This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In Vermillion v. Nickell, (Ky.) 114 S. W. 270, the cotenant making the improvement was allowed to set off a proportioned part of the cost thereof. And so in Brady v. Brady, 82 Conn. 424, 74 Atl. 684, such a set-off, it was held, might be proper under a statute authorizing one cotenant to compel the other to account for his "due proportion."
81. Shepherd v. Jernigan, 51 Ark. 275, 14 Am. St. Rep. 50; Sunter v. Sunter, 190 Mass. 449. 7 7 N. E. 497; Contra, Turner v. Poole, 102 S. C. 465, 86 S. E. 956.
82. That the repairs must be necessary rather than merely desirable, see Israel v. Israel, 30 Md. 128, 96 Am. Dec. 571; Dech's Ap-peal, 57 Pa. St. 472; Farrand v. Gleason, 56 Vt. 633.
S3. Alexander v. Elison, 79 Ky. 148; Larmon v. Larmon, 173 Ky. 477, 191 S. W. 110; Israel v. Israel, 30 Md. 120, 96 Am. Dec. 571; Stevens v. Thompson, 17 N
R. P.-44 it has been decided that there is no such exception to the general principle that one who voluntarily expends money cannot recover any part thereof from another person who did not expressly or impliedly request the expenditure, and that, if one cotenant refuses to join in repairs, the only remedy which the other has is to demand a partition.84 Without regard, however, to the right of a cotenant to recover by an independent suit a share of the cost of repairs made by him, he has been regarded as entitled in a suit against him for an accounting for rents or profits, to an allowance for ordinary repairs made by him,85 and for repairs which conduced to an increase in the profits from the property.86
H. 103; Mumford v. Brown, 6 Cow. (N. Y.) 475, 16 Am. Dec. 440; Beaty v. Bordwell, 91 Pa. St. 441; Kidder v. Rixford, 16 Vt. 172, 42 Am. Dec. 504; Far-rand v. Gleason, 56 Vt. 633; Ward v. Ward, 40 W. Va. 611, 29 L. R. A. 449, 52 Am. St. Rep. 911, 31 S. E. 746.
Occasionally the cases suggest that no actual request to the other cotenant to make repairs is necessary in order to cast a liability on him to make contribution, but that it may be implied from the relation of cotenancy.
Fowler v. Fowler, 50 Conn. 256; Haven v. Mehlgarten, 19 111. 91; Keyser v. Morehead, 23 Idaho 507, 130 Pac. 992; Crawford v. Weidermann, 170 Ky. 613, 186 S. W. 509; Moss v. Moss, 27 Ore. 595, 50 Am. St. Rep. 743; Tyner v. Fenner, 4 Lea (Tenn.) 469; That a request is absolutely necessary see Cooper v. Brown, 143 Iowa, 482, 122 N. W. 144; Du-plesse v. Haskell, 89 Vt. 166, 94
84. Calvert v. Aldrich, 99 Mass. 74, 96 Am. Dec. 693; Leigh v. Dickeson, 15 Q. B. Div. 60. At common law, the writ de repara-tione facienda lay at the instance of one cotenant to compel another to join him in making repairs. Co. Litt. 200b; 4 Kent, Comm. 370. See Calvert v. Aldrich, 99 Mass. 76, 96 Am. Dec. 693; Ward v. Ward, 40 W. Va. 611, 52 Am. St. Rep. 911.
85. Williams v. Coombs, 88 Me. 183, 33 Atl. 1073; Davidson v. Thompson, 22 N. J. Eq. 83; Han-nan v. Osborn, 4 Paige (N. Y.) 336; Tyner v. Fenner, 4 Lea (Tenn.) 469.
86. Pickering v. Pickering, 63 N. H. 468, 3 Atl. 744; Goodenow v. Ewer, 16 Cal. 461; Dech's Appeal, 57 Pa. 467.
In Crawford v. Weidermann, 170 Ky. 613, 86 S. W. 509, it is asserted that a cotenant is entitled to contribution for the cost of insurance as well as of repairs.
A right of contribution exists in case one tenant pays off a lien or incumbrance on the property, such as a claim for taxes, or a mortgage;87 or he may apply rents and profits thereon.88 The right of contribution in such case does not, it seems, ordinarily involve a right to a personal recovery against his cotenants, but he is merely subrogated to the rights of the incumbrancer for the purpose of compelling the payment by his cotenants of their proportion,89 or he may offset bis claim in a suit by the others for an accounting of rents or profits.90 It is only when there is originally some personal liability on the part of one cotenant that he and to a lien therefor.
In Masterman v. Masterman, 129 Md. 167, 98 Atl. 537, where a building on land held by husband and wife as tenants by the entirety was partially destroyed by fire. and there was a dispute between the husband and wife as to the application of the insurance money to repairs, it was held that a receiver should be appointed to make the repairs or sell the property.
87. Cocks v. Simmons, 55 Ark. 104, 29 Am. St. Rep. 28; Calkins v. Steinbach, 66 Cal. 117; Will-men v. Koyer. 168 Cal. 369, 143 Pac. 694, L. R. A. 1915B, 961; Titsworth v. Stout, 49 111. 78, 95 Am. Dec. 577; Eads v. Rether-ford, 114 Ind. 273, 5 Am. St. Rep. 611; McNamara v. McNamara, 167 Iowa, 479, 149 N. W. 642; Clark Bros. v. Watson, 180 Iowa, 721, 163 N. W. 463; Young v. Bigger, 73 Kan. 146, 84 Pac. 747; Watkins v. Eaton, 30 Me. 529, 50 Am. Dec. 637; Hogan v. McMahon, 115 Md. 195, Ann. Cas. 1912C, 1260, 80 Atl. 695; Wettlaufer v. Ames, 133 Mich. 201, 94 N. W. 950, 103 Am.
St. Rep. 449; Ford v. Knapp, 102 N. Y. 135, 55 Am. Rep. 782, 6 N. E. 283; Clark v. Lindsey, 47 Ohio St. 437, 9 L. R. A. 740, 25 N. E. 422; Green v. Walker, 22 R. I. 14, 45 Atl. 742; Grove v. Grove, 101 Va. 226, 43 S. E. 348; Stewart v. Stewart, 90 Wis. 516, 48 Am. St. Rep. 949; Victoria Copper Min. Co. v. Rich, 193 Fed. 314, 113 C. C. A. 238.
In Leach v. Hall, 95 Iowa 611, 64 N. W. 790, it was held that the cotenant purchasing a mortgage could sue to enforce contribution by the others, but could not assert a right to be subrogated to the benefit of the mortgage. This is based on the mistaken assumption that a cotenant cannot acquire an outstanding title or incumbrance against his cotenants. He is merely required to share the benefit upon contribution of their share of the cost.
88. Stokeley v. Flanders (Ky.), 128 S. W. 608.
89. See Sheldon, Subrogation Sec. 172.
90. German v. Heath (Iowa) 116 N. W. 1051.
Can be held personally liable by the other cotenant who has liquidated the debt secured by the lien.91
Statements are occasionally made to the effect that a tenant in exclusive possession cannot assert any right of contribution against his cotenants on account of taxes paid by him, it being for him alone to pay them.92 In so far as he has ousted the other cotenants, this view is presumably based on the theory that such right should be denied to a wrongdoer.93 In so far as he is in exclusive possession merely because the others do not care to take possession, he may perhaps be presumed to have received benefits to the amount of the taxes, a presumption which may or may not accord with the facts.94