tenants should be present,' nor that those who are not present should have previously authorized a redemption to be made on their behalf. The parties have such a common interest, that no previous express authority is necessary to make a tender by one valid for all. An agency is implied by law, from the relation of cotenancy, by which either cotenant is authorized to act for all in making a tender for the purpose of securing a title and possession in which all have a common interest. If, after a tender made by one cotenant for the purpose of redeeming the lands of the cotenancy, it becomes necessary to proceed against the purchaser to compel an acceptance of the tender, and the other cotenant refuses to participate in such proceedings, the cotenant wishing to redeem may bring his bill to enforce his equity of redemption, making his cotenant a party defendant. In such case, it seems that the cotenant so made a defendant may, notwithstanding his refusal to join in the suit, insist upon the benefit of the redemption. "His refusal to join in the suit, or his position in the suit, is of no consequence." A judgment creditor of one tenant in common may redeem the interest of such cotenant, but he must pay the entire sum which would be necessary to effect a redemption of the whole property, while by such redemption he can acquire nothing beyond the moiety of his judgment debtor. In foreclosing a mortgage, all the mortgagors must be made parties defendant.5 372. Foreclosure by Joint Mortgagees."There can be no foreclosure or redemption, unless the parties entitled to the whole mortgage money are before the Court." Therefore, one of the mortgagees cannot alone bring a bill to foreclose for his moiety of the mortgage. Beekman v. Bunn, Hill & Denio, Supp. 265. Gentry v. Gentry, 1 Sneed, 88. 3 Gentry v. Gentry, 1 Sneed, 90. Neilson v. Neilson, 5 Barb. 565. The rule that all the 5 Stucker v. Stucker, 3 J. J. Marsh. 301. But in Georgia it has been held that a mortgage executed by two tenants in common may be separately foreclosed against each. Baker v. Shepherd, 30 Ga. 706; S. C. 37, Ib. 15. Palmer v. Earl of Carlisle, 1 Sim. & St. 425; Woodward v. Wood, 19 Ala. 213. 7 Same as 4; also Lowe v. Morgan, 1 Bro. C. C. 368; Forsyth v. Drake, 1 Grant's Ch. 223; Johnson v. Brown, 11 Foster, 410; Tyler v. Yreka Water Co. 14 Cal. 218; Cockburn v. Thompson, 16 Ves. 324. The case of Montgomerie v. Bath, 3 Ves. Jr. 560 is contra. joint mortgagees must be parties seems to be applicable, although the mortgage was taken in the name of but one, the debt secured being the joint property of all. Thus, where N, H, and J, were partners in trade, and as such had received several promissory notes from W; and thereafter W, to secure the payment of such notes, executed a mortgage to N alone, it was held that N could not, in his own name, bring a bill to foreclose, and that H and J were necessary parties, because, although the mortgage was made to N, "it was taken for the benefit of all, and the money ought to be decreed to all."1 In each of the cases to which we have referred, the debt secured by the mortgage was joint. It occasionally happens that a joint mortgage is given to secure separate and distinct debts due to the mortgagees separately. In such case, there is no joint interest in the money to be decreed; and having separate debts, the mortgagees seem to occupy the same relation between each other and towards the mortgagor as though they held separate mortgages simultaneously executed. It would seem, therefore, that they could and ought to pursue separate remedies of foreclosure. In one instance, it has been determined that they may join in proceedings to foreclose, and the reasons assigned by the Court for its decision were such as to indicate that, in the opinion of the Court, their joinder was not optional. On the other hand, are at least two decisions determining that the mortgagees may sue separately, and the language employed in these cases is such as to sustain the conclusion that the non-joinder is as compulsory as if separate mortgages had been executed for each separate debt. A mortgage given to secure separate debts may, after its foreclosure, result in a tenancy in common of the land mortgaged. But until a foreclosure is had upon a mortgage, or the title to the land has, by process of law, become vested in the mortgagee or mortgagees, or their assignees, their interest is one of security, and not such as to make them tenants in common of the land. The mortgage is upon the whole premises, for the security of every part of the debt named in the condition, and the judgment must go upon the whole. If there are sev 2 Noyes v. Sawyer, 3 Vt. 160. Shirkey v. Hanna, 3 Blackf. 403. 3 Thayer v. Campbell, 9 Mo. 283; Burnett v. Pratt, 22 Pick. 557. eral demands, each demand is a claim upon the entire property as against the mortgagor. He has mortgaged the whole premises to secure the payment of all the notes and of each note; but after the title of the property has passed from him by due process of law, the assignees become the owners of the land in proportion to their respective debts, and must adjust the matter between themselves accordingly. Note.-The Legislatures of the several States have interfered with the rules of the common law in regard to actions by cotenants against third persons, with much less frequency than with the rules relating to actions by cotenants between one another. The chief statutory innovations on the common law have been: 1st, the allowance of the joinder of tenants in common in actions to recover the possession of the common property; and 2d, authorizing the entry of judgment in favor of those entitled thereto, notwithstanding their misjoinder with persons having no interest in the property sued for. We give below extracts from such of the statutes as we have been able to discover among the compiled laws of the several States; but as the indices to these compilations are manifestly very imperfect on this subject, we have, no doubt, been unable to find many of the statutory provisions concerning actions by cotenants against strangers to the cotenancy. CALIFORNIA.-"All persons holding as tenants in common, joint-tenants, or coparceners, or any number less than all, may jointly or severally commence or defend any civil action or proceeding for the enforcement or protection of the rights of such party."-Sec. 384 Code of Civil Procedure. GEORGIA. "A tenant in common need not join his cotenant, but may sue separately for his interest, and the judgment in such case affects only himself."