Miller v. Myers

By the Court: It is well settled that a refusal, after a proper demand by a tenant in common in possession to admit his cotenant into the possession, is itself an ouster, and dispenses with the necessity of further proof on that point. It is equally clear that in an action by a tenant in common against his co-tenant to be admitted into the possession, a denial in the answer of the plaintiff’s title and right of entry is equivalent to an ouster, The action is the most effective demand the plaintiff could make to be let into possession; and if his title and right of entry be denied, he need make no further proof of the ouster. But an ouster established in this method relates only to the commencement of the action; and if there be no proof of an ouster at a prior date, it will be deemed to have occurred immediately before the institution of the suit. In that event the plaintiff can recover in ejectment the value of the use and occupation only from the commencement of the action, when the ouster is deemed to have occurred. In this case the answer denies the plaintiff’s title and right of entry; and this established the ouster, as of the date of the institution of the suit. The recovery for use and occupation ought, therefore, to have been limited to that period, unless there was proof of an ouster at an earlier date. But the Court finds that Shepherd, the landlord of the defendants, had been in the actual adverse possession of the demanded premises from the year 1853 to the present time, claiming title adversely to the plaintiffs and all other persons; but that the plaintiffs had made no demand before the commencement of the action to be let [539]into the possession, and had made no offer or attempt to take possession. If an ouster can be inferred from these facts, it must rest solely on the ground that Shepherd was in the adverse possession, claiming title adversely to the plaintiffs. It does not appear that the adverse holding and claim of title were open and notorious, nor that the plaintiffs had notice of it. It is, therefore, unnecessary for us to decide whether, if these facts had appeared, the ouster would have been established, in the absence of a demand by the plaintiffs to be let into the possession. But it is clear that an adverse holding and claim of title do not, of themselves, constitute an ouster. The tenant, out of possession, has a right to assume that the possession of his co-tenant is Ms possession, until informed to the contrary, either by express notice or by acts and declarations, which may possibly be equivalent to notice under certain circumstances. But until he has notice, either actual or constructive, in some form, that the possession of his cotenant has become hostile-, it will be deemed in law to have been amicable, notwithstanding the tenant in possession may, in fact, have been holding adversely. If the rule were otherwise, the tenant out of possession might be disseized, and lose his remedy, by the bar of the Statute of Limitations, without notice that the possession of his cotenant, which before was amicable, had become hostile. To avoid this injustice, the law deems the possession to have continued amicable until the tenant out of possession has, in some method, been notified that it has become hostile. We are, therefore, of opinion that the facts shown by the findings do not establish an ouster in 1868, and that none was proved, except by the denials of the answer, which related only to the commencement of the action. The Court, therefore, erred in awarding damages for use and occupation prior to the institution of the suit. In the complaint, the plaintiffs demand only one hundred dollars as damages;