Israel v. Israel

GeasoN, J. delivered the opinion of the Court: This case comes before this Court on appeals from two orders of the Circuit Court of Baltimore City, the one bear- • ing date the 3d, and the other the 28th day of May, in the year 1867. The first question, presented for the consideration of this Court, is, whether one tenant in common is liable to his co-tenants for the use and occupation of the common property. We have found no decision in our own State upon this point, but we think the principle is settled by the current of the English as well as American authorities. In the case of McMahon vs. Burchell, 22 Eng.

Ch. Rep, 134, Lord CotteNham said“that, if such a doctrine could be maintained, “ the effect would be, that one tenant in common, by keeping out of the actual possession, might convert the other into his bailiff; or in other words, prevent the other from occupying the common property, except upon the terms of paying him rent.” In the case of Henderson vs. Eason, 9 Eng. L. & E. Rep., 341, BaroN Parke said, “ there are obviously many cases in which a tenant in common may occupy and enjoy the land or other subject of tenancy in common solely, and have all the advantage to be derived from it, and yet it would be most unjust to make .him pay' anything. For instance, if a dwelling house or room is solely occupied by ¹²⁵ one tenant in common without ousting the other, it would be most inequitable to hold that by the simple act of occupation or user, without any agreement, he should be held liable to pay a rent or anything in the nature of compensation to his co-tenant for that occupation, to which, to the full extent to which he enjoyed, he had a perfect right.” The decisions in many of the States in this country are equally clear and explicit as those above referred to.

See Woolever, and others, vs. Knapp, 18 Barbour, 265; Sargent vs. Parsons, 12 Mass., 153 ; Izard vs. Bodine, 3 Stockton’s Ch. Rep., 403, and Pico vs. Columbet, 12 Cal. Eq. Rep., 414.

These decisions are clear and full to the point, 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. Tenants in common are jointly seized of the entire estate, and each has an equal right of entry and possession, and his entry and possession will be presumed to be in accordance with his title, and this presumption will hold until some notorious and unequivocal act of exclusion shall have occurred. The possession of one tenant in common is, in contemplation of law, the possession of the others also, and it is necessary to proAm an actual ouster to rebut this presumption. Small vs. Clifford, 38 Maine, 213; Colburn vs. Mason, 25 Maine, 434; Forward vs. Deetz, 32 Penn.

State Rep., 73; Van Bibber’s Lessee vs. Frazier, 17 Md., 436 . It was contended, however, by the counsel for the appellees that, in a proceeding in equity for partition, a tenant in common, who had been in the sole occupation of the common property, would be held to account with his co-tenants. IVe have carefully examined the eases cited in support of this proposition and find that while some of them hold that where partition is sought, the tenant, who has received more than his share of the rents, will be decreed to account, yet none of the cases go to the extent of holding him accountable for use and occupation, except those of Thompson vs. Bostick, ¹²⁶ Hancock vs. Day, and Holt vs. Robertson, reported in 1 McMullan’s Ch. Rep., at pages 69-76, 299 and 475.

In the case of Ridgely vs. Bond and Wife, 18 Md., 440 , the answer of Ridgely averred that he had been in the exclusive possession of the premises, and claimed title thereto, under a deed from Grey and wife , and Ruth Shipley, who received their title from Rebecca H. Elder, who, as respondent understood, had derived her title from her mother, Sarah Elder, who for many years before had been in undisturbed possession and treated the property as her own. Here was an exclusive possession by Ridgely, 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