If a tenant in common or joint tenant of a building makes repairs or alterations without the knowledge or against the wishes of his cotenant, the latter is obviously under no contractual obligation to contribute to the expense. Moreover, since one is not ordinarily required by law to preserve his property, it cannot be contended that the tenant who makes the repairs is in the position of one who confers a benefit upon another under compulsion. If a quasi contractual obligation to contribute is to be recognized at all, it must be upon the theory that the interest of the tenant who makes the repairs calls for such an intervention in his cotenant's affairs as may be necessary to save the property from destruction or decay.
1 Cf. Mathie v. Hancock, 1906, 78 Vt. 414; 63 Atl. 143, in which one who, after the death of his employer, furnished feed for and exercised his horses until they were taken possession of by the administrator, was not allowed to recover.
At the early common law, a tenant in common or joint tenant of a house or mill, who regarded certain repairs as necessary for the preservation of the property, could bring his dissenting cotenant into court by the writ de reparations facienda and have the reasonableness of the proposed repairs determined, and the obligation of the cotenant fixed. Coke, in his commentary on Littleton,1 stated the doctrine as follows:
"If two tenants in common, or joint tenants, be of an house or mill, and it fall in decay, and the one is willing to repaire the same, and the other will not, he that is willing shall have a writ de reparatione facienda, and the writ saith ad reparationem et sustentationem ejusdem domus teneantur, whereby it appeareth that owners are in that case bound pro bono publico to maintain houses and mills which are for habitation and use of men."2
This seems to have been the only method by which a co-tenant could be compelled to pay his share of the expense. To make the repairs first and then sue the cotenant for contribution was not permitted.
The writ de reparatione appears to have been rarely used - probably because in case of controversy between cotenants partition is the most natural and satisfactory remedy - and is now obsolete.3 It has been suggested in several cases that if a cotenant is requested to join in making repairs and refuses so to do, that "an action for the money expended " might be used in its place,1 but it has been held, on the contrary, that an action at law for that purpose will not lie.2 In a suit for partition, however, a court of equity will, in a proper case, give its relief upon condition of an allowance for necessary repairs and improvements,3 and in a Kentucky case4 it was held that, without partition, one half the cost of repairs made by one tenant to which the other refused to contribute might be made a lien upon the income from the portion of the delinquent. The remedy by writ de reparatione did not extend to the case of repairs by the owner in severalty of part of a building.
1 Coke Lit. 200 b.
2 And see Bowles's Case, 1616, 11 Coke 79 b, 82 b; Cooper v. Brown, 1909, 143 la. 482; 122 N. W. 144; 136 Am. St. Rep. 768; Kent, "Commentaries," Vol. 4, p. 370. In Leigh v. Dickeson, 1883,12 Q. B. D. 194, 197, Baron Pollock said: "It is curious to observe that the remedy between the joint tenants is spoken of as if it was one which existed rather for the benefit of the community than of the joint tenants." A statute in Wisconsin makes joint owners of milldams, etc., liable for the expense of necessary repairs. Clark v. Plummer, 1872, 31 Wis. 442.
3 In Ward v. Ward's Heirs, 1895, 40 W. Va. 611; 21 S. E. 746; 29 L. R. A. 449; 52 Am. St. Rep. 911, Brammar, J., said: "I have no doubt this old common law writ, though disused, might yet be resorted to."
1 Leigh v. Dickeson, 1883, 12 Q. B. D. 194; Cooper v. Brown, 1909, 143 la. 482; 122 N. W. 144; Doane v. Badger, 1815, 12 Mass. 65; Stevens v. Thompson, 1845, 17 N. H. 103; Mumford v. Brown, 1826, 6 Cow. (N. Y.) 475; 16 Am. Dec. 440; Dech's Appeal, 1868, 57 Pa. St. 467, 472. And see Haven v. Mehlgarten, 1857, 19 111. 91; Beaty v. Bordwell, 1879, 91 Pa. St. 438. In Leigh v. Dickeson, supra, which was an action for use and occupation by one tenant in common against another, with a counterclaim for money expended in repairs, Baron Pollock said (p. 196): "No case or authority was cited by counsel to shew that going back for a long period of years effect has ever been given by the Courts to a claim by action by one tenant in common against another for money which had been expended upon the repair of their common property, nor have I been able to find any such case or authority, although the claim deals with a matter of common occurrence, and the question must often have arisen if the defendant's contention be correct. It becomes necessary, therefore, to refer to the older law, and to see upon what principle any claim of a like nature has been rested, and how far, if at all, it would govern a case like the present." After discussing the writ de raparatione facienda, he concluded that the principle underlying it had no application to the case at bar, because the repairs for which contribution was claimed were not such as were necessary to prevent the house from going to ruin.
2 Calvert v. Aldrich, 1868, 99 Mass. 74; 96 Am. Dec. 693. And see Merchants' Bank v. Foster, 1900, 124 Ala. 696; 27 So. 513, (party wall).
3 Swan v. Swan, 1819, 8 Price 518; Drennen v. Walker, 1860, 21 Ark. 539; McDearman v. McClure, 1876, 31 Ark. 559 ; Hall v. Piddock, 1871, 21 N. J. Eq. 311; Ford v. Knapp, 1886, 102 N. Y. 135; 6 N. E. 283; 55 Am. Rep. 782; Cosgriff v. Foss, 1897, 152 N. Y. 104; 46 N. E. 307; 36 L. R. A. 753; 57 Am. St. Rep. 500; Ward v. Ward's Heirs, 1895, 40 W. Va. 611; 21 S. E. 746; 29 L. R. A. 449; 52 Am. St. Rep. 911.
4 Hotopp v. Morrison Lodge, 1901, 110 Ky. 987; 23 Ky. Law Rep. 418; 63 S. W. 44.
And it has consequently been held that where the owner of the upper part of a house makes necessary repairs to the roof, he cannot, by an action of assumpsit, enforce contribution from the owner of another part.1 It has been intimated, however, that equity might afford relief,2 and the case of Campbell v. Mesier,3 in which Chancellor Kent held that one who rebuilt a decayed party wall was entitled to contribution from the owner of the adjoining house, is closely analogous.