OPINION OP THE COURT.
PARKER, J.
1 (after stating tbe foregoing facts).— Tbe first question presented is as to when tbe statute of limitations begins to run against a cotenant who seeks to recover bis share of tbe rents and profits of .the common estate. It may be stated generally that tbe statute of limitations operates-upon causes of action between cotenants to tbe same extent as between persons not within tbe relation of cotenancy. Tbe difficulty arises in determining when tbe statute begins to run. In regard to the possession of the subject of cotenancy, there is a presumption' that tbe cotenant is merely exercising tbe right which the law gives him, and this presumption must in some way be overcome before tbe possession becomes adverse and tbe statute of limitation is set in motion. Freeman, Coten. & Par., sec. 221. This presumption may be overcome in many ways, such as direct notice of adverse bolding to tbe ousted tenant, demand and refusal to be let into possession, or entry, claiming title under a deed purporting to convey the whole title. Freeanan, Coten. & Par., sec 224; 1 Cyc. 1078. As to these parties we determined upon appeal of the ejectment action that adverse possession by the •defendant in error was initiated by his entry under a deed purporting to convey the whole title and claiming the same thereunder. Neher v. Armijo, 9 N. M. 325. Such a possession by a cotenant must be taken notice ■of by his cotenants and, if allowed to continue for the time fixed by the statute of limitations will ripen into a perfect title as against the ousted cotenant. Freeman, Coten. & Par., sec. 373; 1 Cyc. 1078.
But in regard to the time when the statute of limitations begins to run in favor of a cotenant as to rents and profits received by him over and above his just share, there is much difference of opinion. At common law an ousted cotenant could maintain ejectment and after recovery could maintain trespass for mesne profits against his cotenant. But where there was no ouster the common law furnished no remedy against the cotenant for rents and profits received by him above his just share, except where he was appointed the bailiff of his coten-ant. Freeman Coten. & Par., sec. 269; 17 A. and E. Ency. Law (2 Ed.), 688. To remedy this defect the statute of 2 and 5 Anne, ch. 16, sec. 27 was passed, which statute is substantially re-enacted or adopted as a part •of the common law in nearly all the states. 17 A. and E. Ency. Law (2 Ed.), 688; Freeman Coten. & Par., secs. 270, 272. That statute created a new relation between cotenants, similar to that of principal and agent or trustee and cestui que trust. This being so, the statute of limitations could be set in motion as to rents and profits received by one cotenant only under such circumstances as would operate in favor of a trustee, such as a repudiation of the relation and adverse holding to the knowledge of the beneficiary. Northcot v. Casper, 6 Ired. Eq. 306; Huff v. McDonald, 22 Ga. 164; Robinson v. Robinson, 173 Mass. 233; McGowan v. Bailey, 179 Pa. St. 470; Almy v. Daniels, 15 R. I. 312. This doctrine is denied and is said not to be the prevailing one. Freeman Coten. & Par., 373.
However, in our view of tbe case it becomes unnecessary to determine which of the two doctrines is the better. All the cases agree that a repudiation of the relation of cotenancy and adverse holding at once starts the running of the statute of limitations, both as to the possession and the rents and profits received. 17 A. and E. Ency. Law (2 Ed.), 697. This repudiation of the relation is usually evidenced by a demand to be let into possession and a refusal, in other words an actual ouster or by a demand and refusal to account for rents and’ profits received. In such case no difficulty in determining when the statute was set in motion could arise.
In this case it appears from the pleadings that the plaintiffs in error brought ejectment against their co-tenant, the defendant in error, on August 28, 1896, but it does not appear that plaintiffs in error ever had actual notice of the adverse holding by defendant in error prior to that time. ‘ If the statute of limitations was first set in motion upon the filing of the ejectment suit then the filing of the cross-complaint, by plaintiffs in error, on January 9, 1899, was within the four year period of limitation, and their recovery was in all respects rightful.
It appears however that the entry of defendant in error was long prior to the beginning of the four-year period ante-dating the filing of the cross-complaint. We held (9 N. M. 325), that this entry by the defendant in error was an ouster of the plaintiffs in error. It was not an actual ouster in the sense that notice was brought home to the cotenants of the adverse holding. It was what we may call a constructive ouster, but one which the law recognizes as sufficient to put the cotenant upon notice and to start the running of the statute of limitations at least as to the possession. No good reason can be assigned, it seems to us, for holding this construe-tiye ouster anything less than the legal equivalent of an actual ouster. It it is sufficient to put the cotenants upon notice as tot-heir right of possession and title, it certainly should be sufficient to put them on notice as to their claim for rents and profits. The title and possession are the principal things; the rents and profits incidental thereto.
We therefore hold that the entry of the defendant in error, claiming title under his deed purporting to convey the whole estate, operated as a constructive ouster and notice to his cotenants sufficient to start the statute of limitations in his favor as to the rents and profits received by him. It may be here noticed that at least one of the plaintiffs in error was an infant at the time of the filing of the cross-complaint, but the disability of infancy is not pleaded nor is -it relied upon in the case.
It follows that the plaintiffs in error rightfully recovered their share of the rents and profits in controversy during the four years next prior to the filing of their cross-complaint on January 9, 1899, and that their recovery for rents and profits accruing prior thereto was unjustifiable.
