Cady v. Ridenour

Mr. Justice Thompson delivered the opinion of the court. The only question presented by this appeal is whether a bill in chancery can be maintained for an accounting for rents and profits by one tenant in common against a tenant in common who has taken and used more than his interest or proportion of the common property. Section 1 of chapter 2 of the Statute provides ‘ That where one or more joint tenants, tenants in common or co-parcener in real estate, or any interest therein, shall take and use the profits or benefits thereof, in greater proportion than his, her or their interest, such person or persons * * * shall acount therefor to his or their co-tenant, jointly or severally.” Section 18 of the same chapter provides: “In all cases commenced under the first, fourth and fifth enumerations of section 2 of this Act, the several courts of record in this state having chancery jurisdiction are empowered to hear, try and determine the same * * * and such as such courts sitting in chancery could lawfully make * * * and such courts shall render final judgment * * * and enforce such judgment or judgments by execution or in any other way in which courts sitting in chancery could enforce the same.” Section 2 of the same chapter provides: “The action of account may be sustained: First by one joint tenant, tenant in common or co-parcener * * * against the other or others who receive as bailiffs more than his or their due proportion of the profits or benefits of such estate.” The bill alleges that the defendant took control over all said premises, and received all the rents from said premises and a part or all the time farmed the premises herself. No question as to parties to this bill is presented by counsel for either party. The only points raised by appellees are that the bill does not allege either what the rental value of the land was, or that defendant refused to allow complainants to occupy the premises. The bill is very inartistically drawn and had the question now presented been raised by a special demurrer the defects would probably have been cured by amendment, but technical objections of that character cannot be raised by a general demurrer. One tenant in common can maintain a bill in chancery against another for his proportion of the rents, when one tenant in common has either occupied or rented the entire premises. Statutes of Illinois, chapter, 2 secs. 1, 2 and 18; Crow v. Mark, 52 Ill. 332; Angelo v. Angelo, 146 Ill. 629; Wooley v. Schrader, 116 Ill. 29; McPharland v. Larkin, 155 Ill. 84; Dinsmoor v. Rowse, 211 Ill. 317. The court erred in sustaining a general demurrer. The decree is reversed and the cause remanded with instructions to overrule "the demurrer. Reversed and remanded with directions.