
    *Early & Wife v. Friend & als.
    July Term, 1860,
    Lewisburg.
    [78 Am. Dec. 649.]
    (Absent, Lee, J.)
    1. Tenants in Common—Account of Rents and Profits —Equity Jurisdiction.—One tenant in common may maintain a suit in equity against bis co-tenant, wbo has occupied the whole oí the common property, for an account of rents and profits.
    2. Same—interpretation of Statute.—'Whenever the nature of the property is such as not to admit oí its use and occupation by several, and It is used and occupied by one only of the tenants in common; or whenever 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 and proportion in the meaning of the statute.
    
    3. Same—One Tenant in Possession—Liable to Co-Tenants for Rent.—"Where the common property is rented out by one tenant in common, he is accountable to his co-tenants for their share of the rents he has received. And where he occupies and uses the whole property himself, he is liable to his co-tenants for a reasonable rent for it in the condition it was when he took possession.
    4. Same—Same—Same—interest.—Interest is to be paid upon the rents found to be due from the tenant in common in possession to his co-tenants.
    This was a bill filed in March, 1848, in the Circuit court of Kanawha county, by Richard K. Cralle against Joseph and Thomas R. Eriend, Samuel H. Early and wife, and others, asking for an account of the rents, issues and profits of a certain salt property and a tract of land in the county of Kanawha, which the Eriends owned as tenants in common with the plaintiff and the other defendants and of which the Eriends had held “exclusive possession. The record is very voluminous, but the facts necessary to show the points decided by the court are as follows :
    
