
    Clason v. Rankin.
    It is sufficient evidence of an ouster in an actipn brought by a tenant in common to recover the -possession of his share of lands in the possession of the defendant, that the original entry of the defendant was hostile to the plaintiff’s rights, and the possession that followed exclusive and adverse.
    It is a presumption of law that the possession of the defendant retained its original character, and this presumption, in respect to the plaintiff, was held not to be repelled by the fact that the defendant had obtained p lppeg from the other tenants in common covering their respective shares. ..........
    
      (Before Oakley, Ch. J., Paine and Bosworth, J.J.)
    November 8;
    December 11, 1852.
    
      Semble, that the denial in the defendant’s answer of all right or title in the plaintiff was equal to a confession of ouster, superseding the. necessity of proof upon the trial.
    Judgment at special term, dismissing the complaint, reversed, and new trial granted.
    This was an action to recover the possession of an undivided moiety of three lots of ground in the city of Hew York. The complaint averred the seizin in fee of the plaintiff, the possession of the defendant, and the dispossession by him of the plaintiff. The answer denied all right, title, or interest, in the plaintiff, and that the defendant had at any time dispossessed him of the premises, or of any part thereof.
    The cause was tried before Mr. Justice Campbell, at a Special Term in April, 1852, and upon the trial the following stipulation in writing, signed by the counsel of the parties, was read in evidence.
    It is admitted by the counsel for the respective parties, that at the time stated in 'the complaint, the above-named plaintiff was seized in fee simple of the one undivided half part of the premises described in the complaint as the grantee of William Kain, who, by deed dated 1845, conveyed the same to him who became seized thereof as one of the heirs-at-law of Francis Kain, deceased, and that at the time of the commencement of this suit, the above-named defendant was in the possession of the said premises.
    And it is further admitted by said counsel, that on the first day of Uovember, 1838, the said Francis Kain, then in full life and seized of said premises, made a lease thereof in writing to John Stroud and William Rankin, for ten years and six ' months -from that date, at an annual rent of seven hundred dollars until May 1st, 1840, and nine hundred and fifty dollars thereafter, which lease was duly acknowledged and recorded, and contained a covenant in the words following, to wit: “And it is mutually agreed by and between the parties hereto, that after the expiration of the term hereby granted, provided the said parties of the second part shall, previously to such expiration, three months, notify the party of the first part, of such an intention on their part, the said parties of the second part may have a renewal of this lease for a further term of five years, at an annual rent to be ascertained by two disinterested persons, one to be chosen- by each of the parties hereto, and if they cannot agree, they to choose another indifferent person, and the valuation of the demised premises (without improvements) made and set down in writing by any two of such persons, shall fix such rent for such renewed term of five years, to be estimated at six per cent, per annum, on such valuation, and such renewed lease shall also contain similar clauses with this lease, except as to the renewal thereof.”
    That said Francis Kain died in 1844, intestate, leaving him surviving, Henrietta Kain, his widow, and no children or descendants, and his heirs-at-law were his brother, William Kain, and Amelia Ann, wife of Washington M. Postley, Agnes, wife of Samuel B. Postley, Francis Kain, James Kain, and Abraham B. Kain, the children of his deceased brother, James Kain.
    That said lease was duly assigned by the said John Stroud, to the said William Rankin, and afterwards and before the expiration of the said lease said William Rankin departed this life, having first made and published his last will and testament, by which he appointed John T. Fisher, the executor thereof; that said will was duly proved before the surrogate of the county of New York, and letters testamentary thereon were duly granted by said surrogate to the said JohnT, Fisher; that afterwards and about the first of May, 1850, the said John T, Fisher, as such executor, assigned said lease and all the covenants therein contained, to the said defendant, Daniel Rankin, who then entered into the possession of the said premises; that the said Henrietta Kain, the widow of Francis Kain, departed this life on or about the first day of September, 1851, and that new leases were granted of those parts of the said premises, ■whereof Amelia Ann, the wife of Washington Postley, Agnes, the wife of Samuel B. Postley, James Kain and Abraham B. Kain, were seized as heirs-at-law of Francis Kain, deceased, for the balance, to wit: two years and nine months from August 1,1851, and that said new leases were granted and made prior to the commencement of this suit. And that the said defendant hag never paid any rent to the plaintiff, and 'further, that previous to the expiration of the said lease and within the three months mentioned in said covenant in said ' lease, the said William Eanldn notified the agent of the parties seized of said premises, that he would like to have a renewal of said lease to Stroud and Eankin.
    Upon this state of facts, and after hearing the counsel, the learned judge dismissed the complaint with costs.
    The plaintiff appealed from this judgment, and the appeal was now heard.
    
