DISSENTING OPINION-OF
FREAR, C.J.I dissent on the last point, though not without hesitation, for I realize that much can be said on the other side both in reason and on authority, and yet I feel that the weight of both *589reason and authority favor the view that a tenant in common should not be permitted to recover more than his .aliquot part even from one who has not title, and especially when, as in this case, he claims in hostility to his alleged eotenants as. 'well as to the defendant and the latter is not a mere intruder or trespasser but has been in possession long and under color of title.
The text books as well as the cases are well divided on this question. Warvelle, for instance, (Ejectment, secs. 122-124) thinks that on principle one tenant in common should be permitted to recover the whole as against a stranger, except perhaps when, as in this case, he does not recognize his alleged cotenants, but he concedes that the “volume of authority” is against that view. Jones (2 Real Property, secs. 1936, 1937). on the other hand, thinks that on principle a tenant in common should be permitted to recover onlv to the extent of his title, but states that the weight of authority is against him. Evidently he was mistaken as to the weight of authority being against him.
The mle at common law was that the plaintiff could recover only his share and there appears to me no adequate reason for reversing that rule. It is supported by the English courts, the federal courts, and, as it is said, the courts of Alabama, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Massachusetts, Missouri, Montana, Nebraska, New Hampshire, New York, Ohio, Pennsylvania, South Carolina and Virginia, though I have not examined some of the cases cited in the text books and digests from these courts and others do not seem to be very satisfactory, and some are based in part on statutes. The following are among the most satisfactory: Doe v. King, 6 Exch. 791; Stevens v. Ruggles, 5 Mason 221 (per Story, J. of the federal supreme court); Whittle v. Artis; 55 Fed. 919 (the federal eases Hardy v. Johnson, 1 Wall. 371, French v. Edwards, Fed. Cas. No. 5098, and Le Franc v. Richmond, Eed. Cas. No. 8209, hold merely that the contrary is the *590law in California); Dewey v. Brown, 2 Pick. 387; Buttrick v. Tilton, 141 Mass. 93; Gray v. Givens, 26 Mo. 303; Baber v. Henderson, 156 Mo. 566; Marshall v. Palmer, 91 Va. 344 (21 S. E. 672; Nye v. Loviit, 92 Va. 710 (24 S. E. 345); Mobley v. Bruner, 59 Pa. St. 481; King v. Hyatt, 51 Kan. 504 (32 Pac. 1107); Minke v. McNamee, 30 Md. 294 (96 Am. Dec. 577); Martin v. Neal, 125 Ind. 547; Johnson v. Hardy, 43 Neb. 368; Strean v. Lloyd, 128 Ill. 493; Keefe v. Doreland, 16 Mont. 16; Parrott v. Dyer, 105 Ga. 93 (31 S. E. 417); Harrelson v. Sarvis, 39 S. C. 14 (17 S. E. 368); Young v. Adams, 14 B. Mon. 127 (58 Am. Dec. 654); Hall v. Dodge. 38 N. H. 352; Hughes v. Holliday, 3 G. 30.
