Enterprise Oil v. National Transit Co.

Opinion by Mr. Justice Mitchell, This case was unfortunately tried on a wrong theory throughout. The oil was received by the defendant for account of plaintiff, and so credited on the defendant’s books. Prima facie therefore it belonged to plaintiff, and though it would be a good defense to show that it was claimed by the real owner, yet such defense involved the burden of proof that the claimant had in fact the better title. This the defendant entirely failed to show. It defended on Johnson’s title, or rather permitted him to do so in its name. Johnson’s interest, as agreed by all parties, was an undivided sixteenth. Whether it was a sixteenth in the partnership, or a sixteenth in the leases as a tenant in common, the issue on which the jury were permitted to find a verdict, was, for the purposes of this case entirety immaterial. In either aspect, as already said, his interest was undivided, and he never had any separate possession either of the land or of the oil. There was not only no evidence that this particular oil was his, but on the contrary a prima facies that it was the plaintiff’s. It was delivered by their lessee to the defendant as a carrier for them. The possession of the carrier was their possession as against all the world but a claimant showing a better title. The utmost that Johnson showed, even on his own claim to be a tenant in common, was that as to one sixteenth of the oil his title was the same, as good but no better than that of the other fifteen cotenants represented by the plaintiffsi The status of the ease [426] even in the most favorable light for Johnson, was the same as if he had been suing his cotenants for his share of the profits of the land. The rights and remedies of tenants in common among themselves have been the subject of some discussion in this state. At common law, as each was entitled to the joint possession of the whole, there was no liability to account to each other, except upon an express agreement to act as bailiff, or ah actual ouster which would sustain an ejectment for restoration of possession and mesne profits. . The act of 4 Anne, c. 16, sec. 27, dispensed with the necessity of express appointment as bailiff, and gave an action of account against the cotenant “receiving more than comes to his just share or proportion,” and in this state it has been settled after some variance of opinion, that the action is not necessarily in account render, but where there has been an express promise, it may be in assumpsit. Gillis v. McKinney, 6 W. & S. 78. In Borrell’s Adm. v. Borrell, 33 Pa. 492, the majority of the court sustained assumpsit on an implied obligation to account, but this case was practically overruled in Kline v. Jacobs, 68 Pa. 57, where the subject was discussed by Shars"WOOD, J., and the rule clearly laid down that there is no implied obligation to account for mere use and occupation by one tenant in common, who has by his title a right of possession of the whole, although it is joint, and that assumpsit can only be maintained on an express promise to pay rent or to account. The best summary of the law in our own books will be found in the admirably clear and accurate opinion of Judge Thayer in Norris v. Gould, 15 Weekly Notes, 187. But all of our cases including even those which have most favored the action in assumpsit, such as Borrell v. Borrell, supra, and Luck v. Luck, 113 Pa. 256, have held that unless on an express promise of a liquidated sum, all the cotenant is obliged to account for is a share of the profits. The utmost therefore that Johnson could have recovered if this had been a direct action against his cotenants would have been the excess which they had received over their proper share of fifteen sixteenths. But he was allowed to recover the whole of the oil in controversy on the ground that as a tenant in common of one sixteenth he was entitled to one sixteenth of the entire product of the lease, without having given a scintilla of evidence that [427] any of his cotenants had received more than their due share. Under the evidence as it stood there was no defense at all made out, and the jury should have been directed to find for plaintiffs for the full amount of the oil. There is another difficulty in the way of Johnson’s title in the present case. The oil in controversy was delivered by the lessee to his lessors the plaintiffs as rent under his lease. Johnson cannot affirm and repudiate the lease in the same breath. If he is a party to it, he must take his share as the others do upon a distribution of the rent after deducting all proper charges and expenses. If he is not a party to the lease he has no claim to any share in the rent, and must look to the lessee as a co-tenant who has not acquired his title. Judgment reversed and venire de novo awarded.