At common law, if one cotenant alone took possession of the premises, or collected more than his share of the rents and profits, the other or others had no right of action against him for his share of the rents and profits, unless the one sought to be charged had been made the bailiff of the others.24 By St. 4 Anne, c. 16, Sec. 27 (A. D. 1705), however, one joint tenant or tenant in common was given a remedy by action of account, "against the other as bailiff, for receiving more than comes to his just share or proportion."25 This statute has been regarded as in force in some states in this country,26 and in others a similar statute has been enacted.27

Rep. 873, 85 N. W. 873; Luther v. Arnold, 8 Rich. L. (S. C.) 24, 62 Am. Dec. 422; McGinley v. Cannon, 90 Wash. 311, 155 Pac. 1047; and see Tiffany, Landlord & Ten. Sec. 71c.

23. Freeman, Cotenancy, Sec. 232; Carpantier v. Mendenhall, 28 Cal.

484, 87 Am. Dec. 135; Workman v. Guthrie, 29 Pa. St. 495, 72 Am. Dec. 654.

24. Co. Litt, 200b.

25. 4 Kent, Comm. 369; 2 Cruise, Dig. tit. 18, c. 1, Sec. 64; Id. tit. 20, c. 1, Sec. 9; Freeman, Cotenancy, Sec. 270.

26. Huff v. McDonald, 22 Ga. 161, 68 Am. Dec. 487; Bird v. Bird, 15 Fla. 424, 21 Am. Rep. 296; Flack v. Gosnell, 76 Md. 88, 16 L. R. A. 547, 24 Atl 414, 35 Am. St. Rep. 413; Brown v. Wellington, 106 Mass. 318, 8 Am. Rep. 330; Johnson v. Johnson, 38 N. D. 138, 164 N. W. 327. Report of the Judges, 3 Binn. (Pa.) 599 (Appendix;) Enterprise Oil & Gas Co. v. National Transit Co., 172 Pa. 421, 51 Am. St. Rep. 746, 33 Atl. 687.

The decisions upon the question of the liability of one cotenant to the other for rents or profits received by the former are conveniently collected in an editorial note in 29 L. R. A. N. S. at p. 224.

27. 1 Stimson, Am. St. Law Sec. 1378; 3 Sharswood & B. Lead. Cas. Real Prop. 98; Huff v. McDonald, 22 Ga. 161, 68' Am. Dec. 487; Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh (Ky.) 138, 23 Am. Dec. 387; Fulmer's Appeal, 128 Pa. 24, 15 Am. St. Rep. 662; Holmes v. Best 58 Vt. 547, 5 Atl. 385; Ward v. Ward's Heirs, 40 W. Va. 611, 52 Am. St. Rep. 911.

That the statute does not apply, by analogy, to coparceners, see Ward v. Ward's Heirs, 40 W. Va. 611, 29 L. R. A. 449, 52 Am. St. Rep. 911, 21 S. E. 746.

The statute of Anne, according to the English decisions, gives a right of action only for a share of rents and profits actually received by a cotenant from third persons, and does not give a right of action on account of the occupation of the land and utilization of its products by the cotenant himself; the view being based not only upon the language of the statute, but also on the ground that it would be unjust that the cotenant in possession, who has a right to the use of the land, and who perhaps makes it productive by his labor, should be compelled to divide his profits with another who does not choose to exercise his own right of occupancy.28 In this country, the statute, or similar state statutes, have perhaps more usually received a like construction.29 In some states, however, a different construction has been put on the statute, with the result of enabling a tenant out of possession to recover from his cotenant in possession his proportional share of the profits obtained by the latter's own occupation and use of the land,30 in so far, according to some cases, as these the property, the former may recover from the latter to the extent of the value of the use of which he has been deprived, whether the latter does or does not receive rents or profits from others.36 Such a recovery, in so far as not based on an express statutory provision, is properly to be regarded as a recovery in trespass for mesne profits.37 Occasional statements or suggestions that the occupying tenant is in such case liable as for use and occupation,38 are misleading, if not actually erroneous, since the relation of landlord and tenant is necessary to support an action for use and occupation,39 and the exclusion of one cotenant by another cannot make the latter a tenant of the former. It is only when one cotenant makes a lease of his undivided interest to the other, orally or by an instrument not under seal, that one cotenant can recover from the other in an action for use and occupation.40 Presumably, even when there is an ouster of one cotenant by another, the one ousted can ignore the ouster, and assert a right to an account under the Statute of Anne or its local equivalent, instead of seeking to recover mesne profits by way of damages.

