The opinion of the court was delivered by
Pece, J.
The defendant’s counsel insists that upon the facts reported the defendant is not liable to account to the plaintiff for the use of the land, nor for any part of the wood taken from it *340by the defendant. The lot of land in question, at the time the parties purchased it, the report shows, was covered with small second-growth pitch pine; and that according to the understanding between the parties at the time of the purchase, the defendant cleared a portion of the lot, and converted it into a race-course, for training, driving and trotting horses; expecting thereby to increase the business of his hotel, which he was keeping in the vicinity of the lot, and so used it as a source of profit; and the residue of the lot, being about one half, was suffered to remain as it then was, with a view, in the mind of the parties, to profit by the growth of the wood upon it. This condition of things continued, according to this understanding of the parties, during the tenancy in common. It is for the use of the race-course portion of the lot that the auditor has made the defendant chargeable. In support of the defendant’s objection to this claim, his counsel refer to three cases in Massachusetts, Sargent v. Parsons, 12 Mass., 153" court="Mass." date_filed="1815-03-15" href="https://app.midpage.ai/document/duval-v-trask-6404294?utm_source=webapp" opinion_id="6404294">12 Mass., 153 ; Monroe v. Luke, 1 Met., 459 ; and Peck v. Carpenter, 7 Gray, 283 ; and to Henderson v. Eason, 9 E. L. & Eq. R., 337, to show that where one tenant in common occupies the whole, or more than his share of the common estate, he is not liable to account to the other therefor, in an action at law by his co-tenant, in the absence of any agreement between them on the subject. The counsel for the plaintiff have referred us to no authorities on the subject. At common law, the appropriate remedy by a tenant in common against his co-tenant, who had received more than his just share, was an action of account against him as his bailiff; but the action would not lie by one tenant in common against his co-tenant, who had occupied the whole or more than his just share, unless the defendant had been by the’ plaiutiff, in fact, appointed such bailiff; and perhaps the same rule applied to a case where one tenant in common had received more than his just share of rents. But to remedy this defect of the common law, the statute 4 & 5 Anne, ch. 16, was enacted, by the 27th section of which it is provided, “ That from and after,” &c., “ actions of account shall and may be brought and maintained against the executors and administrators of every guardian,bailiff, and receiver; and also by one joint tenant, and tenant in common, his executors *341and administrators, against the other as bailiff, for receiving-more than comes to his just share or proportion ; and against the executor and administrator of such joint tenant or tenant in common ; and the auditors appointed by the court, where such action shall be depending, shall be, and are hereby empowered to administer an oath, and examine the parties touching the matters in question, and for their pains and trouble in auditing and taking such account, have such allowance as the court shall •adjudge to be reasonable, to be paid by the party on whose side the balance of the account shall appear to be.” Our statute is similar, which provides that the action of account may be sustained “ by one joint tenant, tenant in common, or co-parcener, his executor or administrator, against the other, his executor or administrator, as bailiff, for receiving more than his just proportion of any estate or interest.” The declaration has not been shown us, but we take it for granted that it contains the necessary allegations to 'bring the case within the statute ; as the case has been argued without any question being raised upon that point. The authorities- all agree that this statute 4 & 5 Anne constitutes the receiver bailiff of his co-tenant, without special .appointment, and without any agreement on the subject; that the action given by the statute is made to depend upon privity of estate between tenants in common, or joint tenants, and not upon privity of contract. The construction of our statute has been to this effect so‘ far as we have had any decisions on the subject. But in order to entitle the plaintiff to the benefit of the statute, he must allege specifically in his declaration the facts necessary to bring the case within it. ' The joint tenancy, or tenancy in common, of the plaintiff and defendant, and the proportions in which they severally hold, must be alleged; and that the defendant has received more than his just share or proportion. This is necessary, in order that the judgment to account may show on what basis or rule of liability the defendant is to account; because a bailiff at common law is answerable, not only for what he has received as such bailiff, but also for what he might have made of the lands with proper diligence, or as some of the books say, what he might have made without his willful fault; but under the statute he is *342not made liable beyond what he has actually received more than Ms just share or proportion.
