
    FRANKLIN JENNINGS vs. ELIZABETH WEBB.
    Landlord and Tenant; Ejectment; Tenants in Common; Practice.
    1. A landlord and tenant proceeding to recover possession of real estate is not an action of ejectment, and the plaintiff cannot recover unless the relation of landlord and tenant be shown.
    2. Where one of two tenants in common of realty is in possession of the common property to the exclusion of his cotenant the remedy against him by the ousted tenant to recover possession of his moiety, is not by a landlord and tenant proceeding, but by ejectment. The relation of landlord and tenant does not exist between cotenants where both are equally entitled to the possession.
    3. Quere, whether on a trial by the court and a motion for a new trial in the General Term the findings of the trial judge as to the facts can be reviewed.
    At Law.
    No. 29,634.
    Decided February 1, 1892.
    Justices Hagner, Cox, and James sitting.
    Motion by plaintiff in a landlord and tenant proceeding for a new trial on exceptions,
    
      ffidgment affirmed.
    
    The case is stated in the opinion.
    Messrs. S. R. Bond and C. H. Cragin for plaintiffs;
    The amended finding, or second verdict, seems to have been made on the ground that the deed from John S. James to Paul Jennings and his daughter Frances vested in them a joint tenancy in the property, and we think this construction is correct. The deed declares that the consideration came from them both, and the use of the singular'number and the masculine gender in the subsequent clauses, evidently through the inadvertent filling up of blanks in the printed form, was a grammatical error, which does not countervail the intention of the instrument. “The grammatical sense is not adhered to in a deed where a contrary intent is apparent. ’ ’ Hancock vs. Watson, 18 Cal., 138; Pike vs. Monroe, 36 Maine, 309; Jackson vs. Blanchon, 6 Johns, 54, Jackson vs. Topping, 1 Wend, 388; Flagg vs. Evans, 40 Vt., 16; Ogden vs. Brown, 33 Pa., 247; Wait’s Actions and Defenses, vol., 1, 116, 117, &c., and vol., 2, 504, &c.
    This being so, then at Paul Jenning’s death Frances took his interest, if he retained any, by survivorship, and whatever title she possessed was cast at her death upon Franklin and the heirs of John.
    But we understand the Justice to find, as a conclusion of law, that if the plaintiff’s interest is an undivided one and not the whole title, he cannot recover.
    The tax deed was admitted over our objection and its only office, if any, would be to define the limits of the property, about which there was no dispute. It is not notice of an adverse claim; and so of the payment of taxes. King vs. D. C., MacA. and Mackey, 36; Keefe vs. Bramhall, 3 Mackey, 551; Housam vs. Kunecke, 4 Id., 297; Beale vs. Brown, 6 Id., 574.
    But the testimony of plaintiff, corroborated by two other witnesses, shows that the two houses were used practically by Paul Jennings and his family as one, and that the defendant was given the privilege of living in the part known as No. 1806, together with Frances, so as to take care of her, and was to have the right so to occupy it as long as Frances should be so taken care of or should live; that Frances was put out and sent to the Poor House and there died, and defendant then claimed that she held the property by a tax title, which was the first the plaintiff heard of any claim contrary to the permissive occupancy on the terms above stated.
    Even by the Justice’s finding that she was to have the right of occupancy and to become the owner, ‘ ‘in consideration of her agreement to take care of Frances,” that consideration failed when she turned Frances out of the house. She certainly never occupied adversely or exclusively as to Frances while the latter lived in the house with her, which was until about two years ago. Marcey vs. Stone, 8 Cush., 4; Sioux City and Iowa Falls Town Lot and Land Co. vs. Griffey et al., 72 Iowa, 505.
    And Frances’ possession, was in law, also that of her co-tenant Paul. Union Consolidated Min. Co. vs. Taylor, 100 U. S. 37; Clymer v. Dawkins, 3 How, 674.
    That “Adverse possession is to be taken strictly and is not to be made out by inference, and every presumption is in favor of a possession in subordination to.the title of the true owner.” Jackson vs. Waters, 12 Johns, 365; Zeller vs. Eckert, 4 How., 289; Gwynn vs. Jones’ Lessee 2 S. & J. 184.
    ‘ ‘The evidence offered by the defendant was of a title acquired by him after he went into possession under the plaintiff, and.before he gave up possession. If he wa% at any time the tenant of the plaintiff, he continues so till this time, unless he had given up the possession. Wheresoever a defendant has entered into possession under the plaintiff, he shall not be permitted, while he remains in possession, to dispute the plaintiff’s title; and this principle is not confined to tenants, in common acceptation of this term. Possession shall be held according to the title under which it is taken.” Weathersby vs. Wilson, 1 Nott and McCord, 224; Bannon et al. vs. Brandon, 34 Pa. 263.
    That permissive possession, however long it may endure, can never ripen into a title, is no less an established principle of law. Ebbinghaus vs. Killian, et al., 1 Mackey, 247; Armstrong vs. Resteaus’ Lessee, 5 Md., 256; Kirk vs. Smith, 9 Wheat., 288; Clymer v. Dawkins, 3 How., 674; McClung vs. Ross, 5 Wheat., 116; Record vs. Williams, 7 Wheat., 59; Green vs. Liter, 8 Cranch, 229.
    Even patrol declarations by Paul Jennings himself, that the defendant was, or was to become the owner, would be inadmissible to defeat his own title as contrary to the statute of frauds. Jackson vs. Casy, 16 Johns., 302. Angell on Eimitations, sections 385 and 446.
    “No parol transaction, whether called an agreement or an admission, could affect a legal title actually established (even) by adverse possession.” Neal et al. vs. Lee, Supreme Court, Wash. Law Rept., May 14, 1890.
    
