
    Theodore Rich et al., Respt’s, v. James V. Rich et al, Appl’ts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 24, 1888.)
    
    Pabtition — Tenants in common not liable bob bental value oe LANDS OCCUPIED BT THEM.
    On the partition of real property tenants in common are not, in the absence of any agreement to that effect, liable for the rental value of such portions of the property in suit as they may themselves have occupied during the period of their occupancy.
    Appeal from an order confirming the report of a referee.
    
      William H. Hamilton, for appl’ts; John Henry Hull, for respt’s.
   Daniels, J.

By the order from which the appeal has been taken, it was determined by the court that the appellants were liable for the rental value of premises sold under a judgment in partition, and which were occupied by them from May, 1877, until the date of the referee’s report in 1887. They rented out portions of the premises, from which they collected, through their agent, the sum of $3,302.27, which was all paid out for interest on a mortgage on the premises and taxes, water rents, and necessary repairs. The rental value of the whole of the premises, including the portions rented by the appellants, and the portions actually occupied by them, amounted to the sum of $8,750. This left a balance over and above the rents collected and applied in the manner already stated, of $5,447.73. Four-tenths of this balance was charged against the shares of the four occupants and appellants, each being charged against his or her share of the proceeds of the sale of the property, the sum of $720.36. The defendants excepted to the charge of these rents against them, and the diminution thereby of their respective shares of the proceeds of the property sold, under the judgment in the partition.

They, together with other parties to the action, were tenants in common of these premises, and as the law has been generally understood and followed were not liable to account for the value of so much of the property as was actually occupied by them. At the common law it was clear that no liability to account for such occupancy existed. But by a statute passed in England, known as the 4th of Anne, chapter 16, it was provided that an action of account might be brought and maintained by one joint tenant, or tenant in common, his executors or administrators against the other, as bailiff, for receiving more than comes to his just share and proportion and against the ex'ecutor and administrator of such joint tenant, or tenants in common. But this statute was held not to create any liability to account unless the party proceeded against had actually received rents and profits from the joint property. A mere occupancy by one or more of the tenants in common, was not considered to be sufficient within the language of this statute to create a liability. Henderson v. Eason, 9 Eng. Law .and Eq., 337.

Its enactment was followed by a similar statute in this state, restricting in still clearer terms the liability of the occupant, to receiving more than his just proportion of the money obtained from the joint property. 2 Rev. Stat. (6th ed.), 1131, § 9. This section of the statute was made the subject of discussion and examination in Woolever v. Knapp (18 Barb., 265), when the construction applied to the Statue of Anne was followed-. And it was held that a tenant in common receiving no money, or property from the premises owned in common, but occupying them himself, was not liable to account under the provisions of this statute. This was again sanctioned in Dresser v. Dresser, 40 Barb., 300; Wilcox v. Wilcox, 48 id., 327; Joslyn v. Joslyn, 9 Huir, 388; Roseboom v. Roseboom, 15 id., 309. And it received the sanction of the court in McCabe v. McCabe, 18 Hun, 153, and in Le Barren v. Babcock, 46 id., 598. The language of section 1666 of the Code of Civil Procedure relating to the right of a joint tenant or tenant in common of real property to maintain an action to recover his just proportion from his co-tenant, is no broader than that contained in the Revised Statutes, and in no manner enlarges the right of the tenant who may be out of possession. Neither does section 1589 of the same Code, which has provided for the adjustment in the interlocutory or final judgment, in partition or otherwise, as the case may require, of the rights of one or more of the parties, as against any other party by reason of the receipt by the latter of more than his or their proper proportion of the rents, or profits of a share, or part of a share, confer any greater right in the party out of possession, or create any greater liability of the party in possession, to account for the rents or profits of the premises, while he may be only in their actual occupancy. The object of this section has been to provide no more than for equality of partition, and the adjustment of the rights of a tenant in common, or joint tenant, of that equality, by charging him with his proper proportion of the rents, or profits, which he may have received from the joint property. The person to be charged has been made liable for rents received by him, and not for the value of his own occupancy.

It has not, either by language or implication, imposed a liability not previously existing upon the tenant, to pay for his occupancy of the joint property, when thát may be and that is made to appear as the foundation of the claim against him.

In the case of Scott v. Guernsey (48 N. Y., 106) the commission of appeals did charge one of the parties to an action in partition with the rental value of so much of the land as had been occupied by himself. His occupany commenced during the continuance of a life estáte with the assent of the life tenant, and it was for the value of such occupany after the decease of the life tenant that he was charged by the judgment affirmed by this decision. Another occupant was, in like manner, charged with the rental value of the part of the premises occupied by him, but he had agreed to account for such rent on the'final settlement of the estate. The case was a complicated one in several respects, and the restricted provision of the Revised Statutes concerning the liability of joint tenants, and tenants in common, to account, was not considered by the court. Neither was either of the authorities which have already been mentioned, and had then been decided, made the subject of the slightest allusion; and the court in its decision may very well, under these circumstances, as the amount was not. large which was charged against Thompson, have overlooked these authorities controlling this part of the case. This decision was made in 1871. And while the same subject has frequently been before the courts since that time, it has not been regarded as a controlling authority, or one-which should be followed in the disposition of controversies of this description. If the statute, or either of the earlier cases defining the liability of a joint tenant, or tenant in common, to account had been considered by the court, and the decision had followed that the occupant of joint property should pay the value of his occupation, then it would clearly be a case which should now be followed. But as no attention was devoted to that statute or those authorities, and whenever the question has risen since this decision, the court has continued to follow the earlier cases, the same course should be adopted in the disposition of the present action. And that will require these four items. charged against the appellants to be rejected, and their right affirmed to participate in the proceeds of the sale of the property under the judgment, without any reduction whatever on account of their respective occupations of the property partitioned.

It does not appear by the papers presented to the court that the defendants have obtained any such benefit under the judgment directing the distribution of the proceeds of sale as precluded them from bringing this appeal; neither does the fact appear that anything whatever has been paid to or for either of these parties under that judgment.

The order from which the appeal has been taken should he modified by sustaining the exceptions of the defendants to the fourth paragraph of the referee’s report, and the .amounts charged against them respectively for their occupation of the premises should be rejected, and in all other respects the order should be affirmed without costs.

Van Brunt, Ch. J., and Brady, J., concur.  