§ 22. Plaintiffs in actions for Injuries to Land.'

Trespass upon land is primarily an injury to the possession; and if the action be for the direct wrong, for the immediate injury, the person in possession must bring the suit, unless he hold for another as servant or agent, in which case the principal must be the plaintiff. If the one in possession be a tenant or the holder of a particular estate, and the injury be of a permanent character, or such as to affect the inheritance or the estate of the immediate reversioner or remainder-man, suit at common law may also be brought by such owner of the next estate, and by statute an action for waste may be brought by any remainder-man or reversioner. The former, in common-law pleadings is called an action of trespass, the latter an action on the case; and though the Code does not name the action the same facts are pleaded and the same rules hold in respect to the parties in interest. To illustrate: if a trespasser should wrongfully enter upon land held under a lease, where the tenant had no right to, or interest in, the growing trees, and should destroy a growing crop and cut down such trees, the tenant would have no interest in, and should not be a party in an action for, the destruction of the trees, nor should the landlord be a party in an action for destroying the crop.

2[General Form of Petition for Trespass upon Lands.

[Title of case.

[1st. Allege the time and nature of the trespass upon the land, describing it; also title.

12d. Allege the injury and its extent.

[3d. Add prayer.]

$ 1 Chit. Pl. 62.

41 Chit. Pl. 63.

See post, § 33.

[In this class of cases there may be some difficulty experienced in determining the proper party or parties plaintiff, but if the general "Code Rules," as to parties plaintiff, is kept in mind, many of these difficulties will be rendered easy. This rule is "All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this title." See Code Proc. N. Y. § 117; Code Civ. Proc. Ohio, § 34; Rev. St. Ind. § 262; Code Civ. Proc. Kan. § 35; Rev. St. Mo. 1992; Code Civ. Proc. Neb. § 40; Code Civ. Proc. Cal. §§ 378, 381;

§ 23. Plaintiffs in actions for Injuries to personal Property where the Owner is not in Possession.

An action for an injury to, or for the conversion of, personal property may be brought by the general owner, although in the possession of another, provided he have the right to immediate possession; and, where he has not such right-as, if the property be injured while in the hands of a bailee for an unexpired term-he may, if the injury affect his reversionary interest, recover to the extent of the injury to such interest. The one having the possessory title has also his right of action, and a recovery by one for his special injury is no bar to a suit by the other. The party in possession who is answerable to the general owner, may sue for the full value, and if either he or the general owner recover such value, the other will have no right of action. The action for the possession of personal property will necessarily be in the name of the person entitled to immediate possession."

§ 23a. Plaintiffs in actions to recover Land sold when held adversely.

At common law one cannot convey land held by another adversely, that is, as against the adverse holder, the deed is void and the grantee cannot recover the land. But the grant is not without

Rev. St. Wis. § 2602; Code Iowa, § 2545; Code Fla. § 68; Code Civ. Proc. Nev. § 12; Civ. Code Ky. § 34; Code Civ. Proc. S. C. § 140; Comp. Laws Dak. § 4877; Code N. C. § 60; Rev. St. Idaho, § 4101; Code Wash. § 143; Code Civ. Proc. Mont. § 15; Rev. St. Ariz. § 692; Code Civ. Proc. Colo. § 10; Rev. St. Wyo. § 2394.

[In an action for trespass to lands it is sufficient generally to allege in the petition or complaint:

[1st. The title or nature of the plaintiff's possession, with a description of the property and the nature of the trespass.

[2d. State nature and amount of injury by describing the same.

[3d. Prayer for relief.]

71 Chit. Pl. 62.

8 Jd.

[Executors and administrators may support an action for an injury to the personal property of the deceased. 1 Chit. Pl. (11th Am. Ed.) 169.]

legal effect; as between grantor and grantee it passes all the interest of the former, it is only void as between the grantee and adverse holder and those in privity with him; it is good indeed as to all the world except such holder and his privies. Admitting the adverse holding to be wrongful, in an action by the grantee, the defense of adverse possession at the time of the grant is a good one for the reason that such grant, as against the defendant, conveys no right or title. The grantor's title as to him, is still good, and hence, in an action by the grantor, his conveyance cannot be set up to defeat his title, that is, it cannot be set up by the person in respect to whom it is void. Hence, the obvious common-law rule as to the proper plaintiff 10 in case of a conveyance of land held adversely, "when the action is brought against the person holding adversely, or any one who has succeeded to his right, the grantor must sue. But as against a stranger-one who does not stand in legal privity with him who held adversely when the deed was made-the grantee must sue."

Upon the adoption of the code in New York "a doubt arose wheth er an action to recover lands thus conveyed could be brought by any one. If brought in the name of the grantee he could, as against the party in possession, show no title; for, as against such party, his deed was void. If brought in the name of the grantor, it might be shown that he was not the real party in interest, because if he recover, his recovery would inure, not for his own benefit but the benefit of the grantee." Section 111 of the Code of Procedure was therefore amended 12 to remove the doubt by providing that an action may be maintained in the name of the grantor 13 and this provi sion is adopted in North and South Carolina.1

Independent of any express provision of this kind the authority to thus use the grantor's name is implied. "We are satisfied, both

10 As given by Bronson in Livingston v. Proseus, 2 Hill, 526.

12 Code Civ. Proc. § 1501.

13 HAMILTON v. WRIGHT, 37 N. Y. 502.

15

Woodruff, from whose opinion

I have made the citation in the text says that the provision creates no new authority, only limits the operation of the previous clause which requires the action to be in the name of the real party in interest.

