By the Court, James C. Smith, J.
The referee erred in' allowing the defendant’s claim against the plaintiff for the use and occupation of the real estate owned by them in common. At common law, one tenant in common of real estate, who occupies the whole estate, is not liable to an action of account, for the mere sole use and occupation. ( Woolever v. Knapp, 18 Barb. 265, and authorities there cited by Mason, J.) By our statute, an action of account, or for money had and received may be maintained by one joint tenant or tenant in common against his co-tenant, for receiving more than his full proportion. (1 R. S., 750, § 9.) It has been held under similar statutes, in England and in Massachusetts, that if one of two tenants in common solely occupies the land—-farms it at his own cost and takes the produce for his own benefit—*304his co-tenant, cannot maintain an action of account against the former; that the statute applies to cases when rent, or payment in money, or in kind, due in respect of the premises, is received from a third party by one co-tenant who retains for his own use the whole, or more than his proportional share. (Henderson v. Eason, 9 Eng. Law and Eq. Rep. 337. Sargent v. Parsons, 12 Mass. Rep. 149.) The same construction was given to our statute, by this court, at general term, in the sixth judicial district, in the case of Woolever v. Knapp, above cited. It was there held, after a careful consideration of the question, upon principle as well as authority, that one of several tenants in common, who possesses the entire premises, without any agreement with the others as to his possession, or any demand on their part to be allowed to enjoy the premises with him, is not liable to account to them, in an action brought by his co-tenants, for the use and occupation of the premises.
Applying this rule to the case in hand, it is manifest that the claim in question was improperly allowed. The real estate held by the parties in common, consisted of two parcels of land, one containing 115 acres and the other 49. The defendant recovered for the use of the 115 acres, from the 1st day of March, 1855, till the spring of 1857, when the parties divided that parcel, each taking one half. He recovered also for the use of the 49 acres from the 1st of March, 1855, till the commencement of this suit, in March, 1861. The sums allowed for these items, amount, with interest, to $769.31. It appears that on the 1st of March, 1852, the defendant, by a lease in writing, let the use of his moiety of both parcels of land to the plaintiff, for the term of three years, from that date, at the rent of $400. The plaintiff occupied and paid the rent, and after the expiration of the term, continued in possession, during the periods for which he is charged by the referee, without any new express agreement between the parties, or any claim by the defendant to be exclusively entitled to the possession, so far as appears in the *305case. The referee finds that there was no express agreement that the defendant was to receive rent for the use of the premises, hut concludes that there was an implied agreement to that effect. He does not specify the facts from which this conclusion is drawn. If he based it upon the idea that the plaintiff’s continuance in possession, after the expiration of his term, was a holding over as tenant, he clearly erred. In the case of McKay, v. Mumford, (10 Wend. 351,) it was held that a tenant in common of real estate, who takes a lease of the moiety of his co-tenant for'a term, subject to a specified rent, and continues in possession of the premises after the expiration of his term, will not be considered as holding over under the lease, and thus liable to an action of assumpsit for use and occupation; the presumption of law being that he is in possession under his own title, and such presumption will prevail, unless there be evidence that he holds as tenant to his co-tenant. The correctness of this rule cannot be questioned; it results from the undeniable principle that each tenant is entitled to the possession of the estate. The defendant himself testified on the trial, that after the lease expired, in 1855, “ there was no other contract about plaintiff’s occupying the land.” And for aught that appears, the defendant might at all times have occupied the premises, jointly with the plaintiff, if he had chosen to do so.
[Monroe General Term,
June 1, 1863.
Some of the exceptions taken present objections to other items allowed by the referee, which I am inclined to think are well founded, but it is unnecessary to consider them, as the items to which they relate are comparatively unimportant in amount, and it is clear there must be a new trial for, the reasons already stated.
Hew trial ordered.
E. Darwin Smith, Johnson and J, C. Smith Justices.]