except when otherwise provided." What these exceptions are will be considered elsewhere. The rule thus stated is substantially a re-enactment of the rule prevailing under the former equity practice. The codes do not pretend to enumerate the cases in which the joinder of persons as plaintiff may be optional, but it seems to have been intended that the rules of pleading prevailing in equity should govern, and that persons who could not formerly have joined in equity cannot join under the code practice. When, however, parties show "an interest in the subject of the action, and in obtaining the relief demanded," it is immaterial in what proportions they may be severally concerned. Several plaintiffs may properly join in one action where their rights are identical in nature and kind and only differ in extent and quantity. A person in his individual capacity as distributee of one half of a mortgage may be joined as plaintiff with himself as executor, representing the undistributed half of the mortgage in an action to foreclose."

§ 18. Persons who must join as plaintiffs.-The question as to nonjoinder of parties is one of the principal grounds of demurrer and is a question very frequently adjudicated. It is accordingly one of the most important questions in the law relating to parties. What has been said in chapter III with reference to the institution. of actions by the real party in interest always applies where the inquiry is as to who must join as plaintiffs in a particular case. As a starting-point in such an inquiry we have the rule that actions must be prosecuted in the name of the real party in interest. As a corollary to this rule, where there are several parties interested in obtaining relief the code states have adopted the further rule that "of the parties to the action those who are united in interest must be joined as plaintiffs or defendants.”

The reason for this rule is obvious. In the first place it prevents a multiplicity of suits, and in the second place "a defendant who has made but one contract or incurred a single liability has the right to require that the whole case be disposed of in one action." In such a case the plaintiff or plaintiffs must represent the entire cause of action, and the plaintiff or plaintiffs thus representing the entire cause of action must

Cal. Code Civ. Proc., § 378. Goodnight v. Goor, 30 Ind. 418. Lyon v. Bertram, 20 How. 149, construing California code provision. P. P. F., Vol. I-2

6 Casey v. Gibbons, 136 Cal. 368,

68 Pac. 1032.

7 Cal. Code Civ. Proc., § 382.

s Estee's Pl. & Pr., § 134.

be the "real parties in interest." In other words, a single cause of action cannot be divided. There may be a contract made with two or more persons of such a nature that the interests of these persons would be severable and the parties be entitled to sue separately. Such a case is presented by a contract whereby a mother, in consideration of a deed from her three sons of certain land owned by them all as tenants in common, agrees to pay "each one fourth of all moneys received" above a certain sum." So, also, where two join in a power of attorney authorizing a third person to collect their respective shares in an estate.1o And where a payment, although joint, is made from individual funds, all the persons making the payment need not join in a suit for reimbursement." Where, however, there is a unity of interest between several persons constituting one party to a contract, so long as that unity of interest continues, all must join in a suit for its enforcement or breach. Making a plaintiff in equity, one who could have been made a defendant, is not a fatal misjoinder.12

§ 19. Severable interests. Obviously the rule we are considering cannot operate where the interests under a contract are severable. In such a case the cause of action is not single and the reason for the rule ceases. The legal interests of the plaintiffs are several, and the right of action follows the interest. So where a contract contains distinct obligations to perform different things for different obligees, each has his distinct right of action without joining his co-obligees.18 Such a case is presented where joint owners of goods consign them to a factor and inform him that each owns a moiety, and each gives him separate and different instructions.1

14

Interests of several obligees under a contract, although not of themselves severable, may nevertheless be severed by agreement between all of the parties to the original contract, the obligor consenting to pay each of the original joint obligees his

• Vandermulen v. Vandermulen, 108 N. Y. 195, 15 N. E. 383.

10 Best v. Sinz, 73 Wis. 243, 41 N. W. 169.

11 Doremus v. Seldon, 19 Johns. 213; Smith v. Hicks, 1 Wend. 202. 12 California Farm etc. Co. V. Schiappa-Pietra, 151 Cal. 732, 91 Pac.

593.

13 Irish v. Wright, 12 Rob. 563; Curry v. Kansas etc. Ry. Co., 58 Kan. 6, 48 Pac. 579; Richey v. Branson, 33 Mo. App. 418; Vandermulen Vandermulen, 108 N. Y. 195, 15 N. E. 383; Best v. Sinz, 73 Wis. 243, 41 N. W. 169.

V.

14 Hall v. Leigh, 8 Cranch, 50, 3 L. Ed. 484.

several share. This gives to each obligee a separate cause of action to recover his share, but these separate actions would be upon the new agreement and not the original promise. In no case, however, can joint obligees, by agreement among themselves, render the obligor liable to separate actions without his consent.

16

It would seem that a debtor might, by his own act, work a severance of the joint interests of his obligees, as where he settled with one for his part of the claim. Such has been the holding in a number of cases.15 In an early California case,' such a state of facts was presented, and the court held that if the plaintiff relied upon the original contract between himself, his co-obligee, and the defendant, he could not sue without joining his co-obligee, notwithstanding the defendant had performed as to the latter and canceled the contract as to him. It is difficult to perceive, however, the reasoning by which this decision was reached. The opinion of the court is short and unsatisfactory. It would seem that an obligor by entirely satisfying one obligee should be estopped to set up his nonjoinder, in a suit by the other. He certainly cannot be injured by the nonjoinder, for he cannot be subjected to further liability in a suit by the satisfied obligee.

