King v. Phillips.

Goddard, 3 Shep., 218; Odiorne v. Lyford, 9 N. Hamp., 502.)

SAVAGE, J., in Erwin v. Olmsted (7 Cow., 229), said that one tenant in common has no right to enter and oust his co-tenant from possession. If he does, trespass quare clausum fregit lies.

This question was not necessarily up for decision, but it is entitled to great respect as the opinion of a distinguished judge.

He does not hold an entry alone the ground of the action, but it is the entry and ouster that constitutes the trespass. (McGarrel v. Murphy, 1 Hilt., 132.)

WELLS, J., in Van Orman v. Phelps (9 Barb., 500) says: If Land was tenant in common with the plaintiff of the premises in question, he had the same right to take the hay (which grew on the common property) as the plaintiff, and if the defendants, in taking the hay, acted under the directions of Land, trespass will not lie against them. In other words, one tenant in common is not liable in trespass to his co-tenant, for appropriating to his own use the products of the common property. But this has no bearing on the question, as to the liability for entering and ousting a co-tenant. It is only another application of the rules applicable to personal property, owned by several in common, as to which, taking the exclusive possession by one, does not give a right of action to another tenant in common.

In Duncan v. Sylvester (11 Shep., 482), an action on the case was held to lie by one tenant in common of a salmon fishery, against another who excluded him from sharing in it.

In Booth v. Adams (11 Vt., 156) it is held, that one tenant in common cannot maintain trespass against his co-tenant, unless he is expelled from, or hindered in the enjoyment of the common property.

It is laid down in Bacon's Abridgment, Title Joint Tenants, and Tenants in Common, that:

One tenant in common may offend against the statute against forcible entries and detainers, either by forcibly eject

King . Phillips.

ing, or forcibly holding out his companions; for though the entry of such a tenant be lawful per my et per tout, so that he cannot in any case be punished in an action of trespass at common law, yet the lawfulness of his entry, in no way excuses the violence, or lessens the injury done to his companion, and consequently an indictment of forcible entry into a moiety of a manor is good.

If this is the law, the entry of one tenant in common upon his co-tenant, peaceably in possession, is unlawful. Being unlawful, it is of very little consequence what remedy is given for punishing the wrong doer.

There are a few cases, in which it would seem to have been held, that trespass quare clausum would not lie by one tenant in common against another; but as I have not access to the books, I am unable to say whether they assume to overrule the cases to which I have referred, or whether they turn on some peculiar state of facts, or upon local legislation. I think, upon principle, as well as upon authority, an action of trespass quare clausum may be maintained by one tenant in common against another, when being in possession he is rut out of possession by such co-tenant.

Assuming that trespass will lie in favor of one tenant against another, it remains to inquire whether what was done by the defendant, was such a tortious act as made him liable as trespasser.

The mere entry by either was lawful; and for it neither can maintain an action against the other. (Allen v. Carter 8 Pick., 175 and 177.)

The defendants were, at the time of the entry of plaintiff, and of their entry upon her, and for several years previous, had been in the possession of the school-house and lot, with the acquiescence, if not direct assent of the plaintiff.

This entitled them to the exclusive possession, and the plaintiff could not lawfully enter, and occupy the schoolhouse with the trustees. And being in possession they had the right to remove the plaintiff, leaving her to remedy by partition, to obtain her portion of the property.

Winslow. Ferguson.

If I am right in these views of the law, the plaintiff was rightfully nonsuited.

Motion for a new trial should therefore be denied, and judgment ordered for defendant.

All the judges concurring, the motion for a new trial is denied.

New trial denied.

NORRIS WINSLOW, Respondent, v. HENRY FERGUSON, Appellant.

(GENERAL TERM, FIFTH DISTRICT, OCTOBER, 1868.)

Defendant made a general denial, except as expressly admitted, to a complaint on a promissory note, payable to bearer, and averred that the note was obtained by fraudulent representations; that it was not given to plaintif and defendant had no knowledge, &c., whether it had been delivered to him before maturity for value; and denying that plaintiff was a bond fide holder, averred that if he took it at all, it was with notice of the circumstances, &c. Plaintiff on affidavits showing, that he had bought the note before maturity, in good faith, for a valuable consideration, without notice of a defence, and that he was the owner thereof, moved to strike out the answer as sham and irrelevant; but did not, for the purposes of the motion, dispute defendant's averment of fraud.-Held, an order striking out the answer as sham must be reversed.

