Hodges v. Pingree

76 Mass. 14

• Court: Massachusetts Supreme Judicial Court
• Decided: November 15, 1857
• Status: Published

Opinion

Shaw, C. J.

This is a suit by one tenant in common against his cotenant, with two objects; one to obtain partition of real estate; and the other to have an account of the profits received by the defendant during his past occupation of the premises. These two subjects are entirely distinct.

With regard to the partition, there is a complete and adequate remedy at common law; and if by reason of the rights of wharf-age and dockage, the premises cannot be divided without damage to the owners, the whole estate may be set off to any one of the parties who will accept it, he paying such sums of money, by way of owelty, as may be awarded by the commissioners. Rev. Sts. c. 103, § 25. St. 1850, c. 239.

The partition being apparently the leading object of the bill, the demurrer is well taken. It is said that the. court, having once acquired jurisdiction of the case, will retain the case, to do complete justice between the parties. That is true, so far as concerns matters incidental to the subject of which the court has jurisdiction, and which must be disposed of in order to enable the court to enter a decree in the matter of which it has jurisdiction. Holland v. Cruft, 20 Pick. 321. But here the suit for an account does not draw after it, or make it necessary to consider, the question whether partition shall be had. The two things are incompatible. So far, therefore, the demurrer must be sustained.

But we are of opinion that the bill, if amended by striking out all relating to a partition, might be maintained as a bill in equity for an account.

Plaintiffs have leave to amend.