      Having, as we think, shown that the defendant has acquired no title to the property, what right and remedy has the plaintiff to obtain possession?
    At the death of Frances, if not at her ejection from the premises, the defendant’s right of occupancy ceased, and she became a tenant at sufferance of the owners, (3 Wait’s Actions and Defenses, 47, and cases cited,) and upon the expiration of the thirty days’ notice to quit, a right of action for possession accrued under the landlord and tenant act. Luchs vs. Jones, 1 MacA. 345; Fiske vs. Bigelow, 2 MacA. 427; Barber vs. Harris, 6 Mackey, 586; Aff. in 129 U. S. 366.
    The fact that the plaintiff is not the sole owner of the premises does not deprive him of this right; the action may be brought by “the person entitled to the premises.” Rev. St. D. C., section 684. Each'tenant in common or coparcener has the right of possession, and can give the notice to quit and maintain the action. Taylor’s Eandlord and Tenant, 8th edition, section 479. A contrary rule would involve great hardship, where, as in the present instance, there are infant co-tenants, or where they are absent or will not join in the action.
    But we claim further, that whatever were the rights of the plaintiff under the landlord and tenant act, by the defendant’s plea of title and removal of the case into this court, it stands here for trial upon plaintiff’s declaration, as in ejectment, and in such case there can be no doubt of the right to recover for on undivided interest. Under the statute, the Justice of the Peace is empowered to try and determine all questions as to the existence and determination of a tenancy, and it is only when the defendant, by a plea of title, insists upon a trial of the question of title, such as is generally involved in an action of ejectment, that the case is brought to this court for such trial, the same as if it had been originally instituted here. Common Daw Rule, 12.
    The issue is then made between the declaration and the plea, and if the plaintiff prove either a complete title in himself or a prior possession to that of the defendant’s, as, in this case, he has done both, then he must prevail unless the defendant prove that his title has been extinguished and become vested in her. Were not this the intention and effect of the statute it would have simply provided that if upon the trial before the Justice of the Peace it should appear that the title was involved, and that it was not a question of tenancy alone, the case should be dismissed as beyond his jurisdiction to try, and leave the plaintiff to institute his new suit in this court. To give the defendant all the benefits of an action of ejectment and deprive the plaintiff of them would be an anomaly not to be ascribed to the law-making power, and would afford delinquent tenants an easy means of thwarting the very purpose of the landlord and tenant act; while the construction for which we contend could give no undue advantage to the plaintiff, for if he does not make out a case of tenancy he will stand in the same position as if he had brought his action of ejectment in the first instance. This construction is further borne out by the consideration that in cases thus brought here for trial an appeal is. allowed to the General Term, which certainly would not have been done if the inquiry could extend no farther than the question of tenancy, as it could not if an appeal were taken from the Justice of the Peace’s decision upon a trial of that issue before him. Luchs vs. Jones 1 MacA., 345.
    Mr. D. O’C. Callaghan for defendant.
   Mr. Justice Cox

