to set aside his individual deed, so where all the parties unite in an action to have set aside six several deeds by separate grantors conveying separate interests, they unite six several clauses of action in one suit, and six several causes of action in each of which only a portion of the plaintiffs is interested. This does not assimilate an action in which the possession of the land owned in common is disturbed, for there each of the owners is alike interested in the possession. Jointly interested in the possession, they may jointly sue for any disturbance of their possession. But while jointly interested in the possession, they are not jointly interested in the title. Each owns his title separate and apart from the other owns it absolutely and alone. The fact that they take by inheritance from a common ancestor, in no manner unifies their title. They hold by the same complete, separate, and independent title as though each had purchased his interest from a different party. Nor does the case assimilate that in which by a single instrument, as a tax or other deed, a cloud is cast upon the title to the entire tract, or one in which owners of different tracks unite in a single action to abate a common nuisance. In such cases there may be said to be a unity of action, a unity in the relief demanded; either the single cloud is to be removed from the title, or the common nuisance is to be abated. But here each party's title is affected by a separate deed executed at a different time and place, and purporting to convey only his own separate interest, and the sole relief he can obtain is the cancellation of his own deed.

Again, it is not true that there was but a single contract or agreement in reference to the transfer of this land. The petition alleges that under threats, duress, etc., as above stated, the widow made her deed, and that under like threats, duress, etc., and for the sake of saving some small pittance, if they could, for their mother, the other adult plaintiffs made their deeds. So that there is, in fact, no unity either in the cause of action or in the relief demanded. In 1 Daniell's Chancery, 395, the author says: "Thus, if an estate is sold in lots to different purchasers, the purchasers cannot join in exhibiting one bill against the vendor for a specific performance; for each party's case would be distinct, and there must be a distinct bill on each contract. Hudson v. Maddison, 12 Sim., 416; Coop. Eq. Pl., 182; Story, Eq. Pl., 272, and notes." If separate vendees cannot unite in a single bill against a common vendor, neither can

separate vendors unite in a single bill against a common vendee. See, further, the following authorities from this court: Harsh v. Morgan, 1 Kan., 293; Winfield Town Co. v. Maris, 11 Kan., 147; Hudson v. Atchison Co., 12 Kan., 147; Swenson v. Plow Co., 14 Kan., 388. Also the cases of Bort v. Yaw, 46 Iowa, 323, and Tate v. Railroad Co., 10 Ind., 174, in which last case the court in the syllabus lays down the doctrine thus: "Two or more persons, having separate causes of action against the same defendant, though arising out of the same transaction, cannot unite; nor can several plaintiffs in one complaint demand several distinct matters of relief; nor can they enforce joint and separate demands against the same defendants."

We conclude, then, that upon this ground the ruling of the district court is correct, and must be affirmed.

STATE EX REL. v. BEASLEY.

57 Mo. App., 570. [1894.]

GILL, J.: This is a joint action brought by James Glass, of Sedalia, and Gildenhaus, Wulfing & Co., of St. Louis, against Beasley and others, on a constable's bond, the object being to recover damages for the alleged wrongful seizure and conversion by the defendant, Beasley, as such constable, of certain personal property belonging to the plaintiffs.

In the year 1890 Watts was engaged in the conduct of a small store at Nelson, Saline county, selling drugs, groceries, etc., and became indebted to these plaintiffs and others. On Sept. 24, 1890, Watts made a chattel mortgage to Glass, covering by its terms merely the fixtures and drug bottles in the store; and thereafter on Oct. 6, executed a second chattel mortgage, in favor of the plaintiffs, Wulfing & Co. The latter mortgage not only included the fixtures (which Glass' mortgage covered), but also conveyed the entire stock in trade. Under the Wulfing mortgage, Watts was permitted to continue his business in the usual manner, nor was said mortgage ever recorded. Among the conditions of the Wulfing mortgage was one that, in case the creditors of Watts should sue him, then such conveyance should become absolute, etc.

Shortly thereafter other creditors of Watts brought their several actions, and Parmalee, an attorney of Sedalia, having

charge of Glass and Wulfing claims, went to Nelson and took possession of Watts' store, fixtures, stock and all. Whether Parmalee took such possession for and in behalf of Glass alone, or for Glass and Wulfing, is in dispute. At any rate, Watts' creditors, other than the above named mortgagees, immediately attached on their respective claims and took the goods from Parmalee, the alleged agent and attorney of Glass and Wulfing. Thereupon this suit was brought, which, on a trial by a jury, resulted in a verdict and judgment for the plaintiffs, and defendants appealed.

