If the part owner in possession is to be charged with any rent, it surely cannot be more than the rent would be, on the principle adopted in South Carolina and Kentucky, that is with reference to the condition the premises were in at the time he took possession. If, says Chancellor Harper, the tenant out of possession is not to be charged for a share of the improvements, it would be plainly inequitable that he should be allowed to claim the enhanced rent produced by means of such improvements. Thompson v. Bostick, 1 McMullen R. 75; Holt v. Robertson, Ib. 475; Hancock v. Day, Ib. 69. When the estate at the commencement of the tenancy in common yields no rent, or profit, and one of the tenants enters, and by improving the estate renders it productive, the other co-tenant cannot come in and claim a share of the profits from one who had neither disseised the plaintiff nor resisted partition. Nelson v. Clay, 7 J. J. Marsh. R. 138. MONCURE, J. The first question to be disposed of in this case is one of jurisdiction, which was raised in the argument before this court. It was not raised by any of the defendants in the court below, by plea, answer, or otherwise, so far as the record shows; but, on the contrary, the answers of the principal defendants, in effect, admitted the jurisdiction of the court. The only notice which seems to have been taken of the subject in that court is contained in the decree of the 22d day of February, 1853, in which an opinion is expressed by the court that it had jurisdiction of the case, upon the principles declared by the Court of Appeals in the case of Ruffners v. Lewis' ex'ors, 7 Leigh 720. If the defendants, Joseph and Thomas R. Friend, are bound to account with the plaintiff and their other co-tenants in common for rents and profits of the common property, while it was solely occupied and enjoyed by the Friends, VOL. XVI.-6 1860. July Term. Early & wife V. Friend &als. 1860. July Term. Early & wife V. Friend & als. as claimed by the bill, then, undoubtedly, a court of equity has jurisdiction of the case. In involves the settlement of an account of rents and profits, in which, according to that supposition, the plaintiff and defendants have a common interest in different proportions, and some of the parties concerned are infants. I will, therefore, proceed to consider the case upon its merits. The appellees, the Friends, by their counsel, contend that they are not bound to account at all for such rents and profits to their co-tenants in common, at least to such of them as were adults when the property was occupied and enjoyed as aforesaid; and that, therefore, the bill ought to have been dismissed. They insist that, as tenants in common, they had a right to occupy and use any part, or all, of the common property, without being accountable, in any form or to any extent, to their co-tenants, unless they contracted with them for such accountability, or ousted or excluded them from the possession, or unless they destroyed or wasted the common property; none of which, they say, did they do. This would certainly have been the case at common law. "If one joint tenant, or tenant in common, of land," says Coke, "maketh his companion his bailiff of his part, he shall have an action of account against him, as hath been said. But, although one tenant in common. or joint tenant, without being made bailiff, 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, bailiff, or receiver, as hath been said before, which he cannot do in this case, unless his companion constitute him his bailiff. And, therefore, all those books which affirm that an action of account lieth by one tenant in common or joint tenant against another, must be intended when the one maketh the other his bailiff, for otherwise, never his bailiff to render an account is a good plea." 1 Tho. Co. 787 marg. And in a note by the editor it is said: "At common law joint tenants and tenants in common had no remedy against each other, where one alone received the whole profits of the estate, since he could not be charged as bailiff or receiver to his companion, unless he actually made him so." Id. 788, note (R). But the statute 4 Anne, c. 16, § 27, was passed in England to remedy this defect of the common law. And a similar statute was passed in this country at an early period, and has ever since continued in force. In the Code, p. 586, ch. 145, § 14, it is in these words: "An action of account may be maintained against the personal representative of any guardian, bailiff, or receiver, and also by one joint tenant or tenant in common, or his personal representative, against the other as bailiff, for receiving more than comes to his just share or proportion, and against the personal representative of any such joint tenant or tenant in common.' But it is contended that this statute makes a joint tenant or tenant in common liable to account to his cotenants only where he receives money, or something else given or paid by another, which all the tenants are entitled to in proportion to their interests as such, of which one receives more than his just share, according to that proportion; and not where he merely has the sole occupation and enjoyment of the property, even though, by the employment of his own industry, skill and capital, he makes a profit by such occupation and enjoyment, and takes the whole profit to his own use: and that, therefore, the Friends, not having received any rent from others for which they are accountable, but having only occupied and enjoyed the property as aforesaid, are not liable to account to their co-tenants for any profits which may have been made by such occupation and enjoyment, nor for any rent or other compensation what ever. 1860. July Term. Early & wife V. Friend & als. 1860. July Term. Early & wife V. Friend & als. In support of this position a very important case, decided in 1851 in the Exchequer Chamber, Henderson v. Eason, 17 Ad. & El., n. s. 701, 79 Eng. C. L. R., is cited and much relied on by the counsel of the Friends; and it must be admitted that it fully sustains their position, and, if it were a binding authority, might be conclusive of this case. The question came fairly up for decision in that case. It was an action of account founded on the stat. 4 Anne, c. 16, by Robert Eason against the executor of his co-tenant in common, Edward Eason. The pleadings were in proper form. On the trial of the issues, evidence was given that the two Easons were tenants in common of a farm, from November, 1833, to November, 1838, during which time Edward Eason occupied the whole on his own account; that he cultivated the same on his own account solely, and appropriated the produce to his own use; that he cropped the farm in the usual way, kept the usual quantity of live and dead stock, and farmed well; and that he received all the produce of the farm, and sold it on his own account. Verdict was found for the plaintiff, and upon an account thereafter taken the sum of £900 was found to be due to him, for which judgment was accordingly rendered. The case was brought by error from the Queen's Bench to the Exchequer Chamber, where it was fully and ably argued. Parke, B., in delivering the judgment of the court, lays great stress on the word "receiving" in the statute. "Every case," he says, "in which a tenant in common receives more than his share is within the statute; and account will lie when he does receive, but not otherwise." "He is to account when he receives, not takes, more than comes to his just share. What, then, is a 'receiving' of more than comes to his just share, within the meaning of that provision of the statute of Anne? It appears to us that, construing the act according to the ordinary meaning of the words, this provision of the statute was meant to apply only to cases where the tenant in common receives money or something else, where another person gives or pays it, which the co-tenants are entitled to simply by reason of their being tenants in common, and in proportion to their interests as such, and of which one receives and keeps more than his just share according to that proportion. The statute therefore includes all cases in which one of two tenants in common of lands leased at a rent payable to both, or of a rent charge, or any money payment or payment in kind, due to them from another person, receives the whole or more than his proportionate share according to his interest in the subject of the tenancy. There is no difficulty in ascertaining the share of each, and determining when one has received more than his just share; and he becomes, as to that excess, the bailiff of the other, and must account. But when we seek to extend the operation of the statute beyond the ordinary meaning of its words, and to apply it to eases in which one has enjoyed more of the benefit of the subject, or made more by its occupation, than the other, we have insuperable difficulties to encounter." The learned judge proceeds to enumerate these difficulties, and concludes by reversing the judg ment of the Queen's Bench. See 3 Rob. Prac. 173 (new ed.), where this case is fully stated, and other cases on the subject are referred to. This decision certainly settles the construction of the statute in England. But it is somewhat remarkable that its construction had not there been settled long before. And it would seem that until that decision was made the current, or at least the preponderance, of judicial opinion in that country was the other way. That was the opinion of Vice Chancellor Wigram in Me Mahon v. Burchell, 3 Hare 97, 25 Eng. Ch. R., decided in 1843; though afterwards reversed by Lord Chancellor 1860. July Term. Early & wife V Friend & als. |