      Dr. John J. Cabell died in 1834, leaving a large real estate in the city of Lynchburg, and in the counties of Bedford and Kanawha. In the county of Kanawha he owned a valuable salt property, and a tract of land. The persons entitled to share his estate were his widow and five children, viz: Mrs. Cralle, wife of Richard K. Cralle ; Mrs. Ward, wife of Henry C. Ward; Mrs. Friend, the wife of Thomas R. Friend; Paulina Cabell, and Henry Ann Cabell, who afterwards married Samuel H. Early. Thomas R. Friend qualified as administrator on the estate.
    In November, 1834, a friendly bill was filed in the Hustings court of Lynchburg, by the widow and heirs of John J. Cabell, for a division of his estate; and on the same day commissioners were appointed to make the division.
    Prior to October, 1835, Henry C. Ward had died, Paulina Cabell had died an infant intestate and unmarried, and Mrs. Cralle had died, leaving an infant daughter, Mary C. Cralle; and in October of that year, these deaths were suggested ; and Mary C. Cralle was made a party plaintiff. And the court set aside the former order appointiug commissioners to divide the estate ; and at the same time reappointed them, with directions to assign the widow her dower, and to divide the property among the four surviving heirs, Mary C. Cralle being substituted for her mother.
    The commissioners divided the property in Lynchburg, allotting to the widow her third, and to each of the heirs her fourth in severalty ; but in relation to the salt property on the Kanawha they say: “That a portion of Dr. Cabell’s real estate, to wit, the salt works and furnace on the Kanawha, do not seem to them capable of ^division ; and as they are now of great value, and as their present value may hereafter be still more increased or diminished, according to a variety of circumstances, they have felt it their duty to give each party a certain designated interest therein, so that each may be alike profited by an advancement of its value, or suffer equally from any further depreciation.” And the property having been valued twenty-five thousand dollars : to Mrs. Cabell, the widow, was allotted one-third for her dower, at $8,333 34, and to each of the four surviving heirs was allotted one-fourth of the remainder, at $4,166 66. And the tract of land on the Kanawha was allotted to the four heirs, each one undivided fourth thereof valued at $3,750.
    The commissioners having made their report, the parties seem to have taken possession of the real estate allotted to them in severalty ; and nothing more was done in the case until November, 1845, when the report was directed to lie one month for exceptions ; and no further proceedings appear to have been taken in the cause.
    By deed, bearing date the 19th December, 1835, Mrs. Cabell, the widow of Dr. Cabell, acting for herself and as guardian of her daughter, Henry Ann Cabell, leased to Thomas R. Friend her third of the said salt property, and Henry Ann Cabell’s one-fourth of the remaining two-thirds thereof, for ten years, commencing on the 25th of December, 1836. For the widow’s third he was to pay $500 a year, and for Henry Ann Cabell’s interest he was to pay $300 a year. And it was agreed that if the widow died before the end of the ten years, the lease as to her part was to cease; and if Henry Ann Cabell attained to the age of twenty-one years, or married before the ten years expired, upon the happening of either of these contingences, the lease as to her interest was to cease ; or if continued thereafter, it was to be at the pleasure of the said Henry Ann, if she attained *the age of twenty-one year's, or of her husband if she should max'ry before the time expired.
    By another deed of the same date, Mrs. Wax'd, for the consideration of $8,750, conveyed to Thomas R. Friend her fourth in the two-thirds of the said salt property, her fourth in the third thereof allotted to Mrs. Cabell for life, and her fourth of the tract of 0 land on the Kanawha.
    Thomas R. Friend having thus acquired the interest of Mrs. Cabell, Henry Ann Cabell, and Mrs. Ward, and being entitled to another fourth in right of his wife, took possession of said salt property, and he and his father, Joseph Friend, worked it in partnership until 1842. In January of that year Thomas R. Friend conveyed all his interest in the property to Joseph Friend, who continued to work the property on his own account from that time. When they took possession the property was very much out of repair; and whilst it was occupied by them very expensive improvements were made upon it, by which the issues and profits of the property were greatly increased.
    It appears that Mrs. Cabell lived until some time in the year 1843. In the same year Henry Ann Cabell attained the age of twenty-one years ; and in 1846 she married Samuel H. Early, a marriage settlement having been previously executed, whereby her property was conveyed to Jubal A. Early, in trust for her separate use. It appears, too, that the rent due to Mrs. Cabell was paid, as was that due to Henry Ann Cabell, up to 1843, a part of it having been paid to Early after the marriage. And Joseph Friend, in his answer, avers that neither Henry Ann Cabell, after she came of age, nor her husband, after the marriage, ever expressed any wish to change the terms of his holding under the lease aforesaid ; “and hence he has always hitherto regarded himself as holding and occupying under the original *rent reserved.” It also appears that the plaintiff Cralle had received from Hewitt, Ruffner & Co. $500 a year as dead rent for his interest as tenant by the curtesy in the property up to the year 1841.
    Before the bill was filed in this case, Mrs. Ward and Mrs. Thomas R. Friend had died ; the latter leaving four infant children surviving her, who were parties defendants in this suit.
    In 1848 the court directed accounts of the rents, issues, and profits of the salt property and the tract of land on the Kanawha, whilst in the possession of the Friends, to be taken : one of these accounts was to commence when they took possession, and be continued until the 28th of January, 1842, when Thomas R. Friend conveyed his interest in the property to Joseph Friend, and was to be charged to them jointly; and another was to extend from that period until the first day of the next term of the court, and was to be charged to Joseph Friend. : l . • i . . .
    The commissioner returned his report, which was excepted to by all the parties; and the cause came to be heard on the 22d of February, 1853, when the court made a decree, which was changed in some respects by another decree, made on the 17th of February, 1855. By these decrees the court held that the co-tenants of the Friends were entitled to share in the actual profits made on the salt property, according to their several interests, and to recover from the Friends their share of the net profits which had been received by them, except for such time as the shares of any of the parties were actually rented, or for which they had theretofore received compensation. And having determined the interests of the different parties in the profits, and fixed the time from which they were each entitled to share them; and having also fixed the nature of allowances which should be made to the Friends ; , ; : : : • and deciding *that they were not to be charged with interest upon the annual profits, the report was recommitted with instructions to the commissioner, to restate and settle the account upon the evidence then in the record, or which might be produced.
    From this decree Samuel H. Early and wife, and the trustee, Jubal A. Early, applied for an appeal, which was allowed.
    The case was most elaborately argued in printed notes, upon all the questions raised in it, by Beverly R. Johnston and Price for the appellants, and Conway Robinson and Fry for the appellees, Thomas R. and Joseph Friend ; but the decision of the court involves but two of these questions.
    For the Appellants, it was argued—If the court had no jurisdiction of the case, the defendant must have been badly advised, when he asserted in his answer, which he also swore to, that the regular course had been pursued for the attainment of rents and profits. And with the perfect assurance which he felt, that upon taking the account, a large balance would be found in his favor, he might well challenge the investigation. That investigation has been made. It was prayed for by the one party and conceded by the other, each claiming a balance in his favor. But these expectations could not possibly be realized on both sides. A balance could not be on both sides—one or the other must be the creditor and the other the debtor. One or the other party must be disappointed in his hopes. So the learned and able counsel for the defendants, fearing that their client was too sanguine, when he anticipated a large balance upon settlement in his favor, have now, for the first time, discovered that the court cannot take jurisdiction of the case to ascertain the actual amount of the balance, or on which side it will fall.
