McGarrell v. Murphy — 1 Hilt. 132

Majority

p. 132

Patrick McGarrell v. Anthony Murphy.

Headnote

Where one of two tenants in common gave permission to a third person to occupy a part of the premises, and the other co-tenant expelled him, held, that the latter was a trespasser, that the possession was joint, and that neither ¡co-tenant could take the exclusive possession. , ..

Appeal by defendant from a judgment of the Seventh District Court. This was an action" brought to recover. damages for a wilful trespass. The facts sufficiently appear in the opinion of

p. 133

tbe court. Judgment was rendered for tbe plaintiff for $25 and costs, from wbicb tbe defendant appealed.

J. B. Fitzgerald, for appellant.-

Submitted without argument by tbe respondent.

The defendant and one Quinn were tenants in common of a bouse and lot in tbis city. Quinn gave tbe plaintiff permission to occupy two rooms, in tbe bouse belonging to bim -and Murpby, for nine days. Tbe plaintiff removed there. Murpby met tbe plaintiff on tbe premisess and aslced by what authority be was there. He said Quinn gave bim permission, and on being asked for Quinn’s permission^» did not show it, and the defendant put bim out.

Tbe defendant’s act of expelling the plaintiff was unauthorized. By Quinn’s permission be was on tbe premises. He was entitled to all the rights wbicb Quinn bad, viz., tbe right to occupy jointly with tbe defendant tbe premises in question. One tenant in common has no right to expel tbe other. Tbe oecupancy is joint, and each party has a right to occupy jointly with the other. Neither tenant is bound to abandon tbe possession, nor to make partition, nor occupy one-half. His possession is not unlawful, if be does not prevent his co-tenant from occupying with him. Mumford v. Brown, 1 Wend. 52 .

The defendant was guilty of a trespass in removing tbe plaintiff.

Judgment affirmed.

Cases cited

Mumford v. Brown 1 Wend. 52 N.Y. Sup. Ct. p. 133