Hogan v. McMahon

Boyd, C. J., delivered the opinion of the Court. The appellant filed a bill in equity against the appellee for the sale of the property described' therein, on the ground that a partition could not be made without loss and injury to the parties, who were tenants in common. The answer having been excepted to, an amended answer was filed, with leave of the Court, and a cross-bill by the appellee against the appellant was also filed. This appeal was taken from an order .overruling a demurrer to the cross-bill.

The amended answer admitted the allegations of the bill but denied that the plaintiff was entitled to relief, because the appellee had expended over $1,200.00 for the permanent benefit, improvement and preservation of the property and the amount for which the plaintiff was alleged to be responsible was far in excess of the value of his interest in the property. The cross-bill alleges that on April 28th, 1897, Ellen Hogan, the mother of the appellant ’ and the appellee, conveyed the property to them subject to an annual ground rent of $28.00, and subject, “to the operation of two mortgages from said Ellen Hogan to the Loyola Building Association of Baltimore City.” It also alleges that Ellen Hogan lived with her said two children in the house erected on the lot ¹⁹⁸ for about- twenty-one years prior to her death, which occurred on May 3rd, 1907, and that after -her death the appellant continued to live with the appellee in the house until sometime in 1906, “when of his own accord he left the same and has not returned to live or sojourn therein although he has never been denied free access thereto or the enjoyment thereof by your oratrix.” ' It further charges that Ellen .Hogan on July 7th, 1887, mortgaged the lot to the Loyola Perpetual Building Association for $375.00, which was released on October 31st, 1893, and on that day she made another mortgage to that building association for $250.00, which was subsequently increased to the extent of $125.00, which latter mortgage was released on April 13, 1903; that the appellee paid off $645.13, with interest, of said two mortgages at the request of Ellen Hogan and with the knowledge and assent of the appellant, and that with his knowledge and assent she also paid ground rent, amounting to $350.00, State and city taxes amounting to $196.84; also insurance, recording and other fees connected with the mortgages-and releases, water rent, $15.00 for painting the house, and $30.00 for papering five rooms and the hallway. It then alleges that the appellant is liable for one-half of the amount she has so paid, and that the value of his interest ,is much less than the money expended by her for which he is responsible, and that a sale of the property in accordance with his bill - would entail great expense and hardship upon her and would in no wise enure to his benefit. The prayers of the cross-bill' are: (1) that there be a determination by the Court of the amount of expenditures made by her for the permanent benefit, improvement and preservation of the property; (2) that she be decreed to have a lien upon the interest of the appellant to the extent of the amount paid by her and for which he may be found to be liable; (3) that he be required to pay her such amount as may be so found before any further action is taken on his bill, “and in default of such payment within such time as may be prescribed by this ¹⁹⁹ Court that a trustee may be appointed to convey to your, oratrix the interest of the said Hogan in and to said property” ; and (4) for general relief.

It is admitted by the answer to the original bill that the appellant and appellee are tenants in common, and that the appellee lived with her mother until the latter’s death, but we do not find anything in the cross-bill to justify the state,; inent made in the appellant’s brief, that the appellee had lived in the house for over eighteen years, paying the expenses-as they accrued, “and enjoying the exclusive use of the same.” On the contrary, it alleges that the appellant continued to live with the appellee in said house until some time in the year 1906, when he left of his own accord, and has never-been denied free access thereto or the enjoyment thereof, as stated above. The demurrer to the cross-bill admits that allegation, and we must assume it to be so. There is nothing on the face of the cross-bill for which it can be said that there was an ouster, and the rule in Maryland is that “one tenant .in common cannot be held liable to his co-tenants for use and occupation of the common property, unless there has been an ouster of his co-tenants.” Israel v. Israel, 30 Md. 120 . The Court distinguished that case from Eidgely v. Bond, 18 Md. 433 , by pointing out that in the latter Eidgely had been in exclusive possession of the premises and claimed title thereto, and said: “Here was an exclusive possession by Eidgely, accompanied by a receipt of the whole rents and profits, with a claim of title to the whole property, which was a clear ouster of his co-tenants; and upon the sale of the property a decree very properly was passed against him for an account of the rents and profits received, upon the well-established principle, that where one tenant in common ousts his co-tenants and receives the rents and profits he shall be held to account to the others for their proportion.” In Israel v. Israel, the Court went on to say that, “While it seems to be well settled that where one tenant in common acts as bailiff for the other, or is in the exclusive perception of the rents of the common property, he will be held to account”—citing ²⁰⁰ Statute of 4 Anne, Chap. 16, sec. 27, and a number of cases— “yet we have found no case in which a tenant in common, who has not ousted his co-tenant, has been held accountable for use and occupation, except the three cases, before referred to, in McMillan’s C'han.

Rep.” The Court then declined to follow those three cases. In McLaughlin v. McLaughlin, 80 Md. 115 , a bill was filed for the sale of property for purposes of partition and for an accounting of rents and profits. We expressly refused to allow the accounting for use and occupation, the Court, through Judge Briscoe, saying: “It is well settled that one tenant in common who occupies the common property can not be held liable to his co-tenants for use and occupation unless there has been an actual ouster of his co-tenants. Israel v. Israel and Wife, 30 Md. 123 .

Tenants in common are jointly seized of the entire estate, and each has an equal right of entry and possession; the possession of one is the possession of all, and ouster will not be presumed from exclusive possession of one co-tenant; but actual ouster must be proved; there is no constructive ouster among tenants in common, but positive acts of hostility must be shown to constitute disseisin. Van Bibber’s Lessee v. Ferdinand Frazier, 17 Md. 436 .” In such cases as Tongue v. Nutwell, 31 Md. 302 , and Worthington v. Hiss, 70 Md. 172 , relied on by the appellant, the defendants claimed title, just as was done in Ridgely v. Bond, and there was an ouster. Tongue v. Nutwell was an action for mesne profits after recovery in ejectment, and in Worthington v. Hiss the title of the complainant was denied. In McLaughlin v. Barnum, 31 Md. 425 , and similar cases, improvements were made under the belief that the one in possession was the absolute owner and under the circumstances the one in possession who was allowed for the improvements was also required to account for rents and profits.

But, as we have already pointed out, the appellee expressly admitted the allegations of the original bill, which distinctly alleged that the property was conveyed in 1897 to her and the appellant, as tenants in common. We have seen ²⁰¹ what the allegations in the cross-bill are, and indeed the whole theory of that cross-bill is that they are tenants in common, and hence the only accounting that can be allowed is such as is permissible between tenants in common, recognizing the rights of each other. As shown by the quotations from Israel v. Israel and McLaughlin v. McLaughlin, there can be no recovery for use and occupation by one such co-tenant against another. This question was not distinctly raised by the demurrer to the cross-bill, as there is nothing in that bill which would necessarily exclude an accounting for use and occupation, if the appellant was entitled to it; but, inasmuch as it was fully argued, we concluded to express our views on the subject to avoid further litigation.

We are of the opinion that the cross-bill does not show an ouster, and unless the facts are proven to be wholly different from those therein alleged the appellant cannot require the appellee to account for use and occupation. Although it is not necessary to cite authorities outside of this State, as the question is definitely and