    *An account of rents and profits being the object of the suit, and being prayed for in the bill, and being acquiesced in, in the answer, there being no plea to the jurisdiction, it seems to us that without the aid of our act of Assembly, and without the aid of any adjudicated case, but upon the general principle, and general practice of a court of equity, it would require the want of jurisdiction to be very palpable before it would, at this stage of the case, dismiss the bill. Ruffners v. Lewis’s ex’ors, 7 Leigh, 720; White and McCall, not reported.
    In the first of these cases, Judge Carr says, p. 738: “I think, however, the accounts have been taken wrong. The Ruffners must be treated as tenants in common with Prior, not as trespassers. They are liable for a fair share of the profits, &c.”
    Judge Tucker says, p. 743: “First as to rents and profits: I have no question that in the settlement of them, the Ruffners ought to be treated as tenants in common with Prior, and those claiming under him. —They claim to hold Reynold’s interest at a very early period by contract with him, and, therefore, held in his right one moiety, while they wrongfully took the exclusive enjoyment and possession of the other moiety, which did not belong to them.”
    Here both Judges treat the Ruffners as tenants in common with Prior, and those claiming under him, and therefore were liable to a fair share of the profits.
    Where a bailiff is made by contract, and not by law, he must consent to the relation. When he takes the profits to himself exclusively, being tenant in common in possession, the law makes him bailiff because of his interest and his excessive receipts.
    To review all the numerous authorities cited upon this subject by the learned counsel on the other side, would be as tedious as we apprehend it would be unprofitable. We believe that when the court comes to ^review them, they will find them, at least many of them, inapplicable to the facts of this case.
    Here is a property which cannot be occupied by more than one proprietor. It cannot be occupied jointly. It is indivisible, so the Lynchburg court held, in a suit in which all these parties were parties, and by its decree they are bound. It is productive of large profits, in the hands of a judicious agent or bailiff, rendered so principally on account of the Salt water and the Coal. Now, after the Salt water and Coa.1 have been used until the water is nearly exhausted, and has receded fifteen or eighteen hundred feet; and the Coal is diminished in quantity, rendered more difficult of access, if not literally consumed, an account of profits is inadmissible in a Court of equity.
    It may not be amiss to ascertain who a bailiff is in legal contemjilation: A bailiff is one who has the administration and charge of lands, goods and chattels, to make the best benefit for the owner. Coke Litt, 172; 1 Story’s Eq., jj 446. “And against whom, therefore, an action of account would lie for the profits which he had made, or might by his industry or care, have reasonably made, his reasonable charges and expenses being deducted.” 2 Fonb Eq., B 2, ch. 7, ? 6, and note n.
    The remedy in equity in cases of account, is generally more complete and adequate than it is or can be at law. Mitford by Jeremy, p. 120; Corporation of Carlisle v. Wilson, 13 Ves., R. 275; 1 Story’s Eq., § 450, 451.
    In all cases of joint interests, where one party receives all the profits, he is bound to account to the other parties in interest for their respective shares, (deducting the proper charges and expenses) whether he acts expressly by authority, as bailiff, or only by implication, as manager without dissent, jure domino over the property. 1 Story’s Eq., § 466; Strelly v. Winson, 1 Vern., R. 297; Horn v. Gilpin, Ambl., R. 255.
    *Before the statute of 4 Anne, ch. 16, (S 27, a tenant in common had no remedy for profits against the tenant in possession receiving the profits. Coke Eitt. 199, b, 200 b; but this statute gave a remedy by giving an action of account.
    The . case of Bennet v. Whitehead, 2 P. Wms., R. 644, referred to by Mr. Robinson, is not deemed a very conclusive authority, to establish anything in this case against us. The account in that case was directed, and the only question of any difficulty, was as to the time at which the account should commence. It was ordered to commence with the plaintiff’s title.
    There is as little to our prejudice in the case of Morgan v. Morgan, 1 Atk., R. 489. The party entering and holding the estate of an infant was held to account.
    And so in 1 Story’s Equ. § 511, cited by Mr. Robinson, where several of the authorities referred to by him are cited, it is stated that where a stranger enters into an infant’s lands, he shall account to the infant for rents and profits. This is so at common law, and also where there is even no unity of estate.
    The same may be said of the cases of Newburgh v. Beckerstaffe, 1 Vern., R. 295, and Cary v. Bertie, 2 Vern., R. 332.
    After treating these authorities with the utmost respect, it cannot be said that they have any controlling influence upon this case.
    One tenant in common, as between himself and a stranger, is in possession of the whole. This is the effect of Russell v. Allen, 3 Kernan’s, R. 173; but, we will add, being in possession and taking the whole of the profits, his co-tenant can compel him to account as bailiff. Code, l 14, p. 586.
    Sargent v. Parsons, 12 Mass., R. 149, decides that rents and profits cannot be recovered at common law, and that whether the statute of 4 Anne, was in force *in Massachusetts or not, is immaterial, as the case was not brought under that statute; but see note (a) at the end of the case, for the doctrine we contend for.
    In Jordan v. Wilkins, 2 Wash. Cl. R., 482, the plaintiff failed because of a misdescription. He claimed that the money sued for had been received for him, when it appeared that it had been received for a Company.
    It is supposed that the case of Henderson v. Eason, 9 Eng., L. & E. R., 339, which is referred to and commented on in the 3rd vol. Rob. Prac., (new) page 173, has shed a flood of light upon this subject. We think, however, that case differs widely from this. There the profits were taken as the Court said, not received, so as to bring the case within the operation of the statute of 4 Anne. Here the profits were received; there the subject of the profits was a farm which had been cultivated by the defendant ; no waste was alleged; here the use of the property necessarily impaired its value in perpetuity; the water was exhausted and the coal consumed. These injuries were irreparable. The receipts grew out of the use which necessarily injured the property. To use was to injure and exhaust.
    Thus this case is clearly distinguishable from Henderson v. Eason, and in sustaining the plaintiff here, the Court need not interfere with that case. Were it no so, the Court might not feel bound to follow that case, in disregard of many others of at least equal respectability. It might not see the substantial difference, as the English court thought it did, between the words receive and take, and upon that criticism, it seems the case turned.
    In White v. McCall, the court uses this language: “The court is, therefore, of opinion that there is no error in the decree affirming the right of the complainant to call for an account of the rents and profits, or in ascertaining *the extent of their interest, under the devise of James King, and the determination of the bequest to Carson, to be four twenty-sevenths of the whole amount of the rents and profits, and to require said White to account, as tenant in common, holding possesion of the whole subject, and appropriating the whole profits to his own use.”
    Here the court expressly decides that one tenant in common has the right to call on his co-tenants for an account of rents and profits.
    It would be vain to say that that was a suit against White as receiver of the court, and, therefore, distinguishable from this. It was a suit against him both as receiver and tenant in common, and his liability as tenant in common, not as receiver, is expressly affirmed.
    It would be equally vain to attempt to distinguish that case from this, by saying that White had been tenant of the property, and had held over, without contract, after his term expired, and for that reason he was liable to an account; for such was also the case in this as to the Eriends, and Early and wife. Indeed, we think it would be difficult to distinguish that case from this, upon any ground calling for a different principle of settlement; except in this case the court can ascertain with tolerable certainty the amount of profits, which in that case it could not do; and thus, in this case it can do what in that it would have done if it could.