But it is claimed that the statute applies only where one tenant in common receives something, as rent, or otherwise, from some third person, for or on account of the premises; that one tenant in common occupying the whole, or more than his share of the premises, and thereby receiving more than his share of the issues and profits thereof, is not liable to account for the surplus to his co-tenant. If the statute in the one case makes the tenant in-common receiving more than his share bailiff of his co-tenant by operation of law, by reason of privity of estate, without privity of contract, it is difficult to see why it does not in the other. Sargent v. Parsons, 12 Mass., 149, cited in support of the defendant’s proposition, was an action of account between tenants in common; but it was decided upon the principles of the common law, independent of any statute. The statute of Anne was never enacted in Massachusetts, and the court held in that case that the action was not brought upon that statute, and therefore, that it was immaterial whether that statute was in force there by user or not. In Munroe v. Luke, 1 Met., 459, which was an action of assump-sit by a tenant in common against his co-tenant, to recover the plaintiff’s just proportion of rents which the defendant had received of a lessee of the premises, under a lease executed by the defendant as sole lessor, without any privity of contract between the plaintiff and the defendant, or between the plaintiff and the lessee, the plaintiff recovered. The question did not arise whether the defendant could have been held liable by having occupied the premises himself. The other case cited by defendant’s counsel, Peck v. Carpenter, 7 Gray, 283, was an “ action of contract,” by one tenant in common against his co-tenant, of a farm, who had had the sole possession during the whole tenancy in common, taking from it all the crops, and receiving all the profits. The case is briefly disposed of by the court, upon the ground that “ no remedy is given by the common law ” “ to recover for such sole use and occupation,” — and adding that, “ it is only when a tenant in common has received in money more than his share of the rents and profits of the common estate, that an action at law *343can be sustained in this commonwealth by his co-tenant to- recover the surplus.” In reference to this case, and Munroe v. Luke, 1 Met., already mentioned, it is to be considered that before either of these decisions the action of account had been expressly abolished by statute, by the Rev. St., ch. 118, §43, with a provision that where the nature of an account is such that it cannot be conveniently settled in an action of assumpsit, it may be done by bill in equity.
It is obvious that these Massachusetts cases can have but little if any bearing upon the construction of the statute of Anne, or of our statute, in reference to the action of account. In Wheeler v. Horne, Willes, 208, the declaration averred that the defendant was bailiff of the plaintiff of one twelfth part, undivided, of the premises described, from April 1, 1720, to October 1, 1734, and received the annual profits thereof for all that time, to render a reasonable account therefor to the plaintiff when, <fcc. The defendant pleaded that he never was bailiff or receiver of the plaintiff in manner and form, &c., on which issue was joined. The plaintiff proved that he and defendant were tenants in common of the premises; plaintiff of one twelfth, and the defendant of eleven twelfths, for the time alleged, and that the defendant had been in possession of, and lived upon the premises, and took to his own use during all that time all the issues and profits of the whole twelve parts, about £8 a year, and refused to account with or pay the plaintiff her share; but did not prove that she had ever appointed the defendant her bailiff of her twelfth part. Yerdict subject to the opinion of the court. The court held that the plaintiff was not entitled to judgment, for the reason that the declaration not alleging that the parties were tenants in common, the bailiff set forth in the declaration must be intended to be a bailiff by appointment, and must be so proved. As the case showed nothing received by the defendant except by his own personal occupancy of the premises, if, as the defendant claims, that is not such a receipt as comes within the statute, or renders a tenant in common liable, it is singular that Willes, Ch. J., in the full exposition he gave of the statute of Anne on this subject, as to what was necessary under it, and at common law, to render a *344tenant in common liable to account, did not allude to this defect in the proof as an objection to the plaintiff’s recovery. Had it not been considered in that case that a receipt by the defendant of more than his just share by his personal occupancy was of a character, so far as that point was concerned, to bring the case within the statute, the objection can hardly be supposed to have escaped observation. In McMahon & wife v. Burchill et. al., 2 Phillips, 127, (22 Eng. Ch. R., 125,) this question is alluded to, and some observations are made by Lord Chancellor OotteNHAM, adverse to the proposition that one of several tenants in common by mere occupancy, without contract, unaccompanied by exclusion, is rendered liable to account for rent to his co-tenants; but the remarks must be taken to have reference to the particular circumstances of that case; as he says, there may, no doubt, be various modes of occupation which would make the party occupying liable for rent to the other tenants in common. But the case finally turned on another point; that is, that the claim for rent set up by the defendant against the orators, whether valid or not, was not a proper matter of inquiry or offset in that suit, which was brought merely for the recovery of legacies. About the same time the question arose in Henderson v. Eason, 15 Simonds, 303, (28 E. Ch. R., 303). This was in 1846. The suit was in chancery for the settlement of the testator’s estate. The defendant, Eason, was the brother and executor of the testator, and had suffered the testator' for several years before and down to the time of the testator’s decease, to continue in the exclusive occupation of a farm, of which they were tenants in common in equal portions, without receiving or demanding any rent or other remuneration from him. The question was whether the defendant