In some states, a view of the statute has been taken different from that above referred to, and one tenant is allowed to recover from a cotenant having exclusive possession his proportional share of the profits obtained by the latter's own occupation and use of the land.107

The statute of Anne has sometimes been held to authorize an action of assumpsit between cotenants for money had and received, as well as an account,108 though the contrary view has been taken in England.1

109

170. Contracts and conveyances by cotenant.

One cotenant has no implied authority, as a result of the relation, to bind another cotenant by a contract in regard to the common property, or, as a rule, by any other character of act.1 110 Such acts by one cotenant, however, as can be regarded

Boley v. Barutio, 120 Ill. 192; Luther v. Arnold, 8 Rich. Law (S. C.) 24, 62 Am. Dec. 422.

107 Medford v. Frazier, 58 Miss. 241; McPherson v. McPherson, 33 N. C. 391, 53 Am. Dec. 416; West v. Weyer, 46 Ohio St. 66, 15 Am. St. Rep. 552; Thompson v. Bostick, McMul. Eq. (S. C.) 75; Ward v. Ward's Heirs, 40 W. Va. 611, 52 Am. St. Rep. 911; Cain v. Cain, 53 S. C. 350, 69 Am. St. Rep. 863; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 372; Early v. Friend, 16 Grat. (Va.) 21, 78 Am. Dec. 649; White v. Stuart, 76 Va. 546; Huff v. McDonald, 22 Ga. 131, 68 Am. Dec. 487; Annely v. De Saussure, 26 S. C. 497. 4 Am. St. Rep. 725. See, also, Gage v. Gage, 66 N. H. 282.

Occasionally the state statute expressly provides for liability in such case. Woolley v. Schrader, 116 Ill. 29; Cutler v. Currier, 54 Me. 81; Knowles v. Harris, 5 R. I. 402.

108 Freeman, Cotenancy, §§ 280-284; Brigham v. Eveleth, 9 Mass. 538; Shepard v. Richards, 2 Gray (Mass.) 424; Richardson v. Richardson, 72 Me. 403.

109 Thomas v. Thomas, 5 Exch. 32, 6 Gray's Cas. 650.

110 Freeman, Cotenancy, §§ 168-173, 182; Pearis v. Covillaud, 6 Cal. 617, 65 Am. Dec. 543; Omaha & Grant Smelting & Refining Co. v. Tabor, 13 Colo. 41, 16 Am. St. Rep. 185; Clark v. Parker, 106 Mass. 555; Dexter Lime-Rock Co. v. Dexter, 6 R. I. 353; Morrison v. Clark, 89 Me. 103, 56 Am. St. Rep. 395; City of St. Louis v. Laclede Gas Light Co., 96 Mo. 197, 9 Am. St. Rep. 334; State v. Klein (N. J. Law) 27 Atl. 902; Hanks v. Enloe, 33 Tex. 624; Crippen v. Morss. 49 N. Y. 67.

as beneficial to his cotenants, will, it seems, be regarded as the acts of all, provided no liability is directly imposed thereby upon the others.111

A cotenant cannot, by his conveyance of his undivided interest in a specific part of the land, affect the rights of the other cotenants, and consequently his grantee will take merely his interest therein, with no greater right than he himself had to be allotted that particular portion of the land in case of partition.112 A court of equity will, however, according to some decisions, in making partition, allot the portion so conveyed to the grantee thereof if by so doing it does not injuriously affect the other cotenants ;118 and such a conveyance, if ratified by the cotenants, has the effect, it seems, of giving the grantee an absolute right to that particular portion of the land.114

In some states it is apparently the law that a conveyance of his interest in a specific part of a tract of land by one cotenant thereof, if not ratified by his cotenants, is absolutely nugatory

111 Freeman, Cotenancy, §§ 174-178; Rud v. Tucker, Cro. Eliz. 802; Crary v. Campbell, 24 Cal. 637; Loomis v. Pingree, 43 Me. 299.

