CHAPTER XII.

2257.

LIABILITIES OF COTENANTS TO ONE ANOTHER.

Classification of, § 257.

For Use and Occupation, § 258.

For Rents and Profits, § 259.

For Services of Cotenant, § 260.

For Repairs, § 261.

For Improvements, § 262.

For removal of Lien, Claim, or Title, § 263.

For Money collected on Insurance, § 264.

For Injuries arising from Repairing or Preserving, § 265.

For Negligence, § 266.

Of Owners of Party Wall, § 267.

Classification.-The liabilities of cotenants to each other, arising out of their connection with the common property, will now be considered. In such consideration, we shall exclude, as foreign to our purpose, all inquiry in reference to leases or other contracts made between the cotenants, because their effect is to be determined by reference to their express stipulations, and by the application of the same rules of construction which would be properly called into requisition if the contract were between persons not liable to any of the consequences flowing from a joint or common interest in the same property. All the claims which one cotenant may present against another, not founded upon any special agreement, and arising out of the subject of the tenancy, are: 1st, for use or occupation of the common property; 2d, for profits received from the common property; 3d, for services performed or moneys expended for its benefit; 4th, for damages occasioned to it by the wilful act or culpable negligence of the cotenant from whom redress is sought.

258. For Use and Occupation. In some parts of the United States, a cotenant occupying the entire real estate, or any portion more than equivalent to his interest, though without any denial of his co-owner's right to enter and enjoy in common with him, is liable to account for the value of such occupation. But the decided preponderance of the authorities, both in England and in America, affirms the right of each cotenant to enter upon and hold exclusive possession of the common property, and to make such profit as he can by proper cultivation or by other usual means of acquiring benefit therefrom, and to retain the whole of such benefits,2 provided that in having such possession, and in making such profits, he has not been guilty of an ouster of his cotenant, nor hindered the latter from entering upon the premises and enjoying them as he had a right to do. The reasoning upon which these decisions constituting the great bulk of the authorities on this subject rests is: That as each cotenant has, at all times, the right to enter upon and enjoy every part of the common estate, this right cannot be impaired by the fact that another of the cotenants absents himself or does not choose to claim his right to an equal and common enjoyment; that it would be inequitable to compel a cotenant in possession to account for the profits realized out of his skill, labor, and business enterprise, when he has no right to call upon his cotenant to contribute anything towards the production of these profits, nor to bear his proportion when, through bad years, failure of crops, or other unavoidable misfortune, the use made of the estate resulted in a loss instead of a profit to the one in possession.

259. The liability of each cotenant to account for rents and profits received, was created by the statute 4 and 5 Anne, ch. 16, and is now universally recognized. Considerable differences of opinion are manifest from the reports, both English and American, as to what a cotenant must ac

1 Thompson v. Bostwell, 1 McMullen Eq. 75; Shiels v. Stark, 14 Geo. 437.

* Peck v. Carpenter, 7 Gray, 283; Crane v. Waggoner, 27 Ind. 52; Shephard v. Richards, 2 Gray, 424; Woolaver v. Knapp, 18 Barb. 265; Israel v. Israel, 30 Md. 120; Pico v. Columbet, 12 Cal. 414; Becnel v. Becnel, 23 La. An. 150.

3 Sears v. Sellew, 28 Iowa, 505; Carr v. Passaic L. & I. B. Co. 22 N. J. Eq. 85; Israel v. Israel, 30 Md. 126.

count for; and in America further judicial discussion has arisen, some of the authorities holding that this statute, by imposing an obligation to account, authorizes the Courts to sustain an action of indebitatus assumpsit for not accounting, while the other authorities declare that the only remedy is in an action of account at law, or by a bill in equity for like purpose. The decisions upon both these questions will be shown in a subsequent chapter, upon the remedies of cotenants against one another.'

260. Compensation for his services in managing or taking care of the property is never awarded to a cotenant, except as the result of a direct agreement to that effect; or unless, from all the circumstances of the case, the Court is satisfied of the existence of a mutual understanding between the parties that the services rendered by one should be paid for by the others. In this respect, the law of cotenancy is like that of partnership. A partner in taking care of and managing the property of the concern is performing no more than his duty, and is therefore entitled to no compensation from his copartners. But if, at the request of the others, he perform services which neither the law nor his partnership obligations impose on him, "an agreement is implied that he shall be paid." We have no doubt a like agreement will also be implied when one cotenant has, at the request of the others, performed services which the relation of cotenancy did not impose upon him.