was entitled to retain out of the testator’s estate a moiety of what the master had found to be a fair occupation rent for the entire farm for the time in question. Sir Lancelot Shadwell, vice chancellor of England, decided that under the statute 4 & 5 Anne, the defendant would have had a right to bring an action of account against the testator; and that he would be entitled to bring the like action against the personal rep-resentativo of the testator, had he not himself been such representative ; and therefore the master was right in allowing, as he *345did, a fair occupation rent. The chancellor, however, on appeal, “ doubted whether the claim should have been allowed until the petitioner had established his right at law and therefore ordered him to bring an action at law, requiring the orators in the bill in chancery to admit, for the purposes of the action at law, that they were the executors of the testator. Ib. 305. Such action was brought, an action of account under the statute 4 & 5 Anne, ch. 16, § 27, Eason v. Henderson, 12 Ad. and E. 986, (64, E. Com. L. 984,) and argued in the court of Queen’s Bench ;■ and after being held for advisement, it was decided, Lord DenmaN, Oh. J., delivering the opinion of the court, that the defendant, the tenant ■ in common thus occupying, and thereby receiving more than his just share, was bailiff of the plaintiff and bound to account; and that for this purpose it is not necessary that the defendant should receive rent of another for the use of the premises. The Lord Chancellor subsequently directed another action of account to be brought, not being satisfied with the decision of the court of Queen’s Bench, which w,as brought accordingly, and tried before Coleridge, J., when the same facts appeared, with the additional fact that the premises were worth ¿6300 per annum to let. The decision being the same as in the former case, a bill of exceptions was tendered on behalf of the defendant, and the case was heard in the Exchequer Chamber before three barons of the court of Exchequer, and three judges of the Common Pleas, and judgment rendered reversing the judgment of the Queen’s Bench, upon the ground, to use language of Paree, B., that “ this provision of the statute applies only to cases where one tenant in common receives the money, or something else, from another person, to which both co-tenants are entitled, simply by reason of their being tenants in common, and in proportion to their interest as such, and of which the one receives and keeps more than his just share according to that proportion ” — and again, that “ in taking all the produce he cannot be said to receive more than his just share and proportion to which he is entitled as tenant in common, as he receives in truth the remuneration for his own labor and capital, to which a tenant has no right.” No case is to be found in our reports in which such narrow construction has been put upon our *346statute on this subject, but so far as any inference can be drawn from cases that have arisen under it, it is in favor of a more liberal construction. In Wiswell v. Wilkins, 5 Vt., 87" court="Vt." date_filed="1831-01-15" href="https://app.midpage.ai/document/wiswall-v-wilkins-6571481?utm_source=webapp" opinion_id="6571481">5 Vt., 87, which was an action of account between tenants in common, it appeared that while Burton owned the premises, consisting of houses and lands, the plaintiff levied an execution upon one undivided half; and the defendant and those under whom he claimed, at the same time levied upon the other undivided half by virtue of executions against Burton — that the defendant had for many years enjoyed and occupied the whole premises, taking all the profits thereof to himself; that the levies were all defective; but Burton, the execution debtor, never objected to, but acquiesced in the levies, the statute of limitations having run against him in favor of the levying creditors. The plaintiff claimed in the county court that upon the proof of such title and possession, the defendant should be legally regarded as a tenant in common with the plaintiff, but the court decided that the evidence offered would not entitle the plaintiff to a verdict, unless it were also proved that the defendant had enjoyed and occupied the moiety claimed by the plaintiff, by contract or license of the plaintiff, and in subjection to his supposed title; and directed a verdict for the defendant. The supreme court could not have reversed the judgment in this case, if the receipt of more than his just proportion by one tenant in common, by means of his occupancy, would not bring the case within the statute. But the court did reverse the judgment, holding that although the defendant occupied under no agreement with the plaintiff, the plaintiff’s title as well as the defendant’s had been perfected by such occupancy, and that the defendant was liable to be called to account by the plaintiff. It does not appear that the attention of the court was called to this precise question, but if the decision, is not an adjudication of the question, it is at least an instance of a practical, construction of the statute, contrary to that now claimed by the defendant’s counsel. When an English statute, which has received a known and settled construction, is enacted in this State, it is .generally to be presumed that the legislature intended to.adopt it with such settled construction. Whether the difference in the language of our statute from that of the *347English statute is deserving of any consideration, it is unnecessary to say. This question of construction of the statute of Anne having but so recently arisen in England, and upon which there is such a difference of opinion there between the different courts'and judges, we do not feel bound to adopt the narrow construction held to in Henderson v. Eason. It is too recent to be absolutely binding as an authority for construing our statute, so long in force before that decision was made ; especially when we have reason to believe that the broader construction adopted by the court of Queen’s Bench in Eason v. Henderson, as there qualified and elucidated in the opinion of that court, delivered by Lord Denman, Ch. J., is more in harmony with the practice under our statute, and calculated more fully to cure the mischief or supply the defect of the common law, and thereby more completely to accomplish the purpose of the statute.
