Pabst Brewing Co. v. Melms

105 Wis. 441, 81 N.W. 882 (1900)



The object of Wis. Stat. § 3101 (1898) is to settle and obviate the disputes and difficulties attending the joint occupancy of lands, and to sever the undivided possession, so that each person entitled to such possession should thereafter have a right to the sole possession of a certain part of the property, instead of a general right with the other cotenants to the possession of the whole. Such is the object and purpose of the English statutes of partition. Under those statutes no one could enforce partition unless he has an estate in possession, as one of the cotenants thereof.


The company brought an action for the partition of real estate, alleging ownership in fee of an undivided one seventh and a life estate for the life of another in the remaining six sevenths and that each of the six owners owned an undivided one seventh in fee, subject to such life estate. A general demurrer to the complaint was sustained, and the company appealed. In affirming the decision, the court held that the demurrer was rightly sustained.


Whether there was joint possession of the property.




There was no joint possession to be divided. The company had the sole right of possession of the entire premises. There were no cotenants in possession, or entitled to possession, as long as the life estate remained in existence. There being no cotenancy in possession, the only joint or common interest between the company and the owners was that existing between them as remaindermen or reversioners. By the express terms of Wis. Stat. § 3101, a remainderman or reversioner could not in that capacity maintain the action.

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