The judgment herein cannot be allowed to stand. There is a clear misjoinder of parties plaintiff, and the question was properly raised in the defendant's answer. The case, under the evidence (stated most strongly, too, for plaintiffs), is this: A and B, as several and independent creditors of C, each secure their several chattel mortgages on C's property. A, the prior mortgagee, has a lien on, and right of possession to, a part thereof, to-wit, the store fixtures, while B, the other creditor, secures a first lien on the stock of goods (which is not covered by B's mortgage), with a further pledge of the equity which the mortgagor C might have in the fixtures after the satisfaction of A's mortgage. These creditors now seek to avail themselves of these securities and take possession of the property. That possession must be such, and only such, as was provided by the respective mortgages. Under A's mortgage, he could only take the store fixtures, since that is the full extent of the property covered by it. And so with B (the holder of the last incumbrance); he was only authorized to take and hold for the payment of his claim the property included in his mortgage— nothing more. This was the stock of goods, and which was not included in A's mortgage. B was not entitled with A even to joint possession of the goods mentioned in A's mortgage, for A had a prior incumbrance, and B, in that regard, stood just where the mortgagor C would

Here, then, were two separate and distinct mortgagee creditors, holding each a lien right in separate and distinct personal property. All this property, we will assume, was wrongfully taken and converted by a third party. The question is, can these two mortgagees, claiming under separate instruments, which cover different property, prosecute a joint suit against the trespasser. We must hold that they cannot. While, unquestionably, the rule is, that tenants in common of a chattel

should join in an action for any injury or trespass done to their joint property (State ex rel. Johnson v. True, 25 Mo. App., 451; 1 McQuillen's Pl. & Pr., Sec. 111), it is equally true that, "where the interest affected and the damage sustained are respectively several, there must be separate actions at the suit of the parties injured." Barb. on Parties (2nd Ed.), 267.

The wisdom of this rule is quite manifest in the case at bar. It may be that Glass, under his mortgage, should be entitled to the property so conveyed to secure his claim; while, on the other hand, it might be that Wulfing & Co.'s mortgage was invalid, because not recorded nor possession thereunder taken before other creditors attached. The cases, therefore, are not only technically separate and distinct controversies, but the merits or demerits of each are wholly different.

The judgment is reversed and the cause remanded with directions to dismiss. All concur.

TROMPEN v. YATES.

66 Neb., 525. [1902.]

HASTINGS, C.: This was an action brought by the defendants in error jointly, claiming damages for the conversion by plaintiff in error, as sheriff, of certain goods. February 18, 1897, Frances E. Price gave a chattel mortgage on her stock of drugs in the store at the corner of Tenth and P streets, in the city of Lincoln, Neb., for $500, to her husband, J. W. Price. The same day she also executed a chattel mortgage on the same drugs to J. R. Nichols for $100, for services as a clerk in the store; also to Chas. Yates for $40, for services in the store; also to J. D. Johnson for $25, for grocery bill; also to Victor Weiler for $20, borrowed money; also to W. L. Garten for $30, borrowed money; also to C. M. Seitz for $20, grocery bill; and also to F. J. Kelley for $350. Of this amount $266 was claimed to be due for past services, $40 for borrowed money, and the remainder for contemplated services in upholding the transfers; but on this indebtedness to Kelley was to be credited $90.15, store account. A mortgage was also made to the Lincoln Drug Company for $110, and to W. E. Clarke for $350, and to Kipp Bros. for $110, to secure indebtedness due them. The execution and filing of the mortgages were without the knowledge of the mort

gagees, except Price, Nichols, Weiler, and Kelley; but the action was ratified subsequently by all of the other mortgagees, who were parties to this action. The mortgages of Price, Nichols, Kelley, and Yates were all filed at 2:35 p. m.; the mortgages of Johnson, Weiler, Seitz and Garten at 2:40 p. m., and those of the Lincoln Drug Company, Clarke and Kipp Bros. at 2:45 p. m., on February 20, 1897. The mortgagee Kelley claimed to have taken possession of the stock of goods on behalf of the mortgagees immediately on the filing of the instruments, and to have placed an inscription on the front door, "Closed under Chattel Mortgage." He claims to have retained such possession until the goods were levied upon by Sheriff Trompen. The remnant of the goods left by the sheriff he claims to have sold for $585, and with the proceeds paid $100 to Nichols and $485 to Price. The answer alleges a misjoinder of causes of action; a misjoinder of parties plaintiff.

Α

The petition of the plaintiffs below alleged that they were in the actual possession of the goods, and that these were wrongfully taken away from their possession by the defendant sheriff. Copies of their several mortgages were attached. motion was filed by the sheriff to require the plaintiffs to more specifically state in what manner he had taken possession of the goods; to state particularly what merchandise was taken under execution, and what under attachment. A demurrer was also filed. First, that there was a defect of parties plaintiff; and, second, that the petition did not state facts sufficient to constitute a cause of action in favor of plaintiffs. Both motion and demurrer were overruled, and the defendants then answered as above stated.

Two briefs have been filed on behalf of the plaintiff in error, in one of which the sole question argued is the alleged misjoinder of the plaintiffs. It is urged that section 40 of our Code of Civil Procedure furnishes no warrant for joining these plaintiffs, because they have no common right; that their mortgages were filed at different times, and their holding cannot be joint. The result does not seem necessarily to follow even from holding their mortgages separate and distinct liens upon the same property.

They allege a joint possession, which they say the sheriff has invaded. If, in fact, they were in the joint possession of these goods, and the sheriff wrongfully took them, it would seem to constitute a common wrong against all the tenants who were