3

261. Compensation for repairs or improvements made to or upon the subject matter of a cotenancy may be claimed: 1st, as forming a sufficient affirmative cause of action against one of the co-owners not contributing his proportion of the expenses thereof; 2d, as forming a matter of set off, to be deducted from an amount which one making the repairs is under obligation to pay to another of the cotenants for mesne profits,

See Chap. XIII.

* Sears v. Munson, 23 Iowa, 389; Bradford v. Kimberly, 3 Johns. Ch. 433; Franklin v. Robinson, 1 Johns. Ch. 164; Raun v. Reynolds, 18 Cal. 289.

3 Levi v. Karrick, 13 Iowa, 350; Lewis v. Moffatt, 11 Ill. 392; Caldwell v. Lieber, 7 Paige Ch. 483.

or for profits made or received from the thing owned in common. There are general expressions, especially in the American reports, indicating that one cotenant may recover in an action against another for necessary repairs which the latter, after demand, refused to join in making.' All the cases agree that a notice of the repairs needed, and a demand that he participate in making them, is a prerequisite to a recovery in such an action against a part owner. But we doubt whether any case can be cited in which, proceeding upon and by virtue of the common law, and in the absence of an agreement to join in repairs, a cotenant obtained judgment against one of his fellow-tenants for repairs made without the assent of the latter, either expressed in direct terms, or necessarily implied from the situation of the parties or their course of dealing between each other. The common law remedy, available to a cotenant who wished the others to assist in necessary repairs, was by writ de reparatione faciendâ. But this writ was allowed only when a mill or house fell into decay. It was not employed to obtain contribution for repairs previously made; but to compel a cotenant to make, under the order and direction of the Court, such repairs as it adjudged to be proper." Except this remedy, to which recourse must have been had before any repairs were made, "at common law, no action lies by one tenant in common, who has expended more than his share in repairing the common property against the deficient tenants. A case illustrating the rule that the assent of a part owner to necessary repairs may be presumed under peculiar circumstances and from a prior course of dealing between the parties, was determined in the Supreme Court of the State of Illinois. An act of the Legislature granted to several persons and their heirs and assigns, a franchise to

Dech's Appeal, 57 Pa. St. 472; Denman v. Prince, 40 Barb. 217.

2 Mumford v. Brown, 6 Cow. 476; Kidder v. Rixford, 16 Vt. 172; Stevens v. Thompson, 17 N. H. 111.

Co. Litt. 200 b.

+ Bowles' Case, 11 Co. 82 b; Co. Litt. 200 b; Carver v. Miller, 4 Mass. 561; Loring v. Bacon, 4 Mass. 576.

5 Calvert v. Aldrich, 99 Mass. 76.

6 Converse v. Ferre, 11 Mass. 326; Calvert v. Aldrich, 99 Mass. 76; Wiggin v. Wiggin, 43 N. H. 568.

establish and operate a ferry. They were required to build approaches to the ferry, and to keep and maintain the whole in condition for public use. One of the part owners resided in Europe. During his lifetime, he permitted the others to manage the ferry and the property connected with it. After his death, his heirs also resided in Europe, and never claimed or exercised any control over the property. An action in assumpsit was brought by the resident part owners against the heirs of the absent part owner, to recover for expenses and repairs in running the ferry boats, repairing and replacing them, and building and repairing the roads and dykes. Breese, J., in delivering the opinion of the Court, said: "The declaration shows that the greater part of the expenditure, for which contribution is claimed, was incurred in relieving their ferry boat from a serious disaster-repairing it, running it, and replacing it; and that the entire account is for repairs to the roads, bridges, and dykes. Now, all these things had to be done, under penalties, and in doing them, the plaintiffs, being on the spot, were enabled to discharge their associated liability to the public. There was a public duty resting on them, to be discharged by them. It could not, surely, have been understood by any one of the original associates, or by those purchasing an interest in the franchises, that on the death of any one of them, the enterprise was to terminate or be arrested in its progress to completion, and thereby all the money they had expended, and the franchises also, be lost, or put in such peril as to render them nearly valueless; or that one portion of the associates, no matter from what motive, could, by his own act, thwart the designs and operations of his fellows, bent on performing their obligations to the public, and on making the enterprise one of profit. It seems to us, that after the death of Paul Mehlgarten, and before partition, the same responsibility rested on his heirs as upon him, and that casualty did not destroy the association, nor should it cripple the exertions of those on the spot, who had, from the commencement, the management of the enterprise. Whatever sums of money they expended in good faith upon the leading objects of the association, and which were necessary in order to its enjoyment, and to the discharge of their obligations to the public, the