#### Shepardson vs. Rowland and others.

Tenants in Common: (1) *How their several interests descend to heirs.*(2, 3) *What each may demise.*(4, 5) *Liability of heirs to the co-tenant of their ancestor.*

1. "Where one died intestate, owning an undivided half of a tract of land, and leaving four children and a widow, each of the four took title to au undivided eighth, subject to the widow’s dower.

2. A tenant in common of land may demise or convey his undivided share.

3. But a demise by him of a specific portion of the land (as the “ west half”) is inoperative as against his co-tenant.

4. Where, upon such a demise as last mentioned, by the widow in this case as guardian of the children, she received rents and applied them to the use of herself and the children, the latter cannot be made jointly liable to the co-tenant for half of the moneys so received.

5. If the heirs are liable at all to such co-tenant, they are only liable separately, each for such part of the co-tenant’s money as was expended for his own benefit.

APPEAL from the Circuit Court for *Milwaukee*County.

The plaintiff and the father of defendants were tenants in common of a lot in the city of Milwaukee, each owning an undivided half. The father dying in 1854 intestate, the mother *109was appointed, tbe general guardian of tbe four defendants, tben minors, and as sucb guardian, on tbe 1st of October, 1861, leased *the west half*of tbe lot to a tenant for three years at $84 per year, and on tbe 26tb of May, 1864, gave another lease to tbe same tenant of *an undivided half*of tbe lot, for three years, at $100 per year — both leases being in writing. Tbe tenant under them occupied tbe west half of tbe lot, owning tbe building thereon. Tbe rents secured by these two leases were all received by tbe general guardian from tbe tenant, and were used by her in part for paying taxes and expenses on tbe undivided half belonging to tbe defendants, and tbe remainder for tbe support of herself and tbe defendants while they were minors.

Tbe plaintiff did not in any way unite in or sanction either of tbe leases. He paid taxes upon bis undivided half, and filled tbe *east half*at bis own expense; but be never otherwise occupied or used it, or rented it to others. There was no building on tbe east half. Tbe plaintiff, when asked upon cross-examination if be bad a building on tbe lot, replied: “ I didn’t have any building on *my part;"*and again, when asked if tbe lot was fenced, replied: “Not *my*lot, I believe;” and in 1866 be abated a nuisance on tbe west half, for which be was paid by tbe guardian. Tbe lot was never partitioned. Tbe plaintiff brought this action against tbe defendants, not joining tbe guardian, to recover one-half of tbe rents received under these two leases. At tbe time tbe action was commenced, two of tbe defendants were still minors. The complaint avers that during tbe continuance of tbe tenancy in common between tbe plaintiff and tbe defendants, tbe premises were rented to different persons as tenants to tbe plaintiff and defendants, and large sums of money were paid by sucb tenants, as rents, to tbe defendants, and retained by them, and that tbe half of sucb rents of right belongs to tbe plaintiff; and judgment is demanded therefor. Two of tbe defendants answer in person, and tbe two minors by guardian *ad litem*— all setting up tbe same defenses. *110Tbe answer contains first a general denial, and tben sets np certain facts as a defense to tbe plaintiff’s claim. Tbe evidence disclosed tbe facts as above set forth; and on motion of defendants, tbe court granted a nonsuit, *mainly*on tbe ground, as tbe bill of exceptions states, “that tbe evidence showed that tbe occupancy of tbe west half of tbe lot by tbe tenants of tbe guardian of tbe defendants was under an implied understanding between her and tbe plaintiff that she might occupy tbe west half, and tbe plaintiff tbe east half of tbe lot.” From tbe judgment of nonsuit tbe plaintiff appealed.

*Carpenter & Mwrphey,*for appellant,

contended that one co-tenant in common can recover of another bis portion of whatever tbe latter may receive from a third person for tbe use and occupation of tbe premises. R. S., chap. 89, sec. 38; 1 Wasbb. R. P., 419, secs. 13, 14; *Miller v. Miller,*7 Piclc, 133; *Jones v. Harraden,*9 Mass., 540; *Brigham v. Bveleth,*9 Mass., 538; *Sargent v. Parsons,*12 Mass., 149; *Shepard v. Richard,*2 Gray, 424; *Buck v. Spoford,*31 Maine, 34; 18 Barb., 265. There is no testimony to support tbe position taken by tbe cbcuit court, that there was an implied understanding respecting tbe occupancy of tbe lot, or any parol agreement for its partition; and no such defense is set up in tbe answer. Tbe leasing of tbe “west half” or an “undivided half” still leaves tbe defendants bable to tbe plaintiff for rent under tbe statute, because these tenants were seized *per my et per tout*4 Kent’s Comm., 398. While one joint owner of land may release or alienate bis interest, be cannot sever tbe possession by a lease, because bis interest is not susceptible of occupation. A lease, therefore, of tbe “west half,” or “an undivided half,” was a demise of tbe co-tenant’s interest; and tbe defendants are liable to him for bis share of tbe rent received.

