
    Henry Luther vs. Nathaniel Arnold.
    One tenant in common, who has leased to his co-tenant, may distrain for the rent.
    Plaintiff, in replevin, must allege, that the goods distrained are his own, or that they were taken from his possession.
    BEFORE WARDLAW, J., AT EDGEFIELD, FALL TERM, 1854.
    The report of his Honor, the presiding judge, is as follows:
    “ The declaration alleged the taking of sundry goods belonging to the plaintiff, and also of some cattle and other goods of the property of certain other persons, viz: Jordan, Brogden and Glover. The defendant demurred specially, because of the mention of goods, as to which neither property nor possession in the plaintiff was alleged. The demurrer was overruled.
    
      “ The defendant avowed the taking of the goods in May, 1858, by distress for twenty-one months rent, which he alleged was then in arrear-from the plaintiff to him, under a lease made by him to the plaintiff, of a lot in the town of Graniteville, on which was situate a mill.
    “ It appeared that the lot, on which was a valuable saw mill, driven by water, was owned by the Graniteville Company, and by that company was in 1850, or before, demised, for the term of ten years, to the plaintiff Luther and one Jordan, as tenants in common, at a fixed rent, which was all to be paid in plank during the first five years; that Jordan sold and relinquished his interest to Luther; that Luther conveyed 'one undivided moiety of the term to the defendant Arnold; that' afterwards in 1851, by an unwritten contract between Luther and Arnold, it was agreed that Luther should have exclusive possession of the mill for three years, he paying the rent to the Graniteville Company, and moreover paying to Arnold a monthly sum, (which they called rent) of sixty-five dollars, to which, for any monthly payment not regularly made, should be added twenty-five dollars, so as to make the monthly sum or rent, ninety dollars; that under this agreement Luther took possession in August 1851, and held till November 1851, when the mill was burnt down, without blame to the occupant; that in Arnold’s absence, but after notice to him, the mill was rebuilt by Luther, in four or five months, and afterwards was occupied by him or his sub-tenants until May 1853, when the distress was made; and that a few days after the distress, the mill was burnt a second time.
    “ There was nothing in the evidence, by admission or otherwise, to show that Luther, had made any special agreement to repair or rebuild the mill.
    “ I said, what may have been understood to be an expression of my opinion upon a point made in the course of the examination of witnesses, that Luther would not, under the ordinary rules applicable to tenants, be bound for the rent whilst the mill was undergoing repairs, if he was by no covenant or agreement bound to repair, and was ready until prevented by the conduct of the supposed landlord, to relinquish his term upon the happening of the conflagration.
    “But the jury did not come to this point; for I held that, under the evidence adduced, the parties were co-tenants of the term for ten years, and that the relation established between them by their subsequent agreement was not such as authorized Arnold to distrain for the money due to him, as a landlord might distrain for rent.
    “Under my instructions the jury found thirteen dollars damages for the plaintiff in replevin.”
    The defendant appealed on the grounds,
    1. His Honor the presiding judge is respectfully informed that a motion will be made at the next sitting of the Law Court of Appeals to reverse his decision, over-ruling the demurrer to plaintiff’s declaration in replevin, which alleged that a certain part of the property distrained upon belonged to plaintiff, and a certain other and distinct part thereof belonged to third persons in which said latter part the plaintiff claimed neither general nor special property.
    2. Because his Honor held that the lessee of the mill during the time that it was rebuilding was not liable for rent for the same.
    3. Because his Honor ruled that one tenant in common could not lease to his co-tenant a lesser interest than each held in the term, and thereby acquire the right to distrain against the lessee who had agreed to pay a certain fixed rent.
    4. And for a new trial because his PXonor charged the jury that the relationship of landlord and tenant not existing in this case, the defendant had no right to distrain, although it was positively proven that the plaintiff had agreed to pay rent which was due and owing at the time, and charged the jury to find damages for the plaintiff.
    
      Spann, for the motion,
    cited 5 Bac. Abr. 283, 563; Com. Land. & Ten. 368, 206; 2 Bouv. Inst. §1877; 2 Steph. N. P. 1324; 4 Kent 368 ; 1 Platt on Leas. 121, 131; 5 Stat. 555; 3 Kent 465; 1 Cro. Jac. 611.
    
      Moragne, contra,
    cited 6 Stat. 67; .Ripley vs. Wightman, 4 McC. 447 ; Bailey vs. Lawrence, 1 Bay 499; Co. Litt. 186 a.
   The opinion of the Court was delivered by

WITHERS, J.

The leading question in this case is, can one tenant in common become the landlord of another, by way of lease and exercise the right of distress. Without- resorting to authority more remote, we find in Croke James, p. 611, the case of Snelgar v. Henston, which adjudged the question in the affirmative. Those parties were tenants in common for a term of years, and Henston assigned to Snelgar, and distrained ; “ and it was demurred, (says the book) whether one tenant in common may distrain upon the other ; and adjudged that it might be, where he comes in under the lessee: and the distress may be taken in any part of the land; wherefore the defendant had retorn,” etc.

This case is cited by several authors of respectable authority, treating upon the subject to which it refers, and we are not at liberty to discard it, when there does not occur any reason to say, (it being clear that one tenant in common may assign to another any interest he has on stipulated terms), that the assignor, bearing the relation of landlord, shall be debarred the most material incident belonging to that character. The right of distress was affirmed in this case, notwithstanding the whole term of the avowant had been transferred by him to his co-tenants, which left no reversion in the grantor. In the present state of the law, as represented by Platt on Leases, (vide.vol. 1, pp. 1 — 20), this might be a very serious objection to the right of distress — or rather, to the proposition, that a lease could arise out of such a transaction; or rent, within the meaning of statutes regulating the relations of landlord and tenant — and this, too, whether the contract be in writing and strictly formal, or by parol. Such difficulty, however, does not enter into our present case, for the whole term here was not granted, and therefore a reversion remained,- which is enough to answer the most stringent definition of a lease, so far as that element of one is required.

We think, then, there was error in the ruling upon circuit that there was not the relation of landlord and tenant between these parties, and the right of distress incident thereto.

The plaintiff in replevin has declared for a parcel of goods which he alleges to be the property of others; nor does he allege the same to have been taken out of his possession. Now although this is not good cause of demurrer, seeing that the plaintiff has averred the taking of other goods the property whereof is alleged to he in himself, yet as the matter now stands he declares for damages for the unlawful taking of another’s goods, which is inadmissible — the more palpably when he replevies them. He may not wage this contest for the benefit of a stranger, who has his own apt remedy provided a wrong has been visited upon him. The plaintiff must, therefore, amend, by averring that the goods alleged to be those of Jordan and Brogden are his own, or that they were taken from his possession. The one or the other is obviously necessary, since this action is in the nature of trespass, and it can be no trespass upon him to take another’s goods unless his possession has been unlawfully violated.

O’Neall, WaRdlaw, Whither, Glover and Muhro, JJ., concurred.

Motion granted.  