Solomon v. Rogers

Opinion by William W. Porter, J., The questions involved in this case have been thoroughly considered and rightly decided in an able opinion by the court below. The judgment might well be affirmed upon that opinion. There is, however, an alleged discord in the judgments of the Supreme Court upon the main question involved. In Kline v. Jacobs, 68 Pa. 57, the rule is laid down that there is no implied obligation to account for 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 expressed promise to pay rent or account. In Clayton v. McCay, 143 Pa. 237, language is used which seems to indicate that tenants in common in sole possession without the consent of their cotenants are liable to account. In that case, however, the tenants in common were in possession under an agreement of lease with their cotenants, pending litigation over the will of their common ancestor, from whom they took title to the several tracts of land, severally, by devise if the will was sustained, or jointly as tenants in common if the will fell. The will was not sustained. The cotenants of certain property remained in possession under the lease from their co-owners, after the issue devisavit vel non was determined. The question in the case was, whether they were liable by virtue of the original agreement for rental value for the time they continued in possession and after an attempted surrender. The possession after the vacation of the premises was in part continued by subtenants. The language of the opinion must be construed with reference to the facts of the case then before the court. The occupation was not by virtue of title as tenants in common, but by virtue of an agreement between tenants in com [77] mon stipulating for the payment of rent. It is upon this ground that the decision goes. The expressions used in regard to a liability to account by a cotenant in exclusive possession, doubtless refers to an adverse possession. We do not lind in the case an intention on the part of the court to overrule the doctrine of Kline v. Jacobs, supra, and other kindred cases, especially as the case of Enterprise, etc., Co. v. National Transit Co., 172 Pa. 421, decided since Clayton v. McCay, supra, recognizes in terms the authority of Kline v. Jacobs. The judgment of the court below is affirmed.