Obrázky stránek

rights of his co-tenant although such acts might be sufficient evidence of an ouster between them, if no tenancy in common existed and each claimed the whole estate. Newell v. Woodruff, 30 Conn. 492.

One tenant in common may oust his co-tenant and hold in severalty. But a silent possession, accompanied with no act which can amount to an ouster, or give notice to his co-tenant that his possession is adverse, ought not, we think, to be construed into an adverse possession. M'Clung v. Ross,

5 Wheat. (U.S.) 124; Cuyler v. Bradt, 2 Caines' Cas. (N. Y.) 325; Clark v. Vaughan, 3 Conn. 191; Leonard v. Leonard, 10 Mass. 283.

In Vermont, acts of possession constituting the ouster must be not only inconsistent with, but exclusive of the continuing rights of the plaintiff, such as would amount to an ouster between landlord and tenant. Chandler v. Ricker, 49 Vt. 128.

Where the evidence showed that the defendant leased the property, spoke of it as her own, paid the taxes, and that no one had, to her knowledge, set up a title or claimed any right to it, except the plaintiff, and he had never stated the nature of his claim, and had not demanded possession of a specific interest as co-tenant, the court below granted a non-suit, and this was on appeal affirmed. Newell v. Woodruff, 30 Conn. 492.

§ 13. The Law Stated by Stearns.-The possession or entry of one tenant in common or joint tenant is always presumed to be in maintenance of the right of all; and he shall not be presumed to intend a wrong to his companions if his acts will admit of any other construction. The mere pernancy of the profits by one, shall not be considered of itself as an ouster. If there are several tenants in common, who are co-heirs, the entry of one will not be deemed adverse to the title of the others, without the strongest evidence of exclusive claim of title to the whole estate. But one heir may disseize his co-heirs, and hold in adverse possession against them as well as against a stranger. An ouster or disseizin is not generally to be presumed, from the mere fact of sole possession. But it may be proved by such possession, if accompanied with a notorious claim of exclusive right to the property in question. If one tenant in common enters into the actual and exclusive possession of the lands, taking the whole rents and profits to his own use, and openly asserting his own exclusive property in the lands, denying the title of any other person, it is an adverse possession by him and those claiming under him, and an ouster of the other tenants. So, if one tenant in common enters into the whole estate, under a deed duly acknowledged and registered, from one who has no title, it is an actual disseizin of his companions.'

1 Stearns on Real Actions, 41, Sec. 16, citing 2 Prest. Abst. 291; Higbee v.

Rice, 5 Mass. 344; Shumway v. Holbrook, 1 Pick. (Mass.) 114; Ricard v.



§ 14. Ouster-The Burden of Proof. The law never assumes that a tenant in common or joint tenant is disloyal to the rights and interests of his companions in the estate, and as acts amounting to an ouster or disseizin are in the highest sense of the term disloyal to such rights and interests, the burden of proving their existence is of course cast upon the person making the allegation of them.'

§ 15. Ouster-Questions of Law and Fact.-The existence of the facts relied upon to constitute an ouster is a question purely of fact for the determination of a jury, but the question as to whether the facts in a given case constitute a legal ouster is a question of law for the court, and the court will usually instruct the jury that if they find a certain state of facts to exist they may presume from such facts an ouster and an adverse possession."

16. The Ouster Admitted.-An ouster may be and very frequently is admitted by the pleadings. Where a defendant in his plea or answer sets up the defense of adverse possession, his plea or answers to it will be treated as a confession of the ouster and render the proof thereof unnecessary on the trial.' So where a defendant denies the title of the plaintiff and his right of entry, or pleads not guilty and claims the exclusive possession and the like, the ouster is admitted.*

In many States these matters are regulated by statute. In Illinois R. S. 1889, c. 45:

§ 19. The defendant may demur to the declaration as in personal actions, or he shall plead the general issue, which shall be, that the defendant is not guilty of unlawfully withholding the premises claimed by the plaintiff, as alleged in the declaration; and the filing of such plea or demurrer shall be deemed an appearance in the cause, and upon such plea the defendant may give in evidence any matter that may tend to defeat the plaintiff's action, except as hereinafter provided.

Williams, 7 Wheat. (U. S.) 120;
Williams v. Gray, 3 Greenl. (Me.) 207;
Cummins v. Wyman, 10 Mass. 464;
Prescott v. Never, 4 Mason (U. S.), 326.

1 Van Sibber v. Frazier, 17 Md. 436; Newell v. Woodruff, 30 Conn. 492.

* Cummins v. Wyman, 10 Mass. 468 (1813); see also Harmon v. James, 7 S. & M. (Miss.) 111; Blackmore v. Gregg, 2 W. & S. (Penn.) 182; Carpentier v. Mendenhall, 28 Calif. 484;

Clark v. Crego, 47 Barb. (N. Y.) 599;
Doe v. Prosser, Cowp. 217; Taylor v.
Hill, 10 Leigh (Va.), 457.

