may enfeoff or convey to each other, the same as if they dealt with a stranger. They are deemed to be seised per my, but not per tout; and, consequently, they must sue separately in actions that savour of the realty. But b they join in actions relating to some entire and in*369 divisible thing, and in actions of trespass *relating to the possession, and in debt for rent, though not in an avowry for rent. The ancient law raised this very artificial distinction, that tenants in common might deliver seisin to each other, but they could not convey to each other by release. A joint tenant could not enfeoff his companion, because they were both actually seised, but for that very reason they might release to each other; whereas, on the other hand, tenants in common might enfeoff each other, but they could not release to each other, because they were not jointly seised. Nothing contributes more to perplex and obscure the law of real property, than such idle and unprofitable refinements. The incidents to an estate in common are similar to those applicable to joint estates. The owners can compel each other, by the like process of law, to a partition, and they are liable to each other for waste, and they are bound to account to each other for a due share of the profits of the estate in common. The mere occupation of the premises by one joint tenant, or tenant in Bro. tit. Feoffment, pl. 45. Heatherley v. Weston, 2 Wils. Rep. 232. b Litt. sec. 311. 314. Co. Litt. ibid. Rehoboth v. Hunt, 1 Pick. Rep. 224. Decker v. Livingston, 15 Johns. Rep. 479. • Bro. tit. Feoffment, pl. 45. Butler's note 80 to Co. Litt. 193, a. The action of waste was given as between joint tenants and tenants in common, by the statute of West. 2, c. 22, and this is the statute law in NewYork, (New-York Revised Statutes, vol. ii. 334,) and is doubtless either the statute or the received common law in every part of the United States. A court of equity will likewise interfere by injunction, to prevent destructive or malicious waste by either party. Twort v. Twort, 16 Vesey, 128. As a general rule, one co-tenant is not responsible to another for permissive waste, except in the special cases of contribution for repairs. But if one tenant in common, would not, of itself, at common law, have entitled his co-tenant to call him to an account. He must have stood in the light of a bailiff or receiver, in order to be rendered responsible." But the statute of 4 Anne, c. 16, rendered joint tenants, and tenants in common, liable in account as bailiffs for receiving more than their just share; and this provision was re-enacted in New-York in 1788, and is now incorporated into the Revised Statutes. It is to be presumed, from the reasonableness of the provision, that it has been introduced, in substance, into the general law of this country. *The possession of one tenant in common, is *370 the possession of the others, and the taking of the whole profits by one, does not amount to an ouster of his companions. But if one actually ousts the other, or affords, by his acts, sufficient ground for a jury to presume an ouster, the one that is ousted will be driven to his action of ejectment. So, one tenant in common cannot bring an action of trespass against another for entry upon, and enjoyment of, the common property, nor sue him to recover the documents relative to the joint estate. If, however, one tenant occupies a particular part of the premises by agreement, and his cotenant disturbs him in his occupation, he becomes a common suffers the common property to be destroyed by his negligence, he is answerable to his co-tenants for their proportions of the loss. Chelsey v. Thompson, 3 N. H. Rep. 9. Tenants in common may make partition by parol, if accompanied with livery of seisin. Anders v. Anders, 2 Dev. N. C. Rep. 532. Jackson v. Harder, 4 Johns. Rep. 202. Folger v. Mitchell, 3 Pick. Rep. 399. * Co. Litt. 200, b. b Vol. i. 750. sec. 9. See Jones v. Harraden, 9 Mass. Rep. 544. 