Forler v. Williams , 257 Mich. 686 ( 1932 )

The bill was dismissed. Plaintiff has appealed. Facts are stated in Forler v. Williams, 242 Mich. 639, and in Williams v.Richards, 250 Mich. 165.

Plaintiff by this bill seeks accounting of defendant, a tenant in common with him, for use and occupation of land. This bill states no case indicating liability to account. It alleges no ouster, no promise to pay, nothing to indicate that defendant occupied other than as of right as a tenant in common. Everts v. Beach, 31 Mich. 136 (18 Am. Rep. 169); Davis v. Filer, 40 Mich. 310.

Accounting was pleaded and tendered, but it was disregarded by plaintiff here, in the case of Williams v. Richards, supra, a bill for partition. There such accounting might have been proper. We quote syllabus of Frenzel v. Hayes, 242 Mich. 631:

"Although one cotenant may not recover rent from another cotenant who with his consent occupied the premises owned in common, yet where the question arises in partition proceedings in equity, and particularly when the possession has been exclusive, the court has recognized that in adjusting the equities of the parties the one who has had exclusive use and occupation of the premises should account therefor."

Partition in Williams v. Richards, to which parties here were parties, was decreed and decree affirmed. It is too late to have accounting, which the record indicates might have been had in connection with the partition, but not otherwise. Plaintiff is estopped.

Decree affirmed, with costs to appellee.

McDONALD, POTTER, SHARPE, NORTH, FEAD, WIEST, and BUTZEL, JJ., concurred.