28. Henderson v. Eason, 17 Q. B. 701; Job v. Patton, L. R. 20 Eq. 84.

29. Freeman, Cotenancy, Sec. 275; Newbold v. Smart, 67 Ala. 326; Hamby v. Wall, 48 Ark. 135, 3 Am. St. Rep. 218; Bird v. Bird, 15 Fla. 424, 21 Am. Rep. 296; Crane v. Waggoner, 27 Ind. 52, 89 Am. Dec. 493; Sagen & Nelson v. Gudmanson, 164 Iowa, 440, 145 N. W. 954; Thrustin v. Brown, 83 Kan. 125, 109 Pac. 784; Israel v. Israel, 30 Md. 120, 96 Am. Dec. 571; Peck v. Carpenter, 7 Gray (Mass.) 283, 66 Am. Dec. 477; Owings v. Owings, 150 Mich. 609, 114 N. W. 393; Kean v. Connelly, 25 Minn. 222, 33 Am. Rep. 458; Webster v. Calef, 47 N. H. 289;

Buckelew v. Snedeker, 27 N. J. Eq. 82; Le Barron v. Babcock, 122 N. Y. 153, 19 Am. St. Rep. 488; Enterprise Oil & Gas Co. v. National Transit Co., 172 Pa. St. 421, 51 Am. St. Rep. 746, 33 Atl. 687.

30. Gulf Red Cedar Co. v. Crenshaw, 188 Ala. 606, 65 So. 1010; Huff v. McDonald, 22 Ga. 131, 68 Am. Dec. 487; Smith v. Smith, 141 Ga. 629, 81 S. E. 895; Mc Parland v. McParland, 155 111. 84, 39 N. E. 609; Johnson v. Johnson, 155 Ky. 9, 159 S. W. 606; Medford v. Frazier, 58 Miss. 241; Ayotte v. Nadeau, 32 Mont. 498 18 Pac. 145; Schuster v. Schuster 84 Neb. 98, 29 L. R. A. (N. S.) 224, 120 N. W. 948; McPherson v. McPherson, 33 N. C. 391, 53 Am.

Real Property.

[ Sec. 198 are not the result of the expenditure of labor or capital by the latter.31

Ordinarily the courts have refused to recognize a lien as existing upon the interest of a cotenant on account of the excess of rents and profits received by him,32 but this has occasionally been done.33

The statute of Anne has sometimes been held to authorize an action of assumpsit between cotenants for money had and received, as well as an action of account,34 but a contrary view has been taken in England.35

If one tenant is actually ousted or excluded by his cotenant from possession of the whole or any part of

Dec. 416; West v. Weyer, 46 Ohio St. 66, 15 Am. St. Rep. 552; Lancaster v. Mowers, 208 Pa. 199, 57 Atl. 526; Griffin v. Griffin, 82 S. C. 256, 64 S. E. 160; Hayden v. Merrill, 44 Vt. 336, 8 Am. Rep. 372; Early v. Friend, 16 Gratt. (Va.) 21, 78 Am. Dec. 649; Adkins v. Adkins, 117 Va. 445, 85 S. E. 490; Ward v. Ward's Heirs, 40 W. Va. 611, 29 L. R. A. 449, 52 Am. St. Rep. 911, 21 S. E. 746; see also Edsall v. Merrill, 37 N. J. Eq. 114; Gage v. Gage, 66 N. H. 282, 28 L. R. A. 829, 29 Atl. 543.

Occasionally the state statute expressly provides for liability in such case. See Wooley v. Schra-der, 116 111. 29, 4 N. E. 658; Cutler v. Currier, 54 Me. 81; Knowles v. Harris, 5 R. I. 402.

