taining the extent of their interest, under the devise of James King, and the determination of the bequest to Carson to be four twenty-sevenths of the whole amount of the rents and profits, and to require said White to account, as tenant in common, holding possession of the whole subject, and appropriating the whole profits to his own use." Here the court expressly decides that one tenant in common has the right to call on his co-tenants for an account of rents and profits. It would be vain to say that that was a suit against White as receiver of the court, and, therefore, distinguishable from this. It was a suit against him both as receiver and tenant in common, and his liability as tenant in common, not as receiver, is expressly affirmed. It would be equally vain to attempt to distinguish that case from this, by saying that White had been tenant of the property, and had held over, without contract, after his term expired, and for that reason he was liable to an account; for such was also the case in this as to the Friends and Early and wife. Indeed, we think it would be difficult to distinguish that case from this, upon any ground calling for a different principle of settlement; except in this case the court can ascertain with tolerable certainty the amount of profits, which in that case it could not do; and thus, in this case it can do what in that it would have done if it could. The point most labored in the very elaborate and learned argument of Mr. Robinson, is his position, founded mainly on the decision of the Court of the Exchequer Chamber in the case of Henderson v. Eason, that no account of rents, issues and profits lay in favor of one tenant in common against his co-tenant, who has had the sole occupation of the estate, and taken or received the issues and profits exclusively. As a general proposition, in regard to real estate, we hold that such a 1860. July Term. Early & wife V. Friend &als. 1860. July Term. Early & wife V. Friend &als. decision is not, and, at least since the statute of Anne, has not, been law in Virginia. The practice in our inferior courts has been uniform and unvarying. The view of the profession, as to the existence and universality of the right, has been general; and the decisions of the Court of Appeals, wherever the point has arisen, whether directly or incidentally, have been clear and strong-maintaining the right and enforcing the remedy to the fullest extent, wherever the circumstances of cases rendered the account possible; and where it was not to be attained, for want of proper evidence, giving the utmost annual value justified by the known facts of the cause. So much for the known and recognized rule of decision in Virginia, on this most interesting question. It appears to us, that if we be right as to the existence of such a course of practice, and such an uniform course of decisions in Virginia, as we submit has obtained in our courts, it must settle this question in our favor. We submit that such would be the result in regard to real estate merely employed and cultivated for agricultural purposes. But the case of salt estates is different and peculiar; and even under a different course of adjudication, would have necessarily worked out a new and juster rule for itself, from the very necessity of the case. Such an estate is generally impartible from its physical nature, yet more from difficulties which are inseparable from the subject and its mode of use and enjoyment. It is a fact forming part of this case, and conclusive between these parties, that this salt property is not capable of partition. If this had not been so declared in this case by the decision of the court at Lynchburg, yet the fact is apparently and incontrovertibly true in itself. How, then, stood this estate when the Friends first, and Joseph Friend subsequently, obtained the sole occupation, which they afterwards held, and which, in its consequences, is now the subject of the present controversy? It was a single tenement, improved with the well, furnace and fixtures, (including a coal mine,) necessary for the manufacture and sale of salt. It was incapable of being divided amongst the heirs according to their interests therein. It was capable of large production; but that product must be the result of a single operation of the work. These works must be carried on as a unit; separate, disunited, several working of this estate at the same time, by several tenants in common, is manifestly impossible. No one proprietor could be forced to work the estate. But whenever he elected to enter, occupy and operate the estate, the legal consequences arising from his own act, and from the interests and rights of his co-tenants in the estate, became the inevitable and inseparable conditions of his act. as owner. Why should not interest be allowed? In