538. Revised Statutes of Missouri, 1835, p. 37. Brigham v. Eveleth, ibid. Doe v. Doe v. & Co. Litt. 199, b. Fairclaim v. Shackleton, 5 Burr. Rep. 2604. Prosser, Cowp. Rep. 217. Peaceable v. Read, 1 East's Rep. 568. Bird, 11 East, 49. If one tenant in possession retains the whole and denies the title of his co-tenant to any part of the land, it amounts to an ouster. a trespasser. The growing crop put in by one tenant in common, who took possession exclusively without contract, on partition made while the crop is growing, goes in severalty, as the property of each.b One joint tenant, or tenant in common, can compel the others to unite in the expense of necessary reparations to a house or mill belonging to them; though the rule is limited to those parts of common property, and does not apply to the case of fences enclosing wood or arable lands. The writ de reparatione facienda lay, at common law, in such cases, when one tenant was willing to repair, and the others would not. In Massachusetts, it is doubted whether this rule applies in that state to mills; and it is, at least, so far equitably modi a Keay v. Goodwin, 16 Mass. Rep. 1. Clowes v. Hawley, 12 Johns. Rep. 484. So, if one tenant in common sells trees growing on the land, and receives payment, he may be sued in assumpsit by his co-tenant. Miller v. Miller, 7 Pick. Rep. 133. b Calhoun v. Curtis, 4 Metcalf Rep. 413. © F. N. B. 127, a. 162, b. Co. Litt. 54, b. 200, b. Bowles' case, 11 Co. 82, b. Anderson v. Greble, 1 Ashmead, 136. Carver v. Miller, 4 Mass. Rep. 559. It has been suggested by a very respectable writer on this subject, that one tenant in common might, in an action of assumpsit for money laid out and expended, sue his co-tenant who had received his share of the profits, for his share of expenditures in necessary repairs on the implied contract to refund. Gibbons on the Law of Dilapidations, p. 101. In South Carolina, it was held, in Thompson v. Bostick, 1 McMullan, 75, and in Han. cock v. Day, ibid. 69. 298, and in Holt v. Robertson, ibid. 475, that a cotenant in common is only chargeable to his associate for the rent, which the premises were capable of producing at the time he took possession, and not for the enhanced rent which the land was capable of producing by his improvements, for the improvements are made by him at his own expense, and are not chargeable upon his co-tenant except under special circumstances. In Loring v. Bacon, 4 Mass. Rep. 575, the question was learnedly discussed, whether A., who owned a chamber in a house, and repaired the roof, could compel B., who owned the cellar, to contribute, and the court held that he could not, as the parties had distinct dwelling-houses. Cheesborough v. Green, 10 Conn. Rep. 318. S. P. The French code is very special in its regulations on this subject. Each proprietor of his own room is bound to keep it in repair, and the main walls and the roof are kept in repair at the joint and ratable expense of all the proprietors. Code Civil, Art. 664. fied by statute, that if one part owner of a mill repairs against the consent of his partners, he must look to the profits for his indemnity. To sustain the action, there must be a request to join in the reparation, and a refusal, and the expenditures must have been *371 previously made. The doctrine of contribution, in such cases, rests on the principle, that where parties stand in æquali jure, equality of burthen becomes equity. But the necessity of the rule does not press with the like overbearing force that it does in many other cases arising out of the law of vicinage; for the co-tenant who wishes to repair beyond the inclination or ability of his companion, has his easy and prompt ⚫ Carver v. Miller, 4 Mass. Rep. 559. By the Massachusetts Revised Statutes, 1836, p. 682, 683, the greater part of the proprietors in interest of mills, or dams, which need reparation, may cause the same to be done, at the expense of all, in proportion to their respective interests, after a call, on due notice, of a meeting of all of them. Every mortgagee in possession, and tenant in tail, of any part of a mill, are deemed proprietors, and the guardian may represent the interest of his ward, and the husband that of his wife, and the apportionment of the expense as between tenant and reversioner, is to be in a ratio to the value of their respective interests. Jackson, J., in Doane v. Badger, 12 Mass. Rep. 70. Mumford v. Brown, 6 Cowen's Rep. 475. And if the mill be destroyed by the negligence of one tenant in common, the others may have their indemnity by a special action on the case. Chesley v. Thompson, 3 N. H. Rep. 9. In Pennsylvania, the commissioners appointed to revise the civil code, made provision in a