
    Joseph D. Muldownev, Resp’t, v. The Morris and Essex R. R. Co., App’lt.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed December 14, 1886.)
    
    1. Real estate—Action against a co-tenant who has received more than his just proportion—Code Civ. Pro., § 1666.
    J. D. died, leaving him surviving his widow and two children. At the time of his death he was seized in fee of real property, which descended to his children as “equal tenants” in common subject to the dower right of their mother. Thereafter, one of the children, a daughter, was married to this plaintiff, and a child was born of the marriage, which lived several months. Subsequently the daughter died. Thereafter, the widow of the original owner, and the other child, conveyed the premises to these defendants. The plaintiff demanded of the defendants that they pay him the rental value of his interest in the premises from the time of the conveyance to them. They refused to allow the plaintiff to use or enjoy his interest in the premises, to let him into possession, or to pay him any sum for use and oc upation. Held, that the parties were tenants in common, and that an action nrght properly he maintained hy this plaintiff against the defendants, under Code Civ. Pro., § 1666.
    3. Same—Pleadings.
    Under the present system of pleading, the plaintiff must state the facts, and pray for such relief as he supposes himself entitled to, hut he is not to he turned out of court because he prays for too much or too little, or for wrong relief.
    
      Hamilton Odell, for app’lt; Frank Hasbrouck, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered against the defendant upon a decision at special term, and the case discloses the following facts: John Dunn, of

Morris county, New Jersey, died in 1857, intestate, and leaving him surviving his widow, Margaret Dunn and two children, John J. and Mary. At the time of his death he was seized in fee of a parcel of land situated at Madison, in New Jersey, which is described in the complaint, and which contained 2,691 square feet. The said premises descended to his children “as equal tenants in common, subject to the dower rights of their mother.”

In 1873 Mary Dunn, the daughter, was married to the plaintiff. A child was born of the marriage in December, 1875, which died in July, 1876. Mrs. Muldowney died intestate in September, 1876.

In 1878 Margaret Dunn, the widow, and her son, John J., conveyed the said premises to F. S. Lathrop, and in January, 1879, Lathrop conveyed them to the defendants, who who have ever since been in quiet and undisputed possession thereof, “ except that plaintiff has asserted and claimed an interest therein from about two years ago.” The said premises, when conveyed to the defendant, were wholly vacant and unimproved, but are now covered in part by a depot building, erected and occupied by the defendants for the purposes of their business.

It was not until the summer of 1884 “that plaintiff discovered and knew that he had an interest in the said premises, and plaintiff did not notify the defendant that he had, or claimed to have, any estate or interest in the said premises until during the summer of the year 1884.” It is not claimed that the defendants had any prior knowledge or notice of the plaintiff’s said estate or interest.

The plaintiff’s demand upon defendants was not that he should be let into possession, but that defendants should pay him the rental value of his interest in the premises from the date of the conveyance by Lathrop to defendants in January, 1879.

The defendant’s first objection is, that the form of action is improper, that it cannot be required to respond in rent, or for an accounting, etc., under the facts stated in the complaint.

It is plain that if the plaintiff can have no relief in this action, he is without remedy, for he has stated all the facts-constituting his cause of action, and answer has been interposed, and the issues tried. To so state his facts was all the law required of him, and an answer having been filed, and case tried, it was competent for the court to permit the plaintiff to take any judgment consistent with the case made by the complaint, and embraced within the issue.

The object is to do complete justice between the parties when they both have an opportunity to be heard, irrespective of any theories the parties may entertain when they file their pleadings.

Under the present system of Code pleading, the plaintiff must state the facts and pray for such relief as he supposes himself entitled to, but he is not to be turned out of court because he prays for too much or too little or for wrong relief.

In this case the plaintiff prayed for enough, but if he prayed for too much it is of no consequence.

The court below has found title in the plaintiff, as alleged, and that the land is in the exclusive possession of the defendant. “ That the defendant has at all times and does-refuse to allow the plaintiff to use and enjoy his interest in the premises, to let him into possession or to pay him any sum for use and occupation.” The defendant occupies the whole of said premises in such a manner that plaintiff can have no beneficial use, and that no one, as it is now situated, can use it except a railroad for railroad purposes, and that it is impossible to set off a third or a half or any fractional part, and that there can be no joint occupation of said premises.

The court has further found that defendant has received since January 1819, the total amount of the rental value of said premises and more than its share.

If these findings are sustained the judgment ought to be affirmed, but if we assume that the findings of fact are not all sustained by the proof, we still think there is enough in the undisputed facts of the case to entitle the plaintiff to hold the judgment he has obtained.

It must be conceded that the court had jurisdiction of the parties and the subject matter involved.

The answer simply denies, upon information and belief, that plaintiff has any interest in the premises, and sets up the title under which it holds. The answer admits by not denying it, that defendant has never allowed and will not allow plaintiff to occupy any part of said premises, and has never paid him any rent for the use of said premises.

The situation, as claimed by the defendant, is as follows: The plaintiff cannot sue in ejectment as the defendant’s occupation is plaintiff’s occupation. Code of Civil Procedure, § 1515. That he cannot maintain partition as his title is simply life tenant, while the defendant owns the remainder in fee. Code, §§ 1538, 1539.

That he cannot sue for an accounting as the defendant has received no rents, nor for use and occupation as there is no relation of landlord and tenant, and so the plaintiff can have no remedy whatever.

