Morton, J.
Two questions of law are raised in this case.
1. The assessor ruled that, upon the facts found by him, the tenant was not liable for rents and profits of the half of the house occupied by Mrs. Lee under the homestead exemption laws. This ruling was correct. Section 15 of c. 134 of the General Statutes provides that the rents and profits for which the tenant is liable shall be “the clear annual value of the premises for the time during which he was in possession thereof,” deducting taxes and assessments paid by him and the necessary expenses of cultivating the land or of collecting the rents and profits of the premises. This does not make the tenant liable for the gross rentable value of the premises, but for their annual value free from charges and deductions. Pelham v. Middleborough, 4 Gray, 57.
*150In determining this value, regard must be had to the nature and extent of the estate of the tenant, and the character of his possession. If the estate in controversy is an absolute one, free from charge and incumbrance, the gross rentable value of the whole estate is a fair test and measure of its clear annual value; but if it is a qualified or limited one, and subject to a charge or claim which impairs its rentable value, the rule is different. Thus, suppose the premises in question had, before the mortgage, been leased for a term of years, and the rent paid in advance ; while the lease continued, the clear annual value of the premises claimed by the demandants and constructively occupied by the tenant would be little or nothing. In the case at bar, the demandants were entitled to, and the tenant was in possession of, an estate subject to the right of homestead exemption in favor of the insolvent debtor and his family, and not an absolute estate. Mrs. Lee being in possession, and occupying the house as a homestead, neither of them had a right of exclusive possession as against her, no steps having been taken to have her homestead set off to her. Until this was done, she remained rightfully in possession, her relation to the assignees, or to the mortgagee who had entered to foreclose, being substantially that of a tenant in common. Silloway v. Brown, 12 Allen, 30. The claim of a homestead asserted by Mrs. Lee diminished the clear annual value of the house to the extent of her claim and occupancy, and therefore the tenant is not liable for the rent of the part occupied by her. This view renders it. unnecessary to consider the effect of the settlement made by the demandants with Mrs. Lee.
2. The ruling of the assessor, that the tenant is not liable for the rents of the Kimball farm beyond the amount received by him, was correct, upon several grounds. The acts of the demandants themselves prevented the tenant from receiving any part of the rents now claimed, and they are estopped to claim them against him. Kimball, the first mortgagee, having entered to foreclose, had a superior right to the rents, and received them, or bad the benefit of them, by virtue of an arrangement with the demandants and Lamprey. And further, it appears *151that the assignees have made a full settlement with Lamprey, and thus have received the benefit of these rents, and cannot now claim them of the tenant.
The result is, that judgment must be entered for the amount found by the assessor to be due, with interest.
Ordered accordingly.