
    Louis Schneider and Wife v. Florence L. Taylor et al.
    
    Tenants in Common. Not chargeable with rents. When. A tenant in common of realty, who merely occupies the common property without obstructing the rights of the other tenants, and who sets up no claim for repairs or other claim for disbursements, is not chargeable, upon a bill for partition, with an occupation rent.
    PROM SHELBY.
    Appeal from the Chancery Court at Memphis. W. W. McDowell, Ch.
    H. F. Dix for complainants.
    Thos. H. Jackson for defendants.
   Cooper, J.,

delivered the opinion of the court.

Bill for the partition of land, the only question of controversy being whether the defendant, Florence L. Taylor, shall be charged with rent for a lot occupied by her. The chancellor held that she was liable for rent, and she has appealed.

On July 22, 1879, James Taylor died intestate, leaving as his only heirs the complainant, Kate Schneider, Florence L. Taylor and John B. Taylor. The realty of which the intestate - died seized consisted of two town lots in Memphis, one of thirty and the other of thirty-five feet front. On the latter lot was a dwelling house, into the possession of wbicb tbe defendant, Florence L. Taylor, went after the testator’s death, precisely when does not appear, and has continued to occupy it. In her_answer to the bill, this defendant says she has held possession of the lot, with the dwelling house thereon, “ for a year or two,” having moved into the house in order to protect it, and having made repairs almost equal to the rent. The cause seems to have been heard on bill and answer, and at any rate without any proof on the subject of rent, on April 18, 1885, the bill having been filed November 29, 1884.

The chancellor was of opinion that the defendant was chargeable with rent, subject, however, to a deduction for the value of repairs, and ordered an account accordingly. The defendant’s counsel admits that if his client claimed for repairs, she would prop, erly be chargeable with rent, but insists that she makes no such claim unless she is held liable . for rent. The question is therefore narrowed down to the point whether one tenant in common, who merely occupies the property without receiving rent, and without interfering in any way with the rights of the co-tenants, can be charged with an occupation rent. The weight of authority on this point, as this court has held, is that the mere fact that one tenant in common has occupied the property will not of itself create a liability for an occupation rent, and this for the obvious reason that owning the estate per mi et per tout, he is exercising the right which the law gives him. To charge him with rent it must be shown that the occupying tenant has made a profit over and above the mere use: Tyner v. Fenner, 4 Lea, 469, 473.

The decree of the* chancellor must be reversed, and a decree rendered here refusing any account for rent or repairs, and affirming the decree below in other respects. The complainants and the defendants, other than Florence L. Taylor, will pay the costs of this court, the complainants one-half and the defendants the other half.  