
    Cahoon v. Kinen.
    1.' Tenants in common of real estate may contract with eacn other for the exclusive right to the use and occupancy of the same. Those acquiring such right by renting from others are liable to an action for the rent due upon such contract.
    
      2. The right to maintain such an action grows out of .the contract relations of the parties and not by reason of their relations as tenants in common, or of the provisions of section 5774 of the Revised Statutes.
    3. When several tenants in common unite in renting the property held in common to others, they may join in an action to recover the rent due to them.
    4. Married women, who are tenants in common, owning their shares as separate property, may unite with persons sui juris in renting, to their co-tenants, and may, without joining their husbands unite in an action to recover the rent due.
    5. Unless the husbands have an interest in the rents due from real estate of their wives, they are not necessary parties to an action to recover the same.
    ERROR to the District Court of Hamilton county.
    The plaintiffs here, were plaintiffs below, to wit: Lewis A. Cahoon, Matilda Gr. Williams and Laura R. Challen ; and for their cause of action the plaintiffs say the defendant, prior to January 1, 1881, rented from them certain premises on the southwest corner of Water and Smith streets,.in the city of Cinciniiati, Ohio, and paid rent to the plaintiffs at the rate of $1,000 per annum, payable in installments of $250 per quarter year ; that on April 1,1881, there became and was due from the defendant to the plaintiffs, the sum of $250, the installment of rent due on that date, and although' often demanded, the defendant refused and still does refuse to pay the same, and the same remains due and wholly unpaid, wherefore plaintiffs pray judgment against said defendant, Solomon P. Kinen, for said sum of $250, with interest thereon from April 1, 1881, together with their costs, and such other aud further relief as in law and- equity they may be entitled to.
    A motion to strike out, and to make more definite, was granted, and thereupon the following amended petition was filed.
    “ Plaintiffs say that prior to January 1, 1881, the defendant rented from them certain premises on the southwest corner of Smith and Water Streets, in the city of Cincinnati, Ohio, being about 362 feet on the south side of Water street, extended westwardly, and moving back wider in the rear than in the front about 400 feet to the Ohio river at low water mark, for an indefinite time at the rate of $1,000 per annum in quarterly installments of $250, and that defendant continued to rent said premises down to and including the 31st day of March, and has not paid rent for the quarter beginning January 1st, aud ending March 31, 1881.
    That said sum of $250 was duly demanded, and was the reasonable and usual rental value of said premises and the whole amount of $250 with interest thereon from March 31st, to April 1, 1881, is due and unpaid, wherefore plaintiffs pray, judgment against defendant for $250 with interest thereon from April 1, 1881, for costs and all other relief.”
    The defendant answered:
    “ 1. And now comes the defendant and for answer to the petition of the plaintiffs herein, as amended by order of court, and for his first defense hereto says, he admits that he has paid no rent to the plaintiffs, and denies each and every other allegation therein contained.
    
      “ 2. Por a second defense, said defendant says, that said Matilda Gr. Williams, and Laura A. Challen are married women, wherefore he prays the judgment of the court that this action be dismissed for defect of parties plaintiffs.
    “ 3. Por a third defense, said defendant says, that Lewis A. Cahoon is the owner of only an undivided one-twelfth part of so much of the premises described in the petition as this defendant occupies, that said Matilda G. Williams and E. Oort Williams, her husband, are owners in the right of said Matilda. G. Williams of only an undivided one-twelfth part of said premises, and that said Laura A. Challen and James K. Challen her husband, in the right of said Laura A. Challen are the owners of only one undivided one-twelfth part of said premises, wherefore he prays that this action be dismissed for misjoinder of parties plaintiffs.
    “ 4. Eor fourth defense, said defendant says,, that the plaintiffs, together with said E. Cort Williams and James K. Challen, being the owners of three undivided one-twelfth parts of said premises as stated in the third defense herein, to which reference is made as part hereof to avoid repetition, the defendant has been and is a tenant in common with them of said premises by leases from the owners of the remaining three-quarters parts of said premises for a term beginning on the first day of January, 1881, and continuing for five years thereafter, therefore the defendant is not liable to said plaintiffs in this action.
    “And having fully answered, he prays to be hence- dismissed with his costs, etc.”
    The plaintiff demurred to the second third and fourth answers, and the defendant moved for judgment on the pleadings.
    The court overruled said demurrers and toot the case under advisement on defendant’s motion, with leave to plaintiff to apply for permission to file an amended petition.
    The case again came on for hearing on motion to file a second amended petition setting up an agreement of defendant with plaintiffs to pay them the said sum of $250 for one quarter’s rent, which was overruled, and the motion for judgment for defendant on the pleadings was granted.
    This judgment was affirmed by the district court.
    
