Jackson ex dem. Murray v. Hazen — 2 Johns. 438

Majority

p. 437

Jackson, ex dem. Murray and others, against Hazen and others.

Headnote

Yn an action of ejectment against five defendants they all appeared, and pleaded jointly, and entered into the consent rule jointly. On the trial,it appeared that two of the defendants occupied distinct parcels of the premises in severalty, and that the other three defendants possessed the residue of the premises • jointly. It was held, that the plaintiff was boundtoprove a joint possession of all the defendants;

Tins was an action of ejectment, for a part of great lot No. 23, in Hassenclewoer's patent in the county of Herki-mer. The cause was tried the 22d day of June, 1807, before Mr. Justice Van Ness. The declaration contained separate demises from each of the lessors. There were five defendants, who appeared and entered into the consent rule jointly, and jointly pleaded not guilty. On the trial, they jointly confessed lease, entry, and ouster. Benjamin Hazen, one of the defendants, entered into possession of the premises under a contract for the sale thereof, made with Henry Ellison, one of the lessors of the

p. 438

and that the two defendants)who held sGp¡ir3íGly^ were entitled Jnsf'tte* plaintiff.

plaintiff, the 25th May, 1803. The other four defendants entered into possession, by virtue of contracts, af-terwards, made with Benjamin Hazen; and all were in possession before and at the time of the commencement „ . „ ’ ol the suit, ¡Samuel Hazen and Silas Hazen, two of the defendants, occupied separate and distinct parts of the . . . . , - „ ,1 , „ premises in question, m severalty, under Benjamin Hazen; and Benjamin Hazen, Moses Wright, and Benjamin Hazen, • _ jan., the other defendants, occupied the residue of the premises jointly. It was proved on the trial, that a short time .before the commencement of the suit, Benjamin Ha-zen declared that he would not pay the money nor receive a deed from Ellison, as neither he, nor the other lessors of the plaintiff had a title. A verdict was taken by consent of the plaintiff, subject to the opinion of the court on a case.

The only question raised for the consideration of the court was, whether the action could be maintained against the defendants, as two of them held under B. Hazen, in severalty.

Ford, for the plaintiff.

The plaintiff may join as many defendants as he pleases, and it is for them to sever. They may appear separately, and the plaintiff must then proceed separately against them. Several tenants may be served with copies of the declaration, and it may be made one ejectment. It is the practice in England to proceed against several tenants in one ejectment; and if several ejectments are brought for the same premises, on the same devise, the court will order them to be consolidated, to prevent a multiplicity of suits.^[5] In one case, where 37 ejectments were brought against so many tenants of houses, Lord Kenyon said it was a scandalous proceeding, as they all depend on the same title, and ought tobe tried by the same record.^[2] Where there are several tenants in ejectment, and some appear and confess lease, entry,and ouster, and the others do not,the rule

p. 439

is laid down, that the verdict must be given against those who appear, generally, and a verdict against the plaintiff, as to the others, and an endorsement is made on the postea,.that it was because the others did not appear, so that they lose their costs, and the plaintiff has judgment against the casual ejector for the land in the possession of the tenants who did not appear.^[3] The only objection, in the English books, as to joining several defendants, is, that it may deprive those who are acquitted of their costs ; but by our statute, they are entitled to costs, unless the judge certifies, that there was reasonable cause for making them defendants.^[4] The mode of proceeding by one suit certainly saves great expense, and ought, therefore, to be favoured. But in this case, all the defendants have appeared, and pleaded to the declaration, and have confessed lease, entry, and ouster. In cases of ejectment, the confession of lease, entry, and ouster, is sufficient for all purposes, except to avoid a fine. The declaration states the lease, entry, and ouster; and these having been confessed by the defendants, they are estopped from saying there was no joint trespass. A joint trespass having been charged and confessed, it is conclusive against the defendants, as to every thing but the title.

Sedgwick, contra.

