#### *Nancy Hancock et al. vs. Martin H. Day.*

1. The general rule established between co-tenants, in regard to the rent of the land,, held in *common,*is, that the tenant occupying the land, is only chargeable for the rent of so much of the premises as was capable of producing rent at the time he took possession. He is not liable to pay rent for what was rendered capable by his labor.

2. If the tenant in the occupancy of the land commits waste, (and the pleadings make a case of waste,) he is liable to) his co-tenant for that. He is not entitled to pay, or to-raise a charge for any improvements that he may put upon the premises,

*Before*Johnston, Chancellor.

Edgefield,

*June*Term, 1840.

The original hill in this case was filed 20th February, 1838, by Nancy, Simon, and William J. Hancock, infants, suing by B. R. Tillman, their guardian. It states that, on 12th February, 1828, Simon Hancock, sen., deceased, conveyed by deed, to his wife Elizabeth, and to the plaintiffs, his children, in equal, undivided shares, a certain tract of land, described in said deed, containing 400 acres; that said Elizabeth, after the death of the grantor, intermarried with one David Gurganus, with whom she afterwards united in conveying her undivided fourth part of said land to the defendant, Martin H. Day; and that defendant had thereupon taken possession of the entire tract, and had thenceforth had the use and occupation thereof. That the plaintiffs were desirous that the land should be divided or sold, and that the said Martin H. Day should account to them for the rents and profits thereof, whilst in his possession. The bill prayed for a writ of partition, in order to a sale or division of the land, and for an account of the rents and profits.

To this bill, the said Martin H. Day put in his answer,, in which he admitted that he was tenant in common with plaintiffs, in the said tract of land, in the manner set forth in the bill; and said he had no objection to the partition or sale prayed fpr. He further admitted, that he was in possession of the land, and he stated that the said Elizabeth, widow of the grantor, Simon Hancock, sen., and wife of David Gurganus, never had, before her conveyance to this defendant, nor had said defendant at any time since, more than 100 acres, which was her share, in actual cul*70tivation; and insisted, therefore — and for other considerations, not now urged — that he was not liable to account to plaintiffs for the rents and profits of the land.

On the 18th of April, 1838, the Commissioner in Equity for Edgefield, issued a writ of partition in the cause, and this writ was afterwards returned executed, recommending a sale of the land upon a credit; and Chancellor Harper, on 6th June, 1838, granted an order confirming the return, and directing a sale, and providing that the proceeds of said sale should be subject to the order of the Court. The land was sold accordingly, in October, 1838. On the 24th May, 1839, the commissioner heard evidence concerning the rents and profits, and made a report, in which, after stating that defendant did not oust the plaintiffs, and left it at the time of sale in better condition than he *found*it, and never, at any time, had more than 65 or 70 acres in cultivation, the commissioner expressed his conclusions that defendant was not liable for rent, nor entitled to compensation for his improvements to the premises. To this report the plaintiffs filed exceptions, alleging on various grounds the defendant’s liability to account for rents and profits.

At June Term, 1839, the cause was heard on the report and exceptions, and on 5th August, 1839, a decree was delivered, in which, after stating the case, and deciding upon certain points not now in controversy, the Chancellor proceeds :

The only question remaining is, whether Martin H. Day is responsible to the plaintiffs, on the score of rents.

This question arises on a report made by the commissioner on the subject, and exceptions taken to it by the plaintiffs.

It appears by the report, that Gurganus had cleared about 20 acres on the tract of land, before he sold it to Day, the 1st September, 1834, and that when the latter took possession, at the end of that year, the open land amounted, including Gurganus’s clearing, to about 44 acres. During his possession, he cleared at different times, about 27 acres. The proof upon the case was, that the clearing of this land was worth from five to seven dollars per acre, and that Mr. Day had put the fences in better repair. The rent of the land, including the new clearing, was proved *71to be worth one hundred and fifty dollars in 1838, and two hundred dollars in each succeeding year, up to the sale made by the commissioner, under Chancellor Harper’s order, which took place at the close of 1838. The commissioner refused to charge Martin H. Day for rent, under the impression that as he had not more than Mr. Gurganus’s. share in cultivation, he was not chargeable to his co-tenants.

. He also refused to allow him for the increased value,, which the clearing and fencing had imparted to the land,, when it came to be sold.

I am of opinion that Mr. Day is chargeable for three-fourths of the rent, from the time he came to the possession, until the land was sold.

If his clearing impaired the value of the land when-brought to sale, he is to be charged for waste in proportion to the interests of his co-tenants; but if by it, or any other labor, he enhanced the value of the land or premises, at the sale, he is entitled to compensation, by way of set-oif. *Let the*report be re-committed to receive evidence, and to reform it according to this opinion. When the report comes in, an order may be proposed for a distribution of the proceeds of sale, so far as Martin H. Day’s share is-concerned.

