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(79 Okla. 243, 192 Pac. 689.) Joint tenant — possession

account

rental value. A tenant in common in possession of the common property, who has received more than her just proportion of rents from third persons, but who is not holding the premises adversely or to the exclusion of her cotenants, is not liable to account to them for their proportion of the rental value of said premises, but must account to them for their proportion of the rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements.

[See note on this question beginning on page 184.]

Headnote by RAINEY, Ch. J.

ERROR to the District Court for Grady County (Linn, J.) to review a decree warding a money judgment against defendant in a suit filed for the partition of certain farm lands. Reversed.

The facts are stated in the opinion of the court.

Mr. C. L. McArthur, for plaintiff in 114 S. W. 270; Fenton v. Miller, error:

116 Mich. 45, 72 Am. St. Rep. 502, 74 Defendant had a right to show ex- N. W. 384; Starks v. Kirchgraber, 134 actly what she actually collected from Mo. App. 211, 113 S. W. 1149; Schusthe premises, and that was all that ter v. Schuster, 84 Neb. 98, 29 L.R.A. she was liable for, and not the rental (N.S.) 224, 120 N. W. 948, 18 Ann. value.

Cas. 1078; Names v. Names, 48 Neb. Thurstin v. Brown, 83 Kan. 125, 29 701, 67 N. W. 751; Bennett v. Bennett, L.R.A.(N.S.) 238, 109 Pac. 784; 84 Miss. 493, 36 So. 452; Sharp v. Adams v. Bristol, 126 App. Div. 660, Zeller, 114 La. 549, 38 So. 449; 111 N. Y. Supp. 231, 196 N. Y. 510, Stephens v. Huett, Tex. Civ. App. 89 N. E. 1095; McCrum v. McCrum, 77 S. W. 229. 36 Ind. App. 636, 76 N. E. 415.

Rainey, Ch. J., delivered the opinMessrs. Bond, Melton, & Melton, for defendants in error:

ion of the court: The court was correct in rendering

In a partition suit filed in the disjudgment for the rents and profits.

trict court of Grady county, OklaMcParland v. Larkin, 155 Ill. 84,

homa, by William Airington, Walter 39 N. E. 609; Chambers v. Jones, 72 Airington, and James Airington, as Ill. 275; Vermillion v. Nickell, – Ky. plaintiffs, against Mrs. Willie Air(79 Okla. 245, 192 Pac. 689.) ington, as defendant, the court en- continued until some positive act of tered a decree partitioning the prop- exclusion occurred. On account of erty, and also awarding judgment the injustice of this rule Stat. 4 against the defendant for $447.20, Anne, chap. 16, was passed to coras their proportion of the rental rect the evil under which the tenants value of the premises. No com- in common out of possession were plaint is made of that part of the given the right to prosecute an acdecree partitioning the property, tion against the one in possession and the appeal is taken solely by the who had actually received from a defendant, Mrs. Airington, from the third person more than his share of money judgment against her. Par- the rents and profits, so that it was ties will be denominated "plaintiffs" no longer necessary that one tenant and "defendant," as they appeared in common should take the profits in the trial court.

by express authority to make him Plaintiffs and defendant were responsible. If he received more joint owners and cotenants of the than his just share he was responland in controversy, and the defend- sible without appointment for what ant had been in exclusive possession he received beyond his share. Since thereof, and had collected the rents the passage of this act it is well settherefrom, for a number of years tled, both in England and in Amerprior to the institution of the ac- ica, that a tenant in common in postion.

session is liable to account to his coIt is the contention of defendant tenant for the rents and profits that that she was only liable to account

he has received from a third person to the plaintiffs for their proportion- over and above his just share. Mcate share of what was actually re- Caw v. Barker, 115 Ala. 545, 22 So. ceived by her as rents and profits 131; Regan v. Regan, 192 Ill. 589, 61 from third persons, less deductions N. E. 842; Cheney v. Ricks, 187 Ill. for taxes and necessary improve- 171, 58 N. E. 234; Van Ormer v. ments, while the plaintiffs contend Harley, 102 Iowa, 150, 71 N. W. that the court properly gave them 241; German v. Heath, 139 Iowa, 52, judgment for their share of the 116 N. W. 1051; Gregg v. Roaring rental value of the premises, after Springs Land & Min. Co. 97 Mo. allowing such deductions. This is App. 44, 70 S. W. 920; Ayotte v. the only issue in the case.