bill by them reported in January, 1835, for enforcing contribution in specified cases, and particularly in proceedings for the purpose of repairing, maintaining, or preserving any common property, when the court shall be satisfied of the necessity thereof. Contribution rests on the principle that payment by A. has removed a common burthen from him and B., and that by the payment a common benefit has been received. Screven v. Joyner, 1 Hill's S. C. Ch. Rep. 260. In New-Hampshire it is provided by statute that joint tenants, and tenants in common of mills, may be compelled to contribute, in proportion to their interests therein, to necessary repairs to the mill, milldam, and flume, and a rebuilding may, under some circumstances, be considered a repair. Bellows v. Dewey, 9 N. H. Rep. 278. • Sir William Herbert's case, 3 Co. 11. Bro. Abr. tit. Suite and Contribution. Eyre, Ch. B., in Dering v. Earl of Winchelsea, 2 Bos. & Pull. 270. S. C. 1 Cox, 318. Dig. 17. 2. 52. 10. Voet ad Pand. h. t. sec. 13. Campbell v. Mesier, 4 Johns. Ch. Rep. 334. Fletcher v. Grover, 11 N. H. Rep. 369. remedy, by procuring a partition or sale of the common property.a The rule in Louisiana is, that joint owners must contribute ratably to useful expenses incurred on the property, by a joint owner having the management of it, when no opposition on their part has been made to such expenses. Percy v. Millaudon, 18 Martin's Louis. Rep. 616. One tenant in common, before partition, cannot purchase in an outstanding title or encumbrance on the joint estate for his exclusive benefit, and use it against his cotenant. The purchase enures in equity to the common benefit, and the purchaser is entitled to contribution. So, also, one surety, having a counter security, is bound to apply it to the benefit of his co-surety, equally with himself. Field v. Pelot, 1 McMullan's S. C. Rep. 370. The principle rests on the privity between the parties, and the fidelity and good faith which the connexion implies. Van Horne v. Fonda, 5 Johns. Ch. Rep. 407. Lee & Graham v. Fox, 6 Dana's Ken. Rep. 176. Sneed v. Atherton, ibid. 278. 281. It is adjudged that a co-surety is not bound to go into equity for contribution. He has his remedy by assumpsit, and he may recover according to the number of the sureties, without reference to the number of the principals. Kemp v. Finden, 12 Meeson & Welsby, 421. Bachelder v. Fiske, 17 Mass. Rep. 464. The case of Venable v. Beauchamp, 3 ibid. 325. 328, adopts and applies the principle to the tenants after the partition, on account of the warranty, express or implied, annexed to the partition as between the parties in relation to the title, and each party is thereby estopped from asserting any adverse claim to any parcel of the land allotted to another. There appears to be great force and justice in this latter decision. But the principle does not apply, after the tenants in common have been evicted under an adverse title, and each of them are then at liberty to buy the lost land for his own exclusive benefit. Coleman v. Coleman, 3 Dana's Ken. Rep. 403. Mr. Justice Story, in Flagg v. Mann, 2 Sumner, 520—524, adopts and enforces the principles contained in Van Horne v. Fonda, above mentioned, and he says it stands approved of equally by the Roman law, the general recognition of continental Europe, and the actual jurisprudence of England and America. Persons placed in a situation of trust and confidence with respect to the subject of a purchase, cannot retain the purchase for their own benefit, but they hold it in trust. This rule of equity is not limited in its application to such persons as trustees, guardians, executors or solitors, but it is one of universal application affecting all persons who come within the principle, which is that no party can be permitted to purchase an interest, where he had a duty to perform inconsistent with the character of a purchaser. Lord Manners, in Nesbit v. Tredenick, 1 Ball & B. 46. Greenlaw v. King, by Lord Cottenham, 1841. Van Epps v. Van Epps, 9 Paige, 297, by Chancellor Walworth. Tanner v. Elworthy, by Lord Langdale, Master of the Rolls, 4 Beavan, 487. Dickinson v. Codwise, by Assistant V. Ch. in 1 Sandford's Ch. Rep. 214. The above principle is indubitably established by those learned chancellors, and is founded on the clearest and most refined equity and justice. |