of his receipt of these rents, depended upon the election of the said Joseph W. Smith to treat him as his debtor, which, as we before said, has occurred since his settlement as guardian, no valid reason exists why he should not be proceeded against for money had and received. Moneypenny v. Bristow, 2 Russ. & Myl. 117; Price v. Pickett, 21 Ala. Rep. 741. Our conclusion is, that the proof rejected by the court tended to establish a valid set-off.

The judgment must therefore be reversed, and the cause remanded.