Williams v. Sutton

[71]By the Court,

Crockett, J.: The plaintiff deraigns title to one undivided fourth of the premises in controversy under a valid alcalde grant, and is entitled to recover the possession of the whole property as against the defendant, who has shown no title, unless the judgment in the case of Sutton v. Woods et al. shall have the effect to limit his recovery to the one undivided fourth only. Heither the plaintiff or his grantors were parties to that action, or in privity with the defendants therein; and it is conceded that his rights are unaffected hy the judgment. But it is said that Woods, Hastings, and Haskell, the defendants in the former action, who were then cotenants in common with the plaintiff’s grantors, are concluded by the judgment, and are estopped thereby from setting up title or a right to the possession, as against the present defendant, who was the plaintiff in that action; and hence that the-present plaintiff is not entitled to recover the possession of the three undivided fourths formerly claimed by them, and to which it has been argued the present defendant has the better title, as against Woods, Hastings, and Haskell. But one of the incidents of a tenancy in common holding the title, is that each of the cotenants is entitled to the-exclusive possession of the entire property, as against the whole world, except his cotenants. A person without title and wrongfully in the possession, cannot gainsay the right of each of the tenants in common to the possession of the whole. As between tenants in common and a trespasser, each tenant in common is better entitled to the possession than a wrongdoer. The former is seized per mi et per tout, and has an interest in the whole, which entitles him to the enjoyment of the entire estate as against every one except his cotenants. Is the defendant a cotenant with the plaintiff? If so he must have acquired that status by means of the judgment in the former action, in which it was adjudged that as between him and [72]Woods, Hastings, and Haskell he had the better title and the better right to the possession. But he did not thereby become vested with their title or succeed to their interest in the property. On the contrary the Court decided that they had no title, and left Sutton in possession under such claim of title as he had under the Colton grant. The judgment added nothing to his former title, but left it as it was before; and the point decided was that his was better than the title of his adversaries. I do not comprehend how all this can have the effect to convert the defendant into a tenant in common with the plaintiff’s grantors, who were not parties to the action, and were unaffected by the judgment. Hot-withstanding the judgment, the defendant, so far as it concerns the plaintiff and his rights, is as much a trespasser now as when he first entered on the lot; and I am not aware of any exception to the rule that as against a trespasser one of several tenants in common is entitled to the possession of the entire property. The judgment, it is true, estops Woods, Hastings, and Haskell from asserting title as against the defendant. But they are not asserting it in this action, nor are their rights in question here. On the contrary the plaintiff is entitled to the possession of the whole property, not on the strength of their title or right of possession, but of his own as one of several tenants in common, having a better right a,s such to the entire property than a mere intruder without title. Hor can it be doubted that the plaintiff and Woods, Hastings, and Haskell are still tenants in common notwithstanding the judgment in the former action. As already stated the judgment did not have the effect to divest whatever title the defendants in that action had, nor to transfer it to Sutton, and consequently did not disturb the relation of tenancy in common before then existing between them and the plaintiff’s grantors. The only effect of the judgment was to estop the defendants therein from asserting the title which they claimed against Sutton, the present defend