    The point most labored in the very elaborate and learned argument of Mr. Robinson, is his position, founded mainly on the decision of the court of the Exchequer chamber, in the case of Henderson v. Eason; that no account of rents, issues and profits, lay in favor of one tenant in common against his co-tenant, who has had the sole occupation of the estate, and taken or received the issues and profits exclusively.
    As a general proposition in regard to real estate, we hold that such a 'x'decision is not, and, at least since the statute of Anne, has not been law in Virginia. The practice in our inferior courts has been uniform and unvarying. The view of the profession, as to the existence and universality of the right, has been general; and the decisions of the court of Appeals, wherever the point has arisen, whether directly or incidentally, have been clear and strong—maintaining the right and enforcing the remedy to the fullest extent, wherever the circumstances of cases rendered the account possible; and where it was not to be attained for want of proper evidence, giving the utmost annual value justified by the known facts of the cause. So much for the known and recognized rule of decision in Virginia, on this most interesting question. It appears to us, that if we be right as to the existence of such a course of practice, and such an uniform course of decisions in Virginia, as we submit has obtained in our courts, it must settle this question in our favor. We submit that such would be the result in regard to real estate, merely employed and cultivated for agricultural purposes. But the case of salt estates is different and peculiar; and even under a different course of adjudication, would have necessarily worked out a new and juster rule for itself from the very necessity of the case.
    Such an estate is generally impartible from its physical nature, yet more from difficulties which are inseparable from the subject and its mode of use and enjoyment. It is a fact forming part of this case, and conclusive between these parties, that this salt property is not capable of partition. If this had not been so declared in this case by the decision of the court at Bynchburg; yet the fact is apparently and incontrovertibly true in itself. How, then, stood this estate when the Friends first, and Joseph Friend subsequently, obtained the sole occupation, which they afterwards held, and which, in its consequences, is now the subject of the apresent controversjr? It was a single tenement, improved with the well, furnace and fixtures, (including a coal mine,) necessary for the manufacture and sale of salt. It was incapable of being divided amongst the heirs according to their interests therein. It was capable of large production ; but that product must be the result of a single operation of the work. These works must be carried on as a unit; separate, disunited, several, working of this estate at the same time by several tenants in common, is manifestly impossible. No one proprietor could be forced to work the estate. But whenever he elected to enter, occupy, and operate the estate, the legal consequences arising from his own act, and from the interests and rights of his co-tenants in the estate, became the inevitable and inseparable conditions of his act.
    Why should not interest be allowed? In Ruffner’s v. Lewis’ ex’rs, 7 Leigh 720, there were large accounts on both sides, rendering it uncertain on which side the balance would fall. They also occupied as owners, and believed themselves to be so. They had employed their skill, capital and enterprise on the property in good faith as owner. Not so here. The Friends knew they were not owners. They knew they must account for receipts, and when they received the money, which ought at least at the end of the year to have been paid over, why should they not pay interest? He who has another’s money and uses it, must pay interest on it. Jones v. Williams, 2 Call, 102; Graham v. Woodson, 2 Call., 249; Dow v. Adam’s admr., 5 Munf. 21; Mickie v. Lawrence, 5 Rand. 571.
    A trustee retaining money must pay interest. Lomax v. Pendleton, 3 Call, 538 ; Miller v. Beverly 4 Hen. & Mun. 541.
    Executors must pay interest on the profits of slaves. Quarles’ ex’r. v. Quarles, 2 Munf. 321.
    *For the Appellees it was insisted—It is not pretended that Thomas or Joseph Friend was appointed bailiff, and accepted the appointment. All that is pretended by the plaintiff or by Early is that T. and J. Friend have enjoyed more of the benefit of the subject, or made more by its occupation, than the plaintiff. And the question is, whether, on this naked ground, the claim can be maintained?
    Bord Macclesfield was clearly of opinion that “where one has title of entry, and neglected to enter or to bring his ejectment, but sleeps upon it for several years, that as he has no remedy at law for the mesne profits, so neither has he in equity; for it was his own fault that he did not enter: and he shall never come into a court of equity for relief against his own negligence, or to make the tenant in possession, who held over his lease, to be but his bailiff or steward, whether he will or not.” Duke of Bolton v. Deane, Prec. Ch., 516. It may be otherwise where fraud has been used to conceal the title from the plaintiff, or in case of an infant, for whom the common law provides.—F. N. B., 118; Co. Lit., 89b, 90a; 1 Tho. Co. Lit., 168, 338; Newburgh v. Bickerstaffe, 1 Vern. R., 295; Cary v. Bertie, 2 ib., 332; Bennet v. Whitehead, 2 P.Wms., 644. “When,” says Bord Hardwicke, “any person, whether a father or a stranger, enters upon the estate of an infant, and continues the ' possession, this Court will consider such person entering, as a guardian to the infant, and will decree an account against him.” Morgan v. Morgan, 1 Atk. R., 489; 1 Story Eq., § 511.
    In the present case the person sought to be charged “was entitled to the possession of the whole, until a division between the parties.” Eor one “tenant in common has a right to the possession of the whole, as well as each part.” Russell v. Allen, 3 Kernan R., 179. And the claim is for an account of profits received not *when the plaintiff was an infant, but when he was an adult.
    The suit' is not in a State like Connecticut, where there is a statute giving the action of account, “where two persons hold any estate as joint tenants, tenants in common, or coparceners, and one of them receives, uses, or takes benefit of such estate, in greater proportion than the amount of his interest in the principle estate. Lacon v. Davenport, 16 Conn. R., 331. But it is in a State where, as in England, the common law gives the rule, except so far as a change has been made by the statute of 4 Anne, c. 16, $ 27.
    There is no doubt as to the common law. See Co. Lit., 200b; 1 Tho. Co., 787, Am. ed. 910. The liability to account for the profits of an infant’s lands was an exception to the general rule requiring a contract to be shown to support the action of account. King of France v. Morris, cited in 3 Yeates R., 251; Thouron v. Paul, 6 Whart. R., 620. The general rule applied to every tenant in common who was an adult; to every one who was competent to enter on the land or bring an'action if he was disseised thereof; to every one who was competent to make a contract with his co-tenants in common, or to decline making such contract. “If,” says Parke, B., “one tenant in common occupied and took the whole profits, the other had no remedy against him whilst the tenancy in common continued, unless he was put out of possession, when he might have his ejectment, or unless he appointed the other to be his bailiff as to his undivided moiety, and the other accepted the appointment, when an action of account would lie as against a bailiff of the owner of the entirety of an estate. Until the statute of Anne this state of the law continued.” 17 Adol. § El., n. s. 718; 79 Eng. C. L. ; 9 Eng. L. & Eq. That statute, besides allowing an action of account against executors or administrators of a guardian, bailiff *or receiver, gives such action to one joint tenant or tenant in common against the other as bailiff, for receiving more than ' comes to his just share or proportion. 1 R. C. 1819, p. 509, jj 81. The effect of this statute is now tobe determined in Virginia.
    It is well established that there is a material difference between the common law liability of a bailiff, and the statutory liability of one receiving more than his just share: the bailiff at common law may be subjected for what he might have made without his wilful default; whereas the liability under the statute is only for so much as the party actually received beyond his just share. Walker v. Holladay, Comyn. R., 272; Wheeler v. Horne, Willes. R., 208; Sturton v. Richardson, 13 M. & W., 21; Irvine v. Hanlin, 10 Serg. & R., 221. In a case under the statute, the declaration must allege not only such receiving, but from whom the money was received. McMurray v. Rawson, 3 Hill’s R., 59. And this is a material allegation, with which the proof must correspond. Jordan v. Wilkins, 2 Walsh. C. C. R., 482.
