
    West v. Weyer.
    
      Rents and profits— When tenant in common.liable for— When not liable for interest— Section 5774, Revised Statutes, construed.
    
    1. By virtue of section 5774 (Bevised Statutes), which provides that one tenant jn common may recover from another his share of rents and profits received by such tenant in common from the estate, “ according to the justice and equity of the case,” a tenant in common who uses the common estate simply to pasture his cattle, is liable to ac- . count to his co-tenants for their share of the value of such use as for rents and profits received.
    2. Where no demand has been made upon such tenant in common, either for the possession of the premises or for the value of their use, before the commencement of the action, he is not liable to account for interest upon the amount found due his co-tenants for such use.
    (Decided November 13, 1888.)
    Error to the Circuit Court of Highland County.
    
      The suit below was tried on appeal in the circuit court. It was originally brought for partition of real estate, and for an account of the rents and profits received by the defendant below, Allen P. West, a tenant in common in possession of the lands. The trial court found and stated the following facts and conclusions of law :
    That the plaintiff and defendants, mentioned in the pleadings as co-tenants with them, arc the heirs-at-law and tenants in common of said real estate in the several proportions set forth in the pleadings; that there were no improvements upon the land excepting the outside fences, and that it contained about 146 acres, of which about 100 acres were in pasture and the rest in woods; that the defendant, Allen P. West, owned the land adjoining and sui'rounding it upon three sides, and that there was no fence between his land and that mentioned in the petition; that the defendant, Allen P. West, pastured upon his own land adjoining this, containing about 400 acres, about 100 head :of cattle each year, and that they had access to and pastured upon the land described in the petition, and that during different years of the time that he was in possession he fed the cattle on the woodland of the premises described in the petition; that he had ample pasture each year for his own use without using this land, and that he could not have used his own pasture without the cattle going upon this land unless he had erected a partition fence between his own land and that in question; that West did not cultivate or crop the premises, or receive any rent therefor from others, or make any use of the same as aforesaid; that Allen P. West did not occupy the premises adversly to any of his co-tenants, nor did he exclude any of them from the possession thereof, nor did he occupy the same under any lease from or contract with any of them to pay rent therefor; nor did any of his co-tenants ask or demand possession of the premises or any share of the rents and profits thereof prior to the beginning-of this suit; that the fair rental value of the premises was $150, and that the value of West’s use and occupation thereof was $150 per year; that he occupied the premises one year after the bringing of this suit under the same circumstances as before; and that he paid the taxes on the premises before said suit was brought at the rate óf $35 per year.
    And from the foregoing finding of facts, the court, as its conclusions of law, finds that the defendant, Allen P. West, is liable, and should account to the other tenants in common in the proportion of their respective shares thereof for his use and occupation of the real estate in the petition described for the full period of six years prior to the beginning of this suit, at the yearly value of $150 as aforesaid, with interest on the said annual installments of rent to this date, and for the year after the beginning of this suit at the same rate with interest to this date, and he is entitled to credit upon his several payments of taxes made before the commencement of this suit, with interest on each payment to this date; the balance being $986 09.
    Judgment was rendered accordingly, which this proceeding is brought to reverse.
    
