Jacobs v Seward (1872) LR 5 HL 464
Tenants in common and the unity of possession.
Facts
Miss Lawrence and Miss Senior were tenants in common of three fields used for growing crops. The plaintiff, Jacobs, occupied them under a letting from Miss Lawrence. After receiving notice to quit, he agreed a fresh yearly tenancy with her agents without Miss Senior’s assent. Meanwhile, the defendant, Seward, entered under a letting from Miss Senior, cut and carried away grass, stacked it as hay and placed a lock on the gate. Jacobs claimed in trespass and in trover for the grass.
Issues
The issue concerned the rights of a tenant in common against his/her co-tenant in common in respect of a co-tenant’s alleged ouster and/or an action of trespass on the property.
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Decision/Outcome
The Court propounded the principle that, “so long as a tenant in common is only exercising lawfully the rights he has as tenant in common, no action can lie against him by his co-tenant.” (474). On the assumption that Jacobs and Seward were tenants in common, the trespass claim required proof of ouster. Merely putting a lock on the gate did not establish exclusion: it was not shown that the gate was kept locked or that Jacobs had sought and been refused access. Seward had opened the gate for Jacobs’s son to collect earlier hay.
The claim in trover also failed. Cutting, carrying away and stacking the grass as hay did not establish destruction of the common property or a taking that deprived the other co-tenant of its lawful use or benefit. The appropriate remedy was a proceeding for an account under 4 Anne c 16, s 27. The House of Lords upheld the refusal to amend the action into a claim for an account and affirmed judgment for Seward.
Sources: Original report, (1872) LR 5 HL 464; Original judgment passage at pages 473–474 reproduced in Lee Say Yng v Lee Cheng Mui [2025] SGHC 126, paragraph 65.
