Kelly v. Parker

Mr. Justice O’CoNNOr delivered the opinion of the court. This was an action of forcible entry and detainer to recover possession of an apartment from defendants. There was a finding and judgment for the plaintiff to reverse which defendants prosecute this appeal. The record discloses that on June 7, 1918, the then owner of the apartment building, Anna Doherty, by written lease demised the apartment in question, and a garage in the rear of the premises, to the defendant, Fred J. Parker. The period' covered by the lease was from July 1, 1918, to April 30, 1920. The lease contained the usual provision against subletting without the written consent of the landlord. Parker entered into possession of the apartment and paid the rent. Afterwards on September 2, 1919, be vacated tbe apartment and tbe garage by moving all of bis furniture and automobile and on the nest day tbe defendant Waldron moved into the apartment and occupied it and tbe garage thereafter. Prior to this, on July 29, 1919, Anna Doherty conveyed tbe premises by warranty deed to plaintiff and bis wife as joint tenants. After tbe execution of the conveyance tbe rent was paid to plaintiff. On August 24, 1919, Anna Doherty assigned tbe lease to plaintiff. When plaintiff found that Parker bad vacated the apartment and bad sublet it to defendant Waldron on September 5, 1919, be served a ten days’ notice on Parker' and Waldron notifying them that on account of Parker vacating tbe premises and subletting them to Waldron be elected to terminate tbe lease and demanded possession. Tbe defendants contend that plaintiff cannot maintain tbe action because tbe property in question was owned by plaintiff and bis wife as joint tenants and, therefore, tbe lease could be terminated only by an action brought by both of them. No authority is cited to sustain this contention and we think it untenable, for it is tbe law that one tenant in common or one joint tenant may have his remedy for tbe whole property against a party having no right in tbe premises without joining tbe other joint tenants or tenants in common. Allen v. Gibson, 4 Rand. (Va.) 468; Rabe v. Fyler, 10 Smedes & M. (Miss.) 440; 19 Cyc. 1141. In the authority last cited, it is said: “There can be no doubt but that tenants in common of tbe whole estate may join in summary proceedings to recover its possession. And it has repeatedly been held that one tenant in common may maintain an action against a stranger without joining his cotenants as plaintiffs. And tbe same is true of copartners or joint tenants, because tbe possession of one is tbe possession of all, and as against a stranger to tbe title each is entitled to possession of the -whole estate.” Under the authorities cited we are of the opinion that the action would lie in favor- of Kelly alone. Moreover, we are further of the opinion that in the instant case Kelly could maintain the action without joining his wife as party plaintiff for the reason that the assignment of the lease was to him alone, and we see no legal reason why the lease could not he so assigned if it were agreeable to his wife and Anna Doherty, the original owner. As against the defendants they had the right to enter into this agreement and it is of no concern to the defendants. The judgment of the municipal court of Chicago is affirmed. Affirmed. Tayloe, P. J., and Thomson, J., concur.