According to the theory of the action of ejectment, the plaintiff’s proceedings are erroneous. The precise question as to the practice, now before the court, appears not to have been decided. This is an action of trespass in ejectment, and the defendant is bound to prove as much as in the simple action of trespass. If trespass be brought against A. and B., the plaintiff must prove a joint trespass. If he prove that A. trespassed on white acre, and B. on Hack acre, he cannot recover. It is true that the defendants jointly entered into the consent rule, but the plaintiff must show a right of possession, and a joint violation of it by the defendants* The plaintiff, notwithstanding the consent rule, is bound

p. 440

to prove the defendant in possession of the premises,^[5] and he can recover no more acres than he proves to be in his possession. It must be shown, therefore, that the defendants are jointly possessed, and joint trespassers. The consent rule does not affect the pleadings. The plaintiff must prove the defendants to be joint trespassers, if he declare against them as such. In the cases of consolidation, cited on the other side, it does not appear, whether the defendants held jointly or separately. The rules were granted on motion of the defendants, and for their benefit. They may waive this benefit; and if they do, the plaintiff must go on at his peril. Again, if the plaintiff be allowed to proceed in this way, and recover judgment against all the defendants, he may, afterwards, bring an action for mesne profits, and the defendants would all be liable, though holding distinct parcels of lands, and for different periods of time.

Ford, in reply.

All the facts necessary to be proved in an action of trespass, are admitted by the consent rule. As to the objection about the mesne profits, the defendants may prevent any difficulty or ha?dship by appearing, separately, to their distinct parcels, If they do not choose to do this, hut join together in their defence, they ought to take the consequence. The plaintiff has a right to consider all the persons in possession of the premises as joint trespassers ; and if they meant to be answerable only for their separate parcels, they must sever in their defence, otherwise they must be considered as joint trespassers.

It appears, by the case, that there were five tenants in possession of the land .to which the plaintiff claimed title. Three of the defendants occupied part of the lands jointly, but Samuel and Silas Hazen each possessed separate and distinct parcels of the premises. The question isj whether judgment is to bo rendered against all the defendants in consequence of their entering into

p. 441

the cousent rule, and pleading jointly, or whether against such only as had a joint possession. The only case which seems to warrant a general judgment against all the defendants, is that of Claxmore v. Searle and others,^[1] which, states the practice tobe, that where some of the defendants appear at the trial, and confess lease, entry, and ouster, and the others do not, that with regard to such as do not appear, a verdict is to be entered, endorsing on the postea, that it is for their not appearing to confess, upon which, as to them, the lessor obtains judgment against the casual ejector, and takes execution for the lands in their possession. This rule of practice docs not, I think, decide the question now presented to the court. The rule does not proceed on the principle arising in this case ; nor does it necessarily follow, that the rule contemplated distinct possessions, as to those who did not confess. In many respects there is an analogy between actions of ejectment and trespass, and, perhaps, in all respects, except as to the quantity of interest necessary to maintain the one or the other. In an action of trespass against several, it would not be competent for the plaintiff to give in evidence the distinct acts of the individuals, without showing, also, that such acts were in pursuance of a concert and agreement among all the defendants; then, and in that case only, would all be responsible for the act of each,

It can be no answer to say that the consent rule and defence were joint. The plaintiff having charged a joint ejectment and trespass, the defendants, by uniting in their defence, deny the plaintiff’s allegation, that they had jointly withheld him from his possession. In this view of the case, the defendants, Samuel and Silas Hazen, are entitled to judgment; and I am the more induced to this conclusion, from considering the situation of the defendants, if sued for mesne profits; for then, without reference to the periods when the defendants severally

* 1 Ld. Raym. 729.

p. 442

same into possession, and how long each one had occupied, they would be all answerable for the longest time that any one of them had been in possession. It is extremely difficult to say what ought to be the rule of damages in such a case, and, on any conceivable rule, would be manifest injustice and confusion.

Kent, Ch. J. and Van Ness, J. were of the same ■opinion.

Thompson, J., not having heard the argument, gave no opinion.

Judginent only against the defendants holding jointly.