      D. Thew Wright, for plaintiff in error :
    1. Whatever difficulties may have existed at common law as to whether one tenant in common could sue another for use and occupation it was discovered, in progress of time, that when one man, occupies the premises of another as a tenant, he ought to be made to pay rent. Neither was it very particular, whether there was an express, or any other demise, or any particular terms, if he actually used the property, he ought to pay what it was reasonably worth. Hence, to relieve some of the technical difficulties, the chief use of which is to impede the course of justice, our statue was passed. R. S. 5774, cited in Gonard v. Gonard, 38 Ohio St. 467. By this statute, one tenant may recover of another the share of the rents which that other has received; and the decisions show that this statute covers the case when one occupies tiro whole himself. This statute adopted in many of the states is from 4th and 5th Anne, § 27; Freeman on Cot. § 270. The courts of other states hold that it applies to such a case as this. Freeman on Cotenancy and Partition, §. 276 ; Thompson v. Bostwick, 1 McMullan Eq. 75, and cases cited,note 3d, to section.276, Freeman ; Fdrly y. Friend, 16 Gratt. 47-51; Rxiffner v. Lewis, 7 Leigh, 720 ; Graham v. Pierce, 19 Gratt. 38 ; Hayden v. Merrill, 44 Yt. 348; ¡Shielsv. Stark, 14 Geo. 435 ; Eppes v. Pole, 4 Hen. & M. 171; 1 Chit. Cont. (11 Am. Ed.) 511, note 1.
    2. The record shows that the premises are the “ property ” of the wives ; being so, they are tire “ separate ” property, as there is no distinction now in Ohio, between general and separate property; it is all “ separate.” Rev. St. 3108-3109 ; Glidden v. Taylor, 16 Ohio St. 509, 518; Levi v. Earl, 30 Ohio St. 147; Hershiser V. Florence, 10 Cin. L. Bull. 402.
    3. The plaintiffs were properly joined in the action. Pome-roy Legal Remedies, 259, § 219; Freeman on Cotenancy, § 346; BÍiss Code PI. § 67; Marshall v. Moseley, 21 N. Y. 280; Gruger v. McLaury, 41 N. Y. 223; Loomis v. Brown, 16 Barb. 325 ; Liutledge v. Corbin, 10 Ohio St. 478, 484 ; Alexander v. Jacoby, 23 Ohio St. 358.
    4. Even if the two married women were not proper parties the case should not have been dismissed as to Lewis A. Cahoon. Pomeroy Legal Remedies, § 209 ; Ackley v. Tarbox, 31 N. Y. 564. So our Code, § 5311, provides that judgment may be given for or against one or more plaintiffs. Lampkin v. Chisom, 10 Ohio St. 450 ; Hempy v. Hansom, 33 Ohio St. 316 ; Roby v. Rainsberger, 27 Ohio St. 678 ; Humphries v. Huffman, 33 Ohio St. 399.
    
