McLaughlin v. McLaughlin

Briscoe, J., delivered the opinion of the Court. The bill in this case was filed for the sale of the real estate of Rosanna and Laney McLaughlin, of 'Allegany County, for the purposes of partition, and for an account of rents and profits. At the time of the sale, the heirs at law ¹¹⁶ were a brother, the plaintiff, and brothers and sisters and their descendants, the defendants. The interest of Rosanna was subject, however, to the life interest of her husband, Garrett B. McLaughlin, who survived her, but who subsequently conveyed his interest by deed to Daniel J. McLaughlin, a brother of the sisters, Rosanna and Laney.

The land was by the consent of resident parties sold under the decree, and the sale duly ratified. And the questions for our considerations arise upon exceptions to the Auditor’s Report and Account, distributing the fund among those entitled thereto. The first ground of exception is stated to be, because the Auditor does not charge the defendants with the fair annual rental occupation value of the property. Now it is well settled' that one tenant in common who occupies the common property, cannot 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 by 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 . The record in this case discloses no evidence which proves an actual ouster, or that the defendant, co-tenant had excluded the plaintiff co-tenant from the possession or the occupation of the property.

The onus of proving the actual ouster was on the party alleging it, and this he failed to do. These are familiar principles of law, and are too well settled to need the citation of authority. The third exception is based upon the objection that the Auditor allows Daniel J. McLaughlin’s heirs for the life estate of Garrett B., when the purchase thereof should have enured to the benefit of all the co-tenants. ¹¹⁷ The proof shows that the life-estate of Garrett B. was conveyed to his brother, Daniel J. McLaughlin, on the 12th day of April, 1854, in consideration of the sum of one hundred dollars,