Wiswall v. Wilkins

Paddock, J. In- this case, the plaintiff, Wiswall calf’s-' on the defendant to render an account for the rents and-profits of certain lands and tenements, of which the Plain-claims to be a joint tenant with the defendant. It appears that in 1811, the plaintiff, together with the defendant and others under whom the defendant claimed to hold, levied their executions on the houses and lands of one Burton their debtor ; the levies were all made by the same officer, and on the same day, who returned that he-put each of the creditors in possession. The leyy of all the executions appear to be deféctive :/ and had Burton resisted the right thereby acquired by his creditors, there cannot be a- doubt but the levies would alt have been declared void. But from his silence, it is to be presumed that he acquiesced at the time, and has ever since been content, and now it is too late for him, to disturb them, for the title has become perfect in his creditors, the statute of limitation having run in their favor. The question then is, whither by the levy, the execution creditors became tenants in common; and of that, there can be no doubt, as each execution was extended upon an undivided portion of the whole lands levied upon, they could hold in no other manner; and although it does not appear that there was any contract entered into between the plaintiff, defendant and the other claimants that the defendant should occupy and enjoy the premises, yet he-must be regarded- as possessing not only for himself but for his co-tenants; nothing appearing from the case that ho had ever ousted them-of their possession, by setting up a title in himself or denying their right to possess, or a participation in the rents and profits. The presumption is, that he has occupied by the mutual consent of all concerned, and is liable to be called to account by each of his co-tenants. Woodfall’s Landlord & Ten. 89. This being the view which the Court have taken of the case, the judgment of the County Court must be reversed, and a new trial granted.