112 Freeman, Cotenancy, § 198; Gates v. Salmon, 35 Cal. 576, 95 Am. Dec. 139; Worthington v. Staunton, 16 W. Va. 208; Charleston, C. & C. R. Co. v. Leech, 33 S. C. 175, 26 Am. St. Rep. 667; Sewell v. Holland, 61 Ga. 608; Markoe v. Wakeman, 107 Ill. 251; Howze v. Dew, 90 Ala. 178, 24 Am. St. Rep. 783; Warthen v. Siefert, 139 Ind. 233; Tainter v. Cole, 120 Mass. 162; Dennison v. Foster, 9 Ohio, 126, 34 Am. Dec. 429; Jewett's Lessee v. Stockton, 3 Yerg. (Tenn.) 492; Dorn v. Dunham, 24 Tex. 366; Robinett v. Preston's Heirs, 2 Rob. (Va.) 278; Boggess v. Meredith, 16 W. Va. 1.

118 Young v. Edwards, 33 S. C. 404, 26 Am. St. Rep. 689; Benedict v. Torrent, 83 Mich. 181, 21 Am. St. Rep. 589; Worthington v. Staunton, 16 W. Va. 209; McKee v. Barley, 11 Grat. (Va.) 340; Holcomb v. Coryell, 11 N. J. Eq. 548.

114 Freeman, Cotenancy, § 188; Hartford & S. Ore Co. v. Miller, 41 Conn. 112; Great Falls Co. v. Worster, 15 N. H. 412; Dall v. Brown, 5 Cush. (Mass.) 289; Worthington v. Staunton, 16 W. Va. 208; Eaton v. Tallmadge, 24 Wis. 217; Barnes v. Lynch, 151 Mass. 510, 21 Am. St. Rep. 470; Gordon v. City of San Diego, 101 Cal. 522, 40 Am. St. Rep. 73; Crocker v. Tiffany, 9 R. I. 505. But see Duncan v. Sylvester, 24 Me. 482, 41 Am. Dec. 400.

except as between the grantor and the grantee, and that it need not be recognized in any way by the cotenants;115 but, more generally, the conveyance is regarded as valid, for the purpose of giving the grantee the right of possession with the cotenants of the part conveyed, though it cannot affect the rights of the cotenants to such part upon a partition.116

115 Bartlet v. Harlow, 12 Mass. 348, 7 Am. Dec. 76, 6 Gray's Cas. 609; Adam v. Briggs Iron Co., 7 Cush. (Mass.) 361; Barnes v. Lynch, 151 Mass. 510, 21 Am. St. Rep. 470; Hartford & S. Ore Co. v. Miller, 41 Conn. 112; Whitton v. Whitton, 38 N. H. 127, 75 Am. Dec. 163; Duncan v. Sylvester, 16 Me. 388, 6 Gray's Cas. 670; Thompson v. Barber, 12 N. H. 565; Smith v. Benson, 9 Vt. 138, 31 Am. Dec. 614; Mitchell v. Hazen, 4 Conn. 495, 10 Am. Dec. 169; Green v. Arnold, 11 R. I. 364; Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394. So it has been held that a mortgage made by one of several coheirs upon his undivided interest in one of two tracts of land belonging to the ancestor is not only in valid if subsequently in the partition he is not allotted such mortgaged tract, but the mortgagee cannot demand that the court require the payment to him of the sum due for owelty of partition. Marks ▼. Sewall, 120 Mass. 174, 6 Gray's Cas. 676.

That such a conveyance is valid as against the grantor, see Varnum v. Abbot, 12 Mass. 474, 6 Gray's Cas. 613; Cunningham v. Pattee, 99 Mass. 250; Barnes v. Lynch, 151 Mass. 510, 21 Am. St. Rep. 470.

