The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1892-10-12

ed tn be let into possession OF it. Nor 1
DO / find that the case comes within |
the PRINCIPLES OF Bennett V. Clemence, |
Allen, IS For In that case the ten |
ant in occupation had erected per
structure which exclusive
appropriation the Court held t. be
evidence of an ouster of the CO
tenant On the contrary, find &C
quiescence in this separate occupa-
ton by the other tenant and non
constat that the plaintiff would not
have let the defendant into the land
cultivated by it if the demand had
been made. IF, therefore, the other
tenant had acquiesced in his separate
occupation until the crop Of rye had
been gathered we entertain no doubt -,
that the rye would have been his and
without liability to account" Cal
houn vs.. Curtis, 4 Met, Ala.
In section 25S of Freeman Co Ten.
& Par, the author says: SIN some
parts of the United States, CO.
tenant occupying the entire real
estate OF any portion more than the
equivalent Of his interest, though
without any denial of his co-owner's
right 10 enter and enjoy in common
with tim, is liable to account for the
value of such occupation" The only
cases cited to sustain this view which
are accessible TO me are Buckelew vs..
Snedeker, q n. j. Eq., 80; Richard
son vs.. Richardson, II Me-, 403. The
New Jersey case was bill for parti-
ton and account. The Court said
the defendant is chargeable with the
rents, issues or profits of the land
because she cultivated the land and
received the benefit of the entire pro-
duct" The answer alleged that the
sole possession of defendant was with
the consent Of the complainant and
that the defendant cultivated the
laud for the common benefit of com
plaiGant and defendant. No princi-
pies are stated nor cases cited in this
decision and it is therefore of great
value as an authority.
In the Maine case the court found
a disseizin by the tenant In posses
sion. The case was indebitatus as
sumpsit for money had and received
and the court held that neither at
common nor under the Statute of
Anne can one tenant in commo q
maintain assumpsit against another
for use and occupation of the com
mon estate, but under the Statute OF
Anne (adopted in Maine) assumpsit
will lie to recover the proportion OF
moneys in the hands Of the defend
ant received from the income of the
common estate. But the disseizee
of lands cannot maintain assumpsit
for rents against the disseizor. Pos
session under aud adverse claim neg
atiyes the idea Of a promise to pay
rent.
Freeman, co-tenant, goes on to say
"But the decided preponderance Of
the authorities, both in England anc
America, affirm the right of each CO
tenant to enter upon and hold ex
elusive possession Of the common
property, and to make such profit as
he can by proper cultivation, or by
other usual means of acquiring ben
eft therefrom, and to retain the whole
of such benefits, provided that il
having such possession, and in max
ing such profits, he has not beer
guilty of an custer Of his co-tenant
nor hindered the latter from enterin;
upon the premises and enjoying then
as he had right to do"
) The reasoning, upon which these
} decisions constituting the great bull
Of the authorities on this subjec
rests, is: That as each co-tenant ha
at all times the right to enter upoI
and enjoy every part Of the common
estate, this right cannot be impaire
by the fact that another Of the &C
i tenants absents himself or does nc
choose to claim his right to an equs
and common enjoyment; that
: would be inequitable to compel CO
tenant in possession to account fo
the profits realized out Of his skill
3 labor and business enterprise, whe
t he has not right to call upon his CO
+ tenant to contribute anything toward
the production of these profits, nc
to bear his proportion when throug
q contrary, bad years, failure Of crop
; or other unavoidable misfortune, tn
use made of the estate resulted in
j. loss instead of a profit to the one i
n possession.
0 Among the cases referred to are:
: Peck vs.. Carpenter, Z Gray. 283.
} Crane VS.. Waggoner, n Ind, SO.
., Shepherd VS.. Richards, 2 Gray, AZ
Woolever ct al. VS.. Knapp, Is Bar
|, 265.
5 Pico VS.. Columbet, IL Cal, Ala.
e Kean VS.. Connolly, 25 Mimi, %
Il Everts VS.. Beach, 81 Mich, 135.
It Reynolds VS. Wilmet, 45 Iowa, 81
1t Blood vs.. Blood, ITO Mass, SAT.
/ Hause VS., Hause, % Mimi, 252.
d Joslyn vs.. Joslyn, Is N. Y, Su
n CT, 33S.
il Sears VS.. Sellew, IS Iowa, sos.
7. Davidson vs.. Thompson, ~ N. .
Eq., IS.
n Cook VS.. Webb, q MINI, 429.
rt Osborn vs.. Osborn, 81 Tex, 495.
n Neill VS.. Shackleford, 45 Tex, II
st Barrell vs.. Darrell, Is n. J. EC
st 173.
le Austin VS.. Banet, A Iowa, 488.
10 Creed vs.. People, 81 Ill, SOS.
he Judge Bigelow, in Peck VS.. Ca
V. penter, Gray, 263, states the law
a. Massachusetts, as follows "It
in perfectly we'll settled that when o.
| Eo1 colo