CHAPTER XIII. LEGAL REMEDIES BETWEEN COTENANTS. For Matters independent of the Cotenancy, § 268. FOR RECEIPTS AND FOR USE AND OCCUPATION. No Remedy at Common Law, ₫ 269. Account given by Statute, § 270. Account only when case is within the Statute, § 271. Account, classification of cases, § 272. Account for Rents and Profits received, § 273. Account for Use and Occupation-English Rule, § 274. Account for Use and Occupation in America, § 275. Account for Use and Occupation in America, § 276. Account must be for balance due as result of final settlement, § 277. Account, Off-sets allowed defendant, § 278. Account, Off-sets for Improvements, § 279. Assumpsit in Massachusetts, § 280. Assumpsit in Maine, § 281. Assumpsit in Michigan, § 282. FOR ACTS OF TRESPASS. Action on the case, § 297. Trespass sustainable in two cases, § 298. Trespass against Lessec of Cotenant, § 304. Trover, § 306. FOR CONVERSION. Trover, when sustainable, § 307. Trover for selling Chattel, 308. Trover for selling Chattel denied in some States, § 309. Trover for selling Chattel under Execution, 310. Trover against Vendee of a Cotenant, § 311. Trover for destruction of Property, § 312. Trover for destruction of Cotenant's Rights, 313. Trover for destruction of Cotenant's Rights by emancipating slave, § 314. Trover for destruction of Cotenant's Rights by allowing chattel to be lost. § 315. Trover for destruction by changing form of Chattel, ý 316. Trover for destruction by removal, § 317. Trover for destruction by refusal to apply chattel to proper use, § 318. Trover by refusing to allow Severance, § 319. FOR REPAIRS. Writ to compel, § 320. 2268. For Matters independent of the Cotenancy.-The fact that two or more persons are cotenants imposes no restraints upon their dealing with one another, nor does it affect their legal or equitable remedies based upon any dealings between them, independent of the subject matter of the cotenancy. They are, like partners, at liberty to transact business with one another as individuals, and each, in his individual capacity, to pursue the ordinary legal or equitable means of redress for any violation by one of his individual engagements with the other.' Therefore, one may distrain for the rent due him from the other who is occupying the premises under a lease, entered into by himself, or acquired by assignment 1 Bond v. Hilton, Busb. 309; Ouston v. Ogle, 13 East, 538. from a lessee. On the other hand, if one tenant is lessee of the other, or otherwise is entitled to exclusive possession of the whole or any part of the premises by virtue of a contract with the other, he has, on being disturbed in his occupation, the same remedies, as though he were not cotenant with his lessor.2 FOR RECEIPTS FROM THE COTENANCY AND FOR USE AND OCCUPATION. 2269. Common Law furnished no adequate Remedy.— The enforcement of the rights and the prevention of the wrongs of cotenants, arising out of the property in which they have a joint or common interest, bear a close resemblance to the enforcement of rights and the prevention of wrongs among copartners. The ascertaining of the relative liabilities to each other of joint owners or owners in common, whether they also happen to be partners or not, is of difficult accomplishment at law, as it usually requires the taking of an account between them. Therefore, the adjustment of the liabilities of cotenants to one another and the enforcement of their relative rights, have, when growing out of the common property, and not based upon the commission of some tort, been generally sought in courts of equity-those tribunals affording more convenient and adequate means of relief than the tribunals of the law. In fact, in all cases where the cotenants continued in possession, the common law seems to have provided no means by which either could recover anything from the other, who had taken more than his share of the rents and profits of the estate, unless such rents and profits were received by one as bailiff of the other. "If one joyntenant or tenant in common of land maketh his companion his baylife of his part, he shall have an action of account against him, as hath been said. But although one tenant in common or joyntenant without being made baylife taketh the whole profits, no action of account lieth against him; for in an action of account he must charge him as guardian, baylife or receiver, as hath been said before, which he cannot do in this case, 1 Luther v. Arnold, 8 Rich. 26; Snelgar v. Henston Cro. Jac. 611; 2 Co. Rep. 212; Cowper v. Fletcher, 6 Best & S. 470; 118 E. C. L. 468. 