      Wulsin c& Perkins, for defendant in error :
    1. During coverture the wife has no interest in, or right to the rents and profits. In this case the husband had a freehold during coverture, had the right to possession and to all rents and profits with a contingent estate by the curtesy ; the wife had the remainder, and the two together, in the right of the wife, were owners of the land, llershiser v. Florence, 39 Ohio St. 516; Leggett v. McClelland, 39 Ohio St. 624. Neither Mrs. Challen nor Mrs. Williams had any cause of action at all, — the sole right to the rents being in their husbands. Cla/rk v. Clark, 20 Ohio St. 123.
    2. The general rule is, and always has been, that a married woman may not sue or be sued alone at law. Section 4996 of the Revised Statutes provides that her husband must join with her unless the action concerns her separate estate. This changes the rule as to a next friend — substituting the husband —and as an exception provides the cases where she may sue or be. sued alone. This creates no new liability; no new cause of action for, or against, the married woman; it is merely a rule of procedure. Allison v. Porter, 29 Ohio St. 136.
    Where there is a general rule with an exception, one wishing to bring himself within the exception must plead affirmatively the facts bringing him within it. Hence, if one wishes to sue a married women alone under this section, he must plead affirmatively facts sufficient to show a charge on her separate estate. Jenz v. Gugel, 26 Ohio St. 527 ; Broome v. Taylor, 76 N. T- 564. While it may be said that all property is now separate property, yet the Revised Statutes were enacted long after this act of 1861, and it must be admitted that the legislature meant something when it provided the husband must join except in certain cases. The Revised Statutes, § 3108, provide that a separate estate shall be under the control of the woman ; and by reading § 4996, as it must be read to give' it any meaning, and as undoubtedly it was intended to be read, the words “ separate property,” mean such property, and such only as is under the sole management and control of the woman, separate property within Leggett's Admlr v. McClelland, and not such as is separate property within the decision of Hershiser v. Florence, but not under her control. Hoop v. Plummer, 14 Ohio St. 448. If the husbands be necessary parties they could not amend by joining them. Ciarle, v. Ciarle, 20 Ohio St. 128.
    Moreover, we have alleged by our third defense that husband and wife owned in the right of the wife.
    At common law, this defense is a plea of joint seisin in the right of the wife. PoVyblank v. Hawkins, 1 Dough 329 ; Took v. Glascock, 1 Wins. Saunders, 253, note 4; 1 Wash-burn Real Prop. *276.
    There was a misjoinder of parties. We aver that severally a one-twelfth of the premises is owned by each of three different parties. A misjoinder of parties plaintiff is a ground of demurrer (section 5062); and if it does not appear by the petition may be set up by answer (section 5064); and be used as a demurrer against all the plaintiffs. South Fork, etc. Canal Co. v. Snow, 49 Cal. 155 ; Masters v. Freeman, 17 Ohio St. 323. Proof of several causes of action in favor of several plaintiffs is a failure of proof in a joint action. Bartges v. O'Heil, 13 Ohio St. 72 ; Schaeffer v. Marienthal, 17 Ohio St. 183 ; Lipperd v. Hdwards, 39 Ind. 165 ; Estabrook v. Messer-smith, 18 Wis. 545.
    4. An action for use and occupation will not lie by one tenant in common against his co-tenant. This petition is not on contract but for use and occupation.
    Ordinarily such an action will not lie unless there is a contract express or implied. Cincinnati v. Walls, 1 Ohio St. 222 ; but where land is occupied by a stranger to the title, the law will imply a contract to pay the fair rental value unless such holding is adverse.
    In the case of the occupancy by one tenant in common, no such contract can be implied for he has the right to occupy, and by exercising Ins right he does not render himself liable. Wilcox v. Wilcox, 48 Barb. 329-30 ; Boseboom v.' Boseboom, 15 Hun, 317. The lessee of one tenant in eommom is not liable to the other tenants in an action for use and occupation. In such case the lessee holds as a tenant in common. Badger v. Holmes, 6 Gray, 118. To same effect see Beynolds v. Wil-meth, 45 Iowa, 693 ; Kean v. Connelly, 25 Minn. 222; Peclc, v. Carpenter, 7 Gray, 283 ; Barrell v. Barrell, 25 N. J. Eq. 173; Israel, v. Israel, 30 Md. 120 ; Henderson v. Eason, 17 A. & E. N. S. 701.
   Johnson, C. J.

The action below was a joint action in favor of Lewis A. Oalioon, Matilda G. 'Williams and Laura R. Challen to recover three months’ rent from January 1, 1881, for premises rented from them by defendant at the rate of $1,000 per year payable in quarterly installments.

