12 Cal. 414 | Cal. | 1859
delivered the opinion of the Court—Terry, C. J., and Baldwin, J., concurring.
This action is brought by one tenant in common against his co-tenant, who is in the sole possession of the entire premises, to recover a share of the profits received from the estate. The case was argued upon the demurrer to the complaint, which, by stipulation of the parties, was admitted to have been taken on the ground that the complaint does not state facts sufficient to constitute a cause of action. The complaint avers a tenancy in common between the parties ; the sole and exclusive possession of the premises by the defendant; the receipt by him of the rents, issues and profits thereof; a demand by the plaintiff of an account of the same, and the payment of his share ; the defendant’s refusal; and that the rents, issues and profits amount to $84,000. These averments, and not the form in which the prayer for judgment is couched, must determine the character of the pleading. The complaint is designated a bill in equity, but the designation does not make it such. There are no special circumstances alleged which withdraw the case from the ordinary remedies at law, and require the interposition of equity. The action is a common law action of account, and, viewed in this light, the complaint is fatally defective. It does not aver that the defendant occupied the premises upon any agreement with the plaintiff, as receiver or bailiff of his share of the rents and profits. It is essential to a recovery that this circumstance exist, and equally essential to the complaint that it be alleged. By the common law, one tenant in common has no remedy against the other who exclusively occupies the premises and receives the entire profits, unless he is ousted of possession when ejectment may be brought, or unless the other is acting as bailiff of his interest by agreement, when the action of account will lie. The reason of the doctrine is obvious. Each tenant is entitled to the occupation of the premises; neither can exclude the other ; and if the sole occupation by one co-tenant could render him liable to the other, it would be in the power of the latter, by voluntarily remaining out of possession, to keep out his companion also,
The statutes of 4 and 5 Anne, 16, gave aright of action to one joint tenant, or tenant in common, against the other as bailiff, who received more than his proportional share of the profits. At common law the bailiff was answerable, not only for his actual receipts, but for what he might have made from the property without willful neglect, (Co. Lit. 172, a. Willis, 210) hut as bailiff under the statute of Anne, he was responsible only for what he received beyond his proportionate share. That statute only applied to cases where one tenant in common received from a third person money, or something else, to which both co-tenants were entitled by reason of their co-tenancy, and retained more than his just share according to the proportion of his interest. This was held in Henderson v. Eason in the Exchequer Chamber, 9 Eng. Law and Eq. 337. In that case it was decided, that if one of two tenants in common solely occupies land, farms it at his own cost, and takes the produce for his own benefit, his co-tenant cannot maintain an action of account against him as bailiff for having received more than his share and proportion.
The statute of Anne has never been adopted in this State, nor have we any similar statute. The case at bar must therefore be determined upon the principles of the common law. By them, as we have observed, the action cannot be maintained against the occupying tenant unless he is by agreement a manager or agent of his co-tenant. The occupation by him, so long as he does not exclude his co-tenant, is but the exercise of a legal right. His cultivation and improvements are made at his own risk; if they result in loss he cannot call upon his co-tenant for contribution, and if they produce a profit his co-tenant is not entitled to share in them. The co-tenant can at any moment enter into equal enjoyment of his possession; his neglect to do so may be regarded as an assent to the sole occupation of the other. On this point, the observations of Baron Parke in Henderson v. Eason are pertinent, although that case arose under the statute of Anne : “ There are obviously many cases,” says the Justice, “ in which a tenant in com
The American cases are to the same effect. In Sargent v. Parsons, (12 Mass. 149) the Court said: “ The action of account is maintainable only against a bailiff; and a bailiff can only be one who is appointed
“ One tenant in common may, by contract, make another his bailiff or receiver ; and, if he does, he may bring him to account in this form of action; and probably, also, to avoid a process considered in some degree troublesome, might sue him in indebitatus assumpsit as on a promise to account. But this must be for rents and profits actually received beyond his share; for, by the common law no remedy is given for a mere sole use and occupation by one of the tenants ; for it is in the power of each tenant at any time to occupy; and the not doing it by one would look like an assent that the other should occupy the whole.”
In Woolver v. Knapp, (18 Barb. 265) the defendant had enjoyed the sole possession of a farm for five years, the rent and occupation of which was worth two hundred dollars a year. The plaintiffs were his co-tenants, and brought their action of account. The Court decided that the action could not be sustained, holding that one tenant in common who possesses the entire premises, without any agreement with his co-tenants as to his possession, or any demand on their part to be allowed to enjoy the same with him, is not liable to account in an action for their use and occupation. See, also, Nelson’s Heirs v. Clay’s Heirs, 7 J. J. Marsh. 139.
We have treated this case as an action of account at law, but to the same result we should come if the proceeding were in equity. There is no equity in the claim asserted by the plaintiff to share in profits resulting from the labor and money of the defendant, when he has expended neither, and has never claimed possession, and never been liable for contribution in cases of loss. There would be no equity in giving to the plaintiff, who would neither work himself, or subject himself to any expenditures or risks, a share in the fruits of another’s labor, investments and risks.
The cases to which our attention has been called, in which equity has sustained an account in favor of one tenant in common, out of possession, against his co-tenant in possession, for the rents and profits,
In Hoffman v. Osborne, (4 Paige, 336) the bill was filed for the partition and sale of a lot of land, and an account of the rents and profits, and the account directed was of the rents and profits received by any of the parties, not of the profits made in the use and occupation of the premises.
In Turner v. Morgan, (8 Vesey, 143) the bill prayed partition of a house at Portsmouth, and an account of the rent, under the following circumstances : The house ivas decreed to three persons, equally to
be divided. The plaintiff purchased two-thirds. The defendant was tenant of the house under a lease of (¿622) twenty-two pounds a year, and refusing to raise the rent, the plaintiff brought ejectment for his two-thirds. The ejectment was defeated, the defendant purchasing the remaining third. Upon this, the bill was filed. The Chancellor allowed a partition. No question appears to have been made upon the right of the plaintiff to an account, the defendant having been tenant under the lease; and the Chancellor observed, in relation to the account, that there was a possible distinction between the time during which the defendant was tenant, and the time since he became OAvner, but that justice would be answered by inquiring what would have been a reasonable rent in each year the account was sought.
The doctrine laid down by the Court of Appeals of South Carolina, as to the liability of one co-tenant to another, is believed to be peculiar to that Court. In Hancock v. Day, Thompson v. Bostic, and Holt v. Robinson, (1 McMullen Eq. Rep. 69, 75 and 475) it was held, that as between tenants in common, the occupying tenant is liable for rent
The demurrer should have been sustained; but as the same result was obtained by a judgment rendered for the defendant on the merits of the case, it will be sufficient to direct the affirmance of the judgment.