Page:Federal Reporter, 1st Series, Volume 5.djvu/336

 824 fëdebal bepobteb. �of proporty and possession. As to the rest of the property, the trustee, as the successor in interest of Goldsmith, was seized as teiiantin commonwith the defendant/and after the default in payment of the note was entitled, as such tenant, to the possession of the whole it. Each tenant in common is entitled to the possession of the whole property in common with his co-tenants — "they ail occupy promiscuously." 3 Blàck. 191. Therefore the demand by Hewett for the posses- sion of ail the property owned by him and the defendant jointly, in pursuance of the contracta between the parties to the transaction, was a demand for no more than he was enti- tled to ; that is, for the possession of such property as tenant in common with the defendant. The refusai of the defend- ant was absolute, and equivalent to a deniai of any right of possession on the part of Hewett. Thereafter his possession of the property, so far as it belonged to the latter, was un- lawful, and he is liable in damages to the plaintiff for any loss thereby sustained. �This disposes of the demurrer. That the plaintiff sus- tained damages by this unlawful withholding of the posses- sion by the defendant is alleged in the complaint, and that he did so in some measure is self-evident. If the trustee had been let into the possession, as provided by the contracts, he would bave received the rents and profits for the benefit of the plaintiff, to be applied upon the note. That possession would have continued until the property was sold or the note had been paid; and, in such case, the plaintiff would either bave received the money arising from the sale, or been in the receipt of his share of the rents and profits to have been applied upon the loan. The rents and profits, after deduct- ing the ordinary expenses of keeping the property, are there- fore a proper measure for damages which the plaintiff has sustained by the wrongful act of the defendant. The security which Goldsmith gave for the payment of the loan having proved largely insufficient, and a considerable part of that insuffioiency having arisen from the fact that the plaintiff or his trustee was deprived by the defendant of the possession ����