Lester v. Barron.

and every person who may have entered into a contract respecting the wall referred to, or was it merely the liability of Walbridge, the party with whom he was contracting? It seems to me the latter is the true construction of the clause, and that the parties thereby intended nothing more than to limit Walbridge's covenant, and to save him harmless from all personal liability. If this interpretation of the defendant's agreement is correct, it follows that the plaintiff has no right of action thereon, unless Walbridge was personally liable to him; and that does not appear. The assignment from Connor of the contract for a deed, under which Walbridge subsequently obtained his title, imposed no personal liability upon him, nor does Walbridge in his testimony state that he was liable. He says, merely, that the defendant, having bid off the premises, at a public sale, at the price of $700, objected to take them on account of the contract between the plaintiff and Connor, and he (Walbridge) "deducted $100 in order to reconcile the matter." The plaintiff insists, that this arrangement was a virtual admission by both parties of the liability of Walbridge, which the defendant should not now be permitted to deny. I think not. The testimony hardly warrants the conclusion that the defendant, in consideration of $100 intended to assume an undoubted obligation for more than twice that sum. It indicates, rather, that the parties being in doubt as to whether Walbridge was in fact liable, under the circumstances, the defendant took the risk, in consideration of the $100 allowed him by Walbridge; and this view of the transaction is consistent with the language of the deed.

The defendant is entitled to judgment on the verdict.

Judgment ordered.

[MONROE GENERAL TERM, June 1, 1863. E. Darwin Smith, Johnson and J.

C. Smith, Justices.]

DRESSER US. DRESSER.

Where one tenant in common of real estate takes from his co-tenant a lease of the premises held in common, for a term of years, and after the expiration of the term continues in possession, without any new express agreement between the parties, or any claim by him to be exclusively entitled to the possession, or any act done to prevent a joint occupation by his co-tenant, the latter cannot recover of him for the use and occupation of the premises, after the expiration of the term.

The statute allowing an action of account, or for money had and received, to be maintained by one joint tenant or tenant in common, against his co-tenant, for receiving more than his full proportion, applies to cases where rent, or payment in money, or in kind, is received from a third party by one co-tenant, who retains for his own use the whole, or more than his proportional share; and not to a case where one tenant in common solely occupies the land, and farms it at his own cost and takes the produce for his own benefit.

A tenant in common of real estate who takes a lease of his co-tenant's moiety, for a term, subject to a specified rent, and continues in possession of the premises after the expiration of his term, will not be considered as holding over under the lease, and thus liable to an action for use and occupation; the presumption of law being that he is in possession under his own title. And such presumption will prevail, unless there be evidence that he holds as tenant to his co-tenant.

HIS action was brought to recover for board, washing and mending, furnished by the plaintiff to the defendant. The defendant in his answer denied each and every allegation of the complaint. And for another defense, the defendant answered that the several demands mentioned in the plaintiff's complaint did not accrue to the plaintiff within six years. And for another defense, and as a counter-claim, the defendant alleged that the plaintiff, at the commencement of this action was, and still is indebted to him, in the sum of $1000, for the use and occupation of divers messuages, lands and tenements of him, the said defendant, situate in Sempronius, Cayuga county, and which occupation was from and after the first day of April, 1855, to and including the day of the commencement of this action. And for another answer, and as a counter-claim, the defendant answered that he was and is the owner of an equal undivided half part of certain real estate,

Dresser v. Dresser.

