
    ALPHEUS S. WILLIAMS ET AL. vs. ALBERT G. GARDINER ET AL.
    In Equity. —
    No. 1296.
    A tenant in common, who is in sole possession of the land, is accountable for its use and occupation to his cotenant, if the facts amount to an ouster of the cotenant.
    STATEMENT OE THE CASE.
    The bill in this case was filed in 1857, to obtain a sale of lot 4, in square 290, in the city of Washington, and for distri- ’ bution of the proceeds according to the rights and interests of the parties. The lot had previously been owned by James Larned and Albert G. Gardiner, as tenants in common, and they had agreed upon a division thereof, but Larned having died, the partition was not carried out. The court, however, after the death of Larned,. made a decree in this suit, confirming the partition of the lot which had been agreed upon by the said Gardiner and Larned, and finding that the portion belonging to Larned’s heirs was not divisible, directed a sale thereof. The sale has never taken place. The defendant Wise, in 1853, rented the front part of the lot set off to the Larned heirs from their agent, with rent at the rate of $3 per month, and in 1856 purchased the interest of one of the heirs, being one-eighteenth part of the whole premises. Wise paid no rent after such purchase, on the ground that as tenant in common he was not accountable for rent to his cotenants, unless he ousted them, which he denies ever having done. Emily L. Truesdail is one of the Lafned heirs, and during the pendency of the suit has acquired the interest of all the other heirs, except the part so purchased and owned by Wise.
    In 1871, Noah H. Swayne, having purchased an interest in said property, filed a petition in the above cause, praying to be made a defendant, and asking that Wise might be compelled to account for rents received by him. An order was accordingly made on the 21st of November, of that year, admitting Swayne as a defendant, and referring the cause to the auditor to state “ the amount of rents, issues, and ,profits received by Samuel Wise, and rightful distributive shares thereof among , the parties.” Under this order, the. auditor,. February 11, 1873, reported the amount “ due by Wise to the estate to be $141.16.” By an order passed March 11, 1873, the cause was remanded to the auditor, “ for such revision of his report as he may deem it proper to make,” and giving leave to the parties to examine W. Truesdail, and to further examine the defendant Wise; and on the 1st of April, 1873, the auditor was directed to proceed to state an account” in respect to the rents, issues and profits “ received by and chargeable to the defendant Samuel Wise.”
    The auditor, in his' report, charged Wise with rent for the front part of the lot at $3 per month from the date of the original lease until October, 1856; and from October, 1856, until October, 1863, at the rate of $6 per month ; and from October, 1863, to the date of the report, at $15 per month, these appearing to be the fair rental value of the property between the dates mentioned, as shown by the testimony of several witnesses. The auditor reported that Mr. Wise refused to pay rent for the property; that he disclaimed his tenancy after the purchase made by him of an undivided one-eighteenth of the lot in 1856, and pretended to hold adversely to his lessors, and that he claimed to hold the property as against the Larned heirs under some outstanding tax-titles which he had purchased. The auditor also charged Wise with some rents, shown from the testimony to have been actually received by him for a small tenement on the rear part of said lot, and to which no objection is made.. Upon this principle of stating the accounts, the auditor found that there was due from Wise the sum of $3,367.87. But it is admitted that if he is not to be charged with the use and occupation after he became tenant in common, the balance due by said Wise would not exceed $252.20.
    Wise states in his deposition that he ceased to pay rent when he became entitled to an undivided interest in the property. That he never ousted his cotenants; that he did not know who they were, and never refused to recognize them, and never refused to pay any rents that he had actually collected, and that he purchased the tax-title for the advantage of all the cotenan ts. He is partially corroborated $ but it will be observed b y the opinion that a majority of the court thought the testi mony in the case did not sustain this theory.
    To the report of the auditor, Wise filed the following exceptions :
    1. The auditor errs in finding that Wise pretended to hold adversely to his cotenants in common.
    2. The auditor errs in charging Wise with rent at what he states to be the fair rental value of the property, and cannot, under the order of reference, inquire into and ascertain what was properly payable by said Wise for the use and occupation of the said property.
    3. That the auditor errs in charging said Wise with interest upon the installm ents of rent, as stated in detail in schedule D, accompanying his report.
    4. The auditor errs in holding that Wise was responsible at all for the use and occupation of the said property after he became a tenant in common thereof.
    The exceptions were substantially allowed by the justice holding the special term, who passed a decree denyiug rent for use and occupation of the premises after Wise became a cotenant; and the case is now here upon appeal of the complainant.
    