*Wilson Graham,*for respondents:

As to tbe demise of “an undivided half,” plaintiff might as well claim a part of tbe purchase money of such a share belonging to tbe defendants, as to claim any portion of the *111rents reserved by sucb lease. Plaintiff and defendants are tenants in common, and not joint tenants. A tenant in common is only seized *per my*and not *per*tout, but a joint tenant is seized *per my et per tout.*2 Black. Comm., 182; 1 Cruise Dig., 885, § 26 (T. 18, c. 1, s. 26); 5 Bac. Abr., 240, 241, 274; 4 Kent’s Comm., 868; *Harrison v. Barnby,*5 Term, 246. It is quite probable tbat under sucb a lease, tbe lessee might bave instituted proceedings for tbe partition of tbe lot. *Mussey v. Sanborn,*15 Mass., 155; *Hunt v. Hazelton,*5 N. H., 216. 2. Tbe lease of “tbe west balf” of tbe lot, altbougb valid as against tbe general guardian of tbe defendants and ber busband, was never valid as a lease as against tbe plaintiff. *Bartlett v. Harlow,*12 Mass., 848; *Adams v. The Briggs Iron Co.,*7 Cusb, 861; *Marshall v. Trumbull,*28 Conn., 183; *Whitton v. Whitlon,*88 N. H., 127; *Nichols v. Smith,*22 Pick., 316. Sucb a lease being void as against tbe plaintiff, be cannot be entitled under or by virtue of tbe same to any part of tbe rents reserved thereby; and sucb lease not working an *ouster*as against him, be can only recover, if at all, under sec. 38, chap. 89, E. S. 1858; and be cannot recover under tbat statute, because tbe rents received were in no legal sense rents of tbe lot. Tbe rents referred to in tbe statute are rents reserved by leases verbal or written *which are not invalid*as against any of tbe lessor’s co-tenants. And tbe action, if maintainable at all, can only be maintained against tbe general guardian of tbe defendants; as all tbe rents received by ber were received during tbe time all tbe defendants were infants. *Sherman v. Ballou,*8 Cow., 304; *Dyer v. Wilbur, Guardian,*48 Me., 287.

Cole, J.

It seems to us very clear tbat tbe plaintiff bad no cause of action against any one for tbe rents received on tbe lease dated May 26, 1864. By tbat lease tbe guardian of tbe infant heirs of John Eowland demised “tbe undivided balf” of tbe lot. This undivided balf descended to these hebs on tbe death of their father, subject to tbe dower of their mother; *112that is, each took an undivided one-eighth. And we suppose the guardian could demise this interest for the heirs. A demise or conveyance of an undivided share of an estate by a tenant in common is valid, because each tenant is considered to be solely and severally seized of his share. 4 Kent, 368.

By the lease of October 1, 1861, the guardian undertook to lease a distinct portion of the lot, namely, the *“*west half ” thereof. This lease was manifestly inoperative as against the plaintiff, for the reason that, there never having been a partition of the lot, one tenant in common could not demise a distinct portion by metes and bounds, as was attempted to be done by that lease.

The circuit court found that the occupancy of the west half of the lot by the tenants of the guardian was under an implied understanding between her and the plaintiff, that she might occupy the west half, and he 'the east half, of the lot. We are unable to say, upon the evidence, that there was any such “ implied understanding *”*between the parties as the circuit court found. But still we cannot see upon what ground this joint action can be maintained, conceding that the plaintiff has a cause of action against some one for his just proportion of the rent received upon this lease. This is an action under the statute (section 38, chap. 89), for money had and received. It is brought against the four children of John Rowland. They did not receive this rent themselves, but it was received by their mother, who was their general guardian, and who testified that she used this money for the support of herself and children. The defendants, in fact, were all minors when this money was paid on the lease; and two of them were infants when this suit was instituted. Now the difficulty which presents itself to our minds against maintaining this action, is this : that there is no joint liability shown on the part of the defendants. It cannot be successfully claimed that a joint liability arises from community of title. These defendants are each separately seized of one-eighth part of the lot, it is true. But the money paid upon *113tbe lease of 1861 was received by tbeir mother — then tbeir guardian,— and was applied to tbe support of herself and her children. Upon what principle of law can a joint action be maintained against these children? Is it because they have had the benefit of this money, — that it has been expended for their use ? But does a joint liability arise from that fact? Suppose the money was applied in unequal portions to the support of the different children: shall a child who received little or nothing be liable to pay the entire amount due the plaintiff ? It seems to us that in the most favorable view for the plaintiff, he must proceed separately against the heirs, and can only recover from each such portion of his money as they have respectively had the benefit of, and which has been expended for their use. Besides, it is by no means clear that the children are liable in any event for money which their guardian improperly received upon the lease, even if it was applied to their use. *Wilkinson v. Filby,*24 Wis., 441. But upon the whole record we think the judgment of the court below was right, though for a somewhat different reason from that assigned by the circuit judge.

*By the*Court.— Judgment affirmed.