Ellsworth, J.
The motion, in arrest is placed on two grounds, First, the want of jurisdiction in the court, and [148] second, the insufficiency of the allegations in the declaration. As to the first, it is said, our statute requires, that “ whenever an action shall be instituted against two or more defendants, to compel them to render an account, it shall be by bill in equity,” Rey. Stat., 478, and as there are here three defendants, the plaintiffs have mistaken their remedy, which was in equity, and not at law. This objection proceeds upon an entire misapprehension of the statute. The statute has reference to cases where the defendants are sued to answer severally, each one upon his own individual responsibility, and not as joint bailiffs or partners, where the defence is one and the same, and the defendants strictly but one defendant. What has this action, or what have these plaintiffs to do with the relations of the defendants among themselves ? That matter has no bearing upon the joint duty of the defendants to account with the plaintiffs for what they have taken as joint bailiffs or partners, of the use and profits of this ore bed, beyond their proportion of one twenty-fourth part. If the plaintiffs are obliged to go beyond their own claim on all the defendants, and to bring in here for adjustment matters about which they care nothing, the relations of the defendants among themselves, the plaintiffs can never recover in this court or any other. As we have said, the liability to account is joint, and each defendant can avail himself of whatever goes to save himself or the other defendants, from the cause of action stated in the plaintiffs’ declaration. To go beyond this would be irregular and absurd.
As to the objection, that it is not stated in the declaration, that the defendants have taken, as tenants in common of the ore bed, more than the amount of their interest, (one twenty-fourth part) in the principal estate, we think it entirely groundless. Cases have been cited, to show that such an averment is necessary where the action is brought on the statute which gives a tenant in common an action of account against his co-tenant. However this may be in the cases cited, which we are not called to consider, there is no [149] propriety in urging it here, especially as, the objection arises after verdict, for in the counts on which there is a verdict for the plaintiffs, the defendants are sued as bailiffs of the plaintiffs, of a certain quantity of ore. Now, a bailiff is defined to be “a servant that has the administration and charge of lands, goods and chattels, to make the best benefit for the owner, against whom an action of account lies, for the profits which he has raised or made, or might by his industry or care have raised or made.” Co. Lit., 172. This allegation is found to be true by the verdict, and therefore the defendants have no right to say, that they are not bailiffs at common law, and are not called to account as such.
We come now to consider the supposed errors in the charge of the judge. The plaintiffs, in order to prove their title to their twenty-three parts of the ore taken by the defendants, and their title to the ore bed itself, (the. whole being twenty-four parts) offered in evidence a lease, for four years from the 1st of January, 1851, of most of their interest, from persons admitted to be owners of the estate, conveying to the plaintiffs the ore bed for the four years. The lease was in due form of law, and in all respects complete and perfect, except only that it had not been recorded in the town records of Salisbury, the town in which the ore bed lay. This was the only objection to the lease. The defendants insisted that it was by the statute declared to be absolutely void, except as to the lessors ; not that they claimed anything themselves under the plaintiffs’ lessors, or were deceived or in any way injured, by reason of the lease, but it was not recorded and therefore an imperfect and void instrument. Our answer to this is, the instrument was not imperfect and void. It had every legal requisite of a conveyance, and if a legal and perfect instrument between the parties, what have the defendants to say against it, when the plaintiffs come forward to assert their rights under it, rights which none but creditors and purchasers can properly deny or resist ? Recording is no part of the conveyance itself, and to allow a stranger who has no manner of interest in the question, to set up a statute, which requires deeds and leases to be re[150] corded, merely to give public notice, that creditors and bona fide purchasers may not be deceived and cheated, is unreasonable and preposterous. A majority of the judges in the case of French v. Gray, 2 Conn. R., 92, held this extraordinary doctrine, but that decision has never been satisfactory to the profession, and at the time it was made, it was opposed by some of the ablest members of the court; Swift, Ch. J., Goddard, Hosmer, and Gould, Justices.
Again, it is said that the defendants were not occupying the ore bed as co-tenants with the plaintiffs, or in their own personal right, but as the mere servants or licencees of Forbes Munson, and that the plaintiffs should have sued him as the real co-tenant in the possession and enjoyment of the rents and profits. Not so. In March, 1853, the defendants took a lease from said Munson, of all his interest and right to dig in said ore bed, for the next two years, and were put into possession of said share in their own right. The lease was most full and formal in its language, and was a complete transfer of the interest of the lessor to the lessees. It follows from this, that the defendants were the co-tenants of the plaintiffs, and liable to account for the rents and profits.
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Ellsworth, J.
