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derson (1820) 2 A. K. Marsh. 388, 12 Ohio. West v. Weyer (1888) 46 Am. Dec. 412; Respass v. Brecken- Ohio St. 66, 15 Am. St. Rep. 552, 18 ridge (1820) 2 A. K. Marsh. 581; N. E. 537. See also McClaskey v. Davis v. Whitesides (1833) 1 Dana, Barr (1894) 62 Fed. 209. 177, 25 Am. Dec. 138; Vermillion v. Pennsylvania. - Under Statute of Nickell (1908) Ky. — 114 S. W. 1895. Lancaster V. Flowers (1904) 270; Larmon v. Larmon (1917) 173 208 Pa. 199, 57 Atl. 526 (arguendo); Ky. 477, 191 S. W. 110; McGill v. Lincoln v. Wakefield (1912) 237 Pa. Cromwell (1883) 5 Ky. L. Rep. 246. 97, 85 Atl. 133; Lee v. Hamilton

Louisiana. Anderson v. Shaw (1912) 22 Pa. Dist. R. 75; Marciniak's (1912) 131 La. 662, 60 So. 50.

Estate (1911) 16 Kulp, 319; FriedMichigan.-Nott v. Gundick (1920) rich's Estate (1913) 62 Pittsb. L. J. 212 Mich. 223, 180 N. W. 376. See 246. also Hunt v. Hunt (1896) 109 Mich. Philippine. Pardell v. Bartolome 399, 67 N. W. 510; Fenton v. Miller (1912) 23 Philippine, 450. (1898) 116 Mich. 45, 72 Am. St. Rep. South Carolina. Holt v. Robert502, 74 N. W. 384.

son (1831) 16 S. C. Eq. (McMull.) 475; Mississippi. – Medford v. Frazier Volentine v. Johnson (1833) 10 S. C. (1880) 58 Miss. 241 (probably); Eq. (1 Hill) 49; Hancock v. Day (1840) Walker v. Williams (1904) 84 Miss. 16 S. C. Eq. (McMull.) 69, 36 Am. 392, 36 So. 450; Bennett v. Bennett Dec. 293, modified in (1841) 16 S. C. (1904) 84 Miss. 493, 36 So. 452; Eq. (McMull.) 298; Jones v. Massey Bowles v. Wood (1907) 90 Miss. 742, (1880) 14 S. C. 292; Scaife v. Thomson 44 So. 169; Dickerson Weeks (1881) 15 S. C. 337; Pearson v. Carlton (1914) 106 Miss. 804, 64 So. 731. (1882) 18 S. C. 47; Sutton v. Sutton

Nebraska. See Miller v. Mills (1886) 26 S. C. 33, 1 S. E. 19; McGee (1876) 4 Neb. 362; Names v. Names v. Hall (1888) 28 S. C. 562, 6 S. E. (1896) 48 Neb. 701, 67 N. W. 751; 566; Cain v. Cain (1898) 53 S. C. 350, Schuster v. Schuster (1909) 84 Neb. 69 Am. St. Rep. 863, 31 S. E. 278. See 98, 29 L.R.A.(N.S.) 224, 120 N. W. also Barnes v. Rodgers (1899) 54 S. C. 948, 18 Ann. Cas. 1078.

115, 31 S. E. 885. Now Jersey.

Piddock Tennessee. Johnson v. Johnson (1871) 21 N. J. Eq. 311; Buckelew (1899) Tenn. - 53 S. W. 226. v. Snedeker (1876) 27 N. J. Eq. 82; See also Broyles v. Waddel (1872) 11 Rowden v. Murphy (1890) N. J. Heisk. 32, and Tyner v. Fenner (1880) Eq. - 20 Atl. 379; Vass v. Hill 4 Lea, 469. See also infra, III. b, 3, (1891) N. J. Eq. --, 21 Atl. 585; (d). Keeney v. Henning (1899) 58 N. J. Texas. See Bailey v. Laws (1893) Eq. 74, 42 Atl. 807; Maxwell v. Eckert 3 Tex. Civ. App. 529, 23 S. W. 20, (1920) N. J. Eq. 109 Atl. 730. infra, III. b, 3, (c). See also, as See also Doughaday V. Crowell probably ouster, Duke v. Reed (1885) (1856) 11 N. J. Eq. 201. See also 64 Tex. 705, infra, III. b, 3, (c), and infra, III. b, 3, (d). But compare Linch v. Broad (1888) 70 Tex. 92, 6 Battin v. Battin (1922) - N. J. Eq. S. W. 751, infra, III. b, 3, (c).

