Clayton v. McCay

Opinion,

Mr. Justice Sterrett:

The main question presented for decision by this record is whether or not these appellees are liable to account for the rental value, during the year ending April 1, 1889, of the lands which had been assigned them under the agreement of April 1, 1885. They admit that they obtained possession of those lands, and so held them until April 1, 1888, by virtue of that agreement ; and the finding of the master that their possession continued until April 1, 1889, must, in the absence of manifest error, be assumed to be the fact. The admission of appellees that their tenants continued in possession of part of the premises, in itself justifies the finding. 'The possession of these tenants was their possession; they could not subject the appellants to the risk, delay, and expense of litigation in turning the tenants out. In contemplation of the agreement, and in good faith, they were bound to restore possession as fully as they had received it by virtue of that agreement. Having obtained exclusive possession by virtue of the agreement, they must account for the whole period of that possession. Had they taken possession without the consent of the appellants, they must now have accounted. When the will was set aside, they became tenants in common, and liability to account for the use of their co-tenants’ share of the land so used became an incident. It is therefore immaterial whether their exclusive possession was with or without the consent of the appellants: they were equally liable to account. The rental value of the premises having been ascertained by the, agreement between the parties, and there being no evidence of change since, that may be justly assumed as the standard of value for the whole period of exclusive occupancy.

We are not convinced that there was any error in not directing that the costs of the supplemental bill should be paid by the defendants, John B. McCay, Jr., and Emma McCay.

Decree reversed, and ordered that the costs of this appeal be paid by the appellees; and it is further adjudged and decreed that distribution be made in accordance with the schedule recommended by the master in his original report.