51 Kan. 504 | Kan. | 1893
The opinion of the court was delivered by
This was an action of ejectment, brought by defendant in error, Hyatt, to recover possession of 16£ acres of land near Atchison. The plaintiff was adjudged to be the owner of an undivided one-fourth interest in the land, and was given judgment for the possession of the whole tract. Very numerous assignments of error are made and discussed by the plaintiff in error. We shall notice only such as appear to us worthy of mention. Plaintiff in error was in
Plaintiff in error contends that the court erred in permitting record copies of various deeds to be admitted in evidence, for the reason that there is not a sufficient showing that the
2‘ eywenoeofirs identity. It is claimed that there is no evidence that Olivia D. Lee, who joined in the deed to A. G. Smith, is the same person as Olivia D. Nutt. The testimony of L. C. Challiss shows that Olivia D. Nutt was unmarried at the time of the death of William C. Nutt, and that she afterward married, but he does not state the name of her husband. The deed to Smith which was'joined in by the parents and sister of Olivia D. Nutt gives the name of Olivia D. Lee as one of the heirs of William C. Nutt, deceased, and names four persons as all the heirs of William C. Nutt. We think the declarations of these relatives, contained in the deed, with reference to the fact that Olivia D. Lee was an heir of William C. Nutt, is evidence of that fact, being a declaration by them # in a solemn instrument upon a matter of pedigree, and that in the absence of opposing evidence the identity of Olivia D. Lee with Olivia D. Nutt is sufficiently shown. (1 Greenl. Ev., §104.)
The tax deed to Pease, not being attested by the seal of Atchison county, is void. (Reed v. Morse, ante, p. 141.)
We think, notwithstanding the many objections urged by the plaintiff in error, that the uncontradicted evidence fairly sustains the finding that Hyatt was the owner of an undivided one-fourth of the land in controversy, and that the court was warranted in so instructing the jury. We are unable to preceive any disputed question of fact which they should have been required to pass on.
The record, however, presents a further question, which merits more extended notice, viz : Can the plaintiff, having title only to one-fourth, recover the whole tract, on the theory that such recovery is permitted for the benefit of his coten
“Each tenant can pursue his remedies independent of the others, and may maintain ejectment or trespass to try title alone, and in many states may recover the entire premises and estate from trespassers, strangers, wrongdoers, and all persons other than his cotenants and those claiming under them. Where this right is recognized, he recovers for the benefit of all.” ,
This principle is expressly recognized in Oregon, Nebraska, Nevada, North Carolina, Colorado, and California, but this rule has been repudiated in Massachusetts, Pennsylvania, and Missouri. In Freeman on Cotenancy and Partition, § 343, it is said:
“A tenant in common is, as against every person but his coienants, entitled to possession of every part of the common lands. He may, therefore, in most of the states, recover possession of ail such lands, in an action of ejectment brought against a stranger to the common title.”
In the case of Hardy v. Johnson, 1 Wall. 371, it is held:
“By the law of California, one tenant in common of real property can sue in ejectment and recover the demanded premises entire as against all parties except his cotenants, and persons holding under them. But the judgment for the plaintiff in such case will be in subordination to the rights of his cotenants.”
The following decisions of the supreme court of that state seem to uphold this decision: Newman v. Bank of California, 27 Circuit Rep. 261; Williams v. Sutton, 43 Cal. 71; Chapman v. Quinn, 56 id. 266.
In Barrett v. French, 1 Conn. 364, it is said:
“Where one tenant in common brings an action of disseisin, and grounds his claim to recover on the common title, he recovers for the benefit of the whole; the possession of one tenant in common recognizing the title of his cotenants is, in It gal consideration, the possession of all. Of course, if a tenant in common in such action obtains possession of the land, his cotenants become likewise possessed.”