situate in Sempronius, including a saw-mill, and various other tenements situated thereon. That the plaintiff, under an agreement with the defendant to pay for the use thereof, what the same should reasonably be worth, had occupied, used and enjoyed the same since April, 1855, to the time of the commencement of this action. That the yearly value of such use and occupation was $200. That the plaintiff had not paid for the same, nor any part thereof, but was still indebted to the defendant in the full amount thereof, with the interest on each year's use thereof, and the defendant claims judgment for the value of such use and occupation, to the amount of $1500. And for another answer, the defendant alleged that on the 1st day of January, 1859, a suit in the supreme court was depending between him as plaintiff, and the plaintiff herein as defendant, for the partition of certain real estate, then owned in common between such parties. That said suit was on that day compromised and settled by a partition and division of the premises; and that in consideration of such compromise and settlement, said John W. Dresser promised and agreed with this defendant, to pay to him the amount of the costs and expenses incurred by him in and about the prosecution of the said action, and to pay the plaintiff's costs in said action. That such costs amounted to the sum of $50. That the plaintiff has not paid the same, nor any part thereof, but is now justly indebted to the defendant in the full amount thereof. And for another counterclaim, the defendant answered that the plaintiff and defendant are, and for many years past have been, tenants in common of a farm of about 160 acres, situate in Sempronius, N. Y. each owning an equal undivided one-half part thereof. That in the spring of the year 1855, the plaintiff rented of the defendant his, said defendant's, interest in said farm for $250 per year, and the further consideration that the defendant should have his board, washing and mending and home at the family of said plaintiff, free of charge. That in pursuance of said agreement the plaintiff had used and occupied said

Dresser v. Dresser.

premises from that period until the commencement of this action, and was, on account thereof, justly indebted to the defendant in the sum of $1500, with the interest on each year's use thereof; and he demanded judgment in this action for the value thereof.

The action was tried before a referee. It appeared on the trial that on the 1st day of March, 1852, the parties were joint owners of two several pieces of land, situate in Sempronius, Cayuga county, the one containing 115 acres, and the other 49 acres, and on that day the defendant leased his interest in said lands to the plaintiff for three years, then next, for the price and consideration of $400 for the whole term. Said lease was in writing, under the hands and seals of the parties. The plaintiff occupied said premises during the continuance of said lease, and has since so occupied them, as hereinafter mentioned, but after the three years expired, there was no other contract about the plaintiff's occupying the land. On the 22d day of July, 1852, and while said lease was in force and unexpired, the parties sold about 75 rods of said land to one H. H. Riffenburg, for $285, which was paid before the termination of the lease. Of this sum, the defendant received his share, except as to the interest on all over $100, which the plaintiff retained, because he was still paying rent for the land so sold. In May, 1855, the defendant commenced a suit in this court against the plaintiff for partition of the 115 acre piece, and to recover for the rent, use and occupation. of said premises, which is the same claim set up in this action. In February, 1857, that suit was settled and discontinuedpartition made by consent-quitclaim deeds were given by the parties, each to the other, and the claim, if any existed, for the use and occupation by the plaintiff, was settled or abandoned. December 31st, 1859, the defendant again sued the plaintiff in this court, claiming a partition of the 49 acre piece, but making no demand for use and occupation. That suit was referred to a referee; tried before him, and he, on the third day of June, 1861, duly made his report therein,

Dresser v. Dresser.

wherein he decided that said John W. Dresser was the owner of more than two-thirds of said land, and said Joseph Dresser of the remainder thereof. The plaintiff occupied said 115 acre piece from the time of the expiration of the lease, until it was partitioned by consent, as above stated, and the 49 acre piece for six years previous to the commencement of this action, viz: March 20, 1861, as part owner thereof, and not as tenant of said defendant. While he so occupied them, the plaintiff made expensive, necessary and permanent repairs, additions and improvements thereon, of the value of at least $600, and also paid the taxes assessed thereon. The referee allowed the amount of the plaintiff's claim, $173.67. And he allowed the claim of the defendant for the use and occupation of the premises, and reported a balance due to the defendant of $697.41, for which sum, with costs, judgment was entered, against the plaintiff, and he appealed to the general

term.

L. O. Aikin, for the appellant.

N. T. Stephens, for the defendant.

mon.

By the Court, JAMES C. SMITH, J. The referee erred in allowing the defendant's claim against the plaintiff for the use and occupation of the real estate owned by them in comAt common law, one tenant in common of real estate, who occupies the whole estate, is not liable to an action of account, for the mere sole use and occupation. (Woolever v. Knapp, 18 Barb. 265, and authorities there cited by Mason, J.) Byour statute, an action of account, or for money had and received may be maintained by one joint tenant or tenant in common against his co-tenant, for receiving more than his full proportion. (1 R. S., 750, § 9.) It has been held under similar statutes, in England and in Massachusetts, that if one of two tenants in common solely occupies the land-farms it at his own cost and takes the produce for his own benefit