#### Chambers and others v. Chambers.

j. From Iredell. J

If one tenant in common of lands take the whole profits thereof, the other cannot maintain case for his part.

This ivas an action of assumpsit, for use and occt pation, and money had and received; and the case came on to he heard below before Badger, .Judge, upon the following facts, stated by the parties as a case agreed.

The plaintiffs and defendant being tenants in common of a messuage and tract of land, the defendant took possession of it and received the whole profits:—there was no lease:—the defendant was not in possession as a tenant under the plaintiffs of their undivided share, nor wa's *233there aiiy express promise to pay on the part of the defendant. This action is brought to recover the plain- , „ ,, . v. ,, , , . tiffs’ share of the profits, so received by the defendant; and if the Court shall be of opinion, that the plaintiffs are entitled, in this form of action, to recover the same, then a judgment is to be entered for the plaintiff for twenty-nine dollars and ten cents, with interest thereon, &c.; and- if the Court shall be of a contrary opinion, a nonsuit is to be entered. The presiding judge being of opinion that the action could not be supported, directed a non-suit;, and plaintiff appealed to this Court.

Taylor, Chief Justice.

It has been held, that if two were jointly possessed of a horse, and one of them sell him, an action of account will lie against him for his share of the money; and it has been thought, that an action on the case for money had and received might also be brought; because, by the sale and turning the thing into money, the joint interest was gone, and each had a separate interest for a sum certain. (Wittes 209.) But when one tenant in common secured the rents and profits of a real estate, the other could not bring an action of account against him at common law, unless the latter "were appointed bailiff. This is remedied, in England, by the statute of Anne, which, however, has not, I believe, been extended, by construction, to an action on the case. In this state, the law l’emains as it was when Lord Coke wrote; “ albeit one tenant in common take the whole profits, the other has no remedy by law against him, for the taking of the whole profits is no ejectment,” (Co. Lit. 199 b.)

Hall, Judge.

I concur in the opinion with the judge below, that the present action cannot be supported. By the common law, joint tenants and tenants in common had no remedy against each other, where one alone received the whole profits of the estate, for he could' not *234be charged as bailiff or receiver to his companion. (Co. 17'a a. 186 a. 200 b.) By the 4tli and 5tb of Anne, clu 16. the action or account is given in such cases; but that st^u^;eJ for that purpose, is not. in force here. If it was, it would afford no support to the present action. If there"had been an express promise, the case would be different; but the law will not imply one. (Bac. Mr. Assumpsit.” ’A.) In case of an ouster by one tenant in common, after judgment for the other'in ejectment, trespass would lie for the mesne ‘profits, (3 Wils. 118.); but I think there can be no authority found in support of this action. The case is a hard one, but it is. not in our power to alter the law. I, therefore, think judgment must be given for the defendant.

Henderson, Judge, was of the same opinion.