3 Classon v. Rankin, 1 Duer (N. Y.), 337.

4 Miller v. Myers, 46 Calif. 535; Greer v. Tripp, 56 Calif. 209; Clason v. Rankin, 1 Duer (N. Y.), 337; McCallum v. Boswell, 15 U. C. Q. B. 343; Harrison v. Taylor, 33 Mo. 211; Noble v. McFarland, 51 Ill. 226; Peterson v. Laik, 24 Mo. 541.

21. The plea of not guilty shall not put in issue the possession of the premises by the defendant, or that he claims title or interest in the premises. § 22. It shall not be necessary for the plaintiff to prove that the defendant was in possession of the premises, or claims title or interest therein at the time of bringing suit, or that the plaintiff demanded the possession of the premises, unless the defendant shall deny that he was in possession or claims title or interest therein, or that demand of possession was made, by special plea, verified by affidavit. R. S. Ill. 1889, Chapter 45, Secs. 19, 21, 22. One who defends on the merits in ejectment by his co-tenant, and denies his title, can not object that there was no ouster nor demand of possession before action. Southern Cotton Oil Co. v. Henshaw, 89 Ala. 448; 7 So. Rep. 760; Am. Dig. 1890, 1193.

In an action for the recovery of land brought against a co-tenant in common, the denial in the answer of all right, title and interest of the plaintiff in the land involved in the action, is a confession of ouster, and will entitle the plaintiff to recover. Clason v. Rankin, 1 Duer (N. Y.), 337.

17. When an Ouster Will Be Presumed.-Upon the question of when an ouster will be presumed there is great confusion among the authorities. A reasonable rule would seem to be that where it is shown by the evidence that the defendant has been in the adverse possession of the lands in controversy for a long period of time, an ouster will be presumed and need not be otherwise proved,' but the period of time during which the possession has been thus held must, of course, be less than the period fixed by the statute of limitations. The defense of adverse possession admits the ouster, and justifies it by insisting that the right to assert it has ceased to exist."

The following cases appear to hold the contrary doctrine: Northrop v. Wright, 24 Wend. (N. Y.) 221; Flock v. Wyatt, 49 Iowa, 466; Warfield v. Lindell, 30 Mo. 272; Linker v. Benson, 67 N. C. 150. Possession of twentyseven years by one tenant in common, although during all that time the right of the co-tenant had not been recognized, was held not to be sufficient to authorize a jury to presume an ouster, where before twenty-five years had elapsed, the co-tenant had made an actual entry upon the land and was forcibly expelled. Northrop v. Wright, 24 Wend. (N. Y.) 221 (1840).

In North Carolina, an ouster by one tenant in common will not be presumed upon evidence of an exclusive use of the common property and appropriation to himself of its profits, unless such use and appropriation have continued for a period of twenty years. Caldwell v. Neely, 81 N. C. 144.

But possession of twenty-seven years by one tenant in common, although during all that time the right of the co-tenant had not been recognized, was not held sufficient to authorize a jury to presume an ouster in a case in which, before twenty-five years had elapsed, the co-tenant had made an

Doe v. Dresser, Cowp. 217; Jack son v. Whitbeck, 6 Cow. (N. Y.) 632; Van Dyck v. Van Buren, 1 Cai. (N.

Y.) 84; Johnson v. Taulmin, 18 Ala. 50; McCall v. Webb, 88 Pa. St. 150. Campau v. Dubois, 39 Mich. 274.




actual entry upon the land and was forcibly expelled. Northrop v. Wright, 24 Wend. (N. Y.) 221.

Where defendant, in response to a demand for possession, said the demandant "could obtain it by law," this was held to justify a finding of an ouster. Gordon v. Pearson, 1 Mass. 323.

§ 18. Sale of the Entire Estate by a Tenant in Common.Where one of several tenants in common, or joint tenants, sells, and by his deed of conveyance purports to convey the whole of the estate, an entry made under such conveyance by the grantee, or those holding under him, is a complete ouster or disseizin of the other tenants in common,' or joint tenants."

Where one of several tenants in common conveys by a full warranty deed a certain portion of the land by metes and bounds, such portion representing the amount of her interest in the entire tract, it will have the effect of conveying her entire undivided interest. Young v. Edwards, 33 S. C. 404; 11 S. E. Rep. 1066 (1890).

In California, it has been held that an entry under a deed which purported to convey the entire title, followed by exclusive possession, and a belief that the whole estate was conveyed, when in fact the grantor had but an undivided interest, does not amount to ouster upon which an action of ejectment can be maintained. Seaton v. Son, 32 Calif. 481.