    These cases—even those upon common law pleadings—are illustrative upon the imporant question, What is “receiving” of more than comes to his just share within the meaning of the statute? They show that the action of account against a tenant in common lies only in respect of what he has received from another, and gives support to the position that the action does not lie unless the defendant be charged with having received rents and profits otherwise than by his occupancy; a position for which there is the authority of the Supreme Court of Massachusetts. Sargent v. Parsons, 12 Mass. R., 149; of the Lord Chancellor of England (Lord Cottenham). McMahon v. Burchell, 2 Phill. R. 134, 22 Eng. Ch. R. 127; and the Court of Exchequer chamber. Henderson v. Eason, 17 Adol. & El. n. s. 718, 79 Eng. C. L. 701, 9 Eng. L. & Eq. 339; 3 Rob. Pract., 173-4-5.
    *It may be that sometimes when a court makes a decree for partition, it may, if either of the co-owners has been actually receiving rents reserved from others, decree an account of the rents so received by him from others, and of the plaintiff’s share of such receipts.'—But we say that the mere fact of his having occupied the property will not of itself make him liable for an occupation rent; fot the effect of such a- rule would be that one tenant in common, by keeping out of the actual occupation of the premises, might convert the other into his bailiff, and prevent him from occupying except upon the terms of paying rent. Adams’ Eq., p. 232 of Eng., p. 525 of Am. ed.
    It is not enough to show that the land was of a certain value a year to let. That was shown in Henderson v. Eason; it was proved there that the yearly value of the farm was £300, but such proof was of no use there, and should avail no more here.
    In respect of the salt property, it is not enough to say that-profits were made and actually taken by the Eriends; it does not follow—it is impossible to say—that they have received more than their just share. The evidence authorizes the conclusion that if there be any enterprise uncertain and hazardous in the extreme, it is that of the manufacture of salt; and that to such a case as that before the court, the application of the principle of Henderson v. Eason is peculiarly proper. What the Exchequer Chamber deemed just with respect to the very uncertain and expensive crop of hops, cannot be less just with respect to the more uncertain and more expensive product of salt wells. If Joseph Friend has taken the whole of the salt that he raised, “is he to be accountable in such a case, when it is clear that if the speculation had been a losing one altogether, he could not have called” on the plaintiff or Early for a share of the losses, as he would have been enabled to do if the property had *been worked “by the mutual agreement of the co-tenants?” Having employed his capital and his industry in this hazardous enterprise, without the cooperation of the plaintiff or Early, they have no right now to subject him to another hazardous operation—that of ascertaining, from the various statements and conflicting views of witnesses, and the uncertain judgment of a commissioner upon unsatisfactory evidence, whether or no he made a profit and what was the amount of that profit. Although he has taken the proceeds of all the salt that he raised, “he cannot be said to receive more than this just share and proportion to which he is entitled as a tenant in common. He receives, in truth, the return for his own labor and capital, to which his co-tenants has no right. ”
    It may well be that a Court of Equity had jurisdiction in Ruffners v. Lewis’ ex’ors, 7 Leigh, 720, without its following that there was jurisdiction to decree an account of profits in this cause. It may be considered clear, as Judge Story says, (1 Story’s, Eq. § 512), “That if there is a trust, and the cestui que trust comes into equity upon his title to recover the estate, he will be decreed to have the further relief of an account of the rents and profits.” But, in our case there is no such equitable ground for interference. It is the case of a legal right asserted—asserted by one who is not an infant—and who has no remedy in equity for any thing beyond what he is entitled to recover at law. “There being no trust nor infant in the case,” an account of rents and profits should be refused here, as it was refused in Hutton v. Simpson, 2 Vern. R. 722, 1 Eq. Cas. Abr., Tit. Account, p. 7.
    Ford Hardwicke says it is difficult to go through with an action at law, in case of an account of the profit of coal mines; and, therefore this court would go further than in other cases. But it is the same as a bill for an ^account of rents and profits of an estate which cannot be maintained entirely on a legal title, unless infancy or something else is in the way. Saycar v. Pierce, 1 Ves. sen. 232.
    There is, we insist, nothing in this cause to distinguish it from Henderson v. Eason, or to prevent the principle of that decision from being applied to it. On the contrary, that principle is strikingly vindicated by what is found in this record.
    Where can authority be found for holding that the Friends, standing merely to the plaintiff and Early as tenants in common, are to be bound to the same care, diligence and accuracy, and subjected to the same rigor, as actual bailiffs? Such a proposition is directly opposed to numerous decisions hereinbefore mentioned. And yet, upon this wholly untenable ground, the conclusion is arrived at, that as they had not kept books, &c., such as bailiffs should have kept, all presumptions are to be made against them!
    The authorities referred to by the other side sustain no such position in reference to a case like this.
    In White v. Lady Lincoln, 8 Ves. 363, Jackson, who after the death of the Duke of New Castle, was clothed with duties as his executor, had, in his lifetime, stood to him as solicitor, and not merely as solicitor, but as general agent, auditor, land-steward and manager. With reference to these latffer characters, the court laid down as a rule, that a man standing in that relation is bound to keep regular accounts of his transactions on behalf of his employer.
    Lady Ormond v. Hutchison, 13 Ves. R. 47, was a call for an account from a steward.
    In Lupton v. White, 15 Ves. R. 432, the defendants stood before the court upon the faith of an express undertaking; they were bound to make it good, and could not be allowed to defeat it by contrivance.
    *There is an utter want of application of these authorities to a case like this; the doctrine applies to an agent, and is so laid down in 1 Story’s Equ. § 568. The Friends stood in no such relation to the plaintiff or to Early; they occupied, not as agents or trustees of others, but in their own right, and were under no obligation to any body to keep any account at all of what they received or what they spent in the business. The court is induced first to commit the error of treating the Friends as bailiffs of the plaintiff and of Early, and then this error is made the basis and the only basis—the only justification—for still greater errors—still greater injustice.
    In a case wherein Ford Eldon overruled a motion for a receiver, he considered the defendant as having a charge for all the expenditure he had incurred, and said, “it is impossible to remove him from the possession without reimbursing him all he has laid out,” and is liable to, with reference to both the present and the old concerns.” Norway v. Rowe, 19 Ves. R. 144. So when a bill is filed for partition, if it appear that the defendant has been at expense in improving the premises, a court of equity will not interfere for the plaintiff but on the terms of his making an allowance for such expenditure. Swan v. Swan, 8 Price’s R. 518. And in cases in which the working being by agreement between the parties, an account is allowed of the profitss, it is also directed to be of the expenditure and of the sums contributed. The pliantiff must undertake to bear his share of the expenditure ; he will not be allowed to dispute any bona fide expenditure of the defendants, and he must allow to the defendants interest upon the excess of their expenditure beyond their proper proportion. Hart v. Clarke, 27 Eng. L. & Eq., 567-8. This rule accords with what the Eriends contended for, but is different from, what was contended for by the plaintiff and Early.
    *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 profit from one who had neither disseised the plaintiff nor resisted partition. Nelson v. Clay, 7 J. J. Marsh. R. 138.
    
