25 Me. 434 | Me. | 1845
The opinion of the Court was drawn up by
By the declaration in the demandants’ writ it appears, that they claim to recover possession of one
One tenant in common occupying the estate does not oust or disseize another tenant in common, or one who claims to be such, without some unequivocal act manifesting an intention to do so. Such tenants are individually seized per mie et per tout. The entry of one is the entry of both. Either has a right to actual possession; and his entry will be presumed to be in accordance with his title ; and this presumption will hold until some notorious and unequivocal act of exclusion shall have occurred. Jackson v. Wheelock, 6 Cowan, 632; Jackson v. Tibbels, 9 ib. 241; Fisher & ux. v. Taylor & ux. 1 Cowp. 217. In the last case the language of L’d Mansfield was, “ the possession of one tenant in common, eo nomine, as tenant in common, can never bar his companion ; but is support of their common title; and by paying him his share he acknowledges him co-tenant: nor indeed is his refusal to pay, of itself, sufficient, without denying his title. But if upon demand of the co-tenant of his moiety, the other denies to pay and denies his title, saying he claims the whole, and will-not pay, and continues in possession, such possession is adverse, and ouster enough.”
Upon the issue, arising under the brief statement, it was incumbent on the demandants to show, that the tenant denied their right to possession, or did some notorious act, indicative of a holding adversely to them. It does not seem that the evidence could have been considered as amounting to any thing of the kind. Reliance is placed upon admissions made by the tenant as detailed by the witness, Wilson. But, from
Exception sustained, new trial granted.