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chargeable with use and occupation, but it is stated in the official headnote of the case that, "where it is proper to allow

coparcener for improvements, a charge for use and occupation may be set off against the improvements."

One tenant in common claiming in partition for betterments must allow for the value of the use of the land to him, and if he claims for betterments by his predecessor he must allow for the value of the use to the predecessor, at least to the amount of the betterment. Vaughan v. Langford (1908) 81 S. C. 282, 128 Am. St. Rep. 912, 62 S. E. 316, 16 Ann. Cas. 91. For other South Carolina cases, see supra, III. b, 3, (a).

In Davis v. Chapman (1888) 36 Fed. 42 (Indiana), an action for partition, the court said: “The proposition that at common law one tenant in common cannot recover of another for

occupation is recognized, and, under the maxim that equity follows the law, I suppose the plaintiff ought not, in this action, to recover anything for such mere use or occupation by the defendant; that is to say, for the time after August, 1885, when, the action at law having been decided, the defendant acknowl. edged the plaintiff's title and invited her to share in the possession and management of the property. But while such use and occupation may not be made the direct ground of recovery, it does not follow that it may not be considered in connection with, and made an equitable set-off against, the defendant's claim for repairs, which, at common law, in the absence of agreement, are likewise not the subject of an action between cotenants." Compare Indiana state cases, supra, III. b, 2.

Contrary to the usual Texas doctrine seems the decision in Bailey v. Laws (1893) 3 Tex. Civ. App. 529, 23 S. W. 20, where the court in partition said and held, in affirming a judgment that defendants receive pay for any imnrovements not allotted to them: “While it is true one tenant cannot be made to pay his cotenant rent where he has actually occupied

the land himself, until demand and refusal of joint occupancy (Thompson v. Jones (1890) 77 Tex. 626, 14 S. W. 222), yet we believe that when he has had possession of the entire premises and asks that his cotenant be made to pay a part of the taxes, this should only be allowed upon an adjustment of the equities between them, and that this can be done when the report of the commissioners is returned, and it is known what part, if any, of the improvements these defendants lose." Compare other Texas cases supra, III. b, 2.

In Anderson v. Shaw (1912) 131 La. 662, 60 So. 50, in partition by licitation the court charged the occupying cotenant an annual sum for fruits and revenues, with interest, and credited her with any taxes paid on the property in controversy and with her improvements made for the preservation of the property, and for other nonremovable improvements so far as the value of the property was enhanced thereby.

In Stephenson v. Patton (1912) 86 Kan. 379, 121 Pac, 498, Ann. Cas. 1913C, 360, where it does not appear that there was anything more than use and occupation, and the rental value was shown, the court in its syllabus says: “Where a cotenant of land has for years had the possession and has received the rents and profits thereof, and has made valuable improvements and paid the taxes thereon, the benefits will, as between the one in possession and cotenants out of possession, be offset from time to time, as justice may require, against the improvements and taxes; but where in such case the aggregate of such benefits exceeds the value of the improvements and taxes, a grantee, in a quitclaim deed of the rights of the cotenant out of possession, cannot in an action of partition recover judgment against the cotenant in possession for such excess."

But in Sarbach v. Newell (1882) 28 Kan. 642, it was held where the rental value, without the possessor's improvements, did not exceed the taxes paid thereon by him, that he would not, on partition, be required to pay

.

for use, but would be allowed for tition, compensation was ordered for his improvements, the statute provid- improvements, the court ordered a reing that “the court shall have full port as to the yearly net value of the power (in partition of real property] premises. to make any order not inconsistent In Davidson v. Thompson (1871) 22 with the provisions of this article, N. J. Eq. 83, in partition of a strip bethat may be necessary to make a tween the lots of the parties, the court just and equitable partition between said: “In this case, the defendant the parties, and to secure their re- took exclusive possession of this strip, spective interests."

by rebuilding the woodshed on it, and Where upon a bill in partition the renting it to the tenant of his lot. rents and profits are demanded of a This is equivalent to excluding the tenant in possession, who has without complainant, and he must account for objection made valuable and perma- rent, deducting expenses for repairs nent improvements upon the estate, it and taxes. That rent will necessarily is inequitable to refuse him the value be small, only one half of the amount of such improvements to the extent of which this strip may have added to the rents, if in occupying the land the the rent paid by the tenant. If it has tenant does no more than he has a not, in fact, increased that rent, the right to do. Broyles v. Waddel (1872) amount to be accounted for will be 11 Heisk. (Tenn.) 32.

nothing."