      
      Tenants in Common—Measure of Accountability.— See Graham v. Pierce, 19 Gratt. 28, and foot-note, where the cases in point are collected. In addition, see the principal case cited in Dobson v. Hays, 29 W. Va. 601, 2 S. E. Rep. 429; Moore v. Ligon, 30 W. Va. 152, 155, 3 S. E. Rep. 575.
    
    
      
      See the statute quoted in the opinion of Judge Monoure.
    
   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’rs, 7 Leigh 720. If the defendants, Joseph and Thomas R. Eriend, are bound to account with the plaintiff and their other co-tenants in compion for rents and profits of the common property, while it was solely occupied and enjoyed by the Eriends, *as claimed by the bill, then, undoubtedly, a court of equity has jurisdiction of the case. It 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 Eriends, 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 actuallv made him so.” Id. 788, note (E-) "

, „ 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 co-tenants 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 Eriends, 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 whatever.

*In support of this position a very important case, decided in 1851 in the Exchequer chamber, Henderson v. Eason, 17 Ad. and 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 conies 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 cases 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 judgment 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 McMahon v. Burchell, 3 Hare 97, 25 Eng. Ch. R. decided in 1843 ; though afterwards reversed by Ford Chancellor * Cottenham, 2 Phill. 127, 22 Eng. Ch. R., upon the ground that mere occupation by one of several tenants in common of an estate, if unaccompanied by the 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 Ford Cottonham doubted, on appeal, whether the claim allowed by the V. C. could be maintained, and directed an action to be brought. 2 Phill. 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 Ford Chancellor as aforesaid. Ford 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 Ford 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, S. 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, with, out 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 that 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 of 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 statute ^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?

I think the same principle precisely applies to the two cases. 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 readity 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 tenant, *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 conies 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 extremelj’- doubtful, has certainly been so used and occupied by the Eriends as in effect to exclude their co-tenants therefrom. The Eriends 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 is 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 *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 co-tenants 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’rs, 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 ^reasonably incurred, as well those attending their abortive efforts to find water, as the.ir more fortunate ones. ’ ’ The opinion of Tucker, P., was to the same effect, and the other judges concurred therein.

