The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1893-09-21

Will deem the possession aHllC&OIt
until the tenant out OF possession ha.
in some method been notified that j
has become hostile. Freeman
Cot. Il Per, Sec. 221. In Yer
| mont IL is said that the acts relied
upon TO prove custer between ten
ants in common must be such a:
would constitute custer between
landlord and tenant. Buckmastel
vs.. Needham, . Vt, 623.
In New York it is held that tc
establish an adverse possession by
one tenant in common such as will
effect the custer OF his co-tensnt
notice IN fact Of the adverse claim Is
required, or unequivocai acts, open
and public, making the possession SO
visible, hostile, exclusive and notO-
rious that notice may be fairly pre-
sumed. Culver vs.. Rhodes, 81 y. Y,
34S. Undoubtedly exclusive pos
session Of part of the common pro
perty may be taken with the intent
to GUST his co-tenant of it. Carpen-
ter vs.. Webster, q Cal, 525. In this
California case there had been a re-
fusal by the tenant in possession
to let the out tenant in and occupy
the sixty acres cultivated by the
tenant in possession, which was only
a small part Of the whole estate. The
case of Bennett VS.. Clemence, 6
Allen, Is, is not in point, for there
the tenant in possession had erected
q permanent structure which appro-
priated exclusively the entire land,
and this was held to be evidence of
custer. Nothing is better settled
than the rule that the mere occupa-
ton of premises owned IN common,
by one Of the tenants in common,
does not entitle his co tenant to call
him to account, or render him In any
way liable to an action for the use
and occupation of the estate. Each
owns the estate per mi ct per tout. If
a co tenant does not see fit to come in
aud occupy, the other still has the
right to the enjoyment of the estate,
and In such case the sole occupation
of one is not an exclusion of the
other. Each tenant, being seized of
each and every part and parcel of
the estate, has right to the use and
enjoyment of it, and SO long as he
does not hold his co-tenant out, or in
any way deprive him Of the occupa-
ton of the estate, he exercises only a
legal right, and receives nothing for
which he is bound to account to his
co-tenant." Badger VS.. Holmes, 6
Gray, lis.
BY the common law there was
no remedy by one tenant in COM
mon against the other taking the
entire profits and by the Statute of
Ammo a and Anne, Chap. Is, Sec.
20 an action OF account might be
maintained by one tenant in common
against the other charging him, as
bailiff, for receiving more than his
share or proportion and it was neces-
sary to show an actual receipt of
rents and profits over and above his
share thereof The English courts
restrict the co-tenant's liability for
accounting to money received from
third parties and majority Of the
States of the American Union adopt
the same rule. We understand that
the opposite view obtains in Georgia,
Virginia, Ohio, Rhode Island and
possibly IN Vermont and New Jer
sey, where a tenant in possession is
held accountable for profits made by
his own labor out Of the common
estate more than his proportion IN
accordance with his title. See lizard
VS.. Bodine IN. j. reported in 60 Am.
Dec. 500; Early VS.. Friend, 16 Graf.
81 (Va.) reported in 70 Am. Dec. 649;
West VS.. Meyer, 46 Ohio, II; Hayden
VS.. Merrill, Al Vt, 1856.
The view of the majority is thus
expressed by Freeman in Cot. &
Par. Sec. 225: "But the decided pre-
ponderance of the authorities both in
England and America, affirms the
right of each cotenant to enter upon
and hold exclusive possession of the
profit as he can by proper cultivation
or by other usual means of acquiring
benefit therefrom, and to retain the
aohole Of such benefits, provided that in
having such possession, and in max
ing such profits, he las not been guilty
Of an custer of his co tenant. nor hind
cred the latter from entering upon
the premises and enjoying them as
he had right to do. The reasoning
upon which these decisions, consti-
tuting the great bulk of the authori-
ties on this subject, rests is: That
as each co tenant has, at all times, the
right to enter upon and enjoy every
part of the common estate, this right
cannot be impaired by the fact that
another of the co-tenants absents
himself or does not choose to claim
his right to an equal and common en-
joyment; that it would be inequitable
to compel CO tenant in possession
to account for the profits realized ont
of his skill, labor and business en-
terprise when he has no right to call
upon his co-tenant to contribute any
thing towards the production of these
profits. nor to bear his proportion,
when through bad years, failure of
crops, or other unavoidable misfor-
tune the use made of the estate re-
suited IL loss instead of profit to
the one in possession" The follow
ing cases sustain this view:
Peck VS.. Carpenter, 7 Gray, 2S3.
Crane VS.. Waggoner, q Ind, 50.
Shepherd VS.. Richards, Gray,
424.
Wooiever ct al. VS.. Knapp, IS
Barb, 265
Pico VS.. Columbet, II Cal, 414.
Cook VS.. Webb, 21 Mum, AS.
Kean VS.. Connolly, % Mimi, 222.
Hause VS.. Hause, 90 Mimi, 252.
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