Steele v. McGill , 172 Pa. 100 ( 1895 )

Opinion by

Mr. Justice Williams,

The main question raised at the trial in the court below and now raised in this court is over the right of the plaintiffs to join in this action.

It appears from the evidence that they and the defendant were children of the same parents. To assist him in the pur chase of a one half interest in a grocery store they joined with him in the execution of a mortgage Upon a piece of real estate in which as heirs at law of their deceased father they were tenants in common. He did not pay the debt which the mortgage was intended to secure and the property covered by it was sold to make payment. The plaintiffs were sureties for their brother, the defendant, and their individual interests or shares as tenants in common in the real estate sold have gone to pay his debt. It is alleged, and the jury have found, that the defendant undertook to reimburse his brother and sisters for the amount they might be compelled to pay for him by reason of the mortgage, or in other words to restore to them the value of their shares in the real estate held in common by them. Such a promise might have been proceeded upon by each of the cotenants separately, but we see no reason why they may not join, as they might do in trespass or in ejectment for an injury or an ouster from the common property. When tenants in common sever, each can recover only for his or her individual interest in that which is the subject of the action; but where they join in seeking redress for an injury to the property held in common the trespasser would not be heard to object to the joinder. For the same reason where one of several tenants in common promises his cotenants to indemnify them if they will risk the common property for his benefit, he ought not to object if they sue upon the promise as it was made.

If he had bought the interests of these plaintiffs from them and given his promissory note for the purchase price of the three shares, making it payable to the three vendors, it would not admit of doubt that they might join in an action on the note. Here the shares of the plaintiffs in the common property were sold under the supervision of the defendant, and for the payment of his debt. His verbal promise to reimburse them, made, as the jury have found, to these owners as his tenants in common, will support, as the note payable to the same three persons would have done, one action in the name or all the promisees.

It is said that one of the plaintiffs has already been reimbursed by the payment of his debt out of the proceeds of the sale of the mortgaged premises. If so it may be that the sum recovered may need to be distributed by the court below in such manner as shall secure to each a sum equal to his or her share in the fund.

The court below is entirely competent to deal with the subject.

The .judgment is affirmed.