1. As a general rule the remedy of one tenant in common who desires to obtain possession of his portion of the property as against his cotenant is to institute proceedings at law to have the land partitioned. Civil Code, § § 3146, 4786. In Logan v. Goodall, 42 Ga. 96 (5), it was held that one tenant in common might maintain against his cotenant an action of ejectment and obtain a judg*1026ment placing him in possession jointly with the defendant, and that any equities between them could be thereafter settled by a writ of partition or a bill in equity. The ruling made in that case was, however, disapproved as obiter in Sanford v. Sanford, 58 Ga. 259, 261, where it was held that a tenant in common might sue severally in ejectment, but could recover no more than his own interest. See also Wilson v. Chandler, 60 Ga. 130; Dupon v. McLaren, 63 Ga. 470; Baker v. Middlebrooks, 81 Ga. 494. It seems, therefore, that a tenant in common may recover in ejectment from his cotenant his interest in the property. If one tenant in common is in possession of more than his share of the property, or is committing waste, or is receiving more than his share of the rents and profits, he is liable to account to his cotenant. Civil Code, § 3144. Where a tenant in common is receiving more than his share of the rents and profits, equity will take jurisdiction of the matter and adjust the accounts between them. Civil Code, §§ 3147, 3989. See also Daniel v. Daniel, 102 Ga. 184. And where the peculiar circumstances render a proceeding in equity more suitable and just, equity will take jurisdiction and partition the property. Civil Code, §4783; Tate v. Goff, 89 Ga. 184, and cases cited. But an equitable petition having for its object the complete ousting of a tenant in common from the possession of the property and from all participation in the profits thereof is certainly not maintainable by a cotenant. In order for a cotenant to get a standing in a court of equity, he must come willing to do equity, and to do equity he must concede and accord to his cotenant whatever rights he may have in the property.
2. In the present case it appears on the face of the petition that the defendant is the owner in fee of a one-sixteenth undivided interest in the land in 'controversy as one of the heirs at law of his wife, who, so far as appears from the allegations of the petition, died possessed of a one-fourth undivided interest in the property. The defendant is therefore a tenant in common with the plaintiff. The petition was framed on the idea that the defendant had no interest whatever in the property, and prays for a decree to that effect. It can in no view be treated as an action to recover simply the plaintiff’s interest in the land as a tenant in common. Nor can it be treated as a petition for an accounting between tenants in common. It is true the petition alleges that the defendant has never *1027•“ accounted to the plaintiff for the rents.” But the plaintiff is claiming a right to all the rents. He is not willing to do equity and accord to the defendant his portion of the rents or of the land. According to the allegations of the petition, the defendant is already a wrong-doer, and the plaintiff seeks to become one. The defendant lias collected and appropriated to his own use all of the rents and profits, and the plaintiff prays that he may be allowed to do the .same thing. A court of equity has no ears for such a plea, but will leave the parties where it finds them. It was argued that the defendant, Wiley S. Sanders, acquired a life-estate in the property under the above-quoted item of his father’s will. We have not deemed it necessary to decide this question, since we are of the opinion that the ground of the demurrer which raised the point that the defendant was a tenant in common with the plaintiff, and that the plaintiff was for that reason not entitled to the relief prayed for, was well taken. There was no error in dismissing the petition.
Judgment affirmed.
All the Justices concurring.
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