Nadeau, 32 Mont. 498, 81 Pac. 145; The authorities universally hold Lloyd v. Turner, 70 N. J. Eq. 425, 62 that no means were provided by the Atl. 771; Myers v. Bolton, 89 Hun, common law by which one joint ten- 342, 35 N. Y. Supp. 577; Adams v. ant, or a tenant in common, could Bristol, 126 App. Div. 660, 111 N. Y. compel his cotenant, remaining in Supp. 231, affirmed in 196 N. Y. 510, possession of the common property, 89 N. E. 1095; Dorrance v. Ryon, 35 and who took more than his share Pa. Super. Ct. 180. of the rents and profits, to account Oklahoma, like many other states, to him for his proportionate share has a statute governing the subject. thereof, except where such rents It is § 3804, Rev. Laws 1910, and and profits were received by one as reads as follows: "A joint tenant, the bailiff for the other. 7 R. C. L. or tenant in common, or tenant in 826; Freeman, Cotenancy & Parti- coparcenary, may maintain an action, $ 269. See notes to 52 Am. St. tion against his cotenant or coparRep. 924; 91 Am. St. Rep. 871; and cener, or their personal representa78 Am. Dec. 665.

tives, for receiving more than his This rule had its inception in the just proportion of the rents and theory that cotenants have several profits." and equal rights to possession, and There are some cases which hold, that the entry and possession of one as contended by counsel for plainwill be presumed to be in accordance tiffs, that the tenant in possession with his title, and that presumption will be held to account for the usable rental value of the premises. These adversely or to the exclusion of her are generally either cases where cotenants. We do not think the recthe tenant in possession holds ad- ord justifies this claim. It was not versely and excludes the cotenant the theory of the case, as disclosed from coming in, or where the tenant by plaintiffs' petition or evidence, in possession himself makes a profit nor was such contention made at the on his own use of the premises, or trial. derives a benefit therefrom, although Counsel for defendant offered to he does not hold adversely to his co- prove the amount of rents collected tenant or prevent their coming in. by the defendant from third parties, In the latter class of cases some of and to show that the total sum so the courts in this country hold that collected was less than the sum exthe basis of accounting is the actual pended by her for taxes and necesprofits made or the usable rental sary improvements. The court susvalue of the premises. In the in- tained plaintiffs' objection to this stant case the record shows that offer, and permitted them to prove,

since the year 1910 Joint tenant

as their measure of recovery, the the defendant rentpossession-ac

rental value of the premises. On aced the premises to

count of this error the cause is rethird persons, SO

versed and remanded, with directhis case falls within the general rule, unless counsel for plaintiffs are

tions to grant a new trial. correct in their contention that de- All the Justices concur, except fendant was holding the premises Ramsey, J., absent.

con nt-rental value.

ANNOTATION.

Accountability of cotenants for rents and profits or use and occupation.

I. Introductory, 185.
II. Rents collected from third persons:

a. In general, 186.
b. Under Statute of Anne and

other statutes, 186.
c. Cases not referring to statutes,

188.

d. General principles, 189.
III. Use and occupation:
a. In cases other than partition

in equity:
1. The occupant not liable:

(a) In general, 190.
(b) Under Statute of

Anne and similar

statutes, 197.
2. The occupant liable:
(a) In general, or by

construction of
Statute of Anne
and similar stat-

utes, 198.
(b) Under other stat-

utes, 202.
(c) Equitable set-off,

205.
(d) Doctrine of actual

profits, 206.
b. In partition in equity:

III. b.-continued.

1. In general, 206.
2. The occupant not liable,

206.
3. The occupant liable:

(a) In general, 211.
(b) Under particular

statutes, 219.
(c) Equitable set-off,

221. (d) Doctrine of actual

profits, 223.
c. Ouster, 226.

d. General principles, 232.
IV. Lien, 233.
V. Remedies:

a. In general, 239.
b. Statutory action of account,

240.
c. Assumpsit, 240.
d. Equity:

1. Partition, 242.

2. Other suits in equity, 244, e. Trespass, conversion, etc., 245.

f. Parties, 245.
VI. Interest, 247.
VII. Deductions:

a. In general, 249.