§ 20. Exceptions to the general rule. Of course, the codes contain the proviso that "if the consent of any one who should have been joined as plaintiff cannot be obtained, he may be made a defendant, the reason thereof being stated in the complaint." But beyond this there are certain exceptions to the general rule.

15 Beach v. Hotchkiss, 2 Conn. 697; Holland v. Weld, 4 Me. 255; Austin v. Walsh, 2 Mass. 401; Baker v. Jewell, 6 Mass. 460, 4 Am. Dec. 162.

16 McGilvery v. Moorhead, 3 Cal. 267.

CHAPTER V.

PARTIES PLAINTIFF-ACTIONS EX DELICTO.

§ 21. In general.-Actions in form ex delicto are for injuries to the absolute or relative rights of persons, or to personal or real property. The proper party plaintiff in such action is the one who has suffered the injury, he being the real party in interest. This was the rule at common law, and it has remained substantially unchanged by the code. The principai changes made by the code, and by statute in other states, in respect to this class of actions, are those relating to the death or injury to the person of adults or minors, caused by the wrongful act or neglect of another, and those relating to seduction. The code has also made several important changes in regard to parties plaintiff in this class of actions by permitting assignments of certain causes of actions sounding in tort.1

§ 22. For injuries to real property.-An injury to real property is primarily an injury to the possession, for which the party in possession, unless he hold for another as servant or agent, should bring the action. Where, however, the injury is of a permanent character, and one affecting the inheritance, the remainderman or reversioner may maintain an action, either for trespass on the case, or to enjoin the further continuance of the wrongful act. Thus the equitable owner, in possession, may maintain an action for damage to the freehold. Or he may sue for trespass. One holding under a homestead claim may sue for the wrongful turning of water upon the land. On the same principle, the owner, redeeming from a sale under execu

1 See, post, "Assignees and Devisees."

21 Chit. Pl. 62, 63; Van Deusen v. Young, 29 Barb. 9; Lamport v. Abbott, 12 How. Pr. 340; Ulrich v. McCabe, 1 Hilt. 251; Cowand v. Meyers, 99 N. C. 198, 6 S. E. 82; Dorsey v. Moore, 100 N. C. 41, 6 S. E. 270; University v. Tucker, 31 W. Va. 621, 8 S. E. 410.

3 Rood v. New York etc. R. R. Co., 18 Barb. 80.

Honsee v. Hammond, 39 Barb. 89; Safford v. Hynds, 39 Barb. 625; Pierce v. Hall, 41 Barb. 142; Sparks v. Leavy, 19 Abb. Pr. 364.

5 Wendel v. Spokane Co., 27 Wash. 121, 91 Am. St. Rep. 825, 67 Pac. 576.

6

tion, may sue for waste intermediate between the sale and his redemption. So, also, an action can be maintained by the mortgagee of real estate to recover damages for wrongful and fraudulent injuries done to the mortgaged property, by which the security of the mortgage has been impaired.' But several parties cannot, in a joint action, recover damage for the use and occupation of two or more tracts of land which they own in severalty.

§ 23. For injuries to personal property. In actions for injuries to personal property, or for its conversion, the proper party plaintiff is generally the one having the right to the immediate possession, although in proper cases the general owner, whose reversionary interest has been injured, may sue." there are two or more joint owners of the property injured, they should all join.1o

If

§ 24. In ejectment.-At the common law, tenants in common could not join in an action of ejectment under a joint demise to the normal plaintiff, although the rule was different as to the joinder of joint tenants and coparceners.11 Under the codes which provide that "all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs," such joinder is permitted.12 Except in California, Missouri, and Nevada, a joinder of tenants in common less than all is not permitted. They must all sue, or each one separately.18 In the states named, however, a joinder of

• Thomas v. Crofut, 14 N. Y. 474. Robinson v. Russell, 24 Cal. 472. Tennant v. Pfister, 51 Cal. 511.

• 1 Chit. Pl. 61; Paddon v. Williams, 2 Abb. Pr. (N. S.) 88; Triscony v. Orr, 49 Cal. 612; Harrison v. Marshall, 4 E. D. Smith, 271; Wiggins v. McDonald, 18 Cal. 126; Summers v. Farish, 10 Cal. 347, affirmed in Prader v. Purkett, 13 Cal. 591; Browner v. Davis, 15 Cal. 11; McGinn v. Worden, 3 E. D. Smith, 355; Hall v. Robinson, 2 Comst. 293; Kellogg v. Church, 3 Code Rep. N. Y. 53; Cass v. New York etc. R. R. Co., 1 E. D. Smith, 522; Robinson v. Weeks, 1 Code Rep. (N. S.) N. Y. 311; Van Hassel v. Borden, 1 Hilt. 128; Wheel