Critchfield v. Humbert

• Decision Date: 02 June 1861
• Citation: 39 Pa. 427
• Parties: Critchfield <I>versus</I> Humbert.
• Court: Pennsylvania Supreme Court

39 Pa. 427

Critchfield versus Humbert.

Supreme Court of Pennsylvania.

June 2, 1861.

ERROR to the Common Pleas of Somerset county.

Hugus and Kimmel, for plaintiff in error, in support of the doctrine

that a tenant in common, who has recovered in ejectment, may maintain an action for mesne profits against his co-tenant, cited and relied on 3 Wills. 118; 1 W. Bl. 1077; Hare v. Fury, 3 Yeates 13; and argued that, if plaintiff was restricted to the time from which he became co-tenant, there was evidence that about two hundred trees were cut down after that by Humbert, who had notice, by his deed, that he was only owner of one-sixth of the property.

Forward and Gaither, for defendant.—That an action of trespass vi et armis can be maintained by one tenant in common against his co-tenant, who has one into possession of the estate, and taken all the rents and profits himself without objection on part of his co-tenant, was perhaps never before seriously asserted. An action quare clausum fregit may be maintained under certain circumstances, but not under those proven in this case.

The gist of this action is the injury to the possession, and as the defendant certainly had a right to the possession there was no trespass, and could be none, unless he had forcibly ejected or kept off his co-tenants from coming also upon the property, which is neither proven nor alleged in this case. It is simply an attempt to recover for rents and profits, taken without force by defendant, or resistance by plaintiffs, and will not lie: Chitty's Pleading, vol. 1, p. 179.

The opinion of the court was delivered, June 2d 1861, by WOODWARD, J.

That a tenant in common may maintain trespass against a co-tenant for mesne profits, after a recovery in ejectment, is shown by the authorities referred to in Bennett v. Bullock, 11 Casey 364, to which may be added the case of Hare v. Fury, 3 Yeates 13. This action is of that sort. Critchfield, the plaintiff, purchased five undivided sixth parts of a tract of lumber land on the 12th February 1858. Humbert, the owner of the other sixth, was in possession, and had cut down a considerable quantity of timber trees, for the manufacture of lumber, at a saw-mill on the premises. Critchfield instituted ejectment against Humbert, and recovered a judgment on the 9th September 1859.

He then brought this action for mesne profits, but the court directed a verdict for the defendant, on the ground, apparently, that the evidence failed to prove any...