VIII. Agreements:

a. In general, 260.
b. Holding over, 260.

c. Miscellaneous, 262. IX. Tenants by the entirety, 264.

X. Statute of Limitations, 268. XI. Miscellaneous, 272.

VII.- continued.

b. Taxes, 249.
c. Encumbrances, 252.
d. Repairs, 252.
e. Insurance, 255.
f. Services, 255.
g. Improvements, 256.
h. Miscellaneous, 260.

1. Introductory. This annotation excludes cases of mines, quarries, oil, gas, and timber; also cases relating to cotenancy of personal property.

For adjustment on partition of improvements made by tenant in common, see the annotation in 1 A.L.R. 1189. For .rights of cotenants inter se as to timber, see the annotation in 2 A.L.R. 993.

At common law, in the absence of ouster, agreement, or waste, one cotenant could not recover from his cotenant for rents and profits or use and occupation.

If one joint tenant takes the whole profits, there is no remedy for the others, except it were done by agreement, or promise of account. Anonymous (1602) Cary, 21, 21 Eng. Reprint, 12.

In 2 Coke on Littleton, 2006, it is said: “If one joyntenant or tenant in common of land maketh his companion his baylife of his part, he shall have an action of account against him, as hath been said. But although one tenant in common or jointenant without being made bay. life take the whole profits, no action of account lieth against him; for in an action of account he must charge him either as a guardian, baylife, or receiver, as hath been said before, which he cannot do in this case, unless his companion constitute him his bailife. And therefore all those bookes which affirm that an action of account lieth by one tenant in common, or jointenant, against another, must be intended when the one maketh the other his bailife, for otherwise never his baylife to render an account is a good plea."

One tenant in common cannot maintain an action of account at common law against another his

bailiff, unless that other were appointed bailiff. Wheeler v. Horne (1740) Willes, Rep. 208, 125 Eng. Reprint, 1135.

The Statute 4 & 5 Anne, chap. 16, entitled "An Act for the Amendment of the Law, and the Better Advancement of Justice," provided, among other things: "xxvii. And be it enacted by the Authority aforesaid, That from and after the said first Day of Trinity Term, Actions of Account shall and may be brought and maintained against the Executors and Administrators of every Guardian, Bailiff, and Receiver; and also by one Joint-tenant, and Tenant in Common, his Executors and Administrators, against the other, as Bailiff for receiving more than comes to his just Share or Proportion, and against the Executor and Administrator of such Joint-tenant, or Tenant in Common; and the Auditors appointed by the Court, where such Action shall be depending, shall be, and are hereby impowered to administer an Oath, and examine the Parties touching the Matters in Question, and, for their Pains and Trouble in auditing and taking such Account, have such Allowance as the Court shall adjudge to be reasonable, to be paid by the Party on whose Side the Balance of the Account shall appear to be.”

This statute and those of similar language have been usually, but not always, construed as limited to receipts of rents, etc., from third persons.

As regards use and occupation, the authorities are agreed that in case of ouster the ousted tenant in common may recover of the ousting tenant for and occupation or rental value, but in the absence of ouster there is much diversity of opinion on the subject. In some of the cases

an allowance is made for

use

as

V.

use and occupation by way of equita- tition); Donason v. Barbero (1907) ble set-off.

230 Ill. 138, 82 N. E. 620 (partition); Technically it is sometimes said to Bayley v. Nichols (1914) 263 Ill. 116, be misleading to speak of a cotenant's 104 N. E. 1054 (partition); Glos v. liability for “use and occupation" Clark (1901) 97 Ill. App. 609 (partiwhen there is not the relation of tion), reversed on another ground in landlord and tenant.