The opposite view is favored by the courts of California, Colorado, Connecticut, Florida, Minnesota, Nevada, North Carolina, Oregon, South Dakota, Texas, Vermont, Washington and West Virginia. See Williams v. Sutton, 43 Cal. 65; Newman v. Bank, 80 Cal. 368; Weese v. Barker, 7 Colo. 178; Barrett v. French, 1 Conn. 354; Summons v. Spratt, 26 Fla. 461 (9 L. R. A. 343); Sherin v. Larson, 28 Minn. 523; Brown v. Warren, 16 Nev. 228; Foster v. Hackett, 112 N. C. 546; Dolph v. Barney, 5 Or. 191; Mather v. Dunn, 11 S. D. 196; Hibbard v. Foster, 24 Vt. 542; Robinson v. Sherwin, 36 Vt. 69; Allen v. Higgins, 9 Wash. 446; Telfender v. Dillard, 70 Tex. 138; Voss v. King, 33 W. Va. 236 (10 S. E. 402). Some of these cases, like some on the other side, are unsatisfactory because of their indefiniteness and failure to state reasons. In some the opinion upon this point is expressed merely obiter or arguendo. In some the decisions are based in part at least on the mistaken view that tenants in common, like joint tenants, hold per tout as well as per my, and in some on the mistaken view that it was the rule at common law that one cotenant might recover all. Some of these courts place emphasis on the fact that in their jurisdictions ejectment is a mere possessory action and not, as in some other states and here, an action to try title as well. One of these courts, that of North Carolina, while holding that a verdict for all may be sustained, holds also that *591such a verdict cannot be demanded as a matter of right and that the usual and better practice is to award to a cotenant only his aliquot part, in order to avoid practical difficulties that would otherwise be likely to arise afterwards in the execution of the judgment and in the use of the judgment as an estoppel in future litigation — difficulties which will be referred to more fully below. See particularly Pierce v. Wanett, 32 N. C. 446. A common ground for holding that one cotenant may recover all is that he represents his cotenants as well as himself, and consequently the courts that hold that Avay state either affirmatively that one may reeoArer all if he recognizes his cotenauts (see, for instance, Barrett v. French, 1 Conn. 354, supra) or negatiArely that he cannot recover more than his share if he acts for himself alone and in hostility to his cotenants (see. for instance, Cromwell v. Holliday, 34 Tex. 464). Such cases as applied to the present case are really against the vieAV that one cotenant may recoArer all, for in the present case the plaintiff claims title to all and is as hostile to his alleged cotenants as to the defendant and does not recognize or represent them in any Avay. If there is any sound reason in support of the vieAV that one cotenant may recoArer all, at least under the circumstances of this case, it must be because he has by virtue of the right to his OAAm undivided interest also a right superior to that of a stranger in respect of the undivided interests of his cotenants. But AA’hat is his right as to the interests of his cotenants ? What is its foundation? What its extent? Is it, AAdien he is not in possession, superior to the right of one Avho has been in possession long and under color of title? Does it extend to putting such a person as well as a mere intruder or trespasser out altogether? A tenant in common certainly does not hold per tout. The interests of tenants in common are several and distinct. One cannot convey or lease any more than his own interest. No doubt one aaLo has a superior right of possession though without a perfect title, as one Avho has been in peaceable possession for a period and especially if he has color of title, may recover in ejectment from one who has just taken posses*592sion by force without any right. Kwong Lee Wai v. Ching Shai, 11 Haw. 444. But to hold that the plaintiff who has never been in possession may recover exclusive possession from one who has long been in under color of title on the ground that he has a superior right of possession as to the two-thirds which by hypothesis do not belong to him is to base the decision on something that is vague and indefinite and seems to savor of begging the question. At any rate the argument in seaport of the opposite view seems the stronger. It is in part as follows :
A plaintiff in ejectment must recover if at all on the strength of his own case and not on the weakness of the defendant’s case. The burden is on him. His recovery should be in accord with his proved right. If he proves title to only an undivided interest and it does not appear who his cotenants are, he of course cannot recover more than his share, because, for aught that appears, the defendant may be the owner of some or all of the rest. But if it appears that the owners of the rest are, or were at one time, persons other than the defendant, must the latter then be put to the task of proving that he has since become the owner or is holding by consent of the owners, that is, must he connect himself with those who are shown once to have been the cotenants, in order to prevent the' plaintiff from recovering what does not belong to him \ If so, it might involve a lengthy trial of side issues — a trial of rights with which the plaintiff has nothing to do — rights of others, the cotenants, who are not parties. There may- be little or no question as to the plaintiff’s ownershijj of a certain undivided interest and he may be able to prove that quickly and easily. But suppose, for instance^ the defendant claims title by adverse possession against the cotenants as to the rest. If he is obliged to prove this claim, it may mean a prolonged trial of rights as between him and such cotenants, although the latter are not represented in the case and may even be willing to concede the defendant’s claim. To go a step further, suppose the jury finds against the claim and awards all to the plaintiff. The cotenants are not bound *593and cannot take advantage of the judgment, for they were not parties. They therefore bring their action, if necessary, against the plaintiff in the first action and obtain a judgment which lets them into possession with him. The defendant in the first action in turn, hot being bound as against the cotenants by either of the previous judgments, brings his action against them and obtains a judgment which puts him in and the cotenants out. Thus there are three parties, each with a conclusive judgment in his favor and one against him, who may in turn in perpetual succession get in and be piit out, except that the plaintiff in the first action cannot be wholly excluded; that- is. A gets in and puts out C, B then gets in with A, 0 in turn gets in and puts out B, A then puts out C, B again gets in with A. then 0 again gets in and puts out B, and so on ad infinitum. Again, if one cotenant is allowed to recover all, the judgment would be conclusive in his favor in a subsequent action by him to recover the whole of the mesne profits although he is properly entitled to only his share of such profits. See particularly the English, Maryland and North Carolina cases, supra. Again, the form of the judgment or its mode of execution varies according as the plaintiff recovers a verdict for the whole or for only his part, and this is one of the reasons given (see the English case) for holding that the verdict should be for the plaintiff’s part alone, so that the judgment and execution may conform to the truth, and this difficulty is recognized by the North Carolina case also, which seems to hold that the execution should be for only what the plaintiff is entitled to even if the judgment is for all and that the plaintiff if he takes more does so at his own risk, but that this can be settled only by further litigation and not summarily by the judge in directing the mode of execution.
