Decker v. R. S. Livingston

15 Johns. 479

• Court: New York Supreme Court
• Decided: October 15, 1818
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. Two questions have been made on the argument1. Whether the wife of John C. Stevens ought to have been a party to the suit; and, 2d, whether the receipts of one of the tenants in common for the rent of 1815, and 1816, are available as prima facie evidence of the payment of the rent of the antecedent years.

The rent for which the distress was made, accrued prior to October, 1815, but the case does not disclose for what years it grew due. Mrs. Stevens, who is one of the tenants in common, is not joined in making the distress, or avowry, with her husband ; and it does not appear whether rcnj_ claimed accrued before or after their marriage.

We consider the law well settled, that for rent, or any °^cr cause of action accruing before marriage, in regard to the real estate of the wife, she must be joined with her husband in a suit for such cause of action, but that for rent of her land arising after the marriage, she need not be joined. (1 Chitty Pl. 17, 20. and the authorities there cited.) As it does not appear affirmatively, that the rent in question accrued after the intermarriage between Stevens and his wife, we cannot intend the fact to be so ; her husband’s right to sue alone, resting on the fact, that the rent accrued after the marriage, his title is defective, if the fact is not shown ; and this objection may be made on the trial. (1 Chitty, 7.)

We held, in Austin and others v. Hall, (13 Johns. Rep. 286.) that a release by one tenant in common of a trespass on the lands of another tenant in common, was a bar to the action brought by them, on the principle, that the action was strictly personal, and that the plaintiffs were bound to join in it; and there can be no doubt that when-there is such a unity of interest as to require a joinder of all the parties interested in a matter of a personal nature, the release of one is as effectual as the release of all.

If two tenants in common, make a lease of their tenement, for a term of years, rendering rent, if the rent be behind, they shall have an action of debt against the lessee and not divers actions, for the action is in the personalty. (Co. Lit. sec. 316. 198. b.) But in an avowry for the rent, they ought not to be joined, for this is in the realty ; (Co. Lit. s. 3. 1. 7.) and this distinction between debt for rent and an avowry, appears to have been uniformly recognized. (1 Chitty, 544.) The reason is, that the avowry savours of the realty; but until the distress and avowry, the rent is in the personalty, and then it can be released by one of the tenants in common. It is the distress on the land which makes the rent partake of the realty. The case of Harrison v. Barney, (5 Term Rep. 249.) on which very great stress was laid, simply determines that a tenant, holding under two tenants in common, cannot pay the whole rent to one of them, after notice from the other not to pay it. If he do, the other tenant in common may distrain for his share. Lord Kenyon puts his decision on the justice of the case, and that the payment was against conscience.

Whether the receipts for 1815 and 1816, are presumptive evidence of payment of the rent of the preceding years, depends on the right of one tenant in common to receive the whole-rent. If he had such a right, then the presumption exists 5 and it arises from the improbability that the former rent remained unpaid, when rent is specifically received for a subsequent period ; and this presumption obtains as well where several persons are entitled to receive money, as in an individual case, for they are all to he presumed conusant of their rights. This presumption may be repelled, but standing uncontradicted, as it does here, it is decisive.

Judgment for the plaintiff.