Opinion
Docket No. 69, Calendar No. 43,376.
Decided October 7, 1946.
Appeal from Wayne; Webster (Clyde I.), J. Submitted August 29, 1946. (Docket No. 69, Calendar No. 43,376.) Decided October 7, 1946.
Summary proceedings before a circuit court commissioner by Philip W. DesRoches against John McCrary for possession of land. Case appealed to circuit court. Judgment for plaintiff. Defendant appeals. Affirmed.
Bishop Babler, for plaintiff. Etheleen M. Stevens and Schulman Schulman ( Meyer Weisenfeld, of counsel), for defendant.
This is review of judgment for plaintiff for recovery of possession of premises in summary proceedings, begun before a circuit court commissioner, appealed to the circuit court and tried before the court without a jury.
Plaintiff, Philip W. DesRoches, and his brother, Donald W. DesRoches, who has not joined in these proceedings, are owners of the premises in question, as tenants in common, by inheritance from their father under whom defendant came into possession as a tenant at will. Defendant continued in such possession for several years after plaintiff and his brother became the owners, occupying it with his wife, son, sister and the latter's daughter. On July 9, 1945, the defendant moved his family and household furnishings, except one bedroom suite, to a home recently purchased by him, at the same time advising plaintiff's caretaker that his sister and her daughter were going to stay in the premises. The sister continued occupancy and had the telephone, gas and electricity billings changed from defendant's name to hers. Defendant testified that since moving to his new home, for reasons of convenience to his professional work, he has stayed overnight at the premises in question with his sister about twice a week.
On July 28, 1945, plaintiff caused to be served a notice to terminate tenancy for the reason therein stated, that defendant had moved out of the premises and sublet the same to other persons.
Defendant contends that, although he has moved his family and furnishings to another home, the premises in question still constitute his own dwelling within the meaning of section 6(a) of the office of price administration rent regulations, 8 Fed. Reg. 7322, 7326, which provides:
"So long as the tenant continues to pay the rent * * * no tenant shall be removed * * * unless * * *
"(4) * * * The tenant's lease or other rental agreement has expired or otherwise terminated, and at the time of termination the occupants of the housing accommodations are subtenants or other persons who occupied under a rental agreement with the tenant, and no part of the accommodation is used by the tenant as his own dwelling."
and that, therefore, eviction may not be had.
The trial judge held that the premises are not the defendant's own dwelling. In Schadt v. Brill, 173 Mich. 647, 654 (45 L.R.A. [N.S.] 726), this court defined a dwelling house as "the house in which a man lives with his family; the apartment or building, or group of buildings, occupied by a family as a place of residence." The term "dwelling" has been defined as a habitation for man usually occupied by a person lodging in it at night. State v. Warren, 33 Me. 30, 31. Were the premises in question the defendant's "own dwelling" as that term is employed in the above rent control regulations? It seems clear that the defendant's own dwelling is the home purchased by him and into which he moved his family and furniture. Without deciding whether a man can have more than one dwelling, it is manifestly not the intent and purpose of the rent control regulations to protect a tenant in the possession of more than one dwelling. It must be held that such use as the defendant made of the premises in question did not constitute the same his own dwelling within the protective provisions and meaning of the above O.P.A. rent regulations.
The second question presented is whether summary proceedings to recover the possession of land may be brought by one of two tenants in common without the joinder of his cotenant as a party plaintiff.
The statute under which this action is brought provides in part that:
"The person or persons entitled to the possession of the premises, his or their agent or attorney, may make complaint in writing." 3 Comp. Laws 1929, § 14976 (Stat. Ann. § 27.1987).
The action involves the right to possession alone and the question of title is not included. Is plaintiff, as one of two tenants in common, entitled to possession as against everyone but his cotenant?
