however, it has been decided that there is no such exception to the general principle that one who voluntarily expends money cannot recover any part thereof from another person who did not expressly or impliedly request the expenditure, and that, if one cotenant refuses to join in repairs, the only remedy which the other has is to demand a partition.128

A right of contribution also exists in case one tenant pays off a lien or incumbrance on the property, such as a claim for taxes. 124

172. Acquisition of adverse title.

In this country, it is considered that the community of interest between cotenants of land is such that it is not consistent with good faith or with the duty which cach owes to the other that either of them should purchase and set up as against the others an outstanding adverse title, and consequently a conveyance of such a title to one tenant is regarded as inuring to the benefit of all, provided the other or others contribute a proportionate part of the cost of procuring it.125 A few decisions

of cotenancy. Fowler v. Fowler, 50 Conn. 256; Haven v. Mehlgarten, 19 Ill. 91; Moss v. Rose, 27 Or. 595, 50 Am. St. Rep. 743.

128 Calvert v. Aldrich, 99 Mass. 74, Finch's Cas. 973, 96 Am. Dec. 693; Leigh v. Dickeson, 15 Q. B. Div. 60. At common law, the writ de reparatione facienda lay at the instance of one cotenant to compel another to join with him in making repairs. Co. Litt. 200b; 4 Kent, Comm. 370. See Calvert v. Aldrich, 99 Mass. 76, 96 Am. Dec. 693; Ward v. Ward, 40 W. Va. 611, 52 Am. St. Rep. 911.

Without regard to whether one can recover by suit the cost of repairs which have been made by him, he is entitled to an allowance therefor in case of a suit by his cotenant against him for an accounting of rents and profits which are partially produced by the repairs. Pickering v. Pickering, 63 N. H. 468, 6 Gray's Cas. 663, Finch's Cas. 976; Goodenow v. Ewer, 16 Cal. 461; Dech's Appeal, 57 Pa. St. 467.

124 Cocks V. Simmons, 55 Ark. 104, 29 Am. St. Rep. 28; Titsworth v. Stout, 49 Ill. 78, 95 Am. Dec. 577; Eads v. Retherford, 114 Ind. 273, 5 Am. St. Rep. 611; Dickinson v. Williams, 11 Cush. (Mass.) 258; Watkins v. Eaton, 30 Me. 529; Clark v. Lindsey, 47 Ohio St. 437; Stewart v. Stewart, 90 Wis. 516, 48 Am. St. Rep. 949.

135 Van Horne v. Fonda, 5 Johns. Ch. (N. Y.) 388, 6 Gray's Cas. 624:

hold, however, that the rule applies only when the cotenants claim under the same title, and that, when tenants in common claim under different titles, there is no such relation of trust and confidence as calls for the application of the rule.126

This rule applies to a purchase by one cotenant at a foreclosure or execution sale,1 127 or at a sale for taxes.128

Likewise,

Rothwell v. Dewees, 2 Black (U. S.) 619, 6 Gray's Cas. 633; Flagg v. Mann, 2 Sumn. 490, Fed. Cas. No. 4,847; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Mandeville v. Solomon, 39 Cal. 125; Franklin Min. Co. ▼. O'Brien, 22 Colo. 129, 55 Am. St. Rep. 118; Titsworth v. Stout, 49 Ill. 78, 95 Am. Dec. 577; Stevens v. Reynolds, 143 Ind. 467, 52 Am. St. Rep. 422; Venable v. Beauchamp, 3 Dana (Ky.) 321, 28 Am. Dec. 74; Clark v. Lindsey, 47 Ohio St. 437; Dray v. Dray, 21 Or. 59; Tisdale v. Tisdale, 2 Sneed (Tenn.) 596, 64 Am. Dec. 775; Boyd v. Boyd, 176 Ill. 40, 68 Am. St. Rep. 169; Tanney v. Tanney, 159 Pa. St. 277, 39 Am. St. Rep. 678.

The same principle has been applied as against the husband of a cotenant purchasing an outstanding title. Rothwell v. Dewees, 2 Black (U. S.) 613, 6 Gray's Cas. 633; Robinson v. Lewis, 68 Miss. 69, 24 Am. St. Rep. 254. See Freeman, Cotenancy, § 160.

A cotenant may, however, purchase a title which is not adverse; and so a colessee may purchase the reversion. Ramberg v. Wahlstrom, 140 Ill. 182, 33 Am. St. Rep. 227.

The rule referred to in the text has been considerably criticised as being based on an assumption of relations of confidence between cotenants which do not, in fact, exist, except in exceptional cases. See 9 Harv. Law Rev. 427.