There are cases, undoubtedly, where one tenant in common, who has occupied the common property to some extent, and the other has not, where the former would not be accountable to the other for such occupancy. As if two own land in common, peculiarly adapted to and used for pasturage, yielding abundant herbage for both, and one turns in his cattle, but not enough to consume his proportion of the grass; and the other neglects to appropriate his proportion of the herbage to any use — voluntarily suffering it to go to waste. Or if two own arable land in common, and one, without any detriment to the land, cultivates his proportion, leaving the residue equally good, for his co-tenant to occupy, who suffers it to lie vacant. Or if the common property consists of two dwellings of equal worth and convenience, and one tenant in common occupies one, and leaves the other for his co-tenant to occupy if he will, who neither occupies nor puts it to any use. In such case it might not bo legal or just that the tenant who occupies should be made to account to the other ; not because the benefit he has received is not of a kind that comes within the statute, but because he has not received “ more than his just proportion of any estate or interest,” and it was the folly of the other that he did not receive as much. There may be cases where one tenant in common may be in the technical or nominal possession of the *348whole premises, not needed for his use, the occupancy being more for the preservation and care of the property, than benefit to such occupant, and not interfering with an equal occupation by the other, when it would be unjust to compel him to pay for such occupancy ; as in case of a wharf .in one of the cases referred to by the defendant’s counsel, where the defendant only occasionally used it for landing his own goods, not interfering with a like, or any proper use to which his co-tenant might have applied it at the same time. On the contrary, suppose the premises consist of land peculiarly adapted to the growth of grass for hay, and one tenant in common has the sole occupancy of the whole, and annually, at a profit, cuts and sells, or consumes the hay, there is no apparent reason why he should not account to his' co-tenant for what he has received more than his just proportion. There is no insurmountable difficulty in such case, as is supposed by Parke B. in Henderson v. Eason, in determining to what extent the benefit received is attributable to the labor and industry of the occupant, and to what extent to- the use of the land. The fact that in some cases it would not be just to hold the tenant occupying without contract to account to his co-tenant, is no reason why he should not be liable in any case. There is no danger of injustice from such liability where the statute makes the tenant liable only “for receiving more than his just proportion,” which is to be determined by the facts in each particular case.
We will not attempt to lay down any particular rule as a general test of liability of one tenant in common occupying the common property. But it is safe to say -that where, as in this case, the occupancy of one tenant in common is beneficial, and at a profit to such occupant, and is entire and exclusive, he is bound to account to his co-tenant for what he has received by such occupancy more than his just proportion. That the occupancy by the defendant was to him beneficial, and at a profit, is found by the auditor. It also appears that this occupancy by the defendant was not only entire and exclusive in fact, but that from the peculiar purpose to which he fitted and applied it, it was necessarily and Intentionally exclusive of any use or occupancy by the plaintiff. It is true that the race-course occupied by the defendant did not *349embrace the entire premises, but in effect the defendant’s occupancy was entire, as it was agreed in the outset by the parties that the residue should remain for the growth of the young wood upon it, and it did so remain to their common profit; so that it cannot be said that the plaintiff might or should have taken her proportion by occupancy of that part of the premises. The defendant’s occupancy was also entire in point of time, extending through the whole period of the tenancy in common; thus depriving the plaintiff of receiving her proportion by occupying her share of the time. The facts rebut the presumption that it was expected that the parties were to equalize their benefits by alternating in the possession.
We think, further, that the fair construction of the report, taking it all together, is, that from the beginning it was the mutual understanding between the parties, that the defendant should account to the plaintiff on some just and equitable basis, for the use of the part of the premises he appropriated to a race-course. If this is so, it obviates the technical objection to the action on which the defendant relies. As the profits, which the auditor finds the defendant received by admission of persons, teams and horses upon the ground, could not be ascertained, and as the main portion of his profits derived from the race-course was by the increase of business it afforded at his hotel, and therefore, not capable of definite computation, the auditor took a just and sensible view in arriving at the amount which the defendant ought to pay for such use, and has come to a conclusion manifestly just, and which is most in harmony with the original expectation of the parties.
The case has been thus far treated as if the whole question as to the liability of the defendant to account was open upon the auditor’s report. Generally in an action of account, the judgment to account is conclusive of the defendant’s liability to account, and the auditor is to examine the items and report the amount either party is in arrear. Therefore, if in this case it is necessary, as the defendant’s counsel claims, that an agreement by the defendant to account should be proved, the judgment to account in this case would seem to be conclusive against the defendant of the *350fact of such agreement: but independent of this point, we hold the plaintiff is entitled to recover. We see no error in the allowance of interest. It is objected that the auditor has erred in allowing the whole item of $17.67 against the defendant for wood taken by him from the premises, when he should have allowed but half of it. If that is the value of the whole wood taken by the defendant, there is such error. As no explanation is given to the contrary, one half of that item must be deducted.
Judgment reversed, and judgment for the plaintiff for the amount found due by the auditor, less one half of the aforesaid item of $17.67.