I. The second answer to which the plaintiff demurred, is that Matilda G. Williams and Laura R. Challen, are married women. This is no defense. Married women may sue in their own name, or jointly with others, where the action concerns their separate property. In such case it is not necessary their husbands . should join. Rev. Stat. §§ 4996, 5005. The fact that they are married women does not prevent them from joining with their co-plaintiff in renting the premises to defendant, nor joining with him in an action upon such contract to recover the rent due. In case of a joint demise, all are proper parties to an action to recover rent due thereon.

II. The third defense is, that Cahoon is the owner of an undivided twelfth part of said premises ; that Matilda G. Williams and E. Cort Williams, her husband, are owners, in right of the wife, of an undivided twelfth, and that Laura R. Challen and James R. Challen her husband, in right of said Laura B. Challen, are the owners of an undivided twelfth. Wherefore he prays judgment.

This, upon demurrer thereto raised the question, whether the husbands are necessary parties to the action. The argument is, that inasmuch as it is averred that the husbands and their wives are owners in righhof the wives, this is equivalent to an averment, that this was the general property of the wives prior to the married woman’s act of 1861, which the demurrer admits, and therefore, the husbands had a joint interest with their wives as plaintiffs. The argument proves two much, for if this was the general estate of the wives acquired "before the act of 1861, then all the rents and profits at common law vested in the husbands subject only to the limitations contained in the act of 1847, so that the averment that the husband and wife are jointly the owners, would give the husbands the sole right to the rents, if the property were the general estate of the wife, prior to the act of 1861.

Under the act of 1861, the general estate of the wife becomes the separate property of the wife, and she may make contracts of writing in her own name. Had defendant sought to aver such a property in the husband as gave a right of action in his favor for these rents, the allegation to that effect should be specific, and not be left as it is, to be inferred from the statement that he and his wife are owners in right of the wife, a legal conclusion that in no event can give a joint action for the rent; for if this was the general property of the wife, prior to the act of 1861, then she was not entitled to these rents jointly with her husband, but he alone should sue for them. If it was acquired since 1861, it was the separate property of the wife, and she alone should sue. The averment that it is the joint property of husband and wife, in her right, is not inconsistent with her right to the rents and profits, in her sole right to rent the same as her separate property.

The fourth defense is the same as the third as to ownership, and an averment that plaintiffs and the two husbands are the owners of three undivided twelfths of the premises, while defendant as a lessee from other tenants in common is the owner of the remaining nine-twelfths thereof, and that he and they are therefore tenants in common. Hence, it is claimed that no right of action exists in favor of plaintiffs against him.

This is founded upon the claim, that one tenant in common cannot sue another for use and occupation.

Without considering this question, or determining the scope and effect of section 5774, of Revised Statutes ; we hold that the case made by the petition, the 4th answer and the demurrer thereto, does not present this question.

This is not a suit for use and occupation growing out of their relations as tenants in common,. The allegation is, “ that prior to January 1, 1881, the. defendants rented from them, <&c. . . at the rate of $1,000 per annum in quarterly installments of $250, and that defendants continued to rent said premises down to and including March 81, 1881.”

The journal entry shows, that counsel for plaintiffs stated to the court that their action was for “use and occupation.”

This was true in a general sense, but not in a legal sense, and did not warrant the court in disregarding the pleadings. These pleadings show that though these parties were tenants in common, yet the relation of landlord and tenant existed.

Whenever this is the case an action in the nature of assump-sit will lie. If there is a contract of renting, between tenants in common that relation exists, and an action on that contract will lie, notwithstanding they are tenants in common.

We understand counsel for defendant in error to admit this proposition. It is abundantly sustained by authority and is decisive of this case.

The demurrer to the fourth defense should, therefore, have been sustained. Freeman on Cotenancy, §§ 268, 269; Kean v. Connelly, 25 Minn. 222; Eppes Ex'r v. Cole, 4 Henn. & Munf. 161; Overton v. Ogle, 13 East, 538; Bond v. Willis, Bushn. (N. C.) 308; Cowper v. Fletcher, 118 E. C. L. 462; Snelgar v. Henston, Cro. Jac. 611; Luther v. Arnold, 8 Rich. 24.

In our construction of the pleadings the provisions of Rev. Stat. § 5774, are not involved.

Judgment reversed.  