1860. July Term. Early & wife V. Friend & als. Cottenham, 2 Phil. 127, 22 Eng. Ch. R., upon the ground that mere occupation by one of several tenants in common of an estate, if unaccompanied by exclusion, does not make him liable for rent to his co-tenants, and that the nature of the occupation in that case did not amount to such exclusion. That was the opinion also of Vice Chancellor Shadwell in Henderson v. Eason, 15 Simons 303, 38 Eng. Ch. R., decided in 1846; though Lord Cottenham doubted, on appeal, whether the claim allowed by the V. C. could be maintained, and directed an action to be brought. 2 Phil., 22 Eng. Ch. R. 308. And that was also the opinion of the Court of Queen's Bench in Eason v. Henderson, 12 Ad. & El., n. s., 64 Eng. C. L. R. 986, decided in 1848, on a case stated for the opinion of the court by order of a judge after issue joined in an action brought by direction of the Lord Chancellor as aforesaid. Lord Denman, C. J., in delivering the opinion of the court, said: "The case stated that he (the defendant) had occupied and received the whole profits, but no part was underlet; he received no rent, nor anything but the profits derived from the culture of the lands, to the expense of which the plaintiff in no way contributed. It was contended that the defendant was not liable as bailiff, because it appeared that he had not received rent, and because it did not appear that he had received more than his just proportion. But we think that the words 'rents, issues and profits' include the proceeds of the land, whether in money or in kind, &c." The Lord Chancellor, it appears, being dissatisfied with that proceeding, for some cause, directed another action to be brought; which was accordingly brought, and was finally decided in the court of Exchequer Chamber as before mentioned. If the decision of that court, instead of being made in 1851, had been made before the statute of 4 Anne, c. 16, § 27, was adopted by us, the construction which that decision settles in England would have been adopted by implication along with the statute. But, as at the time of the adoption of the statute by us there had been no English decision construing it, we are left free to construe it according to its apparent meaning and the probable intention of the legislature, without being controlled by subsequent decisions in England or elsewhere other than in our own State; though certainly we will always pay due respect to decisions out of our State, and none are entitled to more respect than those of the English courts, and especially the Court of Exchequer Chamber. What, then, is the meaning of the words in our statute, "for receiving more than comes to his just share or proportion"? What did the legislature intend by the use of those words? Did they only intend to make a tenant in common accountable to his co-tenants for receiving from a stranger, on account of rents and profits of the property, more than the just share or proportion of such tenant? Or did they intend to make him accountable for receiving more than his just share or proportion of the rents and profits, whether paid by a stranger or derived from his own occupation and enjoyment of the property? I think they intended the latter. The former construction may be a reasonable one in England, where the ordinary mode of deriving profit from real estate is by renting it out; but not in this State, where real estate is generally occupied and used by the owner. With all deference to the Court of Exchequer Chamber, I think the construction they put upon the word "receiving" is too technical and narrow, at least for our country; and if it be a just one in England, it is because of circumstances existing there which do not exist here. I do not see the force of the distinction drawn by that court between the words "receive" and "take" in this connection. I think the word "receiving" in the sta 1860. July Term. Early & wite V. Friend & als. tute literally means a receiving of profits as well by use and occupation as by renting out the property. At all events there is, in substance, no difference between them, and the former is as much within the reason and the meaning of the law as the latter. If a tenant in common rent out the property and receive more than his just share of the rent, he is accountable for the excess to his co-tenants. Why should he not be alike accountable when, instead of renting out the property, he solely occupies and uses it, and thus receives more than his just share of the profits? Why should he be told: "If you rent out the property and receive the rent, you must share it out with your co-tenants. But if you solely occupy and use it and take all the profits, you will not be accountable to them "? Would he hesitate between ⚫ these alternatives? cases. I think the same principle precisely applies to the two And the only difficulty which exists is in the application of the principle to one of the cases. That difficulty was much commented on by the court in the case decided by the Exchequer Chamber; and was one of the causes, if not the chief cause, of that decision. In the case of rent received from a stranger, "there is no difficulty," the court said, “in ascertaining the share of each and determining when one has received more than his just share." But in the case 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 court then proceeded to enumerate the difficulties. I readily admit the existence of difficulty, but not that it is insuperable; certainly not in all cases. It consists in the fact, that the occupying tenant has rights as well as his co-tenants, which two classes of rights must, if possible, be reconciled. The statute was not designed. to take away or impair the rights of the occupying ten ant, but to require them to be so used as not to interfere with those of his co-tenants. Each tenant has a right to occupy and use the common property, but not to the exclusion of his co-tenants. The occupation of one does. not necessarily exclude the occupation of the others. They cannot, by remaining out, make the occupying tenant their bailiff against his will. He can be made their bailiff only by contract with them; or, under the statute, by receiving more than comes to his just share or proportion. It is often difficult to determine when, by mere occupation and use of the property, he receives more than his just share. And it is still more difficult to lay down any general rule on the subject. This rule, at least, may be laid down, that whenever the nature of the property is such as not to admit of its use and occupation by several, and it is used and occupied by one only of the tenants in common, or wherever the property, though capable of use and occupation by several, is yet so used and occupied by one as in effect to exclude the others, he receives more than comes to his just share or proportion, in the meaning of the statute, and is accountable to the others. This rule is of easy application to this case, and is, I think, sufficient for its solution. The salt property, of which the rents and profits are the subject of controversy here, if capable of use and occupation by several, which is at least extremely doubtful, has certainly been so used and occupied by the Friends as in effect to exclude their co-tenants therefrom. The Friends have solely occupied and used it, and derived all the benefit which they could have derived from it had they been the sole owners. And they so occupied and used it as plainly to indicate that they considered themselves, and must have been considered by the other parties concerned, as renters of the property, and not as tenants in common merely. They actually held the dower interest VOL. XVI.-7 1860. July Term. Early & wife V. Friend & als. 1860. July Term. Early & wife V. Friend & als. of Mrs. Cabell, being one undivided third of the property, and the interest of Mrs. Early, being one undivided fourth of the other two-thirds, under a lease for ten years, dated the 19th day of December, 1835, at a certain annual rent for each interest. These interests, with others which they owned, made them proprietors of almost the entire subject. After the determination of the lease they continued to occupy and use the property as before. Indeed, they never, until recently, denied their accountability to their co-tenants in some form or to some extent, for a participation in the rents and profits, but seem to have admitted their liability to Early and wife, or her trustee, for the same annual rent of her interest after she became of age as before, on the ground that they continued to hold that interest under an implied contract, on the terms prescribed by the expired lease; and to the proprietors of the other outstanding interests, for the yearly value thereof in the condition in which the property was when it came into the hands of the Friends. They only denied the right of their cotenants to participate in issues and profits which may have arisen alone from their labor, skill and capital in the use of the property, without being accountable for the losses of the operation. The construction of the statute for which I contend is, I think, the same which has always been acted upon in this State. It was acted upon without question in the only case on this subject decided by this court; I mean Ruffners v. Lewis' ex'ors, 7 Leigh 720, which was argued by counsel of great experience and ability. The question in that case was, not whether the defendants were liable at all, but on what principle and to what extent. Carr, J., said: "The Ruffners must be treated as tenants in common with Prior, not as trespassers. They are liable for a fair share of the profits, and entitled to full compensation for their expenses fairly and |