Again, in partition, where a coten(d) Doctrine of actual profits.

ant was in possession at the request Some of the partition cases limit

or by the consent of all his cotenants the liability of the occupying tenant with the exception of the complainant, to cases where he has made an actual

in order to prevent the forfeiture of profit. This is, perhaps, the present

an insurance policy, cultivating the doctrine of the South Carolina cases land and pasturing his cattle thereon, [see supra, III. b, 3, (a)], and of some he was held liable to the cotenant, of the Illinois cases (see supra, III. b, who was not a consenting party, for 3, (b)]. This doctrine has been af

the fair rental value of the premises firmatively asserted in New Jersey having possession of the entire estate. and Tennessee, and while those courts Vass v. Hill (1891)

N. J. Eq. –

21 do not seem to be consistent on the Atl. 585. point, it has been deemed convenient

In Doughaday V. Crowell (1876) to bring their partition cases together 11 N. J. Eq. 201, the court in partiunder this heading.

tion said in allowing improvements, New Jersey.

where it does not appear from the It will be seen by cases cited supra, report whether any rents had been III. a, 2, (a), particularly Edsall v. collected: “The master must take Merrill (1883) 37 N. J. Eq. 114, that an account of the value of the imthe New Jersey equity court had provements which the complainant adopted a liberal policy in regard to has put upon the premises, and also charging for and occupation.

the amount of rents which the comThis policy is shown by several, if not plainant should account for since she all, of the partition cases. Thus in has had possession, ascertaining the Rowden v. Murphy (1890) N. J. one-eighth proportion of each.” Eq. —, 20 Atl. 379, where the tenant In Buckelew v. Snedeker (1876) 27 in possession claimed the entire prop- N. J. Eq. 82, where the defendant erty, renting out a portion, she was occupied one half of a house and all held chargeable (for six years prior the land, but there was no excluto the action) to her cotenant for his sion, and she claimed that she cultishare, both of rents collected and for vated the land for both parties and rental value of the part actually occu- should be compensated for services, pied by her, and was allowed for her and perhaps there was some suggesimprovements. In Hall v. Piddock tion of an agreement between the (1871) 21 N. J. Eq. 311, where, in par- parties, the court in partition said

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and held: “The defendant is not property of

of the

possessor being chargeable with rent for the half of absorbed in repairs, fences, and in the house.

The defendant is fertilizing the land. only chargeable with the rents, is- Probably the Sailer and Lloyd sues, or profits of the land, because Cases, infra, are sustainable on simishe cultivated the land and received lar grounds. the benefit of its entire product.” In Sailer v. Sailer (1886) 41 N. J. The defendant was charged with the Eq. 398, 5 Atl. 319, where the ocfair rental value of the land cultivated cupant supposed he was sole owner by her, and with products received of city property, and his cotenants as rent during one year when the land made no claim or demand upon him, was let on shares to a third person, it was held on partition that, while and was credited with marl purchased he was chargeable for rents collected, by her and for repairs to the barn. he was not chargeable for use and

But the New Jersey policy ordina- occupation of what was occupied by rily requires that there should ap- him as a residence. Credits for taxes pear to be profits to hold a cotenant and ordinary repairs were disallowed; in possession for use and occupation, and no objection was made to the as is illustrated in the following parti- allowance for

allowance for permanent improvetion cases: Thus, in Barrell v. Barrell ments. The court said: “There is (1874) 25 N. J. Eq. 173, it was held nothing in this case to take it out that the possessor of a part of the of the ordinary rule upon this head, premises was not liable to account which is, that in order to render to his cotenant where it did not appear one cotenant liable to another for rent, that he made any profits for which for use and occupation, there he should account, or that he pre- must be something more than a mere vented his cotenant from occupying occupancy of the estate by the former his share, and no claim to possession and a forbearance to occupy by the had been made by him.

latter." So, in an action for partition of a In partition, where it was sought small farm it was held that the to hold the occupant for use and complainants should not be required occupation of a dwelling house, and to account for rents and profits, for rents collected for a store in it, though receiving an allowance on the and for a shop on the lot, the court, sale for the value of permanent in denying the liability for use and improvements placed by them on the occupation, stated that it was not property, where it does not appear shown that she had, "in occupying that they received any rents or profits the dwelling house, done anything from the letting of the premises in which was in the nature of a denial question, nor that they excluded of the rights of her cotenants in comtheir cotenants from the enjoyment of mon, or that she did anything that the premises in common with them- amounted to an exclusion of the other selves, nor that they actually made tenants from enjoying the property any profit from their occupancy and with her, according to their several the conduct of the property at their rights.” But she was held liable to own expense. White v. Smith (1905) account for rents collected, and was 70 N. J. Eq. 418, 62 Atl. 560.

