10 Wend. 351 | N.Y. Sup. Ct. | 1833
By the Court,
The judge erred in his charge to the jury, from a misapprehension of the opinion pronounced by this court on the granting of a new trial in this case. It was supposed that opinion contained the doctrine that, to sustain the action for use-and occupation as between these parties, there must be evidence of a refusal by the defendants to yield possession to the plaintiffs of their moiety, or of an intention on their part to hold exclusive possession. No such principle was intended to be advanced. The case of Mumford v. Brown, 1 Wendell, 52, was cited to illustrate the rights existing between co-tenants as to the possession of their estate. It decides that a tenant in common, holding over after the expiration of a lease of the moiety from his co-tenant, is not liable to double rent under the statute, if, when demand of possession of the moiety is made, he offers to deliver it to his lessor; as that is all the lessor is entitled to, the tenant has still a right to continue possession under his own title. The case of Mumford v. Brown, merely shews the application of the undeniable principle that each tenant is entitled to the possession of the estate, and it was hence argued that the continuance of A. H. Mumford in ■possession of the mill after the expiration of the lease, nothing else appearing, did not, as in cases where tenants have no in
New trial granted.