Conceding that a conveyance by a cotenant of his undivided share in a single tract of land is entirely invalid except as against himself, It is sometimes suggested that the rule is different when the joint ownership extends to two or more distinct tracts, and that his conveyance of one of such tracts is valid in so far as it does not injure his cotenants. Starr v. Leavitt, 2 Conn. 243, 7 Am. Dec. 268, 6 Gray's Cas. 618; Butler v. Roys, 25 Mich. 53; Primm v. Walker, 38 Mo. 98; Markoe v. Wakeman, 107 Ill. 262; Green v. Arnold, 11 R. I. 364, 23 Am. Rep. 466; Shepherd v. Jernigan, 51 Ark. 275, 14 Am. St. Rep. 50; Freeman, Cotenancy, § 208. Contra, Thompson v. Barber, 12 N. H 565, 6 Gray's Cas. 620; Cunningham v. Pattee, 99 Mass. 250, 6 Gray's Cas. 676; Barnes v. Lynch, 151 Mass. 510, 21 Am. St. Rep. 470.

116 Freeman, Cotenancy, §§ 199-204; McKee v. Barley, 11 Grat. (Va.) 346; Barnhart v. Campbell, 50 Mo. 599; White's Lessee v. Sayre, 2 Ohio, 1:0; Dennison v. Foster, 9 Ohio, 126, 34 Am. Dec. 429; Crook v. Vandevoort, 13 Neb. 505; Camoron v. Thurmond, 56 Tex. 22. See Butler v. Roys, 25 Mich. 53; Stark v. Barrett, 15 Cal. 361; Markoe v. Wakeman, 107 Ill. 263.

171. Contribution as between cotenants.

A joint tenant, tenant in common, or coparcener cannot make improvements on the property without the consent of his cotenant, and then demand that the latter contribute a part of the cost thereof.117 If, however, the cotenant agrees to pay part of the cost of the improvements, he is liable accordingly, and such an agreement may be implied as well as express.'

118

In equity it is held that a cotenant who makes improvements in good faith will be entitled, on partition of the property, to have assigned him as his share the portion which he has improved, if this can be done without injury to the other cotenants;110 and, when this cannot be done, the other cotenants may be required, as a condition of partition, to pay to the improving tenant the amount to which their shares have been benefited by the improvements made by him in good faith, or he may be allowed for them out of the proceeds of the sale of the property

117 Ferris v. Montgomery Land & Imp. Co., 94 Ala. 557, 33 Am. St. Rep. 146; Brown v. Cooper, 98 Iowa, 444, 60 Am. St. Rep. 190; Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. (Ky.) 142, 23 Am. Dec. 387; Walter v. Greenwood, 29 Minn. 87; Stevens v. Thompson, 17 N. H. 103; Mumford v. Brown, 6 Cow. (N. Y.) 475, 16 Am. Dec. 440; Thur ston v. Dickinson, 2 Rich. Eq. (S. C.) 317, 46 Am. Dec. 56; Crest v. Jack, 3 Watts (Pa.) 238, 27 Am. Dec. 353; Kidder v. Rixford, 16 Vt 169, 42 Am. Dec. 504; Cosgriff v. Foss, 152 N. Y. 104, 57 Am. St. Rep 500; Ward v. Ward's Heirs, 40 W. Va. 611, 52 Am. St. Rep. 911; Hus band v. Aldrich, 135 Mass. 317.

