Sullivan v. Sherry

111 Wis. 476 | Wis. | 1901

Mabshall, J.

The general rule is that one tenant in common cannot maintain trespass or trover against his co-tenant or the latter’s licensee of the joint property in respect thereto. ■ The trial court, supposing that such rule was controlling in this case, sustained the demurrer. It is not infrequent that courts are misled into giving a general, the effect of a universal, rule. There are but few of the former that are not subject to exceptions as well established and important as the general principle; and the rule in question does not belong to that few. It is subject to several exceptions, one being that if a cotenant or his licensee destroys the common property or converts it to his own use, he may be sued in trespass or trover to redress the wrong wherever such a remedy would exist in the absence of the relationship between cotenants. This court recognized and applied that doctrine at a very early date. Warren v. Aller, 1 Pin. 479. It was there said to be well settled by modern decisions in such cases that the action of trover or trespass in favor of the injured party will lie. For further instances where this court has sustained such actions, see Bulger v. Woods, 3 Pin. 460; Earll v. Stumpf, 56 Wis. 50; Tipping v. Robbins, 64 Wis. 546; S. C. 71 Wis. 507. The authorities clearly indicate that the exception we have stated to the general rule is not a modern creation. It has been recognized by courts and law writers at least from.the time of the Year Books. Co. Litt. 200a, 200b; 2 Crabb, Real Prop. § 2318b; 2 Waterman, Trespass, § 947; 17 Am. & Eng. Ency. of Law (2d ed.), 700; Symonds v. Harris, 51 Me. 14; Clow v. Plummer, 85 Mich. 550; Omaha & Grant S. & R. Co. v. Tabor, 13 Colo. 41; Critchfield v. Humbert, 39 Pa. St. 427; Murray v. Haverty, 70 Ill. 318. In Symonds v. Harris the facts were that one tenant in common of a mill, without consent of his cotenant, removed and appropriated to his exclusive use the mill machinery. The injured cotenant brought trespass gum-e .clausum. The general rule was invoked, that one tenant cannot maintain such an action because in contemplation of law each such tenant is rightfully possessed of every part of the common property, and if one suffers injury by his cotenant obtaining the greater portion of the benefits from such property his remedy is by action for accounting. The court held that appropriation of the income, or mere use, of property was one thing, and appropriation of the corpus thereof another; that the former was a wrong remediable in an action for accounting, but the latter was a wrong sounding in tort, remediable by trespass or trover. The other authorities cited, and many more that might be cited, are to the same effect.

It is clear that the taking of the timber by defendants by permission of the cotenant of Jennings, and appropriation thereof to their exclusive use, indicated a clear determination to hold the same or the proceeds thereof as' their sole property, and was such an ouster of Jennings and wrongful conversion of his property as brought them within the exception to the general rule as to remedies between coten-ants, rendering them liable in trespass. or trover. It also follows, necessarily, that the rule that cotenants must join as plaintiffs in an action for injury to the common property does not apply. Jennings’s cotenant was a wrongdoer as well as defendants. All could have been joined or either have been sued separately. The interests of the cotenants were hostile to each other. The general rule for the joinder of cotenants is based on the theory that their interests are in harmony and that each is interested in the recovery. There was no defect of parties plaintiff and no insufficiency in the complaint to state a cause of action.

The order appealed from must be reversed, and the cause remanded with directions to the circuit court to enter an order overruling the demurrer.

By the Court. — So ordered.