-Sec. 3259 Code of Georgia, ed. of 1871. ILLINOIS.-In actions of ejectment, if any of the plaintiffs is entitled to judgment, he may recover notwithstanding his joinder with a plaintiff not entitled to judgment.-Gross Statutes of Ill. p. 246, sec. 26. INDIANA. In this State, in actions to recover possession of real estate, “Where there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against any one or more of the defendants, the premises or any part thereof, or any interest therein, or damages according to the right of the parties; but the recovery shall not be for a greater interest than is claimed." (Rev. St. vol. 2, p. 167, sec. 600, vol. 2 Gavin & Hord, p. 283.) Actions for nuisance "may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance."-Sec. 629, Ib. p. 289. See § 614, p. 285, as to action against his cotenant. MAINE." Persons claiming as tenants in common, joint-tenants, or coparceners, may all, or any two or more, join in a suit for recovery of lands; or one may sue alone. "The demandant may recover a specific part or undivided portion of the premises to which he proves a title, though less than he demanded."-Rev. St. Me. p. 762, secs. 9, 10, ed. 1871. "All or any of the tenants in common, coparceners, or joint-tenants of any lands, 1 Johnson v. Brown, 11 Foster, 412. may join or sever in personal actions for injuries done thereto, setting forth in the declaration the names of all the cotenants, if known, and the Court may order notice to be given in such actions to all other cotenants known, and all or any of them, at any time before final judgment, may become plaintiffs in the action, and prosecute the suit for the benefit of all concerned. "The Court shall enter judgment for the whole amount of the injury proved, but award execution only for the proportion thereof sustained by the plaintiffs; and the remaining cotenants may afterwards jointly or severally sue out a scire facias on such judgment, and execution shall be thereupon awarded for their proportion of the damages adjudged in the original suit."-Ib. p. 733, secs. 14, 15. MASSACHUSETTS.-"Any two or more persons claiming the same premises as jointtenants, tenants in common, or coparceners, may join in a suit for the recovery thereof, or any one may sue alone for his share. The demandant may recover any specfiic part of the premises, or any undivided portion thereof to which he proves a sufficient title, though such part or portion is less than that demanded in the writ."-Genl. St. of Mass. p. 692, secs. 9, 10, ed. of 1860. MICHIGAN.—“ When any person shall die, leaving heirs, either in the same or in different degrees, and where several persons shall be, in any other way, entitled to real estate as tenants in common, or as joint-tenants, they may bring a joint action for the recovery thereof, or may bring several actions for their respective shares or interests."-Comp. Laws, sec. 6386, ed. of 1871. MISSISSIPPI.-In this State, cotenants may sue jointly or severally in ejectment; and if they sue jointly, and but one be entitled to judgment, he may recover.-Rev. Code of Miss. secs. 1552 to 1554, ed. of 1871. MISSOURI.-Sec. 3 of chapter 151 of the Revised Statutes of this State, (Wagner's Stats. 558,) relating to ejectment, provides that "two or more tenants in common may join in the action, and jointly prosecute and sustain such action for the recovery of the estate by them owned in common." Sec. 10 of the same chapter provides that "where there are two or more plaintiffs, any one or more may recover any interest they may be entitled to, in the same manner as if they had brought separate actions; and it shall not be any objection to a recovery in such action that any one or several of the plaintiffs do not prove any interest in the premises claimed, but those entitled shall have judgment, according to their rights, for the whole, or such part or portion as he, she, or they might have recovered if they had brought separate suits."-Wagner's Stats. 559, sec. 10. RHODE ISLAND." In actions of ejectment, or other actions concerning any estate holden or claimed in coparcenary, common or joint tenancy, where the possession of such estate claimed is the object of the suit, the same may be commenced by all or any two or more of the coparceners, tenants in common, or joint-tenants, or the same may be brought by each one for his particular share of such estate; and the same rules shall prevail in actions of trespass for mesne profits."-Genl. St. ed. of 1873, p. 519, sec. 1. VIRGINIA." Tenants in common may join or be joined as plaintiffs or defendants."-Code of Va. chap. 164, sec. 2, ed. of 1873, p. 1081. WISCONSIN.-"When any person shall die, leaving heirs, either in the same or in different degrees, and where several persons shall be in any other way entitled to real estate as tenants in common, or as joint-tenants, they may bring a joint action for the recovery thereof, or may bring several actions for their respective shares or interests."-Taylor's St. of Wis. vol. 2, p. 1713, sec. 9. CHAPTER XVI. EFFECT OF STATUTE OF LIMITATIONS ON ACTIONS BY AND BETWEEN COTENANTS. Actions between Cotenants, § 373. Actions against third persons, § 374. Disability of one Cotenant in Joint Action, § 375. Statutes construed to allow all the benefit of one's disability, § 376. 373. Actions between Cotenants.-The statute of limitations operates upon causes of action existing in favor of one cotenant and against another, to the same extent that it operates in actions between persons not within the relation of cotenancy. The only peculiar difficulty in the application of the statute to actions between cotenants is in determining at what period it began to run. This difficulty arises only in actions growing out of the cotenancy; for if the suit be based upon some cause of action disconnected from the cotenancy, the accidental circumstance that the parties are cotenants neither affects the cause of action nor the operation of the statute thereon. Nearly all actions, arising out of the cotenancy, which may be successfully prosecuted by one cotenant against another must be preceded by and grounded upon some act done by the latter, and which the law regards as an ouster of the former. In all such cases, the ouster or act of exclusion at once creates a cause of action, and the statute commences to run simultaneously with the creation of this cause. But a cotenant may be called upon to account for rents and profits received by him; and a difference of opinion exists as to whether the statute commences to run in his favor from the |