Opinion
No. 46/201.
01-19-1920
MAXWELL et al. v. ECKERT et al.
Raymond, Clancy, Marsh & Ellis, of Newark, for complainants. E. R. McGlynn, of Newark, for defendants.
Action by Annette E. Maxwell and others against Caroline Eckert and others. Upon exceptions to a master's report. Complainants' and defendants' exceptions overruled.
Raymond, Clancy, Marsh & Ellis, of Newark, for complainants.
E. R. McGlynn, of Newark, for defendants.
FIELDER, V. C. By Compiled Statutes, p. 8, § 3, a tenant in common out of possession may have an action of account against his cotenants for receiving more than their share of the profits from the property jointly owned, where the tenant out of possession is excluded by the others. And an exclusion may occur where there is no express refusal by the tenant in possession to allow the cotenant to occupy, as, for instance, if possession of the whole has been taken by some of the cotenants and used by them as their own, or for their exclusive profit. Edsall v. Merrill, 37 N. J. Eq. 114. In this case the relations between the cotenants had becomeso strained and bitter that they could not continue to reside together in peace and concord, and upon the complainant leaving October 1, 1917, the defendants remained in possession, occupying part of the property and collecting for their exclusive use and benefit the rent arising from the balance. This amounted to an exclusion of the complainant, Annette E. Maxwell, and the defendants should therefore account from that date to the complainant for one-third of the rent collected and one-third of the rental value of the part occupied by the defendants.
The exceptions taken by the complainants and defendants to the master's report are overruled.