54 Wis. 181 | Wis. | 1882
In order to determine the sufficiency of the counterclaim it is essential to know what.the action is which is stated in the complaint. The counsel for the plaintiff says that the action is trespass guare clausum, and that the allegations in respect to the injury, destruction and carrying away of the printing material, and breaking up of the plaintiff’s business as printer, etc., are merely in aggravation of damages for the trespass to the realty. We are inclined to think the complaint does set forth such a cause of action, and in what we have to say it will be considered in that light.
In the counterclaim the defendant Barnes states, in substance, that he is an owner of an undivided.one-fourth of the property constituting the printing establishment, including outstanding accounts and subscription list, having purchased his interest in July, 1875, of one Williams; that the plaintiff is the owner of the other three-fourths; and that the plaintiff has had charge of and collected all moneys arising out of the business since July, 1875, and has used a portion of the funds
It will be seen that the relief asked is purely equitable; and the question is, Will a court of equity entertain jurisdiction to grant it upon the facts stated? It seems to us that it will not. In the first place, treating this as an action of trespass to the realty, the counterclaim would seem improper, for the reason that it neither arises out of that transaction nor is it connected with the subject of the action. The learned counsel for the defendant Barnes says that the allegation that Williams, being the owner of an undivided one-fourth of the property in the complaint mentioned, sold the same to his client, etc., shows that Barnes was a joint owner or tenant in common of the real estate, the possession of which he invaded. But we do not think the counterclaim should be so understood. It is alleged in the complaint that at the time specified the defendant “wrongfully entered upon the premises and into the building of the plaintiff,” of which he was lawfully possessed, etc. The plaintiff could recover whatever damages he sustained by that wrongful act. . He might also recover damages for any injury to his premises, if any was done. The counterclaim certainly does not arise out of that transaction, nor is it in any -way connected with the subject of that action.
The learned counsel for the defendant argued the case as though it were an action of trespass by one tenant in common against his cotenant for wrongfully taking possession of the common property. We are satisfied that this is not the nature of the suit, and it is quite doubtful if, upon the facts, such an action could be maintained. For Littleton says: ‘' If two be possessed of chattels personal in common by divers titles, as of a horse, an ox, or a cow, and if one take the whole to himself out of the possession of the other, the other hath no remedy but to take this from him-who hath done to him the wrong, to occupy, etc., when he can see his time,” Coke’s Litt., 200a, § 323; King v. Phillips, 1 Lans., 421. Where one tenant has destroyed the property of the cotenancy, the action will lie. Freeman on Cotenancy & Par., § 298 et seq., and cases in notes. Also, if the property is susceptible of divisio n, and one tenant claims and holds more than his share, his co-tenant, after demand in writing, may sue for and recover his share, or the value thereof, under section 4257, R. S.
It follows, of course, from what has been said, that if the personal property mentioned in the pleadings is owned by the plaintiff and defendant Barnes as tenants in common, the plaintiff could not recover the value of his interest in this action, nor do we understand he is attempting to do so. But, to avoid all misapprehension upon the point, we deemed it proper to say this much upon that question; for upon the authorities above cited the law is well settled that one tenant in common cannot recover in trespass against his cotenant the value of his interest, unless the common property has been destroyed. But we are going beyond the question before us, which is, whether the demurrer to the counterclaim should have been sustained. On that point we think the decision of the circuit court was correct, and the order appealed from must be affirmed.
By the Court.— Order affirmed.