Opinion
Decided September 30th, 1924.
Tenants in common of lands have a legal right to occupy them, and when one tenant in common has sole but not exclusive possession thereof, her possession is presumed to be in accordance with her title, and she is not chargeable for the use and occupation thereof.
On exception to master's report.
Mr. George W. Anderson, for the exceptant.
Mr. A. Harry Moore, for the respondents.
The property ordered to be sold in partition consists of a six-room house on a lot twenty-five by one hundred. It belonged to the mother of the complainant and four defendants, and was occupied by their parents. The defendant Sadie Winans and her husband lived with her parents until they died, and then, as she says, she "just stayed on." The master correctly reported that she was not chargeable for the use and occupation, to which exception has been taken.
Mrs. Winans was in sole, but not exclusive, possession. She had the legal right as co-tenant to occupy the house. Cotenants have a several and equal right of possession, and the possession of Mrs. Winans is presumed to be in accordance with her title. This presumption is not disturbed by the established circumstances. Her co-tenants were not excluded; they made no claim for joint occupation, and she asserted no right to exclusive possession. They had the right to occupy the premises with her. If they chose not to do so they cannot now complain of her sole occupation. The law is well settled in this state that in a situation such as is here presented a tenant in common is not obliged to account for his occupation. Izard v. Bodine, 11 N.J. Eq. 403; Barrell v. Barrell, 25 N.J. Eq. 173; Edsall v. Merrill, 37 N.J. Eq. 114; Sailer v. Sailer, 41 N.J. Eq. 398; Lloyd v. Turner, 70 N.J. Eq. 425. For an analysis of the authorities on the subjects, see the footnotes to Gage v. Gage, 28 L.R.A. 829; Thurstin v. Brown, 29 L.R.A. ( N.S.) 238. See, also, "Co-tenancy," 7 R.C.L. 826.
Exception overruled.