Frye v. Moffet

Mr. Chibe Justice Bean delivered the opinion. We think the decree must be reversed. It is incumbent on a plaintiff in a suit for partition, unless the suit is brought by one or more tenants in common of a vested remainder or reversion, to allege and prove, if denied, that he and the defendant were in possession of the property as tenants in common at [497] the time of the commencement of the suit: Sterling v. Sterling, 43 Or. 200 (72 Pac. 741). And this the present plaintiff does not do. She does not allege that she was in possession; but, on the contrary, avers that defendant was and ever since November, 1904, has been in the sole occupancy of the premises, and such are the facts that appear from the evidence. Ordinarily the possession of one tenant in common is the possession of both; but this record discloses a dispute as to the title and right of possession of real property, and until it is determined, and plaintiff secures possession in some appropriate proceeding, she cannot maintain a suit for partition. Decree reversed, and complaint dismissed. Commissioner King, having been of counsel, took no part in this decision.