Again, to pass from technical though very practical difficulties to considerations of fairness, and bearing in mind that the interests of tenants in common are distinct, that their rights of possession are several, and that there, is no privity between them, entire justice is done one who sues alone if he is given *594his full share. He cannot fairly ask for more. A defendant in possession ought not to be disturbed except by one who has a right to do so, and then only to the extent of that right. The cotenants of the plaintiff may be as willing that the defendant should occupy in respect of their interests'as that the plaintiff should. If one cotenant may recover all, each alleged cotenant may sue successively, and thus the defendant stands as many chances to lose all as there are alleged cotenants while the latter stand as many chances to win all, that is, if the defendant loses in any one case he loses all while if the alleged cotenants lose in every case but one and win that, they win all; The chances are uneven. Again, if one cotenant may recover all he might recover what belongs to his cotenants even though they might be estopped from recovering it for themselves. To permit one tenant in common to recover all under the circumstances of this case, might be a wrong to his cotenants as well as to the defendant. Tor the plaintiff has never recognized that his two alleged cotenants were cotenants, and under the instruction of the court that the verdict could be for only one-third if the other two children were legitimate and therefore cotenants, the verdict in favor of the plaintiff for the entire premises must be construed as a verdict for the title to all, and not merely the possession of all in virtue of a title to one-third. Consequently, if the judgment is allowed to stand and the plaintiff takes possession under it, his possession will be adverse to his cotenants from the start and they will not have the advantage of the rule that one cotenant holds in subserviency to the others and that adverse possession cannot begin in favor of one against the others- until notice of it is brought home to the latter. Smith v. Wamakua Mill, 13 Haw. 116. Why not require the verdict and judgment to conform to the truth and thus avoid future difficulties, litigation and injustice? At most one tenant in common could not justly ask for more than a title to hi:* share and possession of all as against a stranger, and yet if the verdict in this case should be allowed to stand only on condition that a remittitur should be filed or the judgment so framed or *595the pleadings so amended as to show title to one-third only and a right to the possession of the whole as against the defendant, it is clear that the plaintiff would elect to go to another trial for the purpose of proving on proper evidence that he was thq sole owner. Why let him hold a verdict for the title as well as the possession of the whole and thus enable him to take such advantages as he can from this against his alleged cotenants ? Why help him in an attempt to wrong his eotenants, if there are cotenants, as we must assume there are for the purposes of the present contention? Of course, he contends that there are no cotenants, in which case there would be no wrong, but we must assume the contrary for the present.
It has been the general view, and the practice has been in accord with it, in this jurisdiction that a tenant in comrnoA may recover only his aliquot part, though that has never been actually decided. The fact that ejectment tries title as well as the right of possession here furnishes an additional reason why this rule should be maintained. In Kwong Lee Wai v. Ching Shai supra, for instance, the plaintiff had title to an undivided half but it was taken for granted though not decided that he could not on the strength of that recover the other half from the defendant who was a mere trespasser, and therefore he was allowed to recover the other half solely on his independent right to that by virtue of having, before the wrongful entry of the defendant, had long peaceable possession under color of title — a right that would have entitled him to the possession of the whole if he had not had title to any part.