Hutton v. Powers

Holmes, Judge, delivered the opinion of the court. In this case there was judgment upon demurrer to the petition. The main ground of the demurrer was that the petition did not contain a good cause of action. It appears to proceed on the idea that the defendant was liable to the plaintiff as for use and occupation of the real estate therein described, in which the plaintiff alleges that he was “ joint owner,” to the extent of one undivided fourth part, with the other defendants; and from the facts stated, it may be gathered that they held possession of the premises as tenants in common. There are no sufficient averments in the petition that the relation of landlord and tenant ever existed between the parties, by agreement or otherwise. It is well settled that the action for use and occupation cannot be maintained in such case—Cohen v. Kyler, 27 Mo. 124. Nor is this petition framed in such manner as to show that the plaintiff is entitled to an account from his co-tenants of rents and profits received by them as tenants in common. The plaintiff will have leave to amend his petition. Judgment reversed and cause remanded. Judge Wagner concurs; Judge Lovelace absent.