      A. W. Clason, Jr., for plaintiff,
    insisted that the judgment ought to be reversed, and a new trial granted, and relied upon the following points and authorities,
    I. The possession of the defendant was.in its inception hostile to the possession of the plaintiff. The defendant entered under an assignment of an expired lease, and as to the plaintiff claims to hold against his right of possession.
    H. The subsequent hiring from'some of the heirs of Francis Kain did not alter the relations of the parties to this action. They let their respective shares of the premises, but as' to the undivided moiety of the plaintiff the possession was not thereby affected.
    HI. The estates of tenants in common have the sole unity of possession; that unity once destroyed, the tenancy in common is at an end.
    IY. The plaintiff and the heirs of Francis Kain are no longer tenants in common; the defendant, and those heirs of Francis Kain who let to him, are now tenants in common.
    
      Wallis, contra,
    
    claimed the affirmance of the’judgment upon the following grounds—
    I. The defendant was, at the time of the commencement of the suit, a tenant in common with the plaintiff, of the lands ■ described in the complaint, and the plaintiff was bound to prove actual ouster. (2d Rev. St. 403, sec. 28 (3 Ed.) Edwards v. Bishop, 4 Comstock, R. 61.)
    H. filie possession of the defendant is the possession of his landlord, (3 Rev. St. 333, sec. 13.) The tenant in occupation must be made the defendant in an-action of ejectment, and is entitled to the same defence his landlord would be entitled to make.
    III. The possession of the defendant was never adverse to the plaintiff, for he is rightfully entitled to the possession of one undivided half of the premises,
    IY. The judgment at special term should be affirmed with costs.
   By the Court. Oakley, Ch. J.

The only question in this case is, whether the facts admitted furnished sufficient proof of an ouster, so as to enable the plaintiff, who claims only an undivided moiety of the premises, to maintain the action.

It is admitted that the original entry of the defendant was under the assignment of a lease, which had then expired. As his entry was therefore without title, it was in its nature hostile to the rights of the true owner, and the occupation that followed, in fact, exclusive and adverse. Bor do we think that this construction is at all altered by the fact, that the expired lease (contained a covenant of renewal. The covenant gave no right of entry.

Without resorting to the evidence, we incline strongly to the-opinion, that the denial in the defendant’s answer of all right, title, and interest in the plaintiff, is an admission, that his own possession is adverse, and may therefore well be treated as equivalent to a confession of ouster, superseding the necessity of proof upon the trial; but as we do not mean to place-our decision upon this ground, it is not necessary to state the reasons that incline us to the opinion.

The ground upon which we place our decision, is, that the character of the defendant’s possession must be determined by the nature of the claim under which he originally entered, and as, in its inception, this was clearly hostile to the rights of the plaintiff, and the 'possession of the defendant under it in fact exclusive, we think there is sufficient in the case to show such an ouster by the defendant, as destroyed the tenancy in common, and entitled the' plaintiff, by bringing this suit, to treat him as a trespasser. As the possession of the defendant was in its origin hostile, the presumption of law is, that it remains so. Ror is this presumption met or weakened hy the fact, that he has obtained a lease from the other tenants in common of their respective shares. By his acceptance of this lease, his possession, in respect to them, has ceased to be adverse, but this is no evidence that it has ceased to be adverse, in respect to the undivided moiety of the plaintiff. There was no necessity for making the other tenants in common parties to this suit. Their rights are not questioned. The jiidgment is reversed, and there must be a new trial, with costs to abide the event.  