
    HELEMANO LAND COMPANY, LIMITED, v. C. M. V. FORSTER, TRUSTEE, AND WAIALUA AGRICULTURAL COMPANY, LIMITED.
    Appeal erom Circuit Judge, Eirst Circuit.
    Argued September 24, 1910.
    Decided, October 5, 1910
    Hartwell, C.J., Perry and De Bolt, JJ.
    Tenancy in common — lease by one cotenant — other may ratify or repudiate.
    
    A tenant in common, where a lease has been executed by his eotenánt without his knowledge or consent, may ratify the lease and claim his share of the benefits under it, or repudiate it and assert his rights against the lessee. He cannot do both, and having once made his election he is bound.
   OPINION OF THE COURT BY

DE BOLT, J.

This is an appeal by tbe complainant from a decree sustaining a demurrer to tbe bill. Tbe demurrer was interposed by tlie respondent Eorster. The Waialua Agricultural Company answered, admitting tbe facts alleged in tbe bill, and also stated that it “stands ready and willing to- perform and abide by such order and decree herein as tbe court shall deem meet.”

Tbe bill alleges, in substance, that complainant and Forster are tenants in common of certain land; that Forster’s predecessor in title leased tbe land to the Waialua Agricultural Company for a term of fifty years from January 1, 1899, at a certain rental; that tbe lessee went into possession of tbe entire land and has since retained tbe possession; that complainant’s predecessor in title, John Emmelutb, brought an action to quiet title to tbe land against Forster and tbe Waialua Agricultural Company, in which action Emmelutb was, on September 29, 1909, adjudged tbe owner of an undivided one-balf interest in tbe land and entitled to tbe immediate use and possession thereof, and Forster -was adjudged tbe owner of tbe remaining undivided one-balf interest, but tbe Waiabia, Agricultural Company was adjudged to be entitled to tbe immediate use and possession of tbe undivided one-balf interest owned by Forster; that Forster collected all tbe rent from August 11, 1904, until July 1, 1905; that tbe Waialua Agricultural Company from July 1, 1905, to July 1, 1909, withheld one-balf of tbe rent, and during tbe same period paid the other one-balf to Forster; and that Forster refuses to pay -any portion of tbe rent to complainant.

Tbe prayer is that complainant’s rights be ascertained and declared; that Forster be directed to account for all rents collected; that tbe Waialua Agricultural Company be directed to account for all rents remaining in its bands, and that it be directed to pay complainant out of tbe rents hereafter falling due one-balf thereof.

W. A. Creenwell (Castle & Withington on tbe brief) for plaintiff.

C. H. Olson (Holmes, Stanley & Olson on tbe brief) for C. M. V. Eorster.

A. L. Caslle filed a brief for Waialua Agricultural Company, but did not 'appear personally.

Tbe demurrer alleged various grounds, but tbe one particularly relied upon was, that complainant had a full, adequate and complete remedy at law, in an action against the Waialua Agricultural Company for mesne profits.

This was a proper ground of demurrer as tbe facts disclosed by tbe bill do not present a case for equitable relief.

Eorster contends, 'and we think correctly, that tbe action to quiet title, brought by Emmelutb, operated as a repudiation of tbe lease as to tbe undivided one-half interest in tbe land now owned by complainant, and that tbe only remedy now open to complainant is to proceed against tbe Waialua Agricultural Company in some 'appropriate- action.

We are bound to assume that tbe judgment obtained by Emmelutb was responsive to tbe action which be brought-, and this being true, tbe position which be thereby voluntarily assumed, was necessarily inconsistent with any claim be, or bis successor in title, might thereafter malee under tbe lease, and being so, it operated as 'a repudiation of tbe lease.

A tenant in common, where a lease has been executed by bis cotenant without his knowledge or consent, may ratify tbe lease and claim his share of the benefits under it, or repudiate it and assert bis rights against tbe lessee. He cannot do both, ■and having once made bis election be is bound. 17 Am. & Eng. Ency. Law, 673, 674.

Tbe decree appealed from is affirmed.  