120 Atl, 519, affirmed in (1923) Virginia.—Adkins v. Adkins (1915) - N. J. Eq. 120 Atl. 521.

117 Va. 445, 85 S. E. 490. See also New York. Scott v. Guernsey Ballou v. Ballou (1897) 94 Va. 350, 64 (1871) 48 N. Y. 106; Eakin v. Knabe Am. St. Rep. 733, 26 S. E. 840. (1900) 31 Misc. 221, 64 N. Y. Supp. Washington. Eckert v. Schmitt 103. See also Hitchcock v. Skinner (1910) 60 Wash. 23, 110 Pac. 635. (1839) Hoffm. Ch. 21 (where possess- West Virginia. Rust lv. Rust ing cotenant

also trustee of (1881) 17 W. Va. 901. his cotenant's share). Compare contra England. Turner v. Morgan cases, supra, III. b, 2.

(1803) 8 Ves. Jr. 143, 32 Eng. Reprint, North Carolina. Holt v. Couch 307. See also Hill v. Fulbrock (1822) (1899) 125 N. C. 456, 74 Am. St. Rep. Jacob, 574, 37 Eng. Reprint, 967; 648, 34 S. E. 703.

Burnell v. Burnell (1879) 'L. R. 11

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Ch. Div. 213, 48 L. J. Ch. N. S. 412, ance for repairs and improvements 27 Week. Rep. 749; Hill v. Hickin on the part not occupied by him, the [1897] 2 Ch. 579, 66 L. J. Ch. N. S. court said: I think that these ac717, 77 L. T. N. S. 127, 46 Week. Rep. counts must be reciprocal, and, un137.

less the defendant is charged with It does not seem very clear how an occupation rent, he is not entitled early it became the theory of the to any account of substantial repairs English chancery court that a court and lasting improvements on any part of equity in partition might compel of the property." In Hill v. Fulbrook a cotenant in possession to account (1822) Jacob, 574, 37 Eng. Reprint, for use and occupation. In the par- 967, one tenant in common in possestition suit of Hyde v. Hindly (1794) sion claiming to be solely entitled was, 2 Cox, Ch. Cas. 408, 30 Eng. Reprint, on a bill in partition, ordered to ac188, the bill prayed an account of count for “rents and profits.” So, rents and profits received by the de- an account of "rents profits” fendant, who had been in possession was ordered in the partition suit of of the whole, and also an account of Burnell v. Burnell (1879) L. R. 11 Ch. timber felled by him, and the court Div. (Eng.) 213, 48 L. J. Ch. N. S. directed an account of rents and prof. 412, 27 Week. Rep. 749. In Hill v. its, but took no notice of the timber Hiekin [1897] 2 Ch. (Eng.) 579,

[ felled. In Turner v. Morgan (1803) where the master in partition found 8 Ves. Jr. 143, 32 Eng. Reprint, 307, that there was due from the occupant where, a tenant of a house having an occupation rent, the court, while bought an undivided interest in it, on declining to charge the same against partition Lord Eldon ordered an ac- the occupant's mortgagee, said: “The count on the basis of a reasonable defendant, James Hickin, not having rental value. It does not seem that been tenant or bailiff of his co-owners, this was on the theory of ouster nothing could have been recovered (although the case is apparently so from him at law; nor does the Statute referred to by counsel in M'Mahon v. of Anne (4 Anne, chap. 16, § 27) Burchell (1846) 2 Phill. Ch. 126, 41 apply. See Henderson