14 Code N. C. § 55; Code S. C. § 134.

15 Says Worden, J., in Steeple v. Downing, 60 Ind., on page 487.

upon reason and authority, that when one conveys land to an other which at the time is in the adverse possession of a third person, whereby the title cannot pass as against the party thus in possession, the grantor impliedly authorizes the grantee to use the grantor's name, in an action to recover the land from the party thus in the possession thereof." 18 In states1 where a conveyance of land held adversely is authorized by statute, the action will necessarily be in the name of the grantee, but where, in this regard, the common law prevails, it must be in the name of the grantor to his use.

§ 24. As to Joinder of Plaintiffs in actions for injuries to property.

The obvious rule is "that where two or more are jointly entitled, or have a joint legal interest in the property affected, they must, in general, join in the action." This is the statutory rule, as will hereafter appear in considering more especially the rules derived from the equity practice.19 Thus, partners should join in seeking redress for an injury to the partnership property, and in buying real estate for partnership purposes they are also allowed to join in an action for a deception practiced on them in its purchase.20 They may, also, join in a suit for a libel published concerning them in their joint business,21 and for falsely and fraudulently recommending an insolvent person as worthy of credit.22

16 [Such an action can be maintained independent of the consent of the grantor, and is supposed to be conducted by the grantee, alone, for his own benefit; but it must necessarily be sustained, if sustained at all, upon the validity of the title originally existing in his grantor. It is brought in his name, and upon the theory of an original right in him to the possession of the property. Chamberlain v. Taylor, 105 N. Y. 185, 11 N. E. 625. Such action does not abate by the death of the grantee; it may be continued by his devisees. Ward v. Reynolds, 25 Hun, 385, 62 How. Pr. 183.]

17 As in Missouri. Rev. St. 1879, § 673.

18 1 Chit. Pl. 64; and so, also, 1 Saund. Pl. & Ev. 744, 745.

19 Post, §§ 61, 62.

20 Medbury v. Watson, 6 Metc. (Mass.) 246.

21 1 Chit. Pl. 64.

22 Patten v. Gurney, 17 Mass. 182.

Tenants in common23 of the realty, although their estates are several, must join in personal actions for injuries to the estate,24 as several actions for the same trespass, or other injury not affecting the title, against the same person by those having a common interest in the property injured will not be permitted, and because the damages survive to all.25 Another reason for distinguishing, in this regard, personal from real actions doubtless is that the possession is joint, the possession of one being the possession of all, and all are equally affected by the injury in proportion to their interest; but the title is several, springing, perhaps, from different sources, and an injury to, or claim affecting, the title of one tenant in common may have nothing to do with that of another.

23 [As a General Rule.

[Tenants in common must join in bringing personal actions in which all are interested; and this is true whether arising ex contractu or ex delicto. Hill v. Gibbs, 5 Hill, 56; Thompson v. Hoskins, 11 Mass. 419; 2 Bl. Comm. 194, note 12; May v. Slade, 24 Tex. 205; King v. Anderson, 20 Ind. 385; Crawford v. Ginn, 35 Iowa, 543.

[The Defense for Nonjoinder of Tenants in Common.

[1st. In actions ex delicto, this defense should be raised by plea in abatment at common law, but under the Code either by demurrer or motion depending upon the statute. 1 Chit. Pl. 74; Wheelwright v. Depeyster, 1 Johns. 471; Rich v. Penfield, 1 Wend. 380. See, also, Sedgworth v. Overend, 7 Term R. 279.

[2d. In actions ex contractu this defense at common law may be taken advantage of either under the general denial or by demurrer. 1 Phil. Ev. 210; Burgess v. Abbott, 1 Hill, 476.

[Release by One Having Joint Interest.

[Payment to one tenant in common for the use and occupation of the land, and for waste committed thereon, is a good defense to an action by the other tenants for same. Grossman v. Lauber, 29 Ind. 618; Stappleton v. King, 33 Iowa, 28; Hall v. Gray, 54 Me. 231.

[All Owners of Chattels must Join.

[The rule that joint owners of chattels must join in an action for damages for a wrongful conversion or for injuries or to recover its possession is well settled. Reeder v. Sayre, 70 N. Y. 180; Swarthout v. Chicago & N. W. Ry. Co., 49 Wis. 625, 6 N. W. 314; Seip v. Tilgman, 23 Kan. 289.]

24 Low v. Mumford, 14 Johns. 426; Greenly v. Hall, 3 Har. (Del.) 9; Depuy v. Strong, 37 N. Y. 372; Lane v. Dobyns, 11 Mo. 106. 25 1 Chit. Pl. 65; Bac. Abr. tit. "Joint Tenant," k