ington, as defendant, the court entered a decree partitioning the property, and also awarding judgment against the defendant for $447.20, as their proportion of the rental value of the premises. No complaint is made of that part of the decree partitioning the property, and the appeal is taken solely by the defendant, Mrs. Airington, from the money judgment against her. Parties will be denominated "plaintiffs" and "defendant," as they appeared in the trial court.

Plaintiffs and defendant were joint owners and cotenants of the land in controversy, and the defendant had been in exclusive possession thereof, and had collected the rents therefrom, for a number of years prior to the institution of the action.

It is the contention of defendant that she was only liable to account to the plaintiffs for their proportionate share of what was actually received by her as rents and profits from third persons, less deductions for taxes and necessary improvements, while the plaintiffs contend that the court properly gave them judgment for their share of the rental value of the premises, after allowing such deductions. This is the only issue in the case.

The authorities universally hold that no means were provided by the common law by which one joint tenant, or a tenant in common, could compel his cotenant, remaining in possession of the common property, and who took more than his share of the rents and profits, to account to him for his proportionate share thereof, except where such rents and profits were received by one as the bailiff for the other. 7 R. C. L. 826; Freeman, Cotenancy & Partition, § 269. See notes to 52 Am. St. Rep. 924; 91 Am. St. Rep. 871; and 78 Am. Dec. 665.

This rule had its inception in the theory that cotenants have several and equal rights to possession, and that the entry and possession of one will be presumed to be in accordance with his title, and that presumption

continued until some positive act of exclusion occurred. exclusion occurred. On account of

the injustice of this rule Stat. 4 Anne, chap. 16, was passed to correct the evil under which the tenants in common out of possession were given the right to prosecute an action against the one in possession who had actually received from a third person more than his share of the rents and profits, so that it was no longer necessary that one tenant in common should take the profits by express authority to make him responsible. If he received more than his just share he was responsible without appointment for what he received beyond his share. Since the passage of this act it is well settled, both in England and in America, that a tenant in common in possession is liable to account to his cotenant for the rents and profits that he has received from a third person over and above his just share. Caw v. Barker, 115 Ala. 545, 22 So. 131; Regan v. Regan, 192 Ill. 589, 61 N. E. 842; Cheney v. Ricks, 187 Ill. 171, 58 N. E. 234; Van Ormer v. Harley, 102 Iowa, 150, 71 N. W. 241; German v. Heath, 139 Iowa, 52, 116 N. W. 1051; Gregg v. Roaring Springs Land & Min. Co. 97 Mo. App. 44, 70 S. W. 920; Ayotte v. Nadeau, 32 Mont. 498, 81 Pac. 145; Lloyd v. Turner, 70 N. J. Eq. 425, 62 Atl. 771; Myers v. Bolton, 89 Hun, 342, 35 N. Y. Supp. 577; Adams v. Bristol, 126 App. Div. 660, 111 N. Y. Supp. 231, affirmed in 196 N. Y. 510, 89 N. E. 1095; Dorrance v. Ryon, 35 Pa. Super. Ct. 180.

Mc

Oklahoma, like many other states, has a statute governing the subject. It is § 3804, Rev. Laws 1910, and reads as follows: "A joint tenant, or tenant in common, or tenant in coparcenary, may maintain an action against his cotenant or coparcener, or their personal representatives, for receiving more than his just proportion of the rents and profits."

There are some cases which hold, as contended by counsel for plaintiffs, that the tenant in possession will be held to account for the usable

rental value of the premises. These are generally either cases where the tenant in possession holds adversely and excludes the cotenant from coming in, or where the tenant in possession himself makes a profit on his own use of the premises, or derives a benefit therefrom, although he does not hold adversely to his cotenant or prevent their coming in. In the latter class of cases some of the courts in this country hold that the basis of accounting is the actual profits made or the usable rental value of the premises. In the instant case the record shows that since the year 1910 the defendant rented the premises to third persons, So this case falls within the general rule, unless counsel for plaintiffs are correct in their contention that defendant was holding the premises

Joint tenant

possession-account-rental

value.

adversely or to the exclusion of her cotenants. We do not think the record justifies this claim. It was not the theory of the case, as disclosed by plaintiffs' petition or evidence, nor was such contention made at the trial.

Counsel for defendant offered to prove the amount of rents collected by the defendant from third parties, and to show that the total sum so collected was less than the sum expended by her for taxes and necessary improvements. The court sustained plaintiffs' objection to this offer, and permitted them to prove, as their measure of recovery, the rental value of the premises. On account of this error the cause is reversed and remanded, with directions to grant a new trial.