The same construction has also been adopted and well established in South Carolina. In Thompson v. Bostick, 1 McMullan’s Equ. R. 75, before Chancellor Harper in 1830, the defendants, who were tenants in common with the plaintiffs of a tract of land, had taken possession of it and cultivated all the cleared land. They also cleared and cultivated another portion of the land, and made improvements; and the question was, whether and to what extent thy were chargeable? “I am of opinion,” said the chancellor, 1 that defendants ought to be charged with the rent of land estimated as it was when they took possession of it, and are not to be charged with the rent of the newly cleared land, or credited for improvements. There is nothing, I think, in the objection, that the defendants did not receive rent, but cultivated the lands themselves. To cultivate and have the use of lands, is to receive the rents and profits, though the occupier is his own tenant.” This decision, (at least as to the rents and profits of the cleared land, the other part of the decree not having been appealed from,) was afterwards affirmed on appeal. In Holt, &c., v. Robertson, Id. 475, before chancellor Desaussure, in 1831, and afterwards in the court of Appeals, the decision was to the same effect. And so also was it in Hancock, &c., v. Day, Id. 69, decided by the Court of Appeals in 1840.

The case of Sargent v. Parsons, 12 Mass. R. 149, decided in 1815, was cited and much relied on as being to the same effect with the decision of the Exchequer Chamber before referred to. But the action in that case was a common law action of account, and not an action upon the statute 4 Anne c. 16; and most of the remarks of Parker C. J., refer to the common law, and not the ^statute. The property in that case consisted of houses, lands and wharves, and though they were for a period in the sole possession and occupancy of the defendants, it does not appear that their occupation of the property was of such a nature as to exclude their co-tenants therefrom. In a note to that case, it is stated, “that it does not seem to be necessary that the defendant should have received profits otherwise than by his occupancy, in order to give a cause of action to the plaintiff upon the statute. It is sufficient if he have any way received more of the issues or profits than comes to his just share and proportion;” for which is cited Dane’s Ab. ch. 8, art. 3, l 13.

I, therefore, think the Friends are accountable for rents and profits to their co-tenants in common, and the question next to be considered is, in what manner and to what extent are they so accountable? Are they accountable for issues and profits actually made by the application of their labor, skill, and capital, to the property; or are they accountable for the fair yearly value of the property in the condition in which it was at the time it came to their possession?

I think the latter is the just and true measure of accountability, and one that is perfectly consistent with the statute. There is a very material difference between the nature of a liability of a bailiff at common law, and of a tenant in common who is a bailiff under the statute. The former is a fiduciary, bound to manage the estate to the best advantage and make all the profit he can for the owners, and to keep and render to them a full and fair account of his transactions; and he is liable, not only for rents and profits actually received, but also for such as might have been received without his default: while the latter is accountable only for rents and profits actually received, more than his just share and proportion. He is bailiff only by virtue of his receiving 'x'more than his just share, and in an action of account against him, it is an essential averment of the declaration that he has received more than his share. Wheeler v. Horne, Willes, P. 208; Sturton v. Richardson, 13 Mees, and Welsh. 17; 79 Eng. C. L. R. 718. He is not a fiduciary nor a trespasser, but has a right to occupy and use the property. When he rents it out and receives the rent there is no difficulty in ascertaining the amount for which he is accountable. When, instead of renting it out, he occupies and uses the whole to the exclusion of his co-tenants, and thus, in effect, becomes himself the renter, there is more difficulty; but it seems to me that the just and true rule is, to charge him with a reasonable rent for the use and occupation of the property in the condition in which it was when he received it, and to hold him accountable to his co-tenants for their just shares of such rent. This rule does justice to all parties concerned, and gives the same just measure of compensation to the co-tenants whether the property be rented out by one of them, or be occupied and used by him to the exclusion of the rest. It does not make the compensation in the latter case depend upon the accident of his being a- good or a bad manager, a prudent and cautious person, or a wild and reckless speculator.—It is just to the occupying tenant, who having occupied and used the property instead of renting it out, ought to be accountable to the same extent as if he had rented it out and received the rent. It is just to his co-tenants, who are entitled to a share of the rent of the property, but not of the issues and profits of his labor, skill and capital applied to its use. They do not share in the risk and ought not to share in the profit of the operation.

The rule is not inconsistent with any authority that I have seen. In Ruffners v. Eewis’s ex’ors, supra, an account was taken of rents, profits, &c. ,but no question was raised in that case as to the correct mode of adjustment, *and the one adopted may have been more favorable to the occupying tenant, than to have charged him with a rent; especially as he was allowed by the express terms of the decree, not only for permanent improvements, and for his expense and actual services in his successful operations, but also for his expenses, labor and services in the course of his unsuccessful experiments. In Thompson v. Bostick, supra, the rule in question was adopted. “If the whole estate,” said Chancellor Harper, “were let to tenants, and certain rents reserved, as is commonly the case in England, there would be little difficulty. But what rule shall be adopted when one tenant in common has occupied part of the premises himself? I know of no other than to estimate the rent of the whole premises, and then to value the rent of that portion of the premises occupied by the tenant in possession, with reference to the condition they were in at the time he took possession.” 1 McMullen’s Equ. R. 77.

There may be peculiar circumstances in a case making it proper to resort to an account of issues, profits, &c., as a mode of adjustment between the tenants in common ; and that was perhaps the case in Ruffners v. Eewis’s ex’ors; but such cases would merely be exceptions to the rule I have laid down which, I think, is properly applicable to most, if not all cases.