On the 18th May, 1840, the commissioner again heard evidence, and made a report, in which, after stating the evidence, he says: In the consideration of this case at the last Term, the Court expressed an opinion that the defendant, M. H. Day, should account for three-fourths of the' rent, and should be paid for his improvements. From the evidence of Mr. Walker, it would seem that the improvements made by Martin H. Day, were worth as much as the rent for the whole time. And from the whole evidence given in the case, I am very much inclined to this opinion, notwithstanding the testimony of Mr. Curry, who purchased the land at the sale by the Commissioner in Equity, in October, 1838. The witness admits that the clearing of the land was worth as follows, vizi: twelve acres which were cleared well, he says were worth $7 50 per acre for clearing, and the remainder of the twenty-seven acres were worth $5 per acre. He also admits that the value of the *72rents was enhanced by these improvements, though he does not think the improvements enhanced the value of the land to any thing like the amount of the rents for the whole time. This opinion seems to have been formed with reference to himself, as the purchaser at the commissioner’s sale. He had no use for the houses, and therefore to him they may not have enhanced the value of the land, and yet he admits that the building of the houses, the clearing of the lands, and putting the whole plantation under good fence, did increase the rents. This is a question between defendant, Day, and his co-tenants; and unless his improvements operated as waste, by diminishing the value of the land at the sale by the commissioner, his co-tenants have no right to complain, provided they receive the full benefit of the rents after allowing him proper compensation for his improvements.

Although, as before stated, I am induced to the belief, from the whole evidence, that the improved condition of the whole plantation, at the time Mr. Curry purchased it, would have enhanced its value to a purchaser who intended to live on it, to the full amount of the rent for the whole time, yet I cannot disregard the evidence of Mr. Mays and Mr. Curry, so far as relates to the specific value of some of the improvements.

(The commissioner then proceeds to discuss the value of particular improvements made by defendant, and to state the accounts between the parties, charging defendant with three-fourths of the rents, and interest thereon, and giving him credit for improvements, and concludes:)

I therefore beg leave to report, that the complainants are entitled to recover from the defendant, Martin H. Day, the sum of four hundred and fifty-three dollars and thirty-six cents, ($453,36,) with interest on $380,62 from the first day of June, 1840. J. TERRY, C. E. E. D.

To this report the defendant took the following exceptions :

1st. That defendant, being tenant in common with plaintiffs, and not having outsted the plaintiffs of any portion of the premises, nor possessed himself of more than the fourth of the premises to which he was entitled, is not chargeable with any rent.

*732d. That the improvements placed on the premises by defendant, were equal in value to the amount of the rent.

3d. That the commissioner has not made adequate allowances to defendant for his improvements.

At June Term, 1840, the cause was heard on the commissioner’s report, and these exceptions, and Chancellor Dunkin delivered the following decree.

The former decree has determined the question involved in the first exception. On the subject matter of the second and third exceptions, after reviewing the testimony) it does not appear to the Court, that the defendant has reason to be dissatisfied with the report of the commissioner. The exceptions are over-ruled, and the report confirmed.

Chancellor Dunkin, also, at the instance of the defendant, passed an order, that the commissioner of this Court pay over to the defendant the fourth of the proceeds of the sale of lands, sold in this case for partition, to which he is entitled by purchase from David Gurganus and wife, after deducting from the whole proceeds the cost of partition.

The defendant moved the Court of Appeals to reverse so much of the decrees in this cause, as subjects him to liability to account for rents and profits, and confirms the commissioner’s report on that subject, on the ground takes, in the first exception to that report, namely:

That defendant being tenant in common with the plaintiffs, and not having ousted the plaintiffs of any portion of the premises, nor possessed himself of more than the fourth of the premises to which he was entitled, is not chargeable with any rent.

Curia, *per*Johnston, Chancellor.

It appears that the questions respecting rent, involved in this appeal, were decided several years ago, in two cases, yet in manuscript, which, it is to be regretted, have not been reported. I refer to the cases of *Thompson*vs. Bostick, (M. S. E. 345,) and *Carr*vs. Robertson, (M. S. F. 74;) of which I never heard until they were suggested on the argument of this appeal. The general rule established by them is, that as between co-tenants, the occupying tenant is liable for the *74rent of so much of the premises as was capable of producing rent at the time he took possession, but not liable for what was rendered capable by his labor. If he commits waste, (and the pleadings make a case of waste,) he is liable for that. If he makes improvements, he is not entitled to raise a charge for them. It is unnecessary to do more than state what the cases decide. For the reasons of the decision, I refer to the opinions delivered in the cases themselves. A motion was made that the defendant’s share of the lands sold in this case be retained, in order to satisfy out of it what shall be established against him on the score of rent. It was not shewn that he was insolvent, or in doubtful circumstances; nor was any special reason assigned why the order should be granted; and certainly he should not have been subjected to the loss which would have accrued from granting the motion, unless for some reason rendering it necessary. The Court is of opinion that it was properly refused, and dismiss the plaintiffs’s appeal on that point.

*Wardlaw &*Wardla/w, for the motion.

*Mr.*--, *contra.*

Let the circuit decree be modified, and let the report be re-committed, to be reformed according to this opinion.

J. JOHNSTON.

We concur.

David Johnson, Wm. Harper, Benj. F. Dunkin.

Note. — As this case was decided upon the authority of the case of Thompson vs. Bostick et ah, decided in Columbia, May Term, 1831, and never before reported, tha Reporter has subjoined that ease to this.