      Steel & Hough, for plaintiff in error.
    I. We claim that section 5774, Rev. Stats., does not authorize a recovery against a tenant in common, only, when he has received rents and profits more than comes to his share; and not for mere use and occupation. There is a wide and well recognized difference between receiving rents and profits, and use and occupation. Freeman on Co-tenancy and Par., § 270, 274; 1 Wash. Real Prop. pp. 695-6; Peck v. Carpenter, 7 Gray, 283; Woolever v. Knapp, 18 Barb. 265; Sargent v. Parsons, 12 Mass. 149; Wilcox v. Wilcox, 48 Barb. 327; Dresser v. Dresser, 40 Barb. 300; Davidson v. Thompson, 22 N. J. Eq. 83; Barrell v. Barrell, 25 N. J. Eq. 173-6; Izard v. Bodine, 11 N. J. Eq. 403; Varnum v. Leek, 23 N. W. Rep. 151; Austin v. Barret, 44 Ia. 488; Reynolds v. Wilmeth, 45 Ia. 693; Israel v. Israel, 30 Md. 120; Noble v. McFarland, 51 Ill. 226 ; Sears v. Sellew, 28 Ia. 501; Kean v. Connelly, 25 Minn. 222; Hause v. Hause, 13 N. W. Rep. 43; Pico v. Columbet, 12 Cal. 414; Conard v. Conard, 38 Ohio St. 467.
    II. If this court should hold that the words of our law, “according to the justice and equity of the case,” takes our statute out of the long line of decisions hereinbefore quoted or referred to, and that it enlarges the rights of co-tenants and creates a new right in equity, how in equity do these defendants stand? Here is a field surrounded on three sides by the lands of this plaintiff; in addition to his right as a tenant in common to use and occupy this land, was his right to use his own property.
    Chief Justice Field disposes of this case in equity, in Pico v. Columbet, supra.
    
    III. The court erred in charging the plaintiff in error with interest. Rev. Stats. § 3181; Wait’s A. &. D., vol. 4, 127
    
      Newby & Morrow, for defendants in error. •
    All the questions of law arising in this court on the finding of facts, are determinable, we think, by a construction of that part of section 5774 of the Revised Statutes, which reads as follows:
    “ One tenant in common, or coparcener, may recover from another his share of rents and profits received by such tenant or coparcener from the estate, according to the justice and equity of the case.”
    At common law, one tenant in common or coparcener could not maintain an action for rents and profits against another tenant in common or coparcener.
    Hence the English Statute of 4 Anne, which gave an action at law by one co-tenant against another as bailiff. Our statute is quite similar to the English statute, except that our statute contains the additional words, “according to the justice and equity of the case.” By the use of these additional words, we claim that the action given by our statute is not one at law, like the one given by the English statute, but is one in equity, where an account may be had by one co-tenant against another in possession of the common property. This view of the statute, we contend, is supported by this court in the case of Conard v. Conard, 38 Ohio St. 467.
    And we submit that the meaning intended by the words “justice and equity of the case,” as used in the statute, can mean nothing else than that if the tenant in possession of the common property has, by such possession, derived a benefit therefrom in which the others, equally entitled with himself, have not shared, he shall be compelled to account and pay to them the amount that their property, not his, has benefited him.
   Owen, C. J.

The principal question in the case, involves a construction of section 5774, of the Revised Statutes, which provides that: One tenant in common, or coparcener, may recover from another his share of the rents and profits received by such tenant in common or coparcener from the estate, according to the justice and equity of the case;” etc. The fact that no such remedy was available at common law, led to the enactment of the statute of Anne, (4 Anne, ch. 16, sec. 27), which provides that actions of account shall and may be brought and maintained * * * by one joint tenant, and tenant in common, * * * against the other, as bailiff for receiving more than comes to his just share or proportion,” etc.

