Johnson v. Johnson, 164 N.W. 327

164 N.W. 327 | N.D. | 1917

Bruce, Ch. J.

(after stating the facts as above). The principal question to .be determined is whether one or many tenants in common may sue, on the theory.of conversion, another tenant in-common, who has fieen uninterruptedly and peaceably in- the possession of the premises, ■and without any protest on the part of the other tenants, for the interest of the said tenants in the crops raised on said land, or the rental thereof, •or whether the action, if any, should be an action in the nature of accounting or assumpsit, or whether in fact any action at all exists.

“The decided preponderance of the authorities, both in England and in America, affirms the right of each cotenant to enter upon and hold possession of the common property, and to make such profit as he can by proper cultivation or other usual means of acquiring benefit therefrom, and to retain the whole of such benefits, provided that in having ■such possession, and in making such profits, he has not been guilty of .an ouster of his cotenant, nor hindered the latter from entering upon the premises and enjoying them as he had a right to do. One tenant in common cannot be deprived of the right to use and enjoy the common property because his' cotenants are willing to let the property lie idle, or fail or refuse to set up any claim to it; and while he is thus left in sole possession, he may manage the common property in any way he pleases, provided he does not injure his cotenant. He may •cultivate or improve the property, and he is permitted to enjoy the fruits of his own labors, unless, that result involves some infringement upon the rights of his cotenants who stand off and forbear to malee any use of the property. The tenant out of possession may at any time assert his right to share in the possession, or he may have the property partitioned by a division among the cotenants in severalty, each taking :a distinct part according to the extent of his interest. He cannot complain of the mere possession of a cotenant so long as he refrains from .setting up any claim to share in that possession.” 7 R. C. L. p. 829.

The rule, however, seems to be that if the tenant in possession receives rent from a third person he must account to his cotenants for their proportion thereof. There is some question and confusion in the authorities as to whether the action of assumpsit will lié in such cases and as to what the measure of damages will be. See note to Schuster v. Schuster, 29 L.RA.(N.S.) 224 (84 Neb. 98, 120 N. W. 948, 18 Ann. Cas. 1078). We are satisfied, however, that this matter is immaterial, and that either an action in accounting or in assumpsit will lie. In an action of assumpsit he could be held liable as for money had and received to the amount of the .interest of his cotenants, hut could, of •course, offset against that sum taxes paid and other legitimate expenses incurred. This, of course, could he done in an action of accounting, and whether an accounting should be resorted to or not depends largely upon the complexity of the transactions and the accounts. McCaw v. Barker, 115 Ala. 543, 22 So. 131; Dorrance v. Ryon, 35 Pa. Super. Ct. 180.

There is, indeed, a serious question whether the plaintiffs in the case which is before us have any right to recover at all. The original rule of the English common law was that “where one cotenant occupied the common property and took the whole profit, the other had no cause of action against him unless the acts of the occupant amounted to an ■ouster of his companion, or unless the occupant held under an agreement by which he became bailiff for the other as to his share. . . . The lack.of any suitable means of redress, when one cotenant had received more than his share of the rents and profits, led to the enactment of the Statute of Anne (4 & 5 Anne, chap. 16). Under its provisions, one cotenant became the bailiff of the other by receiving more than his share, and could be called to account; but, as interpreted by the courts of England, he could be held to account only when he reoeived more than his share from another person." Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145.

A number of the states have specifically adopted the Statute of Anne, but among these are not to be found the state of North Dakota. And some states, noticeably Montana, have gone even further and provided that, “if any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value or otherwise injure or abuse any property held in joint tenancy or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist.” Mont. Code Civ. Proc. 1895, § 592, as amended by Laws 1899, p. 134. See Ayotte v. Nadeau, supra.

It is not necessary for us, however, to pass upon the proposition whether, if the land had not been rented to a third person, any recovery could be had, as in the ease before us the land was rented to a third person. Even then, however, we are confronted with the question whether the rule of the Statute of Anne exists in North Dakota. We hold that it does, and we hereby adopt it. It is not only inherently just, but it was thoroughly ingrafted into the common law of England more than a century and a half before the state of North Dakota was-created, and at least half a century before the Declaration of Independence. If, then, we adopt the general principles of the common law in regard to tenancies in common, and we have nothing in our statute in relation thereto, we should surely adopt the modification that was made by this statute.

The cases, however, in which trover will lie against the tenant in common are only those in which something has been done to destroy the common property, or there has been a direct and positive exclusion of the cotenant in common from the common property. Waller v. Bowling, 12 L.R.A. 261, and note on page 266 (108 N. C. 289, 12 S. E. 990).

The defendant came into possession of the property lawfully, and no claim to any interest was made until April, 1916, after it had been sold. Olin v. Martell, 83 Vt. 130, 138 Am. St. Rep. 1072, 71 Atl. 1060.

As has been suggested by counsel for respondent, to hold that a tenant in common who is rightfully occupying the common property, protecting the interest of absent cotenants by keeping the property in a state of cultivation, paying taxes, and making repairs and improve- • ments, and renting the property so as to make it productive, is liable to be mulcted in conversion by a returning cotenant in after years, would not only be unjust, but would be ruinous to the agricultural interests of the state. If, indeed, one purchasing crops thus grown by a cotenant, or acquiring liens thereon, does so at the peril of having-a cotenant return in after years to sue him in conversion, as he might if the teñan/ in possession was likewise liable, the occupying tenant would find it difficult to dispose of his crop and finance his farming operations, and many tracts of land would lie idle.

We therefore hold that the theory and nature of the action should be that of assumpsit or accounting, and not that of trover or conversion.

We, of course, realize that all common-law forms have been abolished in North Dakota by the statute. The substance, however, remains. Essential differences do not depend upon forms and always outlive them, and the distinctions between the various theories of actions involved are essential and fundamental.

The judgment of the County Court is affirmed.