V. Eason Eng. Reprint, 889, 1 Coop. t. Cott. 457, (1851) 17 Q. B. 701, 117 Eng. Reprint, 47 Eng. Reprint, 944). (In Story v. 1451, 21 L. J. Q. B. N. S. 82, 16 Jur. Johnson (1837) 2 Younge & C. Exch. 518, 1 Eng. Rul. Cas. 449. It has, 586, 160 Eng. Reprint, 529, 5 L. J. however, long been the practice of the Exch. Eq. N. S. 9, it was held in court of chancery and of the chanpartition that a fair occupation rent cery division to direct such inquiries might be charged a tenant in common as have been directed in the present who had a void lease from his co- case. See as to occupation rent, tenant.) On the other hand, the ac- Turner v. Morgan (1803) 8 Ves. Jr. countability for use and occupation 145, 32 Eng. Reprint, 307." was denied in partition in Griffies v. (In Munsie v. Lindsay (1883) 10 Griffies (1863) 11 Week. Rep. (Eng.) Ont. Pr. Rep. 173, the nature of the 943, 8 L. T. N. S. 758, and also in action not appearing, where improvethe Canadian case of Rice v. George ments were allowed, an occupation (1873) 20 Grant, Ch. (U. C.) 221, rent was charged, the court stating where it was held that a tenant in that ordinarily there was no such liacommon in possession would not be bility in the absence of exclusion.) allowed for his improvements unless In Arkansas the court in Cannon v. he consented to be charged an occupa- Stevens (1908) 88 Ark. 610, 115 S. W. tion rent. This last case asserts that 388 (supra, III. b, 2), apparently no more than this was meant or de- took the view that a tenant in common cided in Teasdale v. Sanderson (1864) was not accountable to his cotenant 33 Beav. 534, 55 Eng. Reprint, 476, for use and occupation, in the abwhere a tenant in common who had sence of agreement or ouster. It does been in possession of part of the prop- not seem that there was ouster in erty having on partition asked allow- Maupin v. Gains (1916) 125 Ark. 181,

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188 S. W. 552, supra, where the court a several occupation, in which event said obscurely, in a suit for partition a joint tenant in exclusive possession of town lots by one claiming an of a part, without hindering the equitable title, where it does not ap- others from the use of their shares, pear what the facts were as to rents, is not answerable to them for profits improvements, and taxes: “No error realized from the portions in his was committed in ordering an exclusive occupancy." In M'Clanahan counting of the rents, improvements, v. Henderson (1820) 2 A. K. Marsh. and taxes. This is not the case of (Ky.) 388, 12 Am. Dec. 412, it was exclusive occupancy by one cotenant held that the defendants should reagainst another who had neglected ceive a compensation for improveto avail himself of his right of jointments, and that the plaintiffs should occupancy; but is the case of a co- be allowed rents and profits, at least tenant seeking to enjoy the exclusive to the amount necessary to set off the possession. Appellant is, therefore,

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, claim for improvements. In Vermilliable to appellee for her proportion- lion v. Nickell (1908) Ky. ate share of the rents from the be- S. W. 270, supra, however, the ocginning of such possession, the period cupant was allowed his improvements, from which the court ordered the and was charged rental value, leaving accounting.”

a balance against him for which In Shiels v. Stark (1856) 14 Ga. judgment was entered. But where 429, the court in partition found a there was no exclusion of a tenant in liability for rental value under a common, who declined to say what broad construction of the Statute of she wanted to do with her share for Anne. The matter of use and occupa- the year following its acquisition, it tion seems left unsettled in Hines v.

held on partition that there Munnerlyn (1876) 57 Ga. 32, and that would be nothing allowed her for case seems limited to actual profits use and occupation or for rents, by Arnett v. Munnerlyn (1883) 71 where there had been little, if anyGa. 14. It seems that the principle of thing, used or received above the accountability for rents and profits is possessor's share. King v. King recognized in the partition suit of (1918) 182 Ky. 665, 207 S. W. 1. Lowe v. Burke (1887) 79 Ga. 164, 3 In Michigan the court seems inS. E. 449.