It is contended by the plaintiff in error, that neither this statute, nor our own, authorizes a recovery by the out-tenant against the tenant in possession, for the value of the mere use and occupation of the joint estate. There are cases which seem to sustain this construction of the statute of Anne, supia, where the tenant in possession is to be regarded as a bailiff of the out-tenants. A bailiff in husbandry was, at the common law, one appointed by a private person to collect his rents and manage his estates. (Bac. Abr.) The leading English case which holds that mere use and occupation by a tenant in common, did not create a liability against him to his co-tenants, is Henderson v. Easen, 17 Ad. & El. N. S. 701, 718. The court says: It is to be observed that the statute does not mention lands or tenements, or any particular subject. Every case 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. It is to be observed, also, that the receipt of issues and profits is not mentioned, but simply the receipt of more than comes to his just share; and, further, he is to account when he receives, not takes, more than comes to his jusi share.” Further construing the language of the statute, the court concludes that use and occupation merely do not render the possessory tenant in common liable to his co-tenants. It will be observed that the word “ profits,” whose absence from the statute of Anne is made prominent by the court, is supplied in our statute. This construction of the English statute has been followed in this country in Sargeant v. Parsons, 12 Mass. 149; Woolever v. Knapp, 18 Barb. 265; Crane v. Waggoner, 27 Ind. 52; Ragan v. McCoy, 29 Mo. 367, and other cases. A different view was taken of the same question in Thompson v. Bostick, 1 McMullan Eq. (S. C.) 75, where the court says that “ to cultivate and have the use of lands, is to receive the rents and profits, though the occupier is his own tenant,” etc. In Early v. Friend, 16 Grat. Va. 47, the judge speaking for the court says: “ 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. * * * I do not see the force of the distinction drawn by that court between the words receive ’ and e take ’ in this connection. I think the word ‘ receiving ’ in the statute literally means a receiving of profits as well by use and occupation as by renting out the property.” This view is taken in Shiels v. Stark, 14 Geo. 429; and in a recent case in Vermont, Hayden v. Merrill, 44 Vt. 336, where the court say: “ It is safe to say that where the occupancy of one tenant in common is beneficial, and at a profit to such occupant, and is entire and exclusive, he is bound to account to his co-tenant for what he has received by such occupancy more than his just proportion.” We think this the better view.

The question does not rest, however, upon a construction of the statute of Anne nor upon its assumed similarity with our own. In framing the latter the general assembly departed from the phraseolgy of the English statute. The language, which in the latter limited the liability of the tenant in possession to that of bailiff, is omitted. The words “ rents and profits” are added. Then we are not at liberty to conclude or say that the words, “according to the justice and equity of the case,” were added without a purpose. This court has said in Conard v. Conard, 38 Ohio St. 467, construing this statute : “ The' action given by the statute is a civil action for rents and profits ‘ received ’ by a co-tenant in exce ;s of his full share, ‘ according to the justice and equity of the cased The case made upon this record is not an action for the recovery of money merely, but for an account according to the principles of equity, in which neither party had a right of trial by jury. In this respect, at least, our statute differs from the English statutes of 4 Anne, C. 16 sec. 27, which gave an action at law against a co-tenant as bailiff.”

We conclude that the voluntary and profitable use, occupation and enjoyment by a tenant in common of the common estate creates a liability against him to account to the out-tenant as for his share of the rents and profits received by the former, according (o the justice and equity of the case.

II. It is maintained, however, that in the peculiar circumstances of the case at bar the j udgment against the plaintiff' in error is wholly without equity. The lands occupied by him adjoined his own, and there was no partition fence between them; he had ample pasture of his own, and for the cattle pastured upon the common estate, and did not need the pasturing with which he was charged. Nevertheless, he did use the lands, and the value of that use was $150 per year. What effect the trial court gave to the conscious possession of these lands, as shown by the fact that during different years of the time he was in possession he fed his cattle on the woodland of the premises described in the petition,” we are not permitted to know. If he voluntarily used and enjoyed the profitable possession of the lands, it would not seem to be a defense against an action to account, that he did not need them —• that he had sufficient pasturage of his own for his. cattle.

The trial court was called upon to deal with all the facts according, to principles of equity, and while this case seems at first view to sound in hardship, we cannot say that it is sufficiently clear to us that the court so far ignored the justice and equities of the case as to justify us in reversing its judgment.

III. Was there error in charging the interest?

The plaintiff in error was in no sense i n default. His possession of the common estate was rightful. No demand was made upon him for its possession, nor for the value of the use until the suit was brought. The claim was one as for unliquidated damages. There was no warrant for charging him with interest upon each annual installment of the yearly rental value of the lands. In this there was error, for which the judgment is modified by deducting the interest included in the judgment, and as thus modified the

Judgment is affirmed.  