(1902) 199 Ill. 147, 65 N. E. 135. See The examination of the cases is also Cooper v. Martin (1923) 308 Ill. often difficult by reason of the use of 224, 139 N. E. 68 (partition). the expression "rents and profits” Indiana. Schissel Dickson without further indication whether (1891) 129 Ind. 139, 28 N. E. 540 the expression is intended to mean (partition); Geisendorff Cobbs rents received from third persons, or (1911) 47 Ind. App. 573, 94 N. E. 236; occupation rent or rental value. Bowen v. Swander (1889) 121 Ind.

164, 22 N. E. 725 (partition; ouster). II. Rents collected from third persons.

Iowa. Van Ormer v. Harley a. In general.

(1897) 102 Iowa, 150, 71. N. W. 241 As heretofore stated, at common

(partition); German v. Heath (1908) law, in the absence of ouster, agree

139 Iowa, 52, 116 N. W. 1051; Stevens ment, or waste, one cotenant' could v. Pels (1919) 191 Iowa, 176, 175 N. not recover from his cotenant for W. 303. rents and profits or use and occupa

Louisiana.-Sharp v. Zeller (1905) tion. The modern rule arose upon

114 La. 549, 38 So. 449 (partition). the Statute of Anne. See supra, I.

Maine.-Buck v. Spofford (1849) 31

Me. 34 (gristmill tolls). b. Under Statute of Anne and other

Massachusetts. Munroe v. Luke statutes.

(1840) 1 Met. 459; Badger v. Holmes Under the Statute of Anne and (1856) 6 Gray, 118 (arguendo). many other statutes, one cotenant is Minnesota, Walter v. Greenwood accountable to another for rents re- (1882) 29 Minn. 87, 12 N. W. 145. ceived from third persons.

See also Sons v. Sons (1922) 151 Minn. Arkansas. Brittinum V. Jones

360, 186 N. W. 811. (1892) 56 Ark. 624, 20 S. W. 520 Missouri. Bates Hamilton (partition); Cocke v. Clausen (1900)

(1898) 144 Mo. 1, 66 Am. St. Rep. 407, 67 Ark. 455, 55 S. W. 846. See also 45 S. W. 641; Tyler v. Cartwright Patterson v. Miller (1922) 154 Ark. (1890) 40 Mo. App. 378 (arguendo); 124, 241 S. W. 875.

Beck v. Kallmeyer (1890) 42 Mo. Connecticut. Brady v. Brady

App. 563 (partition). See also Doer(1909) 82 Conn. 424, 74 Atl. 684;

ner v. Doerner (1901) 161 Mo. 407, Humphrey v. Gerard (1910) 83 Conn. 61 S. W. 802 (partition). 346, 77 Atl. 65. See also Fowler v. Montana. Ayoette v. Nadeau Fowler (1882) 50 Conn. 256.

(1905) 32 Mont. 498, 81 Pac. 145. District of Columbia. Loving v. New Jersey. Izard v. Bodine Moore (1911) 37 App. D. C. 214 (un- (1857) 11 N. J. Eq. 403, 69 Am. Dec. der D. C. Stat.; partition).

595 (arguendo); Davidson v. ThompFlorida. Anderson v. Northrop

son (1871) 22 N. J. Eq. 83 (parti(1902) 44 Fla. 472, 33 So. 419 (ap- tion); Rowden v. Murphy (1890) parently).

N. J. —, 20 Atl. 379 (partition); SailGeorgia. - Andrews v. Murphy er v. Sailer (1886) 41 N. J. Eq. 398, (1853) 12 Ga. 431; Thompson v. San

5 Atl. 319 (partition); Platt v. Platt ders (1901) 113 Ga. 1024, 39 S. E. 419

(1922) 93 N. J. Eq. 395, 116 Atl. 326 (arguendo).

(partition). Mlinois. Henson v. Moore (1882) New Mexico. Armijo v. Neher 104 Ill. 403 (partition); Regan V. (1903) 11 N. M. 645, 72 Pac. 12 Regan (1901) 192 Ill. 589, 61 N. E. (ouster; partition). 842 (partition); Cheney v. Ricks New York. Hannan v. Osborn (1900) 187 Ill. 171, 58 N. E. 234 (par- (1834) 4 Paige, 336 (partition); Scott

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