The evidence to establish an ouster must be such as would show an adverse possession in a wrongdoer. Edwards v. Bishop, 4 N. Y. 61.

A mere occupancy, unaccompanied by acts hostile to the possession of the plaintiff, without something to manifest an intention to exclude him, will not amount to an ouster. McClung v. Ross, 5 Wheat. 116 (1808); Crallefaux v. Durham, 8 Wis. 288; Abercrombie v. Baldwin, 15 Ala. 363; Whiting v. Drury, 15 Pick. (Mass.) 428; Colburn v. Mason, 25 Me. 434; Chandler v. Ricker, 49 Vt. 128; Squires v. Clark, 17 Kan. 84.

$ 19. A Distinction Between Tenants in Common and Joint Tenants. What has been said in relation to the duties and corresponding rights of tenants in common and joint tenants seems to apply with more force to the relation of joint tenants

1 Bradstreet v. Huntington, 5 Pet. (U. S.) 401; Clymer v. Dawkins, 3 How. (U. S.) 674; Prescott v. Nevers, 4 Mason (U. S.), 326; Clark v. Vaughan, 3 Conn. 191; Long v. Stapp, 49 Mo. 506; Gill v. Fauntleroy, 8 B. Mon. (Ky.) 186; Gray v. Bates, 3 Strobh. (S. C.) Law, 498; Clapp v. Bromagham, 9 Cow. (N. Y.) 530; Hinkley v. Greene, 52 Ill. 230; Parker v. Prop'rs, etc., 3 Met. (Mass.) 101; Kittredge v. Locks, etc., 17 Pick. (Mass.) 246; Cain v. Furlow, 47 Ga. 674; Foulke v. Bond, 12 Vroom (N. J.),

527; Horne v. Howell, 46 Ga. 9; Kinney v. Slattery, 51 Iowa, 353; Gerry v. Holford, Cro. Eliz. 615; Townsend & Paster's Case, 4 Leon. 52; Doe v. Taylor, 5 Barn. & A. 575; but see, contra, Caldwell v. Neely, 81 N. C. 114; Culver v. Rhodes, 87 N. Y. Seaton v. Son, 32 Calif. 481; Roberts v. Morgan, 30 Vt. 319, 324; Day v. Howard, 73 N. C. 1.

Caldwell v. Neely, 81 N. C. 114; Day v. Howard, 73 N. C. 1; Larman v. Huey's heirs, 13 B. Mon. (Ky.) 436.

than to tenants in common. This distinction of the law, if a distinction it really is, is probably owing to the fact that an estate of joint tenancy is one of complete mutuality; the shares and interests of the tenants are all equal and uniform. We have seen that in this estate there is a unity of interest, time, title and possession, while in an estate in common there is only a unity of possession.' Tenants in common may hold by several and distinct titles always, and by a unity of possession, for none of them know their own severalty and all occupy promiscuously; one tenant in common may hold his part in fee simple and another for life and so on. So that there is no unity of interest. One may hold by descent and another by purchase, or both by purchase from different grantors, so there is no unity of title. The estate of one may have been vested for fifty years and the other but a day or a month, so there is no unity of time."

It has been held that this rule of mutual trust and obligation between the owners of joint estates applies to tenants in common only when they derive their title from the same source, or when they enter into obligations with each other, and not when they acquire different and unconnected interests in the estate by distinct purchases although under the same title.

Ship owners are tenants in common of the vessel and not joint tenants or partners, and the share of one owner is subject to a general balance of accounts between the owners. Nicoll v. Munford, 4 Johns. (N. Y.) 522; Knox v. Campbell, 1 Pa. St. 366; French v. Price, 24 Pick. (Mass.) 13.

$20. A Rule Stated by Chief Justice Shaw.-Tenants in common of a vessel, who are not engaged jointly in the employment of purchasing or building ships for sale, do not stand in such a relation of mutual trust and confidence toward each other, in respect of the sale of such vessel, that each is bound, in his dealings with the other, to communicate all the infor mation of facts within his knowledge, which may affect the price or value. A different rule may prevail, in respect to any contract for the use or employment of the common property, in which relation perhaps they may be deemed to place confidence mutually in each other. But as in common cases of

12 Blackstone's Com. 180.

W. (Penn.) 439; Roberts v. Thorn, 25 Ewell's Essentials of the Law, 179; Tex. 728; Rippitoe v. Dwyer, 49 Tex. 498; Frentz v. Klotsch, 28 Wis. 312; Brittin v. Handy, 20 Ark. 281.

2 Blackstone's Com. 192.

3 Matthews v. Bliss, 22 Pick. (Mass.) 48 (1839); Smiley v. Dixon, 1 P. &

« PředchozíPokračovat »