Williams v. Coal Creek Min. & Mfg. Co.

• Decision Date: 23 June 1906
• Citation: 93 S.W. 572,115 Tenn. 578
• Parties: WILLIAMS et al. v. COAL CREEK MIN. & MFG. CO. et al.
• Court: Tennessee Supreme Court

93 S.W. 572

115 Tenn. 578

WILLIAMS et al. v. COAL CREEK MIN. & MFG. CO. et al.

Supreme Court of Tennessee.

June 23, 1906

Appeal from Chancery Court, Morgan County.

Action by R. A. Williams and others against the Coal Creek Mining & Manufacturing Company and others. From a decree in favor of complainants, defendants appeal. Reversed.

J. M King and Pritchard & Sizer, for appellants.

Lucky Sanford & Fowler, for appellees.

BEARD C.J.

This is an ejectment suit brought by a portion of the heirs of the grantee to recover possession of a 5,000-acre tract lying in Morgan county. The Court of Chancery Appeals heard the cause and sustaining the bill of complainants, among other things decreed, that as against defendants, who were in without right, the complainants, although owning fractional undivided parts were entitled to the possession of the whole tract, to be held for themselves, and such other parties as might be able to show thereafter they were tenants in common with them. At a former term of this court the cause was heard upon appeal and the decree of that court was, in all things, affirmed.

A petition for rehearing, however, was filed by the defendants, asking for a rehearing on the point above indicated, it being insisted that as a matter of right, and upon authority, one tenant in common entitled to a fractional portion of an entire tract should not, as against a party in possession, be permitted to recover the whole.

It will be seen that the text-writers are not agreed on the question of practice in such cases. Mr. Freeman, in his work on Co-tenancy and Partition (section 300), lays down the rule thus: "A tenant in common is, as against every person but his co-tenant, entitled to every part of the common land." On the other hand, Mr. Newell, in his work on Ejectment, 130, says: "If by the common law tenants in common, present and co-operative, cannot maintain a joint action of ejectment for the possession of the premises owned by them jointly, how is it that one of them suing alone can recover the whole of the joint premises as against a stranger, the judgment having the effect of a joint recovery? It seems illogical to say that it can. The better rule seems to be that the recovery of a joint tenant, in the absence of statutory enactment to the contrary, must be limited to his right or interest in the premises. For it might well be that the other tenants in common may prefer the person in actual possession of the premises to the person seeking to recover it from him."

Upon examination it will be found that the same diversity of opinion on this subject exists among the courts. In California, beginning possibly with Williams v. Sutton, 43 Cal. 71, and certainly including, if not ending, with Newman v. Bank, 80 Cal. 368, 22 P. 261, 5 L. R. A. 467, 13 Am. St. Rep. 169, the uniform holding seems to be that one tenant in common may sue in ejectment and recover the entire premises against all persons save co-tenants and those claiming under them. Upon the authority of these cases rests Hardy v. Johnson, 1 Wall. (U. S.) 371, 17 L.Ed. 502. The same rule, in one form or another, is recognized in Barrett v. French, 1 Conn. 354, 6 Am. Dec. 241; Habbard v. Foster, 24 Ver. 542; Crook v. Vandevoort, 13 Neb. 505, 14 N.W. 470; Sowers v. Peterson, 59 Tex. 216.

To the contrary, there are many courts of the highest respectability which limit the recovery of a tenant in common, who sues alone to a right of possession, corresponding in limit with the undivided interest which he establishes in the property, and letting him in to its enjoyment with the party in possession whether or not he be a stranger to the title. Among the cases recognizing this limitation are Dewey v. Brown, 2 Pick. (Mass.) 387; Mobley v. Bruner, 59 Pa. 483, 98 Am. Dec. 360; Gray v. Givens, 26 Mo. 303; Marshall v. Palmer, 91 Va. 344, 21 S.E. 672, 50 Am. St. Rep. 838; Overcash v. Kitchie, 89 N.C. 384; King v. Hyatt, 51 Kan. 504, 32 P. 1105, 37 Am. St. Rep. 304.

In a very elaborate note to the case of Marshall v. Palmer, supra in the fiftieth volume of the American State Reports, Mr. Freeman, the editor, while maintaining the logical soundness of the rule, already cited from his work on Co-tenancy and Partition and that this rule is...