
    HENRY C. HOLMES v. W. E. BEST. W. E. BEST v. HENRY C. HOLMES.
    
      Tenants in Common. Accounting. R. L. s. 1202.
    One tenant in' common is bound to account to his co-tenant, under the statute — R. L. s. 1202 — without any agreement to that effect, for one half of the rent received from a lessee to whom the whole property was leased, and whose occupancy was exclusive, although the lessee did not use it to exceed one half of its capacity.
    General Assumpsit. The suits were heard together by a referee. Report heard, March Term, 1886, Powers, J., presiding. Judgment in the suit of Holmes v. Best, that the plaintiff recover the sum of $33.34; and judgment in the suit of Best v. Holmes, that the plaintiff recover the sum of $64.67, — $30 of which was one half the amount received by Holmes of Newcomb.
    
      The parties were owners as tenants in common of a small parcel of land with a building thereon used as a slaughterhouse. Holmes excepted to the judgment below. It was ordered that the last judgment be offset, and execution issue for the balance.
    
      Pitkin & Huse, for Holmes,
    cited R. L. s. 1202; ] Wash. Real Prop. (4th ed.) 661; Hayden v. Merrill, 44 Yt. 336; Badger v. Holmes, 6 Gray, 118.
    
      Gordon & Gary, for Best,
    cited R. L. s. 1202; 1 Wash. Real Prop. 662; Wiswall v. Wilkins, 5 Yt. 87.
   The opinion of the court was delivered by

Taft, J.

The construction we put upon the report of the referee is, that Holmes leased the whole of the property to Newcomb, and although the latter did not use it to exceed one half its capacity, that fact does not affect the question as to what the lease was in respect to the property leased. It would, of course, under the terms of the lease in question, affect the amount received by Holmes as rent. But Holmes leased the slaughter-house, not the half of it, and received the sixty dollars as rent. The occupancy of Newcomb having been, as we think from the reading of the report, entire and exclusive, Holmes is bound to account to his co-tenant for what he has received by such occupancy more than his just proportion, and this without any agreement to that effect. R. L. s. 1202; Hayden v. Merrill, 44 Vt. 336; Wiswall v. Wilkins, 5 Vt. 87.

Judgment affirmed.  