27 Mass. 161 | Mass. | 1830
The material question presented in this case is, whether at the time of the cutting and sale of the wood and timber, the plaintiff was ousted or disseised ; and if so, whether he can maintain an action of assumpsit for money had and received, to recover a proportion of the proceeds of such sale.
It is unquestionably a rule of law, that the possession of one tenant in common, although exclusive, being alike consistent with his own right and the right of his cotenant, does not amount to an ouster or disseisin, however long continued ;
The only question here is, whether the plaintiff was so far disseised as to be divested of the legal possession, so that in case of a direct injury to it he cannot maintain an action of trespass. The case of Allen v. Thayer is, in many points, strongly analogous to the present. The case was this. The land of the plaintiff was in the occupation of the defendant, and was levied upon by the Northampton bank, as the property of the plaintiff; and from and after that levy the defendant continued to occupy under the bank, and paid rent to them, for about two years, when he purchased of them the estate in fee. Subsequently a defect in the proceedings upon the levy being discovered', another creditor of the plaintiff levied upon the land, and held it both against the bank and the defendant holding under them. The plaintiff brought an action of assumpsit for the rents and profits, between the periods of the first and
In the same case already cited it was held, that a disseisee cannot maintain trespass for a wrong done after the disseisin and before a reentry ; for the freehold is in the disseisor all the time after the disseisin. The case of Codman v. Jenkins seems to be a strong authority to the same point. It was there held, that a party having good title, but who had not entered under it, could maintain no action against the party in possession, for use and occupation.
The ground upon which the present action was brought, is, that the plaintiff, in right of his wife, being seised of one quarter part of the land in controversy, bad a like interest in the trees when cut, and as the defendant has sold them, the plaintiff may claim his share of the proceeds, in an action for money had and received. But if the above views are correct, respecting the relation in which this plaintiff stood to the freehold, and
, The case therefore affords no authority for supporting such an action, where there is no such actual seisin and possession at the time as to enable the owner to maintain trespass or trover, and where of course there is no tort to waive.
The opinion of the Court is, that the plaintiff is not entitled to maintain this action, and that the nonsuit must stand.
See Knox v. Silloway, 1 Fairfield, 211; Vaughan v. Bacon, 15 Maine R. (3 Shepley,) 457.
Where one tenant in common of land conveys the whole estate in fee, with covenants of seisin and warranty, and the grantee enters and holds exclusive possession thereof, such entry and possession are a disseisin of the co-tenant. Kittredge v. Locks & Canals, &c. 17 Pick. 246.
See Thomas v. Pickering, 13 Maine R. (1 Shepley,) 353 ; Porter v. Hooper, Maine R. (1 Shepley,) 28, 29; Pickard v. Rickard, 13 Pick. 251 ; Williams v. Gray, 3 Greenleaf, 207; Prescott v. Nevers, 4 Mason, 326; Brackett v. Norcross, 1 Greenleaf, 89; Little v. Megguier, 2 Greenleaf, 176; Proprietors of Kennebec Purchase v. Laboree, 2 Greenleaf, 275 ; 4 Kent’s Comm. (3d ed.) 370; Whiting v. Dewey, 15 Pick. 428; Towle v. Ayer, 8 N. Hamp. R. 63: Thomas v. Hatch, 3 Sumner, 104; Varnum v. Abbott, 12 Mass. R. 474.
See Binney v. Chapman, 5 Pick. 129; Boston v. Binney, 11 Pick. 1; Wyman v. Hook, 2 Greenleaf, 337; Wiggin v. Wiggirt, 6 N. Hamp. R. 298; Cripps v. Blank, 9 Dowl. & Ryl. 480 ; Richey v. Hinde, 6 Hammond, 371; Stockett v. Watkins, 2 Gill & Johns. 326.