FROM CARROLL CIRCUIT COURT. It appears that the plaintiff is administrator *Page 367 of the estate of Adam Roberts; that the estate is settled in the insolvent course; that Adam Roberts, up to the time of his death, was in possession of the premises under the bond or under the deed; that, since the death of Adam Roberts, the plaintiff has not been in the actual occupation of the premises; that, after the death of Adam Roberts, the defendants let in a tenant who had been in possession of the premises about one year previous to the trial; that in July, 1874, the tenant cut the grass thereon, which is the trespass complained of.
Numerous objections have been taken to the plaintiff's title, and the regularity of the proceedings in the probate court; but they cannot avail the defendants. It appears that the plaintiff's intestate was in possession of the premises previous to the death of W. N. Roberts, under the provisions of the bond given by him to Adam Roberts, which provided that, until the conveyance was made as stipulated in the bond, "Adam should have the right to occupy and improve the premises for his own use." This was a sufficient title to enable Adam, in his lifetime, to maintain trespass for any disturbance of his possession. After the death of William N. Roberts, his administrator attempted to convey the same, in accordance with the terms of the bond.
It is objected that there was but one witness to the bond: but this was not a fatal defect. The bond was simply an agreement for the conveyance of real estate; and there is no provision of the statute or rule of the common law requiring any witness at all.
It is objected that the petition does not sufficiently set out the contract, and that it is not signed by the administrator of William N. Roberts.
The statute requires that "proceedings in the probate court shall be commenced by petition to the judge, briefly setting forth the ground of the application." Gen. Stats., ch. 173, sec. 1.
It appears from the case that the petition in the handwriting of the administrator, and that his name was inserted in it in his own handwriting. The statute nowhere requires the petition to be subscribed by the petitioner, and I am of opinion that it was sufficiently signed by him. So, too, the substance of the contract was sufficiently set out. The law does not require that all the minute details of the contract shall be specified. It is enough if the substance of the contract were set out, — and this, the petition shows, was done. It is objected that the license is defective, in not stating the party to whom the administrator was to make the conveyance; but this objection cannot be sustained. "Certum est quod certum reddi potest." The decree shows that license was granted "to Sanborn B. Carter, who was the administrator of William N. Roberts," to convey the premises. The license recites that "whereas, on examination, it appears that William N. Roberts, of, c., deceased, did in, his lifetime contract by writing to convey to one Adam Roberts certain real estate, c., upon certain conditions on the part of the said Adam Roberts, which he has performed, and that he stands ready, c., — therefore license is hereby granted to Sanborn B. Carter, c." *Page 368
It is evident from the decree to whom the conveyance was to be made; but if the objections taken to the regularity of the proceedings in the probate court were tenable, they cannot avail the defendants, because the case shows that the plaintiff claims under the bond as well under the deed; and if the deed is invalid, the bond is not, and the administrator may still claim under it.
Another objection raised is, that the plaintiff cannot maintain trespass because he was not in possession at the time of the commission of the alleged trespasses; but this objection must fail. The case shows that Adam Roberts, the plaintiff's intestate, was in possession of the premises up to the time of his death, but that the plaintiff has never been in the actual possession.
The gist of the action of trespass quare clausum fregit is an injury done to the plaintiff's possession of real property. In order, therefore, to maintain it, the plaintiff must either have or be entitled to have possession of the property in which the trespass is alleged to have been committed.
This principle is said by FOWLER, J., in Richardson v. Palmer,38 N.H. 212, "to be so well settled as to need no argument or citation of authorities." Adam Roberts being in possession at the time of his death, his administrator — the estate being settled in the insolvent course on the decree of insolvency — became entitled to the possession; and therefore an entry by the defendants, or by their order, was a disturbance of that possession.
It is further objected, that the action cannot be sustained against the defendants because they are husband and wife; but this objection is not well founded. In actions of trespass, both may be sued for their joint acts; and for assaults and other wrongs where two may concur, the husband and wife may be sued jointly for the act of both. 2 Saunders on Pl. and Ev. 195; 1 Stephens's Nisi Prius 746, — title, Baron Feme; 1 Selwin's Nisi Prius 239.
The case shows that Bean, who was in possession, and who cut the grass in question, was the tenant of the defendants, and that they gave directions to him to cut it. His act, therefore, was the joint act of both and the action was well brought. It is suggested in the argument, that the evidence does not show that Bean entered under the authority or by the request of the defendants, but it does distinctly as pear that he was in as the tenant of the defendants; and the fair and reasonable inference is, that his entry was by the direction of the defendants, — and that entry being unlawful, the defendants, by his act as their servant and tenant, became and were trespassers. Entertaining these views, the nonsuit must be set aside, and the cause stand for trial.