clined on principle to charge for use In Kentucky it seems clear that the or profits in partition, but the direct occupant must account for use and authority on the question is not very occupation, being credited with im- strong. In Nott v. Gundick (1920) provements. In Larmon v. Larmon 212 Mich. 223, 180 N. W. 376, supra, (1918) 173 Ky. 477, 191 S. W. 110, the court in partition charged a cosupra, the court in partition, in hold- tenant occupying a dwelling house on ing a cotenant in possession liable the premises for use and occupation, for use and occupation and denying apparently partially on the ground his claim for improvements, as they that in effect the complainant was were made while he was a tenant per excluded and partially on the ground autre vie and before he became a that in partition the court would adcotenant, apparently intending to in- just the equities. In Hunt v. Hunt clude both tenants in common and (1896) 109 Mich. 399, 67 S. W. 510, joint tenants, said and held: “Under there was an accounting for rents and the Statute of 4 Anne, chapter 16, § profits, deducting taxes, improve27, and similar statutes adopted in ments, insurance, and interest, and this country, a joint tenant is now there was testimony as to rental liable to account for occupying more value; the objection made was not than his share of the land, except as apparently to the charge of rents and to such rents and profits as accrued profits, but to the amount of from improvements made by his own and there may have been a partial skill, labor, and capital, and except agreement.

agreement. In Moreland v. Strong where the property is susceptible of (1897) 115 Mich. 211, 69 Am. St. Rep.

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553, 73 N. W. 140, the court in parti- In Mississippi, in Medford v. Fration having said of a contract with a zier (1880) 58 Miss. 241, supra, on decropper: “We think it was not a murrer to a bill in partition the court lease. It was a mere contract,”—said: stated that the question whether it "It is contended that the English is admissible in a bill for partition to rule should be applied, viz., that a pray for an account for rents against person in possession by consent of such of the cotenants as have been his cotenant cannot be required to in possession of the common property, account to his cotenant for a share “though of first impression here, is of the profits arising from his well settled elsewhere in the afuse of the premises; but we are of firmative. Freeman, Cotenancy, S the opinion that this cannot be car- 512, and cases cited.” (The section ried so far as to permit the cotenant referred to seems to approve of acin possession to have the exclusive counts in partition for rents received, use of the premises, after entry or nd also for use and occupation “to demand of possession, until the crop the exclusion of the other cotenants.") growing at the time of the entry or In Walker v. Williams (1914) 84 demand shall mature. As to such Miss. 392, 36 So. 450, where the court crops, the cotenant may be permitted charged the appellant with use and to share the proceeds, upon an occupation, it was said:

"It was counting in equity upon a bill filed proper to charge the interest of apfor partition, if justice requires it." pellant in the property sold for parIn Fenton v. Miller (1898) 116 Mich. tition with a reasonable sum for the 45, 72 Am. St. Rep. 502, 74 N. W. use and occupation thereof. It is a 384, where there had been ouster in well-settled equitable principle that effect and where there was an ex- each cotenant has a lien upon the cess allowed for improvements and interest of every other for the value expenses over rental value, it was of the use and occupation of the held that a statute which is a sub- joint estate beyond such tenant's stantial re-enactment of that of Anne, individual interest therein, and also and which does not allow a recovery any sum which may have been colfor use and occupation, does not lected and appropriated by such tenant prevent one tenant in common from as revenues arising therefrom. This recovering in partition from his co- is expressly held in Medford tenant, who had held adversely, for Frazier (Miss.) supra, and is reafuse and occupation, the court saying firmed the correct doctrine to also: "It is settled that on a partition which full scope and effect is to be it is competent for the court to adjust given in all proper cases, in Burns the equities of the parties, includ- v. Dreyfus (1891) 69 Miss. 211, 30 ing rent to the excluded tenant." Am. St. Rep. 539, 11 So. 107, where But where the court charged the de- the court, through Cooper, J., says: fendant with an occupation rent and 'We recognize to its full extent the for timber, and credited him with equitable principle that in the partitaxes, repairs, and other payments, tion of lands held in common the the appellate court struck out the court will, in the division of the propcharge for rent, holding that a son, erty,-or of its proceeds, if indivisible, who, after the death of his father, and therefore sold for partition, continues as before to reside upon do full justice between the cotenants the father's farm with his two sisters, by directing accounts to be taken of without objection from them or the receipts and disbursements by them, other heirs, or any agreement re- and will so apportion the fund as to specting rents or profits, is under no do complete equity.'(In Burns V. obligation to account for rents and Dreyfus, above quoted from, there profits, as he is a cotenant, in pos- were, it seems, rents collected and session with the consent of the other appropriated by the occupant.) In cotenants. Owings v. Owings (1908) Bennett'v, Bennett (1904) 84 Miss. 150 Mich. 609, 114 N. W. 393.