126 Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Moon v. Jennings, 119 Ind. 130, 12 Am. St. Rep. 383; Roberts v. Thorn, 25 Tex. 728, 6 Gray's Cas. 637, 78 Am. Dec. 552; Frentz v. Klotsch, 28 Wis. 312. And see Van Horne v. Fonda, 5 Johns. Ch. (N. Y.) 388. Such a qualification of the rule is not mentioned in the decisions generally, and has been expressly repudiated. Bracken v. Cooper, 80 Ill. 221. And see Rothwell v. Dewees, 2 Black (U. S.) 619.

127 Smith v. Osborne, 86 Ill. 606; Gibson v. Winslow, 46 Pa. St. 380, 84 Am. Dec. 552; Kne'ls v. Barnhart, 71 N. Y. 474; Tisdale v. Tisdale, 2 Sneed (Tenn.) 596, 64 Am. Dec. 775; Carpenter v. Carpenter, 131 N. Y. 101, 27 Am. St. Rep. 569.

One tenant may, however, purchase at execution sale the share of a cotenant. Freeman, Cotenancy, § 165; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Gunter v. Laffan, 7 Cal. 588; Elston v. Piggott, 94 Ind. 14; Burr v. Mueller, 65 Ill. 258.

128 Cohea v. Hemingway, 71 Miss. 22, 42 Am. St. Rep. 449; Thompson

a redemption from a tax sale or a purchase of a tax title within the redemption period inures to the benefit of all the cotenants,1 ,129 though the tenant redeeming or purchasing is entitled to contribution from the others, and has a lien securing this right.180

The rule forbidding a cotenant to assert an adverse title against the others applies only so long as the cotenancy continues, and accordingly does not apply when they have been evicted by a stranger;131 and if the land has been sold for taxes, and the time of redemption has expired, the relation is regarded as having ceased, and one who was a cotenant may purchase the tax title for himself.132 The rule has been likewise held not to apply as between cotenants occupying antagonistic positions, as when one claims the whole title, to the exclusion of

v. McCorkle, 136 Ind. 484, 43 Am. St. Rep. 334; Tanney v. Tanney, 159 Pa. St. 277, 39 Am. St. Rep. 678; Weare v. Van Meter, 42 lowa, 128, 20 Am. Rep. 616; Johnson v. Brauch, 9 S. D. 116, 62 Am. St. Rep. 857; Downer's Adm'rs v. Smith, 38 Vt. 464; Goralski v. Kostuski, 179 Ill. 177, 70 Am. St. Rep. 98.

129 Freeman, Cotenancy, § 158; Conn v. Conn, 58 Iowa, 747, 6 Gray's Cas. 641; Minter v. Durham, 13 Or. 470; Maul v. Rider, 51 Pa. St. 377; Easton v. Scofield, 66 Minn. 425; Page v. Webster, 8 Mich. 263, 6 Gray's Cas. 631; Donnor v. Quartermas, 90 Ala. 164, 24 Am. St. Rep. 778; Battin v. Woods, 27 W. Va. 58.

180 Watkins v. Eaton, 30 Me. 529, 50 Am. Dec. 637; Hurley v. Hurley, 148 Mass. 444; Wilmot v. Lathrop, 67 Vt. 671. See ante, note 124.

In some cases, the rule prohibiting the purchase by one cotenant at a tax sale is based, not on the confidential relations of the cotenants, but upon the theory that, since the cotenant is under an obligation to pay the taxes, he cannot acquire a title by his neglect of this obligation. Hurley v. Hurley, 148 Mass. 444; Dubois v. Campau, 24 Mich. 360; Downer's Adm'rs v. Smith, 38 Vt. 464.

181 Freeman, Cotenancy, §§ 161, 162; Coleman v. Coleman, 3 Dana (Ky.) 398, 28 Am. Dec. 86; Carpenter v. Carpenter, 131 N. Y. 101, 27 Am. St. Rep. 569; Alexander v. Sully, 50 Iowa, 192.

182 Kirkpatrick v. Mathiot, 4 Watts & S. (Pa.) 251, 6 Gray's Cas. 628; Watkins v. Eaton, 30 Me. 529, 50 Am. Dec. 637; Reinboth v. Zerbe Run Imp. Co., 29 Pa. St. 139. Compare Battin v. Woods, 27 W. Va. 58.

the others, the relation of trust and confidence on which the rule is based not then existing.133

The cotenants entitled to the benefit of the rule must, within a reasonable time, contribute or offer to contribute their proportion of the price paid, and a failure so to do will be regarded as a repudiation of the transaction and abandonment of its benefits, and likewise, until this is done, they cannot demand a partition.184

173. Actions by cotenants.

As a general rule, tenants in common should sue separately in a real action, since each has a separate and distinct freehold, while in trespass and other personal actions based on injury to the possession, which they have in common, they must join, unless there has been a severance of the claims.135 Joint tenants likewise should sue together for injuries to the possession, and, as they hold by but one title, they must also sue together when the title to the land is involved.136

188 Wells v. Chapman, 4 Sandf. Ch. (N. Y.) 312, 13 Barb. 561; Larman ▼. Huey's Heirs, 13 B. Mon. (Ky.) 436; Wheeler v. Taylor, 32 Or. 421; King v. Rowan, 10 Heisk. (Tenn.) 675; Wright v. Sperry, 21 Wis. 336.

