DAVIS v. CHAPMAN. 45
by his improvements, as well as the present value of the improvements at the
time of the trial. That doctrine of equity has been codified by the fourth sub-
division of section 1076, Rev. St. 1881. This necessarily implies that one not
within the statute shall be allowed no reductions whatever. Carver v. Coy'-
rnan, (Ind.) 10 N. E. Rep. 567; Mining Co. v. Sydnor, 39 Wis. 600; ,Van-
noy v. Blessing, 36 Ind. 349; Woodhull, v. Rosenthal, 61 N. Y. 382; Patter-
son v. Brown, 32 N. Y. 81; H ilgenberg v. Rhodes, 12 N E. Rep. 149; Osborn
v. Storms, 65 Ind. 325; Ethel v. Bate/aelder, 90 Ind. 525; Wa//ter v. Quigg.
6 Watts, 87; Shand v. Hanley, 71 N. Y 319; Haslett v. Crain, 85 Ill. 129;
Davidson v. Thompson, 22 N. J. Eq. 83; Wiilfinson v. Pearson, 23 Pa. St.
117; Austin v. Barrett, 44 lowa, 488, and cases cited`.
Harrison, Miller de Elam, for defendant.
We insist that the only penalty the law inilicts upon the defendant for the
denial of complainants title is the costs of the litigation; that this question of
an accounting can only arise between tenants in common, where one has ex-
cluded the other and taken sole possession; and that the fact that he denied
his co-tena.ut’s title, as well as his right to possession, does not in any degree
influence the equitable principles upon which the accounting is to be made.
We state these propositions, with some cases in support of them: First. For
_ the time since thedefendant invited the complainant to share the possession
and occupancy with him, or to unite w-ith him in leasing the property, she can
recover no rents; the defendant having received none. Second. For the time
when the property was occupied by defendant hrmself, under a claim of an ex-
clusive right, the complainant might recover the one-half of the reasonable
rental value of the property, if she had offered any evidence of the rental value;
but she did not. The evidence is that it could not be rented, and was kept
going by defendant at a loss. Third. At common law one tenant in common ’
cannot recover of another for mere occupation at all; and by statute, when
there has not been an actual exclusion, there can be a recovery only for actual
receipts of money, etc. Our statute, section 228, simply takes place of statute
of 16 Anne, c. 4. The language is the same. The word "received" is the
same in both, and is adopted with a well—settled construction in England and
America. Fourth. In the absence of evidence of rental value, the accounting
must proceed by charging the defendant only with the money actually received
by him for rents. Fifth. Against this he is entitled to be credited with the
cost of such repairs and improvements as were necessary to the beneficial use
of the property, and with any taxes paid by him. The complainant cannot
receive the increased rental produced by the improvements, and refuse to share
their cost. Pickering v. Pickering, (N H.) 3 Atl. Rep. 744, and cases cited;
1 Washb. Real Prop. 661, 662; Pico v. Oolumbet, 12 Cal. 414; Ford v. Knapp,
(N. Y.),6 N. E. Rep. 283; Alexander v. Ellison, 79 Ky. 148; Tyner v.~Fen-
ner, 4 Lea, 469; Osborn v. Osborn, 62 Tex. 495.
· Woons, J., (after stating the facts as above.) In respect to the title of
the parties it is enough to restate briefly here, what is shown more at
large in thereport of the case at law; that in 1873 Chapman and Charles
Ford were equal co-tenants of the property, and continued so until No-
vember 15, 1876, (erroneously stated "1875" at page 75 of the report,) °
when by force of certain judicial sales, the titleof Ford was transferred
to Chapman, terminating the previous co-tenancy and making Chapman
the sole owner of the property, subjectto the mortgage of July 2, 1875,
made by Ford upon his half interest to Nelson Davis,*upon foreclosure
of which Mrs. Davis purchased, January 22, 1876, and on-January.22,