Lyon v. Bursey, 42 App. D.C. 519

42 App. D.C. 519 | D.C. | 1914

Mr. Justice Robb

delivered the opinion of the Court:

It is well settled that one tenant in common is not liable to his cotenant for use and occupation, unless there has been an actual ouster of the cotenant, or acts amounting to that, ilie Laughlin v. McLaughlin, 80 Md. 115, 30 Atl. 607. As tenants in common are jointly seized of the entire estate, ánd each has an equal right to entry and possession, the possession of one being the possession of all, ouster will not be presumed, but there must be a showing of positive acts of hostility. Van Bibber v. Ferdinand, 17 Md. 436; Small v. Clifford, 38 Me. 213. Our Code recognizes this rule, for sec. 988 [31 Stat. at L. 1347, chap. 854], authorizing an action of ejectment by one tenant in common against his cotenants, requires the plaintiff “to prove an actual ouster, or some other act amounting to a denial of plaintiff’s title and his exclusion from the enjoyment of the property.” In such an action a claim for mesne profits and damages may bo included in a separate count. (Sec. 995). Section 1622 [31 Stat. at L. 1433, chap. 854] authorizes an action by one joint tenant or tenant in common against a co-tenant for waste, and permits recovery for same in a suit for partition or a sale for the purpose of partition. Section 93, upon which the case was made to turn by the learned trial justice, provides for' partition of an estate held in common, and further provides that where any tenant in common has received rents and profits to his own use, he may be required to account to his cotenants, and that any amount found due on said accounting may be charged against the share of the party owing the same in the property, or its proceeds in case of sale.

At common law the appropriate remedy by a tenant in common against his cotenant who had secured more than his just share was an action of account against him as his bailiff, but an action would not .lie unless the defendant in fact had been appointed bailiff by the plaintiff. To remedy this defect the statute of 4 Anne, chap. 16, was enacted. That statute constitutes the tenant in possession bailiff of his cotenant without special appointment, the action being made to depend upon privity of estate between tenants in common or joint tenants, and not upon privity of contract. Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 372; 4 Kent, Com. 369; Israel v. Israel, 30 Md. 120, 96 Am. Dee. 571. An action of trespass by one tenant in common against his cotenant, such as the present, will not lie, for the obvious reason that each is entitled to possession and the possession of one is the possession of the other. Bor the same reason a tenant in common cannot maintain an action of replevin against his cotenant. Bohlen v. Arthurs, 115 U. S. 482, 29 L. ed. 454, 6 Sup. Ct. Rep. 114. Whether an action of account may be resorted -to, notwithstanding the above provisions of the Code, it is unnecessary to determine. Certain it is that such an action would not lie under the facts of this case,. for, on his own showing, the plaintiff was not seeking-equal rights with the defendant, his cotenant, but was claiming the whole estate to the exclusion of the defendant. He testifies that he was put in possession of his undivided one-half interest, and his evidence fails to prove that he was thereafter excluded from the enjoyment of that interest.

The judgment will be affirmed, with costs. Affirmed.