The motion, in arrest is placed on two grounds, First, the want of jurisdiction in the court, and [148] second, the insufficiency of the allegations in the declaration. As to the first, it is said, our statute requires, that “ whenever an action shall be instituted against two or more defendants, to compel them to render an account, it shall be by bill in equity,” Rey. Stat., 478, and as there are here three defendants, the plaintiffs have mistaken their remedy, which was in equity, and not at law. This objection proceeds upon an entire misapprehension of the statute. The statute has reference to cases where the defendants are sued to answer severally, each one upon his own individual responsibility, and not as joint bailiffs or partners, where the defence is one and the same, and the defendants strictly but one defendant. What has this action, or what have these plaintiffs to do with the relations of the defendants among themselves ? That matter has no bearing upon the joint duty of the defendants to account with the plaintiffs for what they have taken as joint bailiffs or partners, of the use and profits of this ore bed, beyond their proportion of one twenty-fourth part. If the plaintiffs are obliged to go beyond their own claim on all the defendants, and to bring in here for adjustment matters about which they care nothing, the relations of the defendants among themselves, the plaintiffs can never recover in this court or any other. As we have said, the liability to account is joint, and each defendant can avail himself of whatever goes to save himself or the other defendants, from the cause of action stated in the plaintiffs’ declaration. To go beyond this would be irregular and absurd.
As to the objection, that it is not stated in the declaration, that the defendants have taken, as tenants in common of the ore bed, more than the amount of their interest, (one twenty-fourth part) in the principal estate, we think it entirely groundless. Cases have been cited, to show that such an averment is necessary where the action is brought on the statute which gives a tenant in common an action of account against his co-tenant. However this may be in the cases cited, which we are not called to consider, there is no [149] propriety in urging it here, especially as, the objection arises after verdict, for in the counts on which there is a verdict for the plaintiffs, the defendants are sued as bailiffs of the plaintiffs, of a certain quantity of ore. Now, a bailiff is defined to be “a servant that has the administration and charge of lands, goods and chattels, to make the best benefit for the owner, against whom an action of account lies, for the profits which he has raised or made, or might by his industry or care have raised or made.” Co. Lit., 172. This allegation is found to be true by the verdict, and therefore the defendants have no right to say, that they are not bailiffs at common law, and are not called to account as such.
We come now to consider the supposed errors in the charge of the judge. The plaintiffs, in order to prove their title to their twenty-three parts of the ore taken by the defendants, and their title to the ore bed itself, (the. whole being twenty-four parts) offered in evidence a lease, for four years from the 1st of January, 1851, of most of their interest, from persons admitted to be owners of the estate, conveying to the plaintiffs the ore bed for the four years. The lease was in due form of law, and in all respects complete and perfect, except only that it had not been recorded in the town records of Salisbury, the town in which the ore bed lay. This was the only objection to the lease. The defendants insisted that it was by the statute declared to be absolutely void, except as to the lessors ; not that they claimed anything themselves under the plaintiffs’ lessors, or were deceived or in any way injured, by reason of the lease, but it was not recorded and therefore an imperfect and void instrument. Our answer to this is, the instrument was not imperfect and void. It had every legal requisite of a conveyance, and if a legal and perfect instrument between the parties, what have the defendants to say against it, when the plaintiffs come forward to assert their rights under it, rights which none but creditors and purchasers can properly deny or resist ? Recording is no part of the conveyance itself, and to allow a stranger who has no manner of interest in the question, to set up a statute, which requires deeds and leases to be re[150] corded, merely to give public notice, that creditors and bona fide purchasers may not be deceived and cheated, is unreasonable and preposterous. A majority of the judges in the case of French v. Gray, 2 Conn. R., 92, held this extraordinary doctrine, but that decision has never been satisfactory to the profession, and at the time it was made, it was opposed by some of the ablest members of the court; Swift, Ch. J., Goddard, Hosmer, and Gould, Justices.
Again, it is said that the defendants were not occupying the ore bed as co-tenants with the plaintiffs, or in their own personal right, but as the mere servants or licencees of Forbes Munson, and that the plaintiffs should have sued him as the real co-tenant in the possession and enjoyment of the rents and profits. Not so. In March, 1853, the defendants took a lease from said Munson, of all his interest and right to dig in said ore bed, for the next two years, and were put into possession of said share in their own right. The lease was most full and formal in its language, and was a complete transfer of the interest of the lessor to the lessees. It follows from this, that the defendants were the co-tenants of the plaintiffs, and liable to account for the rents and profits.