      Edwin L. Stanton and A. S. Worthington for complainants :
    An account being proper, the question occurs whether a cotenant can be charged with an occupation-rent as distinguished from a charge for rents actually received. Where it is laid down that a tenant in common cannot be charged with mere use and occupation of the premises by himself, the qualification is always expressed that such occupation is without ousting the other cotenant, and without a special agreement to pay the rent. The rule is, that a tenant in common, who has not ousted his cotenant, cannot be held accountable for use and occupation, unless he has had exclusive possession, or has made a special agreement therefor, for part of the period included in the auditor’s report. The auditor has charged Wise under the terms of a special agreement. These very limitations imply that where a tenant in common has ousted his cotenant, he is, as he ought to be, accountable for use and occupation. The cotenant may be charged with an occupation-rent, and allowed for improve, ments or repairs. McLaughlin vs. Barnum, 31 Md., 425; Teasdale vs. Sanderson, 33 Beav., 534. This course was actually pursued in the case at bar. See also Andrews vs. Murphy, 12 Ga., 431; Leach vs. Beattie, 33 Vt., 119.
    If, then, accounting between the parties is necessary to that distribution of proceeds according to the interests of parties which the bill seeks, and if a tenant in common, who has had exclusive possession, may be charged with rent for use and occupation as well as for rent actually collected, the question of fact arises whether Wise had exclusive possession. Wise repudiated cotenancy, and sought to fortify his exclusive possession by the fraud of purchasing a tax-title.
    But not to argue the facts here, exclusive possession by Wise was found by the auditor; and his conclusion on a question of fact will not be reversed by the court except on proof of clear mistake, and the burden of proof of such mistake is on the party alleging it. Mason vs. Crosby, 3 W. & M., 258.
    
      W. B. Webb for defendant Wise:
    Wise occupied the property in question under his title as tenant in common, and it is conceded that he cannot be held accountable for use and occupation unless he has ousted his cotenants-.
    The possession of one tenant in common is the possession of all. Bach tenant has a right to occupy; each can have partition if he elects, and the law gives to tenants in common facilities for having their separate interests ascertained and set apart to them in severalty. From the very nature of the tenancy, one tenant in common cannot be held accountable to his cotenants for his occupation, for his right to occupy being undoubted, his occupation is the occupation of all. To render one cotenant liable to another for rent, or for use and occupation, there must be something more than an occupancy of the estate by one and a forbearance to occupy by the other.- The tenant who merely occupies the estate does no more than he has a right to do on his own account. Wash-burn on Real Prop., 420; Sargant vs. Parsons, 12 Mass., 149; Calhoun vs. Curtiss, 4 Met., 413; Lyles vs. Lyles, 1 Hill Ch., S. C., 85; Voluntier vs. Johnson, Id., 49 ; Lloyd vs. Cordon and Wife, 2 Har. and McH., 260; McClurg vs. Ross, 1 Wheat., 124.
    There must have been some positive act of ouster to make Wise’s possession exclusive of his cotenants, and the onus is on the plaintiff to show it. The law always intends that a man is in, according to h is right, until the contrary appears. Northrop vs. Wright, 24 Wend.., 215; Parker vs. The Proprietor of Locks and Canals, 3 Met., 99; Van Bibber’s Lessee vs. Frazier et al., 17 Md., 451; Israel vs. Israel, 30 Md., 120.
    To make a holding a dverse, there must be some positive act and not merely a failu re to recognize the rights of another. Matthews vs. Ward’s Lessee, 10 Gill & Johns., 457.
    It is submitted that, in the case at bar, there has been no proof adduced to show such acts on the part of Wise as will amount to an ouster.
    The plaintiff insists, fir st, that Wise sought to fortify his exclusive possession by the fraud of purchasing a tax-title, and second, that the auditor has found, as a fact, that Wise was in exclusive possession, and that his finding is conclusive. It is too well settled now to admit of controversy, that where a cotenant in common purch ases an outstanding title, the purchase inures to the benefit of all the parties in interest. Rothwell vs. De wees, 2 Black, 618. And the auditor upon this very case, in his first report, refuses to allow Wise interest upon the certificate of tax-sale, and treats the money paid by him in the purchase of the tax-title “as a payment, on account of his existing indebtedness” to the estate for rents collected by him.
   Mr. Justice Humphreys

delivered the opinion of the court:

The law is well settled as to the rights and liabilities of tenants in common, but the controversies arise over the facts of each case. 17 Md., 436; 30 Md., 120.

A tenant in common is not permitted to speculate upon his cotenants. Plain, straightforward dealing is what is right and proper, and what the law teaches, even in its technicalities. The origin of the rules regulating the rights and relations of tenants in common was that of simplicity and rural dealing, and were designed and established for the purpose of preventing speculation upon the inadvertence, ignorance, or generosity of the rustic ideas of home and peace and quiet.

The facts exhibit an effort on the part of Wise, who is a purchaser of an interest in the land, to occupy it under.the idea of a cotenant, and under that use it without accounting; where the facts justify the conclusion that if the relation of tenants in common existed, they show also what amounts to an ouster of the cotenant.

We, therefore, conclude that the exceptions of Wise to the auditor’s report are not well founded in law according to the facts.

So much of the decree of the court in special term as declines to charge Wise with use and occupation of the front part of the premises in question is hereby reversed, and the auditor’s report is confirmed as to the principle involved. But as it may be necessary to restate the account, and arrive at correct amounts, the decree is reversed, with instructions to proceed on the principles here indicated.

Wylie and MacArthur, JJ.,

dissented, being of opinion that, after Wise became entitled to a,n undivided interest in the property, he was a tenant in common, and that the facts do not show he ever attempted to oust his cotenants or deny their rights. Under well-established principles, he cannot therefore be held liable to his cotenants for the use and occupation of the common property.  