"to be credited for any expenditures So, in Rose V. Cooley (1906) by her made for repairs and restoraN. J. Eq. 62 Atl. 867, it was held tions, or for the payment of taxes, in partition that a tenant in possession interest on any mortgages (if any of a farm is not liable to his co- there were), insurances, and such tenants for the use of the common other lawful expenditures as she may property, where there is nothing to have made in the care of any of the show that he has refused possession property.” Lloyd v. Turner (1905) to his cotenants, and it also appears 70 N. J. Eq. 425, 62 Atl. 771. that there never was a net income, all But the decision in the recent the proceeds and considerable other partition case of Maxwell v. Eckert

an

(1920) N. J. Eq. – 109 Atl. 750, tenant in common to his cotenants seems, as far as reported, not to be for the use and occupation of the justified by the ordinary New Jersey common property. We have a strong rule. The court there said, after re- intimation that such liability exists ferring to N. J. Comp. Stat. p. 8, § at law in this state in the opinion de3 (which is substantially the same as livered by Totten, J., in Blanton v. the Statute of Anne): “An exclusion Vanzant (1852) 2 Swan, 276. And the may occur where there is no expressed right to account seems to be refusal by the tenant in possession generally conceded in equity as an to allow the cotenant to occupy, as, incident to a bill for partition. 1 for instance, if possession of the Story, Eq. Jur. 8 655; Hitchcock v. whole has been taken by some of the Skinner (1839) 1 Hoffm. Ch. (N. Y.) cotenants and used by them as their 21; Blackler v. Farrow (1834) 11 own, or for their exclusive profit. S. C. Eq. (2 Hill) 111; Pascoe v. Edsall v. Merrill (1883) 37 N. J. Eq. Swan (1859) 27 Beav. 508, 54 Eng. 114. In this case the relations be- Reprint, 201, 29 L. J. Ch. N. S. 159, tween the cotenants had become so 5 Jur. N. S. 1235, 1 L. T. N. S. 17, 8 strained and bitter that they could not Week. Rep. 130. The mere fact of one continue to reside together in peace tenant having occupied the property and concord, and upon the complain- will not of itself make him liable for ant leaving October 1, 1917, the de- an occupation rent. The effect of fendants remained in possession, oc- such a rule would be that one tenant cupying part of the property, and in common, by keeping out of the collecting for their exclusive use and actual occupation of the premises, benefit the rent arising from the bal- might convert the other into his ance. This amounted to an exclusion bailiff, and prevent him from occupyof the complainant, Annette E. Max- ing them except upon the terms of well, and the defendants should there- paying rent.

Lorimer v.

Lorimer fore account from that date to the (1820) 5 Madd. Ch. 363, 56 Eng. Recomplainant for one third of the rent print, 934; Henderson v. Eason (1847) collected and one third of the rental 2 Phill. Ch. 308, 41 Eng. Reprint, value of the part occupied by the de- 961. It must be distinctly shown that fendants.”

he has made a profit over and above In partition by a daughter against the mere use, and beyond his share. her mother and others of city prop- It is the actual receipt of such excess erty, where the mother had occupied which creates the liability; and, as part of the estate and collected rents the claim is not of strict legal right, from the rest of it, and had been if he is charged with an occupation guardian of the daughter, she was rent, he should be allowed such usual held liable to account for rents re- repairs as a prudent landlord would ceived, and for use and occupation make on his own property, or allow to except for the time complainant lived the tenant as a deduction from the with her. Keeney v. Henning (1899) rent, and for permanent improve58 N. J. Eq. 74, 42 Atl. 807.

ments, as an offset to the occupation Tennessee.

rent. Teasdale v. Sanderson (1864) It was held in Broyles v. Waddel 33 Beav. 534, 55 Eng. Reprint, 476; (1872) 11 Heisk. 32, that a tenant in Hall v. Piddock (1871) 21 N. J. Eq. common of a farm who is in posses- 311; Respass v. Breckenridge (1820) sion, enjoying the exclusive rents and 2 A. K. Marsh. (Ky.) 581; Conklin v. profits, may be required to account Conklin (1845) 3 Sandf. Ch. (N. Y.) for them in partition, being allowed 64." improvements to the extent of the In O'Bryan v. Brown (1898) "rents."