We quote from the syllabus in Everts v. Beach, 31 Mich. 136 (18 Am. Rep. 169), as follows:
"A tenant in common of lands cannot recover of his cotenant for the use and occupation by the latter of the lands claimed in common, in the absence of any express promise; the right of each to occupy is one of the legal incidents of such tenancy, and it pervades the whole land; and one is not excluded by the failure of the other to occupy, but whatever he occupies in such case, is in his own right, and not under his cotenant."
In the case of Heilbron v. Railway Co., 52 Tex. Civ. App. 575 ( 113 S.W. 610), it was held that no one can complain of the exclusive use of the joint property by one tenant in common, except his cotenant. The plaintiff, as one of two tenants in common, is a person entitled to possession as against everyone but his cotenant.
In an ejectment proceeding the supreme court for the State of Connecticut in the case of Hillhouse v. Mix, 1 Root (Conn.), 246 (1 Am. Dec. 41), said:
"Former decisions are, according to the British law, that tenants in common might not join; but the law has since been settled in this State that they may join."
In the case of Davis v. Coblens, 174 U.S. 719, 725 ( 19 Sup. Ct. 832, 43 L.Ed. 1147), the United States supreme court quotes with approval the following:
"The original rule at common law was, that tenants in common could only sue separately because they were separately seized, and there was no privity of estate between them. Mobley v. Brunner, 59 Pa. 481; Corbin v. Cannon, 31 Miss. 570, 572; May v. Slade, 24 Tex. 205, 207; 4 Kent's Commentaries, p. 368.
"The practice soon became general, however, in the United States to permit them to sue either jointly or severally as they might elect. 7 Enc. Pl. Pr. 316, and cases cited."
In the case of Moore v. Ramsey, 272 Ky. 582 ( 114 S.W. [2d] 1101), presenting a set of facts very similar to those before us, the court upheld the right of one of the tenants in common to maintain an action of forcible entry and detainer.
However, the defendant calls attention to the provisions of 3 Comp. Laws 1929, §§ 13963, 15101 (Stat. Ann. §§ 27.592, 27.2118), which provide in part:
"Where several persons shall be * * * entitled to real estate as tenants in common, or as joint tenants, they may bring a joint action for the recovery thereof, or they may bring several actions for their respective shares or interests."
Under a similar California statute (Stats. 1857, p. 62) which provided as follows:
"All persons holding as tenants, joint tenants, or coparceners, or any number less than all, may jointly or severally bring or defend any civil action for the enforcement or protection of the rights of such party."
in an action of forcible entry and detainer, the California supreme court held properly refused a request to charge that "one tenant in common cannot maintain the action alone; all tenants in common must join in the action." Bowers v. Cherokee Bob, 45 Cal. 495, 509.
It may be urged that permitting one tenant in common to maintain the proceedings would give rise to practical difficulty when the other tenant in common desires the occupant to remain in possession. The opposite horn of the dilemma is no less severe, were we to hold that a tenant in common may retain a stranger to the title in possession against the wishes of his cotenant by the simple device of refusing to join in the proceedings as a party plaintiff.
The action is possessory and the question of title is not involved. The right of one tenant in common to occupy, in his own right and not under his cotenant, being a legal incident to such tenancy which pervades the whole land (Everts v. Beach, supra), it must be held that plaintiff has such right to possession as meets the requirements of the statute for bringing these proceedings. He can maintain summary proceedings to recover possession of the premises against a stranger to the title without a joinder of his cotenant as a party plaintiff.
See 3 Comp. Laws 1929, § 14975 (Stat. Ann. § 27.1986). — REPORTER.
Question is raised in defendant's brief as to the validity and sufficiency of service of the notice to terminate tenancy. The entire record, including defendant's own testimony, fails to support his position in this regard. The question was not raised in defendant's statement of reasons and grounds for appeal and should not be considered here. Patterson v. Jacobs, 289 Mich. 351, 357.
Judgment affirmed, with costs to appellee.
BUTZEL, C.J., and CARR, BUSHNELL, SHARPE, BOYLES, REID, and NORTH, JJ., concurred.