Ruffners v. Lewis' ex'ors, 7 Leigh 720, there were large accounts on both sides, rendering it uncertain on which side the balance would fall. They also occupied as owners, and believed themselves to be so. They had employed their skill, capital and enterprise on the property in good faith Not so here. The Friends knew they were not owners. They knew they must account for receipts, and when they received the money, which ought at least at the end of the year to have been paid over, why should they not pay interest? He who has another's money and uses it must pay interest on it. Jones v. Williams, 2 Call 102; Graham v. Woodson, 2 Call 249; Dow v. Adams' adm'r, 5 Munf. 21; Mickie v. Lawrence, 5 Rand. 571. A trustee retaining money must pay interest. Lomax v. Pendleton, 3 Call 538; Miller v. Beverly, 4 Hen. & Mun. 415. Executors must pay interest on the profits of slaves. Quarles' ex'or v. Quarles, 2 Munf. 321. VOL. XVI.-5 1860. July Term. Early & wife V. Friend &als. 1860. July Term. Early & wife V. Friend & ais. For the appellees it was insisted: It is not pretended that Thomas or Joseph Friend was appointed bailiff, and accepted the appointment. All that is pretended by the plaintiff or by Early is that T. and J. Friend have enjoyed more of the benefit of the subject, or made more by its occupation, than the plaintiff. And the question is, whether, on this naked ground, the claim can be maintained. Lord Macclesfield was clearly of opinion that "where one has title of entry, and neglected to enter or to bring his ejectment, but sleeps upon it for several years, that as he has no remedy at law for the mesne profits, so neither has he in equity; for it was his own fault that he did not enter: and he shall never come into a court of equity for relief against his own negligence, or to make the tenant in possession, who held over his lease, to be but his bailiff or steward, whether he will or not." Duke of Bolton v. Deane, Prec. Ch. 516. It may be otherwise where fraud has been used to conceal the title from the plaintiff, or in case of an infant, for. whom the common law provides. F. N. B. 118; Co. Lit. 896, 90a; 1 Tho. Co. Lit. 168, 338; Newburgh v. Bickerstaffe, 1 Vern. R. 295; Cary v. Bertie, 2 Ib. 332; Bennet v. Whitehead, 2 P.Wms. 644. "When," says Lord Hardwicke," any person, whether a father or a stranger, enters upon the estate of an infant, and continues the possession, this court will consider such person entering as a guardian to the infant, and will decree an account against him." Morgan v. Morgan, 1 Atk. R. 489; 1 Story Eq., § 511. In the present case the person sought to be charged "was entitled to the possession of the whole, until a division between the parties." For one "tenant in com mon has a right to the possession of the whole, as well as each part." Russell v. Allen, 3 Kernan R. 179. And the claim is for an account of profits received, not when the plaintiff was an infant, but when he was an adult. The suit is not in a State like Connecticut, where there is a statute giving the action of account "where two persons hold any estate as joint tenants, tenants in common, or co-parceners, and one of them receives, uses, or takes benefit of such estate, in greater proportion than the amount of his interest in the principal estate." Lacon v. Davenport, 16 Conn. R. 331. But it is in a State where, as in England, the common law gives the rule, except so far as a change has been made by the statute of 4 Anne, c. 16, § 27. There is no doubt as to the common law. See Co. Lit. 2006; 1 Tho. Co. 787, Am. ed. 910. The liability to account for the profits of an infant's lands was an exception to the general rule requiring a contract to be shown to support the action of account. King of France v. Morris, cited in 3 Yeates R. 251; Thouron v. Paul, 6 Whart. R. 620. The general rule applied to every tenant in common who was an adult; to every one who was competent to enter on the land or bring an action if he was disseised thereof; to every one who was competent to make a contract with his co-tenants in common, or to decline making such contract. "If," says Parke, B., one tenant in common occupied and took the whole profits, the other had no remedy against him whilst the tenancy in common continued, unless he was put out of possession, when he might have his ejectment, or unless he appointed the other to be his bailiff as to his undivided moiety, and the other accepted the appointment, when an action of account would lie as against a bailiff of the owner of the entirety of an estate. Until the statute of Anne this state of the law continued." 17 Adol. & El., n. s. 718; 79 Eng. C. L.; 9 Eng. L. & Eq. That statute, besides allowing an action of account against executors or administrators of a guardian, bailiff, 66 1860 July Term. Early & wife V. Friend & als. |