Tenn. 48 S. W. 315, the court In Tyner v. Fenner (1880) 4 Lea, said: "Upon partition the owners of 469, the court in partition said: the respective interests are entitled to "The authorities are not in accord an account for rents, in which pro-, upon the point of the liability of one ceeding they will be charged with

27 A.L.R.-15.

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such amount, respectively, as they that he occupied,—that is, the whole have received over and above their of the store and of the dwelling proper proportion; not, however, with house. We think, on the facts stated, mere occupation rent."

the defendant is liable for rents, withOn a suit subsequent to partition, in the authority of Tyner v. Fenner, the court allowed a tenant in common and Schneider v. Taylor, supra." who was, for at least part of the time, a guardian of his cotenant, who

c. Ouster. lived with him, a certain improve- Where there has been an ouster ment as partial set-off against use one cotenant may recover of another and occupation, and said: "It has for use and occupation. always been the law in this state that United States. McGahan v. Naa tenant in common had the right to tional Bank (1895) 156 U. S. 218, 39 offset reasonable cost or enhanced

L. ed. 403, 15 Sup. Ct. Rep. 347. value of improvements as to rents See also Clay V. Field (1885) 115 chargeable against him, and, indeed, U. S. 260, 29 L. ed. 375, 6 Sup. Ct. he is only chargeable with rents over Rep. 36 (infra, Mississippi.) and above the cost of the improve- Alabama. - Terrell v. Cunningham ments and betterments, and is not (1881) 70 Ala. 100; Ormond v. Marchargeable with mere occupation

tin (1861) 37 Ala. 598 (partition); rents. It is, at least, a matter of

Sanders v. Robertson (1876) 57 Ala. doubt whether the clerk and master

465 (partition); Fielder v. Childs and the chancellor have not gone be- (1883) 73 Ala. 567 (case reversed on yond the rule in charging the defend

another ground); Porter v. Henderson ant with rents as tenant in com

(1920) 204 Ala. 564, 86 So. 531 mon.” Sutton v. Sutton (1900)

(partition). Tenn. 58 S. W. 891.

Arkansas. Trapnall v. Hill (1876)

. But where in partition there had

31 Ark. 345. been no interference with the rights

California. Carpentier v. Mitchell of cotenants and no claim for re

(1865) 29 Cal. 330. pairs, the court refused to charge

District of Columbia. Williams v. for use and occupation, and said:

Gardiner (1876) 2 MacArth. 401 “The mere fact that one tenant in

(partition). common has occupied the property

Florida. will not of itself create a liability for

Tatum v. Price-Williams an occupation rent, and this for the

(1910) 59 Fla. 634, 52 So. 3 (partiobvious reason that, owning the

tion). estate per mi et per tout, he is

Hawaii. Nahaolelua v. Kaahu exercising the right which the law (1897) 10 Haw. 632 (partition). gives him. To charge him with rent,

Indiana. Carver Coffman it must be shown that the occupying (1887) 109 Ind. 547, 10 N. E. 567 tenant has made a profit over and

(partition); Carver Fennimore above the mere use.” Schneider v. (1888) 116 Ind. 236, 19 N. E. 103 Tavlor (1886) 16 Lea, 304.

(partition); Bowen V. Swander In Johnson v. Johnson (1899) (1889) 121 Ind. 164, 22 N. E. 725 Tenn. -, 53 S. W. 226, where the (partition); McCrum McCrum parties had quarreled and could not (1905) 36 Ind. App. 636, 76 N. E. 415; occupy a store and dwelling together, Butler v. Butler (1917) 63 Ind. App. and the complainant removed there- 533, 114 N. E. 760 (partition). from, the defendant continuing to

Iowa. Sears v. Sellew (1870) 28 occupy them, the court in partition Iowa, 501; Austin v. Barrett (1876) charged the defendant with rents for 44 Iowa, 488; Dodge v. Davis (1892) use and occupation, and said: “Un- 85 Iowa, 77, 52 N. W. 2; Leach v. der the facts stated, it appears that Hall (1895) 95 Iowa, 611, 64 N. W. the defendant got a profit greater than 790; Rippe v. Badger (1904) 125 his share; that is, that he got the Iowa, 725, 106 Am. St. Rep. 336, whole avails of the said property 101 N. W. 642 (partition); Sagen v.

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