Opinion
07-11-1889
WICKOFF v. WICKOFF.
G. O. Vanderbilt, for complainant. U. B. Cook, for defendant.
Bill by John Wickoff against Andrew J. Wickoff for an account of the rents and profits of land used by defendant, of which complainant and defendant were co-tenants.
G. O. Vanderbilt, for complainant. U. B. Cook, for defendant.
BIRD, V. C. These parties were two of seven children, who enjoyed a common inheritance in land. The defendant farmed the land for a number of years, according to an understanding with all of the rest. One of the terms of the contract was that he should pay a certain portion of the produce to each of the others. He would convert the produce into cash and give the share each was entitled to in money to him or her. After this had continued eight or nine years, the complainant gave the defendant notice, in writing, to quit, and informed him that he did not want him to farm any more for him. The defendant remained in possession, as he had a right to, and continued to farm the premises in all respects as he did before, except, he says, that he did not farm quite so much as he did before, or did not run the farm to its full capacity. He so farmed for three years after the notice, and paid all of the co-tenants, except the complainant, their just proportion of the produce. He refused to account to the complainant for any part, for the alleged reason that the complainant gave him the notice to quit. I think that under the decisions in our state the complainant is entitled at the hands of the defendant to his full share of the produce of the farm, notwithstanding the notice.
1. He was in possession of the whole, cultivated a portion of the whole, and produced crops, which he sold for cash. One tenant in common cannot so take possession of the whole, and determine for himself that he will farm for himself and others only a certain portion to the exclusion of all the rest from the profits of such portion. There can be no ideal partition by which one in possession can cultivate his supposed part of the whole, in the hope of saving himself from accounting for the just proportion of what he actually raises to each of the other tenants in common. Nor can one of seven tenants in common cultivate for himself and five others so much of the whole as he may regard six-sevenths, and then say to the seventh that he has no share in what he has grown. He cannot say: "I did not farm foryou, but only for myself and the other five." The plain principle that each is alike seised of every part forbids any such appropriation.
2. In this case, I am satisfied that the defendant has not accounted to the other tenants in common for their share of all his receipts on the theory that the defendant is excluded; but that he has his share still in his own hands. He is indebted to the complainant in the sum of $110 for the year ending April 1, 1882, with interest from that date: and in the sum of $100 from the 1st day of April, 1883, and interest; and in the sum of $80 from the 1st day of April, 1884, and interest. I will so advise, with costs.