184 Flagg v. Mann, 2 Sumn. 487, Fed. Cas. No. 4,847; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Mandeville v. Solomon, 39 Cal. 125; Stevens v. Reynolds, 143 Ind. 467, 52 Am. St. Rep. 422; Boskowitz v. Davis, 12 Nev. 446; Weaver v. Wible, 25 Pa. St. 270, 64 Am. Dec. 696; Carson v. Broady, 56 Neb. 648, 71 Am. St. Rep. 691; Buchanan v. King's Heirs, 22 Grat. (Va.) 414; Titsworth v. Stout, 49 Ill. 78, 95 Am. Dec. 577; Hurley v. Hurley, 148 Mass. 444.

185 Litt. §§ 311, 315; Freeman, Cotenancy, § 331; Clapp v. Pawtucket Sav. Inst., 15 R. I. 489; Throckmorton v. Burr, 5 Cal. 400; Hill v. Gibbs, 5 Hill (N. Y.) 56; Austin v. Hall, 13 Johns. (N. Y.) 286; Gilmore v. Wilbur, 12 Pick. (Mass.) 120; Stevenson v. Cofferin, 20 N. H. 151; Irwin's Adm'r v. Brown's Ex'rs, 35 Pa. St. 331; Sherman v. Ballou, 8 Cow. (N. Y.) 304; May v. Slade, 24 Tex. 207.

136 Litt. § 311; 1 Washburn, Real Prop. 410; Dewey v. Lambier, 7 Cal. 347; Webster v. Vandeventer, 6 Gray (Mass.) 428. For statutory provisions on the subject, see 3 Sharswood & B. Lead. Cas. Real Prop. 29.

(401)

In ejectment, joint tenants and coparceners may sue either jointly or severally, according to the nature of the fictitious de mise on which the action is based.187 Tenants in common, on the other hand, since they have separate estates only, cannot make a joint demise, and accordingly, by some authorities, they cannot join in ejectment.188 By other authorities it is stated that, though tenants in common cannot make a joint demise, they may, in one action, recover on separate demises of their undivided interests,139 and the statute in some states provides that they may join.140

One tenant in common may, according to some authorities, recover the whole property, as against a stranger, for the benefit of all the cotenants, on the theory that, except as against his cotenants, he is entitled to possession of the whole.141 According to other authorities, however, he can recover only his undivided share in the property.112

187 Freeman, Cotenancy, §§ 339, 340; Adams, Ejectment, 210; Raper v. Lonsdale, 12 East, 39.

188 Mantle v. Wollington, Cro. Jac. 166; White v. Pickering's Lessee, 12 Serg. & R. (Pa.) 435.

189 Jackson v. Sidney, 12 Johns. (N. Y.) 185; Bronson v. Paynter, 20 N. C. 393; Wheat v. Morris, 21 D. C. 118; Carroll v. Norwood's Heirs, 5 Har. & J. (Md.) 155. See Adams, Ejectment, 210. In Jackson v. Bradt, 2 Caines (N. Y.) 173, Hoyle v. Stowe, 13 N. C. 318, and Bronson v. Paynter, 20 N. C. 393, it was even held that tenants in common could recover on a joint demise.

140 Freeman, Cotenancy, § 341; Newell, Ejectment, 143-149.

141 Treat v. Reilly, 35 Cal. 129; Allen v. Higgins, 9 Wash. 446, 43 Am. St. Rep. 847; King v. Bullock, 9 Dana (Ky.) 41; Newman v. Bank of California, 80 Cal. 368, 13 Am. St. Rep. 169; Sharon v. Davidson, 4 Nev. 416; Brady v. Kreuger, 8 S. D. 464, 59 Am. St. Rep. 771; Robinson v. Roberts, 31 Conn. 145; Phillips v. Medbury, 7 Conn. 568; Overcash v. Ritchie, 89 N. C. 384; Sowers v. Peterson, 59 Tex. 216; Robinson v. Sherwin, 36 Vt. 69.

142 King v. Hyatt, 51 Kan. 504, 37 Am. St. Rep. 304; Dewey v. Brown, 2 Pick. (Mass.) 387; Jackson v. Van Bergen, 1 Johns. Cas. (N. Y.) 101; Mobley v. Bruner, 59 Pa. St. 483, 98 Am. Dec. 360; Butrick v. Tilton, 141 Mass. 93; Marshall v. Palmer, 91 Va. 344, 50 Am. St. Rep. 838; Gray v. Givens, 26 Mo. 291; Johnson v. Hardy, 43 Neb. 368, 47 Am. St. Rep. 765.