Again, it is said that the court should have charged the jury, that the plaintiffs could not call upon the defendants to render their account, unless they proved that the defendants had taken more than one twenty-fourth part of the entire ore bed. If this were true, it would destroy the value of this bed, and of such joint property as this, every where; for in effect, the smallest interest in one tenant would thereby be as available and as valuable as the greatest interest in another. This bed embraces some five acres of land, and how deep the ore extends, and what is its quality and productiveness, no man can know, and if no co-tenant can be called upon to account for what he obtains more than his share, until all this ore bed is exhausted, there will be no accounting at all, and one twenty-fourth part as we have said, would be as good as the other twenty-three parts. The error of the defendants lies in this; they contend that they own absolutely whatever they get out [151] of the ore bed, if it is not too much, whereas they own only one twenty-fourth part of what they get out, and must account, at reasonable times, for the other twenty-three parts, to the plaintiffs; and the objection that this will subject them to account from day to day, and for each load or pound of ore, is equally applicable to all bailiffs and receivers, where the property taken, is taken in parts or parcels, as where one tenant takes from day to day the entire use and profits of a farm or of a wood lot. Whenever the relation exists, it gives rise of necessity, to a liability to account, but an action will not lie ordinarily, until after demand, and then only at reasonable periods. In most cases the parties who severally occupy property owned by a joint title, as an ore bed, quarry, &e., find it necessary to enter into some mutual arrangement, for the use and occupancy of it; or where each digs and carries away at his own pleasure the soil or ore, for the time of reckoning with each other, and adjusting balances either annually or oftener, if circumstances require it; just as had always been done with this ore bed, until the defendants took their lease of a very small interest from said Munson; and if now the defendants will not come into any proper arrangement for the enjoyment of this ore bed, the law will hold them liable to account at reasonable times, for whatever use they make of the common property for their exclusive benefit. Besides the record shows, that in the present case, the manner of enjoying this ore bed had ever been, for the owners or lessees of the shares, respectively, to pay a premium per ton, on the first of every year, into a common treasury, which sum was divided among the owners according to the number of shares owned by them, and that such use and enjoyment of said ore bed, was the only and usual use and enjoyment to which it could be put. It is a convenient time for accounting, and the usual practice we believe, for joint owners of real estate, to reckon the annual rents and profits, at annual periods or times, and this rule is a very fair and reasonable one in reckoning and dividing the rents and profits of ore beds, quarries, fisheries and the like. This [152] question however, was passed over by the judge in his charge, because, it may be presumed he could not, according to his view of the law, charge in favor of the defendants; but further, it is not certain that the question necessarily arose in the view of the judge, for if the defendants were bailiffs of certain ore already dug by the plaintiffs, the plaintiffs’ claim to that, did not of necessity depend upon a solution of the question, at what time and in what manner the joint owners of an ore bed should render their accounts for their enjoyment of it in severalty.
It is further claimed, that the defendants had already accounted to their lessor, Forbes Munson, for all the ore they had taken and carried away from the plaintiffs’ pile of some ten thousand tons, and that they could not be obliged to account for the same a second time. Whether the defendants had paid Forbes Munson, any more money than the purchase price they agreed to give him for his right to dig, being one twenty-fourth part, does not appear from the case; this of course they were bound to pay him; but if they have paid him for more than the one twenty-fourth part entitled him to, they have paid him in their own wrong, for this was all which said Munson owned or claimed to own, and his tenants could acquire nothing more than he had a right to give. The question, whether the defendants must account as co-tenants, depends upon the question whether the defendants or Munson were in fact in possession of that one twenty-fourth part. The plaintiffs were in possession of twenty-three twenty-fourth parts and if Munson had leased his share to the defendants and they had taken possession of that share, the defendants were co-tenants with the plaintiffs, and Munson was not a co-tenant, and so the defendants were the proper persons and the only persons to be sued. The money which the defendants paid Munson, whether it was a gross sum, or so much per ton, was for a different purpose than to pay for common profits which were to be divided among the owners of the ore bed for the year in question according to their respective interests. Everything [153] turned on the question who were in possession — who received the rents and profits that year. So the judge left it to the jury-
There is nothing in the objection that Fenn was a co-tenant of the plaintiffs for 1853, and should have been joined with them in this suit. The judge decided correctly, that if he was as claimed a co-tenant in 1853, he must have been joined or the action would fail. So that every thing turned on the matter of fact. Was he in possession ? The jury found that he was not, and on the facts conceded they must have so found or a new trial would have been awarded. It appears that in 1842, Fenn had a title as mortgagee to a certain small interest in said ore bed — that the plaintiffs had become the owners or lessees of the equity of redemption of that interest, and as such owners or lessees had for years been in the possession and enjoyment of that interest, and indeed of the entire ore bed, except in 1853, of the said twenty-fourth part belonging to said Munson. In 1852, Fenn foreclosed, his mortgage but did not take possession of his interest, nor interfere with the plaintiffs’ possession and enjoyment. Under the charge, the jury found, that in 1853, Fenn was not in possession, but that the plaintiffs were, and were exclusively taking the rents and profits. Now, upon these facts, it is impossible to hold, that Fenn was a co-tenant in possession; he had a certain legal right and that is all, and he could neither sue nor be sued on that account.
Nor was the testimony of Fenn’s receiving money in January, 1854, for his share of the rent for 1853, in any way objectionable. It is said it was received after the commencement of this action. So it was by Fenn, but not by Mr. Adams who professedly acted as his agent in the matter. Adams received it from the plaintiffs in January, before the suit was commenced, at which time they paid him as the common treasurer of all the share-holders in this ore bed, the annual rent, as had been the practice for many years before. Besides the evidence conduced to show the character of [154] Fenn’s relation to this property, and that' Adams was his agent in leasing or controling the property.
We advise that the declaration is .sufficient and that there be no new trial.
In this opinion, the other judges, Stores and Hinman, concurred.
Declaration sufficient, new trial not to be granted.