493, 36 So. 452, the court said: "He

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may be required to account for its tofore stated, this excludes the theory reasonable rental value, but may off- of ouster, for the court says that the set this with the reasonable cost of "doctrine of the Names Case the clearing and improvements put by was unknown to the common law,” him on that part.” So, where rents and in that case there was no demand. were collected, rental value was al- The court does not state whether lowed against the occupant. Bowles the decision in Miller v. Mills (1876) v. Wood (1907) 90 Miss. 742, 44 So. 4 Neb. 362, was on the theory of 169. So a "reasonable rent” was al- ouster or not, where the property was lowed in favor of minors, and charges sold under a private tax sale, the sonmade for purchase money and inter- in-law of the defendant purchasing the est, taxes paid and interest, and same under the direction and guidpayments for permanent and not ance of the defendant, the rents and ornamental repairs. Dickerson V. profits being subsequently received Weeks (1914) 106 Miss. 804, 64 So. by the son-in-law by the defendant's 731.

directions, in partition proceedings In Courtenay v. Hayden (1921) 127 the defendant was charged with rents Miss. 13, 89 So. 777 (partition), received and with the rental value of while holding that the facts were in- the premises retained and occupied sufficient to apply the principle, the by him, the court stating that the court said: "We fully recognize the defendant could not by such an unwell-settled equitable principle that derstanding as existed in that case each cotenant has a lien upon the in- overthrow the title or impair the terest of every other for the value of rights of his cotenant, and thereby the use and occupation of the joint es- escape liability to account for the tate beyond such tenant's individual rents and profits of the premises, but interest therein."

he was allowed the amounts paid for In Nebraska, it was not, apparently, taxes and repairs. on the theory of ouster that the court In North Carolina, in Holt v. Couch decided in the partition

of (1899) 125 N. C. 456, 74 Am. St. Rep. Schuster v. Schuster (1909) 84 Neb. 648, 84 S. E. 703, supra, the court 98, 29 L.R.A.(N.S.) 224, 120 N. W. charged the occupying cotenant with 948, 18 Ann. Cas. 1078, that the plain- one half of the rental value of a tiff was entitled to an account of hotel and store, and credited him rents and profits from his cotenants one half the value of his improveoccupying farm land. The court there ments and one half the amount paid said: “The defendants not only alone for taxes and insurance, leaving a occupied the common property, but balance in his favor which was they held possession thereof adversely charged against the plaintiffs. under claim of sole ownership As heretofore stated, the early to the exclusion of their cotenant South Carolina cases held that use from the enjoyment of any part of and occupation might be accounted the premises, thus bringing them- for upon a construction of the Statselves substantially within the rule ute of Anne to that effect. After announced by this court in Names v. the repeal of that statute so far as Names (1896) 48 Neb. 701, 67 N. W. South Carolina was concerned, the 751, which holds: 'A tenant in court of equity continued, without common who alone occupies the com- the statute, to enforce a rule, at mon property, and holds possession least, that the profits of the use must adversely as sole owner, or where he be accounted for, and more, perhaps, excludes his cotenant from the en- in

of tortious occupation. joyment of the premises, is liable In Volentine v, Johnson (1833) 10 to his cotenant for the rents and S. C. Eq. (1 Hill.) 49, it was held in profits. The doctrine of the Names partition that by a cotenant using the Case (Neb.) supra, which was portion of the land which, by common known to the common law, finds sup- consent, had been appropriated to the port in many jurisdictions." As here- use of the other cotenant and ren

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