delivered the opinion of the Court:

■ This is rather a tedious case to recite, and I will simply state the outline of it. It appears that many years ago a lot of ground, lot 23, in square 107, or at least the east thirteen feet four inches thereof, was occupied by a house known as No. 1804 F street, and was conveyed to Paul Jennings, and the adjoining part of the same, being No. 1806 F street, was conveyed to him and his daughter Frances. The deed did not use the word heirs, but that is not very material to the present inquiry. The daughter Frances apparently was an imbecile. It seems that Elizabeth Webb, who was a stepdaughter of Paul Jennings, was originally put by him into this house, No. 1806, adjoining the one conveyed exclusively to Paul, to take care of his daughter Frances, and she remained there for many years. In 1862 Elizabeth Webb claims that she had bought the entire property, No. 1806, from Paul. Paul died leaving three children — Frances, John and Franklin. Frances died without issue, and John died leaving children. The plaintiff claims that the defendant, Elizabeth Webb, was put in the house as a tenant of Paul Jennings, and has remained there always as a tenant. He claims that he owns one undivided half of the property and, his sister having died, that his brother’s children own the other undivided half. The plaintiff instituted a landlord and tenant proceeding to turn Elizabeth Webb out, and she pleaded title and that brings the case to this court. He then filed his declaration in ejectment in which he claimed one undivided moiety in the lot. There seems to be a little misapprehension of the nature of this proceeding. While our rule requires the plaintiff to file a declaration, as in ejectment, that does not convert the proceeding into an action of ejectment at all, in which the plaintiff recovers upon the strength of his title. In this proceeding, unless he establishes the relation of landlord between himself and the defendant, no matter what the form of the declaration is, he is not entitled to' recover. I have always held that at Special Term, and that is the opinion that we entertain now. It is still a landlord and .tenant proceeding.

The case was submitted to the justice instead of the jury upon the facts. He found that in 1862 this defendant went into possession, and while in possession of No. 1806 she acquired a tax deed to the property and Paul Jennings himself took a deed to the other house, No. 1804, and that arrangement was made by his consent, and from that time she held adversely ; that is, she claimed title to one undivided half of the lot as her own, the other undivided one-half belonging to Frances Jennings.

A motion was made for a new trial upon the usual grounds applicable to a verdict; that is, that the finding was against the weight of the evidence, etc. I have grave doubts, speaking for myself, whether this court can review the findings of the judge as to the facts. The statute does not contain anything about it. The statute provides that a verdict may be set aside as against the evidence. It does not provide that a finding of a judge upon the facts cambe set aside as against the evidence. But upon looking at such evidence as it is set out in the record, we do not see that the finding óf the court was against the weight of the evidence, and we assume the fact, therefore, to be that from 1862 up to the commencement of this proceeding, more than twenty years, the defendant was holding and claiming an undivided part of this property as her own, and that gave her the right to stay there. Now the plaintiff is at liberty to bring his action in ejectment to recover an undivided half, and to be put in possession of that to hold in common with the defendant, but she is entitled also to retain possession of her one-half. He is not permitted to turn her out as his tenant; she is not his tenant; she has a right to be there. And, therefore, the landlord and tenant proceeding could not be sustained. It is clear that the Judge was correct in his reasons for the judgment given upon the facts shown . in the record, and her right to remain there was good against the claim of this plaintiff.

The judgment is affirmed.  