118 Baird v. Jackson, 98 Ill. 78; Kidder v. Rixford, 16 Vt. 169, 42 Anı. Dec. 504; Reed v. Jones, 8 Wis. 421.

119 Donnor v. Quartermas, 90 Ala. 164, 24 Am. St. Rep. 778; Drennen's. Adm'r v. Walker, 21 Ark. 539; Louvalle v. Menard, 6 Ill. 39, 41 Am. Dec. 161; Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. (Ky.) 138, 23 Am. Dec. 387; Crafts v. Crafts, 13 Gray (Mass.) 360; Hall v. Piddock, 21 N. J. Eq. 311, 6 Gray's Cas. 673; Cosgriff v. Foss, 152 N. Y. 104, 57 Am. St. Rep. 500; Kelsey's Appeal, 113 Pa. St. 119, 57 Am. Rep. 444; Ward v. Ward's Heirs, 40 W. Va. 611, 52 Am. St. Rep. 911, and note; Leake v. Hayes, 13 Wash. 213, 52 Am. St. Rep. 34; Ferris v. Montgomery Land & Imp. Co., 94 Ala. 557, 33 Am. St. Rep. 146; -Robinson v. McDonald, 11 Tex. 385, 62 Am. Dec. 480, and note. Contra, Husband v. Aldrich, 135 Mass. 317.

in the partition proceeding. 120 Moreover, a tenant making improvements is regarded in equity as entitled to the amount of the increase in the rent or profits due to such improvements, as against a claim by his cotenants for a part of the rent or profits. 121

One tenant who, after requesting his cotenant to assist him in making repairs necessary for the preservation of a building or other erection on the land, and, on the cotenant's refusal so to do, makes them himself, may, by the weight of authority in this country, demand contribution from the other of a proportionate part of the cost.122 In England and Massachusetts,

120 Hall v. Piddock, 21 N. J. Eq. 311, 6 Gray's Cas. 673; Ferris v. Montgomery Land & Imp. Co., 94 Ala. 557, 33 Am. St. Rep. 146; Carson v. Broady, 56 Neb. 648, 71 Am. St. Rep. 691; Martindale v. Alexander, 26 Ind. 105, 89 Am. Dec. 458; Ford v. Knapp, 102 N. Y. 135, 55 Am. Rep. 782; Ward v. Ward's Heirs, 40 W. Va. 611, 52 Am. St. Rep. 911, and note; Killmer v. Wuchner, 79 Iowa, 722, 18 Am. St. Rep. 392; Fenton v. Miller, 116 Mich. 45, 72 Am. St. Rep. 502; Leake v. Hayes, 13 Wash. 213, 52 Am. St. Rep. 34; Johnson v. Pelot, 24 S. C. 255, 58 Am. Rep. 253; Stewart v. Stewart, 90 Wis. 516, 48 Am. St. Rep. 949. But that this will not be done unless special equities exist in favor of the cotenant making the improvements, see Cosgriff v. Foss, 152 N. Y. 104, 57 Am. St. Rep. 500.

121 Freeman, Cotenancy, § 258; Annely v. De Saussure, 26 S. C. 497, 4 Am. St. Rep. 725; Hannah v. Carver, 121 Ind. 278; Leake v. Hayes, 13 Wash. 213, 52 Am. St. Rep. 34; Worthington v. Hiss, 70 Md. 172; Cain v. Cain, 53 S. C. 350, 69 Am. St. Rep. 863; Ford v. Knapp, 102 N. Y. 135, 55 Am. Rep. 782; Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. (Ky.). 138, 23 Am. Dec. 387.

A cotenant making improvements in the belief that he was sole owner has been allowed compensation under the betterment acts. Shepherd v. Jernigan, 51 Ark. 275, 14 Am. St. Rep. 50.

122 Taylor v. Baldwin, 10 Barb. (N. Y.) 582; Mumford v. Brown, 6 Cow. (N. Y.) 475, 16 Am. Dec. 440; Stevens v. Thompson, 17 N. H. 103; Beaty v. Bordwell, 91 Pa. St. 441; Kidder v. Rixford, 16 Vt. 172, 42 Am. Dec. 504; Farrand v. Gleason, 56 Vt. 633; Ward v. Ward, 40 W. Va. 611, 52 Am. St. Rep. 911; Alexander v. Ellison, 79 Ky. 148.

Occasionally the cases suggest that no actual request to the other cotenant to make repairs is necessary in order to cast a liability on him to make contribution, but that it may be implied from the relation