In Crooks v. Vandevort, 13 Neb. 505, it is said: “As against a mere disseisor, one tenant in common of undivided real estate may recover the possession of the premises, as his recovery of possession will inure to the benefit of all the cotenants ;”■ citing Stark v. Barrett, 15 Cal. 362; Collier v. Corbett, 15 id. 183; Touchard v. Crow, 20 id. 150; Treat v. Riley, 35 id. 129; Chesround v. Cunningham, 3 Blackf. 82. “In such cases there would be a mere defect of parties plaintiff, which, if not objected to, would not defeat a recovery.”
The rule that one tenant in common may recover the whole tract was announced by the supreme court of Texas in numerous cases. Croft v. Rains, 10 Tex. 523; Watrous v. McGrew, 16 id. 510; Grassmeyer v. Beeson, 18 id. 766; Hutchings v. Bacon, 46 id. 414; Read v. Allen, 56 id. 176; Sowers v. Peterson, 59 id. 216. But in the case of Cromwell v. Holiday, 34 Tex. 463, the court says:
“Proceeding upon the authority of Croft v. Rains, 10 Tex. 520; Watrous v. McGrew, 16 id. 506; and Grassmeyer v. Beeson, 18 id. 753, claiming to be a tenant in common of certain parties whose very existence is doubted, he brings this suit against the defendants below, treating them as strangers and trespassers, and probably looking to the advantage of recovery, he would claim the whole two leagues. To say the least of it, this gives the action on the part of Holliday very much the appearance of a land speculation, although he does not pretend to sue for anybody but himself, and therefore, upon the authority of Stevens v. Ruggles; 5 Mason, 221, if he recover at all, he can only recover for himself the interest to which he is justly entitled, whether by metes and bounds or undivided. This court would not, under the circumstances, in the application of any principle of equity, make him trustee of the title for his cotenants, if satisfied that the title of the defendants below was insufficient to defeat his action.”
“As to the claim of the demandant for judgment for the whole, it is not supported by any of the authorities which have been cited, and no good reason can be given for such a judgment. The demandant, upon production of her title, shows that she is coheir with five others; she will therefore have entire justice done to her if she is allowed to recover an undivided sixth part. The tenant, being in possession, ought uot to be disturbed, except by those who have the right.”
In Mobley v. Bruner, 59 Pa. St. 483, it is said:
“The plaintiff in ejectment must recover op the strength of his own title, and his recovery must consequently be in accordance with his title. Tenants in common have several and distinct titles and estates, independent of each other, so as to render the freehold several also. They are separately seized, and there is no privity of estate between them. If tenants in common are separately seized, and there is no privity of estate between them, if they must sue separately or joint, according to the circumstances of the case, the nature and the cause of the action, or the character of the injury to be redressed, it follows as a necessary corollary that one tenant in common cannot maintain ejectment or sue and recover in any form of action for the interest and benefit of the others. (Dawson v. Mills, 32 Pa. St. 302.)”
In Gray v. Given, 26 Mo. 303, it is said:
“It was formerly held that a plaintiff in ejectment could not recover an undivided part when he claimed an entirety, but this strictness no longer prevails; and though a plaintiff may recover less than he claims, it is apprehended that he cannot recover more than he shows title to. But it is said that, though this is the general rule, there is a difference when the defendant is a stranger to the plaintiff’s title, and that as to him one tenant in common, though entitled to only a part, may recover the whole, and, when he is put into possession, will hold for the other tenants in common as well as for himself. At common law, tenants in common could not recover on a joint demise, and 'as the right of possession, which depends on title, is several, a recovery by one will restore him only a moiety of the possession against the disseisor, who will hold the other moiety with him in common.’ Our statute*514 permits tenants in common to join, but there is no use in this if one can recover for the others, and, if this is true, A. may recover for B., though B. could not recover for himself. It often happens that one tenant in common is barred by limitation when the other is not, and a title may be acquired by adverse possession.”
The plaintiff in error complains of the failure of the trial court to adjudge the payment of the amount of taxes paid under his tax deed before the plaintiff’ should be let into possession. We do not think this an error for which the judgment should be reversed, but that the court can still make such orders as the law requires with reference to the tax lien and the value of improvements made by the occupying claimant. The ease will be remanded, with directions to modify the judgment in accordance with the views herein expressed.