46 FEDERAL- BEPORTERa
1877, on default of redemption by Chapman or any other, received the
sheriff’s deed of that date, whereby she became and hasicontinued to be co-
t tenant with the defendant, but without recognition by him of her rights,
until since the date of the judgment in the case at law; The important
1 question arises here, whether, for the purpose of the accounting between
the parties, this co-tenancy shall be regarded as beginning with the exe-
cution of the deed to the plaintiif, or by relation shall be carried back
to the date of the mortgage, or at least to the date of the sale made upon
foreclosure of the mortgage, from which the plaintiffs title is derived.
The plaintiff claimed and has been allowed nothing for rent before they
date of her deed; but the defendant insists upon bringing into the ac-
count his expenditures for repairs and taxes before that time, including
the taxes of 1.873-74, for which the defendant purchased the property at
the taxsaleof February, 1875; Rejecting the charges for repairs, the
master allowed those for taxes paid, but by mistake treated the amounts
allowed as having been paid upon the entire property , instead of the half,
as was the fact. , n T
In support of the def`endant’s claim in this respect, his counsel contend _
that by torce of the doctrine of relation the co-tenancy of the parties
should be deemed to have commenced, if not with the execution of the
_ mortgage, at latest on the day of the sale to the plaintiff on the decree of
foreclosure of the mortgage. This proposition seems to me inadmissibleé
Without doubt the title of a purchaser at judicial sale relates to the date
of sale, and, if the sale be upon foreclosure of a mortgage, to the date
of the mortgage; but does it follow, upon the sale of an undivided in-
terest, that the co-tenancy consummated by the conveyance must also
be deemed, like the title, to commencewith "the original " of the "divers‘
acts concurrent to make the'oonveyance?" If so, then Mrs. Davis and
_ Chapman must be held to have been co-tenants since July 2, 187 5, (for
the relation goes as certainly to the date of themortgage as of the sale,)
notwithstanding both in law and fact she actually had neither titl·= nor
right ot`, possession until she received her deed, and until November, 1675,
Ford, incommon with Chapman, had the title andthe right of posses;
sion, to her exclusion. To apply the doctrine ofrelation to these facts
inthe manner proposed, might be characterized as an attempt to "make
that not to have been which was,"»as well as tosmake that to- have been·
which never was, and which, by the will of either party, without the
consent of the other at the time, or even by the will of both parties with-
out the consent of Ford, could not have been. But if theco-tenancy
during this time or any partof the time were conceded, still`, in order to
hold Chapman. accountable to Mrs. Davis for the use or occupation 'of the
property duringsuch time, (as a substantive anddirect cause of action,)
i it would be necessary toadd to the tiction of co~tenan,cy the further asé
sumptionvof an ouster,. or wrongful denial of theright of the·plainti1}` in
thepremises by the defendant. But it is a recognized limitation upon
t the doctrine ofrelation that’it; shall- not. benappliedi in such way as to
make that-tortious which,,when done, was lawful. *»€.3·Washb. Real Prop.
277. t .Fl·cst;v. Beckman, 1Johns_. Ch; 297. - Thetonly precedent claimed