The plaintiff claims that the defendant is the owner of the whole property subject to a right possessed by the plaintiff in the nature of an annuity charged thereon, which the court has fixed at $41.60.

But whatever may be the technical relation of the parties,' the plaintiff has made out a case entitling him to relief. It is not fatal to his claim that no precise authority can be found in this state authorizing such a judgment.

It was under the common law the practice in England when a suitor desired redress for a wrong for which there was no established remedy, to apply to the proper court to frame a writ that would give him a just remedy, and that form of action known as “action upon the case” was adopted to meet a large number of such cases. Again, courts of equity were established to afford a remedy where the technical rules of law were insufficient to administer justice.

The supreme court of this state under the constitution has “general jurisdiction in law and equity” and exercises, under such rules of practice as the legislature has established, the common law and chancery powers exercised in that state prior to the adoption of the constitution of 1846. The plaintiff is properly before the court, its jurisdiction is not questioned, and no technical rule of practice forbids its doing justice between the parties. It is a clear wrong to deprive the plaintiff of the enjoyment of his property without compensation, and to deny the power of the court to give the plaintiff relief is to challenge its power to do justice. But we think this case can be relieved of all embarrassment by holding that the plaintiff and defendant are tenants in common, and that the action can be maintained under sec. 1666, of the Code of Procedure, “tenants in common are such as hold lands or tenements by several and distinct titles, but occupy in common, the only unity recognized between them being that of possession.” They are accountable to each other for the profits of the estate, and if one turns another out of possession, an action of ejectment will lie against him. They may also have reciprocal actions for waste against each other. 2 Black. Com. 191. The action of account now lies when one tenant has received “more than his just proportion” of the rents. Code, § 1666.

Whether an accounting will he where the tenant has not received rent, has never been decided by the court of appeals, but the supreme court has, in several instances, decided that such an action cannot be maintained, but the cases are all easily distinguished from the present case and cannot be regarded as authority for the decision óf the case at bar.

The leading case is Woolever v. Knapp (18 Bach. 265), which was decided by Mason, J., in 1854. The decision of the case is put entirely upon the similarity of our statute to the English statute, and the construction put upon the latter by the English coúrts is adopted as the construction of our statute. The language of the reasoning of the English cases is adopted by Judge Mason as follows, viz.:

11 The effect of allowing an action in such a case would be that one' tenant in common, by keeping out of actual occupation of the premises, might convert the other into his bailiff; in other words, prevent the other from occupying them except upon the terms of paying him rent.”

To this it may be replied, why not, if he received more than his share ? If he kept his co-tenant out and received the whole benefit, why not pay his co-tenant his just proportion ?

The same, however, decides that the statute applied only to cases where the defendant received rent, and not to cases where he solely occupied the premises. The cases holding the same doctrine are: Dresser v. Dresser (40 Barb., 300), Wilcox v. Wilcox (48 id., 327), Joslyn v. Joslyn (9 Hun, 388), Roseboom v. Roseboom (15 id., 309).

These cases all cite and follow Woolever v. Knapp, and none contain any new reasoning upon the subject. These cases can all be distinguished from this case.

. First. The joint or common premises in every case were farming lands open to the occupation and free to the enjoyment of all the co-owners.

Second„ The co-owners in each case were seized of parent estates of co-ordinate rank.

Third. In all the cases there was a failure of proof ■ of demand on the part of the complaining tenant to be allowed to enjoy the premises.

In Woolever v. Knapp, the question is stated to be: “ Whether one tenant in common who possesses the entire premises without any agreement with the others as to his possession or any demand on their part to be allowed to enjoy the premises with him, is liable to account.”

In Dresser v. Dresser it is said: “For aught that appears the plaintiff might at all times have occupied the premises jointly with the defendant if he had chosen to do so.”

In Roseboom v. Roseboom, it is said: “ Defendant might remain in possession so long as he did nothing to prevent his cotenant from occupying with him.” In all the cases thus decided it may also be added that the equities were against the party claiming an account for rents.

Here the defendant excluded the plaintiff and chose to occupy the premises, thus by the use and enjoyment of the premises receiving the rent. The benefit or rent thus received the court has fixed, and the law assumes that defendant is the plaintiff’s bailiff to this amount. If the defendant elects to receive rent by the use of the premises, what reason is there for holding that he shall not pay his co-tenant his just proportion?

This case is somewhat analogous to that of McCabe v. McCabe (18 Hun, 153). That was action of partition between tenants hi common. The defendants in their answer asked that the plaintiff account for his sole possession of the premises and for stone quarried therefrom. With regard to quarrying stone, the court says: “It is a very different act from the occupation of the land for its cultivation.” The judge further says: “ It may be necessary to adhere to the rule that for mere occupancy the co-tenant is not hable to account; but there is no reason to extend that rule to a case where the co-tenant actually consumes or takes off and disposes of a part of the property held in common. In the case at bar the defendant has appropriated the whole of plaintiff’s to its own use.

We think the findings of fact are abundantly sustained by the proofs, and that the facts do not bring the case strictly within the principle laid down in Woolever v. Knapp, and that the judgment is right unless the rents should have been computed from the summer of 1884, when the demand was made by the plaintiff to be let into possession, instead of the date of January 1, 1819.

It is evident that a demand would have been futile, and that a failure to make it has not misled the defendant or put it in any worse condition in respect to the premises.

Judgment affirmed with costs.

Bykman, J., concurs; Barnard, P. J., not sitting.  