Hicks Et Al. v. Rogers

THIS was a case certified from the circuit court for the district of Vermont, the judges of that court,1 * being opposed in opinion upon the question, whether the plaintiffs, devisees of a tract of land to be equally divided between them, could, under the will, support a joint action of ejectment. The declaration did not set forth the title of the plaintiffs, otherwise than by the following averment–'Of which tract or parcel of land, the plaintiffs on the 6th day of April, in the year of our Lord Christ, one thousand eight hundred and four, were well seised and possessed in their own right, and so continued thereof possessed until the 8th day of April, in the year last aforesaid, when the defendant, without law or right, and contrary to the will of the plaintiffs, thereinto entered and ejected, expelled, drove out and amoved the plaintiffs therefrom, and ever since hath, and still doth keep out the plaintiffs from the premises, taking the whole profits to himself, which is to the damage of the plaintiffs six hundred dollars, to recover which, and the quiet and peaceable possession of the said premises, and just costs, they bring this suit.' Bradley, (of Vermont,) for the plaintiff, contended, 1st. That by the common law of Vermont, the words 'equally to be divided between them,' do not make a tenancy in common, because a tenancy in common is not thereby necessarily implied. Joint heirs in Vermont hold as coparceners. 2d. That if the plaintiffs are tenants in common, yet they have a right, by the common law to maintain a joint action for an injury to their lands holden in common–(3 Bac. Ab. 216.) 3d. That even if the plaintiffs are to be considered as tenants in common, and could not by the common law join in an action to recover possession, yet by the statute of Vermont of 2d of March, 1797, (Laws of Vermont, p. 118. s. 88.) they must join in an action for the mesne profits, or rather no other action is given for the mesne profits than an action for the possession itself, in which the plaintiffs shall recover the possession as well as damages.