All the Justices concur, except Ramsey, J., absent.

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, 200b, 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 baylife 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 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."

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.

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 use 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 and occupation by way of equitable set-off.

Technically it is sometimes said to be misleading to speak of a cotenant's liability for "use and occupation" when there is not the relation of landlord and tenant.

The examination of the cases is often difficult by reason of the use of the expression "rents and profits" without further indication whether the expression is intended to mean rents received from third persons, or occupation rent or rental value.

II. Rents collected from third persons.

a. In general.

As heretofore stated, 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. The modern rule arose upon the Statute of Anne. See supra, I.

b. Under Statute of Anne and other statutes.

Under the Statute of Anne and many other statutes, one cotenant is accountable to another for rents received from third persons.

Arkansas. Brittinum v. Jones (1892) 56 Ark. 624, 20 S. W. 520 (partition); Cocke v. Clausen (1900) 67 Ark. 455, 55 S. W. 846. See also Patterson v. Miller (1922) 154 Ark. 124, 241 S. W. 875.

Connecticut. - Brady v. Brady (1909) 82 Conn. 424, 74 Atl. 684; Humphrey v. Gerard (1910) 83 Conn. 346, 77 Atl. 65. See also Fowler v. Fowler (1882) 50 Conn. 256. District of Columbia. Loving v. Moore (1911) 37 App. D. C. 214 (under D. C. Stat.; partition).

Florida. Anderson v. Northrop (1902) 44 Fla. 472, 33 So. 419 (apparently).

Georgia. Andrews v. Murphy (1853) 12 Ga. 431; Thompson v. Sanders (1901) 113 Ga. 1024, 39 S. E. 419 (arguendo).

Illinois. Henson v. Moore (1882) 104 Ill. 403 (partition); Regan v. Regan (1901) 192 Ill. 589, 61 N. E. 842 (partition); Cheney v. Ricks (1900) 187 Ill. 171, 58 N. E. 234 (par

tition); Donason v. Barbero (1907) 230 Ill. 138, 82 N. E. 620 (partition); Bayley v. Nichols (1914) 263 Ill. 116, 104 N. E. 1054 (partition); Glos v. Clark (1901) 97 Ill. App. 609 (partition), reversed on another ground in (1902) 199 Ill. 147, 65 N. E. 135. See ' also Cooper v. Martin (1923) 308 Ill. 224, 139 N. E. 68 (partition). Indiana. Schissel v. Dickson (1891) 129 Ind. 139, 28 N. E. 540 (partition); Geisendorff V. Cobbs (1911) 47 Ind. App. 573, 94 N. E. 236; Bowen v. Swander (1889) 121 Ind. 164, 22 N. E. 725 (partition; ouster). Iowa. Van Ormer v. Harley (1897) 102 Iowa, 150, 71. N. W. 241 (partition); German v. Heath (1908) 139 Iowa, 52, 116 N. W. 1051; Stevens v. Pels (1919) 191 Iowa, 176, 175 N. W. 303.

Minnesota.

Walter v. Greenwood (1882) 29 Minn. 87, 12 N. W. 145. See also Sons v. Sons (1922) 151 Minn. 360, 186 N. W. 811.

Missouri. Bates v. Hamilton (1898) 144 Mo. 1, 66 Am. St. Rep. 407, 45 S. W. 641; Tyler v. Cartwright (1890) 40 Mo. App. 378 (arguendo); Beck v. Kallmeyer (1890) 42 Mo. App. 563 (partition). See also Doerner v. Doerner (1901) 161 Mo. 407, 61 S. W. 802 (partition).

Montana.

Ayoette v. Nadeau (1905) 32 Mont. 498, 81 Pac. 145. New Jersey. Izard v. Bodine (1857) 11 N. J. Eq. 403, 69 Am. Dec. 595 (arguendo); Davidson v. Thompson (1871) 22 N. J. Eq. 83 (partition); Rowden v. Murphy (1890) N. J., 20 Atl. 379 (partition); Sailer v. Sailer (1886) 41 N. J. Eq. 398, 5 Atl. 319 (partition); Platt v. Platt (1922) 93 N. J. Eq. 395, 116 Atl. 326 (partition).

New Mexico. Armijo v. Neher (1903) 11 N. M. 645, 72 Pac. 12 (ouster; partition).