2 * O'Hear v. DeGoesbriand, 33 Vt. 612; 4 Kent's Comm. 370. unless his companion constitute him bailife. And therefore all those bookes which affirm that an action of account lieth by one tenant in common, or jointenant, against another, must be intended when one maketh the other his bailife, for otherwise never his bailife to render an account, is a good plea."1 270. Remedy by Statute of Anne.-As cotenants were without any means of redress, when one of them had received more than his share of the rents or profits of the estate, the statute 4 and 5 Anne, ch. 16, was passed to remedy this defect in the common law. The 27th section of this statute enacted: "That from and after," etc., "actions of account shall and may be brought and maintained against the executors and administrators of every guardian, bailiff, and receiver; and by one joint-tenant, and tenant in common, his executors and administrators, against the other as bailiff, for receiving more than comes to his just share or proportion; and against the executor and administrator of such joint-tenant or tenant in common; and the auditors appointed by the Court, when such action shall be depending, shall be, and are hereby empowered to administer an oath, and examine the parties touching the matters in question, and for their pains and trouble in auditing and taking such account, have such allowance as the Court shall adjudge to be reasonable, to be paid by the party on whose side the balance of the account shall appear to be." Under this statute, wherever the relation of cotenancy exists, it creates the liability to account. But the action is not generally maintainable until after a demand, nor then, except at reasonable periods.' And where the custom of the country is to reckon the annual rents at annual periods or times, no doubt these times would be adopted as the reasonable times at which the cotenant receiving the rents is required to ac count. 2271. Cotenant must bring his case within the Statute. In order to obtain the benefit of this statute, the plaintiff must clearly show that his case is one for which the 1 Co. Litt. 209 b; 3 Rob. Pr. 171; Henderson v. Eason, 17 Ad. & El. N. S. 718; Wheeler v. Horne, Willes, 208. Barnum v. Landon, 25 Conn. 150. statute was designed to afford a remedy. In the declaration it should be made to appear that the parties are cotenants, and also what their relative interests are. 66 This is necessary, in order that the judgment to account may show on what basis or rule of liability the defendant is to account; because a bailiff at common law is answerable, not only for what he has received as such bailiff, but also for what he might have made of the lands with proper diligence, or as some of the books say, what he might have made without his wilful fault; but under the statute, he is not liable beyond what he has received more than his just share or proportion. It is not sufficient to show that the parties were cotenants, and that the defendant has received rents and profits: the additional fact must appear that the defendant has received more than his proportion." "The declarations since the statute have always set forth that the defendant has received more than his share. A declaration is sufficient which "states the plaintiff and defendant were tenants in common in undivided moieties, and that the defendant had the care and management of the whole, to receive and take the rents, etc., to the use and profit of plaintiff an 1 defendant, and, as bailiff of the plaintiff, of what he had received more than his just share and proportion to render a reasonable account to the plaintiff;" and which, in addition, shows that defendant received more than his share.1 272. The statute of Anne, as we have seen, gives a remedy by an action of account, in favor of one cotenant against another as bailiff, "for receiving more than comes to his just share or proportion." This statute has, in substance, been reenacted in several of the States. A very radical and evenly balanced difference of opinion has arisen in regard to what a cotenant may be compelled to account for, on the ground that in receiving it, he has received "more than comes to his just proportion." The cases in which the action Hayden v. Merrill, 44 Vt. 341. 2 Early v. Friend, 16 Gratt. 52; Hayden v. Merrill, 44 Vt. 336; Stupton v. Richardson, 13 Mees & W. 21; Irvine v. Hamlin, 10 Serg. & R. 221; Sargent v. Parsons, 12 Mass. 149. 3 Wheeler v. Horne, Willes, 210. See Barnum v. Landon, 25 Conn. 148. Eason v. Henderson, 12 Ad. & El. N. S. 996. |