It applies, I think, with peculiar propriety to this case; in which the occupying tenants, the Eriends, had themselves a large interest in the subject as tenants in common, and were lessees (or one of them at least a lessee) of other large interests therein of other tenants in common, and embarked and were for many years engaged in a most hazardous operation upon the property, requiring, for its successful result, the expenditure of a vast amount of labor and of capital, and the exercise of the greatest skill and prudence. During all this period the ^proprietors of the outstanding interests stood aloof, and did not offer to join in the adventure, to contribute to the means of its prosecution, to run the risk of its failure, and take the chance of its successful issue. They cannot now come forward and say, the operation has been successful and they are entitled to a share of the profits. The most they are entitled to is their share of a reasonable rent. The Eriends are accountable for that. Being themselves proprietors of some, and lessees of other interests in the subject, and occupying and using the whole, of it, it is just and right, and what they must have expected and intended, that they should pay .a reasonable rent for the outstanding interests. But upon no principle of justice are they bound to account for issues and profits. Hor could such an account now be settled so as even to approach a correct result. It is no easy matter to keep an account of transactions so extensive, and running through so long a series of years, and be prepared with proper vouchers for a settlement—and the Eriends were under no obligation to do so. Then they aíre accountable only for a reasonable rent and the next question is, How is the amount of such rent to be ascertained?

In regard to the appellants, I think there can be no difficulty. Mrs. Early’s interest of one-fourth of two-thirds of the property, was leased by her guardian to Thomas R. Eriend, at an annual rent of three hundred dollars, for a term of ten years, subject to be determined, after her arrival at age or marriage, at the election of her or her husband. She arrived at age in 1843, and married in 1846, but, as it is averred in the answer of Joseph Eriend and not disproved nor denied, neither she nor her husband haé “ever expressed any wish to change the terms of respondent, holding under the lease aforesaid, and hence he has always hitherto regarded himself as holding and occupying under the original *rent reserved.” The lease commenced December 25, 1836, and of course expired, if not determined before by election as aforesid, December 25, 1846. There was no such election to determine it before, and therefore, by its terms, it continued in force until the last mentioned day. And Joseph Eriend having after that day continued to hold and use the property as before, without any objection on the part of Early and wife or her trustee, he might be considered holding, on the terms of the previous lease; according to the authorities cited by his counsel, to wit: 2 Rob. Prac. 378-9(new ed.) ; Hyatt v. Griffiths, 79 Eng. C. L. R. 505; Humphreys v. Franks, 36 Eng. L. & E. 429. In McKay v. Mumford, 10 Wend. R. 351, it was held that the presumption of law, that a tenant who holds over after the expiration of his lease continues to hold under the landlord and on the terms of the lease, does not apply to a tenant in common who leases the undivided interest of his co-tenant. “The fact of his not leaving possession,” said the court, “does not authorize the inference that he still intends to hold under the lease ; on the contrary the presumption is, that he holds under his own title, which gives him a right to the possession and enjoyment of the whole estate, liable however to account to his co-tenants at law, 1 R. S. 90, or in equity 8 Cow. R. 304. This presumption of possession by virtue of his own title may undoubtedly be rebutted, and then he would hold, as to the moiety of his co-tenant, as any other tenant and subject to the the same rules of law.” If there be any such presumption it is rebutted in this case by the express admission of Joseph Eriend that after the expiration of the lease “he always regarded himself as holding and occupying under the original rent reserved.” I therefore think that the rent for the interest of Mr. Early during the whole period of the use and occupation of the property by the Eriends ought to be at the rate paid by the lease.

*In regard to the proprietors of the other outstanding interests, there may be more difficulty. But I think it ought to be presumed, as to them, that the rent agreed to be paid to Mrs. Early, that is three hundred dollars, was a fair and reasonable rent for her interest of one-fourth of two-thirds; which would make the annual rent of the whole property, while in the use and occupation of the Eriends, eighteen hundred dollars; and that they ought to be charged with rent at that rate, unless it be proved that a reasonable rent would be more; in which case they ought to be charged with such reasonable rent. I think the Friends ought to pay at least the same rate of rent for the other outstanding interests as for that of Mrs. Early. They derived the same benefit, in proportion, from those interests as from hers; and the fact that they made no contract for the use of the former, is certainly no reason for paying less rent for them than for the latter. They must have expected and intended to pay the same rate of rent to all the other parties interested in the property with themselves as they agreed to pay for the interest of Mrs. Early, except the dower interest for which an annual rent of five hundred dollars was agreed to be paid.— Why less rent in proportion was agreed to be paid for the dower interest than for that of Mrs. Early, does not appear. It may have been because the former interest was determinable at any time by the death of the dowress, while the latter was more permanent. At all events I think the agreed rent of the latter is a fairer criterion than that of the former for the ascertainment of the amount of rent to be paid for the other outstanding interests. I think the proprietors of those interests having made no contract with the Eriends or either of them, oug-ht to have the liberty of showing if they can, especially as most of them were infants during the use and occupation of the property by the Eriends, that it was ^reasonably worth more rent in proportion than what was agreed to be paid for the interest of Mrs. Early.

The Eriends being accountable to their co-tenants for a reasonable rent of the property, and not for the issues and profits“of their operations thereon, ought to pay interest on the rent of each year from the end of such year until payment.

Upon the whole I think that so much of the decrees of the Circuit court as is in conflict with the foregoing opinion is erroneous and ought to be reversed, with costs to the appellees, the Friends, as the parties substantially prevailing, and the cause remanded to the Circuit court, to be proceeded into a final decree according to the principles above declared.

The other judges concurred in the opinion of MONCURE, J.

Decree reversed in favor of the appellees.  