If the averments in defendant's answer, which were contradicted by the affidavits, were untrue, the whole defence must fail; but if plaintiff conceded the fraudulent inception of the note, he assumed the onus of showing the falsity of such averments, and this he might not do by affidavit. Section 152 of the Code, does not permit a part of an entire answer or separate defence to be stricken out as sham. Per MULLIN, J.

THIS was an appeal from an order made at Special Term, held in Onondaga county, striking out the answer of the defendant as sham and false.

The facts were these:

The plaintiff sued upon a promissory note, made by defendant for the sum of $296, payable to the United States Lightning-rod Company, or bearer, three months from date, with

interest.

Winslow v. Ferguson.

The complaint alleged the making of the note, and the delivery to the payee, and its transfer before maturity for a valuable consideration to the plaintiff, presentment, &c.

The complaint is verified by the plaintiff's attorney.

The defendant in his answer denied each and every allegation in the complaint, except as thereinafter expressly admitted. It was further alleged by defendant that before the making of said note, three persons whom he names, called at his house and falsely and fraudulently represented themselves as agents for a certain insurance company named by them, and by false and fraudulent representations induced him to allow them to put lightning-rods on his buildings, and to agree to insure his buildings and the contents thereof, in said company; that subsequently other agents of said company called upon him, and by other false and fraudulent representations procured from him the note in suit, for the payment of the lightning-rods put on his buildings, and the premiums on his insurance. That said note was given for a much larger sum than was due, and was not delivered to the payee named therein, but to the persons claiming to be the agents of the lightning-rod Company.

The defendant alleged that he had not sufficient knowledge or information to form a belief whether said note was delivered to the plaintiff before maturity for value, and he denied that the plaintiff was a bona fide holder or owner thereof, and alleged that he took said note, if he took it at all, with notice of the facts showing the defendant not liable thereon.

There was served on the defendant's attorney, for the purposes of the motion, an affidavit made by the plaintiff, in which he testified that he bought the note in suit of one D. E. Belknap (who held it and elaimed to be owner thereof), before maturity, in good faith, for $251.62, without any knowledge or information or suspicion that there was any defence thereto, and that he was, at the time of making said affidavit, the holder and owner thereof.

The plaintiff served, for the purposes of the motion, which was to strike out as sham, irrelevant and false, the affida

Winslow. Ferguson.

vit of John F. Moffat, who was cashier of the Merchant's Bank, in the name of which the plaintiff did business as a private banker, by which it appeared that said Moffat was present at the purchase of said note, and the affidavit repeated the statements in the plaintiff's affidavits.

No affidavits are offered on the part of the defendant.

The motion to strike out the answer as sham and false was granted, and from this order the defendant appealed.

Matthew Hale, for the appellant, with other grounds for reversal, made the following points:

The answer is not sham.

1. An answer or defence is sham when false, and known by defendant to be so, or not believed by him to be true. Bad faith is an essential element of a sham answer. (Garvey v. Fowler, 4 Sandford, 665; Benedict v. Tanner, 10 How., 455; Darrow v. Miller, 5 id., 247; Bailey v. Lane, 13 Abb., 354; F. and M. Bank v. Smith, 15 How., 329; Littlejohn v. Greeley, 22 How., 345.)

2. In this case the truth of the answer is not questioned. The allegations of fraud are not, any of them, denied, but all stand admitted. The only part of the answer which the moving affidavits meet in any respect, is the denial of knowledge or information sufficient to form a belief whether the note was transferred before due to plaintiff, and that is met only by plaintiff swearing to good faith.

The answer was not false, nor any part of it, nor is there anything in the case from which anything like bad faith can be inferred.

3. The case of Benedict v. Tanner (10 How., 455) was stronger than this. There the pleadings were not sworn to. The answer alleged a set-off against the payee of the note, and that the note was transferred to plaintiff after maturity. The plaintiff moved to strike out the answer, as sham, upon affidavits showing that the note was transferred to them three months before maturity. The motion was denied by MITCHELL, J., who said, an answer was sham only when it sets