31. Larmon v. Larmon, 173 Ky. 477, 191 S. W. 110; Hancock v. Day, McMull Eq. (S. Car.) 69, 36 Am. Dec. 293; Annely v. De Saus-sure, 26 S. Car. 497, 4 Am. St. Rep. 725; Early v. Friend, 16 Gratt. (Va.) 21, 78 Am. Dec. 649.

32. Newbold v. Smart, 67 Ala. 326; Clark v. Hershey, 52 Ark.

473, 12 S. W. 1077; Brittinum v. Jones, 56 Ark. 624, 20 S. W. 520; Bird v. Bird, 15 Fla. 424, 21 Am. Rep. 296; Burch v. Burch, 82 Ky. 622; Flack v. Gosnell, 76 Md. 88, 35 Am. St. Rep. 113; Vaughn v. Lanford, 81 S. Car. 282, 62 S. E. 316.

33. Arnett v. Munnerlyn, 71 Ga. 14; Bank of Eton v. Owens, 146 Ga. 464, 91 S. E. 476; Hannan v. Osburn, 4 Paige (N. Y.) 336; Scott v. Guernsey, 60 Barb. 163, 48 N. Y. 106; Wright v. Wright, 59 How. Prac. (N. Y.) 176; Pitman v. Smith, 135 App. Div. 904, 120 N. Y. Supp. 193; Beck v. Kallmyer, 42 Mo. App. 563. As to the question of the priority of such a lien as against a purchaser, see editorial note, 27 Harv. Law Rev. 397.

34. Freeman, Cotenancy, Sec.Sec. 280-284; McCaw v. Barker, 115 Ala. 543, 22 So. 131; Brigham v. Eve-leth, 9 Mass. 538; Shepard v. Richards, 2 Gray (Mass.) 424; Richardson v. Richardson, 72 Me. 403; Johnson v. Johnson, 38 N. D. 138, 164 N. W. 327.

35. Thomas v. Thomas, 5 Exch. 32.

36. Bird v. Bird, 15 Fla. 424, 21 Am. Rep. 296; Bates v. Hamilton, 144 Mo. 1, 66 Am. St. Rep. 407; Osborn v. Osborn, 62 Tex. 495; see People ex rel. Breen v. District Court of Lake County, 27 Colo. 465, 62 Pac. 206.

37. See Carpentier v. Menden-hall, 28 Cal. 484; Silloway v. Brown, 12 Allen (Mass.) 30; Porter v. Hooper, 11 Me. 170; Cook v. Webb, 2 Minn. 428; Wilmarth v. Palmer, 34 Mich. 347; Fenton v. Miller, 116 Mich. 45, 74 N. W. 384, 72 Am. St. Rep. 502; Zapp v. Miller, 109 N. Y. 51, 15 N. E. 889; Norris v. Gould, 15 Weekly Notes Cas. (Pa.) 187.

38. See Badger v. Holmes, 6 Gray (Mass.) 118; Austin v. Ahearne, 61 N. Y. 6; Reynolds v. Wilmeth, 45 Iowa 693; Belknap v. Belknap, 77 Iowa 71, 41 N. W. 568; Holmes v. Williams, 16 Minn. 164; Thompson v. Jones, 77 Tex. 626, 14 S. W. 222; Autry v. Reasor, 102 Texas 123, 108 S. W. 1162, 113 S. W. 748.

39. Post Sec. 414.

40. See Chapin v. Fobs, 75 111. 280; Boley v. Barutio, 24 111. App. 515, Id., 120 111. 192, 11 N. E. 393; Kites v. Church, 142 Mass. 586, 8 N. E. 743 ;; Kline v. Jacobs, 68 Pa. 57; Cahoon v. Kinen, 42 Ohio St. 190. In Wilbur v. Wilbur, L3 Mete.

One cotenant cannot assert against the other a claim to compensation for services performed by him in connection with the common property, in the absence of an agreement, express or inferrible from the circumstances, that he should receive remuneration for his services.40a He is presumed to have performed them primarily for his own benefit, and moreover, one cannot, ordinarily at least, thus impose a pecuniary liability on another without his assent.