2 The next question presented is in regard to the allowance of interest upon rents and profits received by the defendant in error and adjudged to be due the plaintiffs in error. Plaintiffs in error seek to- found their claim for interest upon section 2550 of the Compiled Laws of 1897, which provides that interest shall be allowed at six per cent “on money received to the use of another and retained without the owner’s consent, expressed or implied.” In view of the provisions of this statute and of the facts in this case, it becomes unnecessary to attempt to trace the various principles upon which interest is allowed in the several States. This statute provides that interest shall be allowed upon money received to the use of another and retained by the recipient. In order to avoid the payment of interest the owner’s consent, either express or implied must appear. There was no express consent in this case, nor do we think any implied consent is shown. It is to be remembered that the defendant in error came into this estate a stranger to any relation with the plaintiff in error except such as the law imposed, and held adversely from the beginning. He held in hostility to all the world, both as to possession and rents and profits.
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OPINION OP THE COURT.
PARKER, J.
1 (after stating tbe foregoing facts).— Tbe first question presented is as to when tbe statute of limitations begins to run against a cotenant who seeks to recover bis share of tbe rents and profits of .the common estate. It may be stated generally that tbe statute of limitations operates-upon causes of action between cotenants to tbe same extent as between persons not within tbe relation of cotenancy. Tbe difficulty arises in determining when tbe statute begins to run. In regard to the possession of the subject of cotenancy, there is a presumption' that tbe cotenant is merely exercising tbe right which the law gives him, and this presumption must in some way be overcome before tbe possession becomes adverse and tbe statute of limitation is set in motion. Freeman, Coten. & Par., sec. 221. This presumption may be overcome in many ways, such as direct notice of adverse bolding to tbe ousted tenant, demand and refusal to be let into possession, or entry, claiming title under a deed purporting to convey the whole title. Freeanan, Coten. & Par., sec 224; 1 Cyc. 1078. As to these parties we determined upon appeal of the ejectment action that adverse possession by the •defendant in error was initiated by his entry under a deed purporting to convey the whole title and claiming the same thereunder. Neher v. Armijo, 9 N. M. 325. Such a possession by a cotenant must be taken notice ■of by his cotenants and, if allowed to continue for the time fixed by the statute of limitations will ripen into a perfect title as against the ousted cotenant. Freeman, Coten. & Par., sec. 373; 1 Cyc. 1078.
But in regard to the time when the statute of limitations begins to run in favor of a cotenant as to rents and profits received by him over and above his just share, there is much difference of opinion. At common law an ousted cotenant could maintain ejectment and after recovery could maintain trespass for mesne profits against his cotenant. But where there was no ouster the common law furnished no remedy against the cotenant for rents and profits received by him above his just share, except where he was appointed the bailiff of his coten-ant. Freeman Coten. & Par., sec. 269; 17 A. and E. Ency. Law (2 Ed.), 688. To remedy this defect the statute of 2 and 5 Anne, ch. 16, sec. 27 was passed, which statute is substantially re-enacted or adopted as a part •of the common law in nearly all the states. 17 A. and E. Ency. Law (2 Ed.), 688; Freeman Coten. & Par., secs. 270, 272. That statute created a new relation between cotenants, similar to that of principal and agent or trustee and cestui que trust. This being so, the statute of limitations could be set in motion as to rents and profits received by one cotenant only under such circumstances as would operate in favor of a trustee, such as a repudiation of the relation and adverse holding to the knowledge of the beneficiary. Northcot v. Casper, 6 Ired. Eq. 306; Huff v. McDonald, 22 Ga. 164; Robinson v. Robinson, 173 Mass. 233; McGowan v. Bailey, 179 Pa. St. 470; Almy v. Daniels, 15 R. I. 312. This doctrine is denied and is said not to be the prevailing one. Freeman Coten. & Par., 373.
However, in our view of tbe case it becomes unnecessary to determine which of the two doctrines is the better. All the cases agree that a repudiation of the relation of cotenancy and adverse holding at once starts the running of the statute of limitations, both as to the possession and the rents and profits received. 17 A. and E. Ency. Law (2 Ed.), 697. This repudiation of the relation is usually evidenced by a demand to be let into possession and a refusal, in other words an actual ouster or by a demand and refusal to account for rents and’ profits received. In such case no difficulty in determining when the statute was set in motion could arise.
In this case it appears from the pleadings that the plaintiffs in error brought ejectment against their co-tenant, the defendant in error, on August 28, 1896, but it does not appear that plaintiffs in error ever had actual notice of the adverse holding by defendant in error prior to that time. ‘ If the statute of limitations was first set in motion upon the filing of the ejectment suit then the filing of the cross-complaint, by plaintiffs in error, on January 9, 1899, was within the four year period of limitation, and their recovery was in all respects rightful.
It appears however that the entry of defendant in error was long prior to the beginning of the four-year period ante-dating the filing of the cross-complaint. We held (9 N. M. 325), that this entry by the defendant in error was an ouster of the plaintiffs in error. It was not an actual ouster in the sense that notice was brought home to the cotenants of the adverse holding. It was what we may call a constructive ouster, but one which the law recognizes as sufficient to put the cotenant upon notice and to start the running of the statute of limitations at least as to the possession. No good reason can be assigned, it seems to us, for holding this construe-tiye ouster anything less than the legal equivalent of an actual ouster. It it is sufficient to put the cotenants upon notice as tot-heir right of possession and title, it certainly should be sufficient to put them on notice as to their claim for rents and profits. The title and possession are the principal things; the rents and profits incidental thereto.
We therefore hold that the entry of the defendant in error, claiming title under his deed purporting to convey the whole estate, operated as a constructive ouster and notice to his cotenants sufficient to start the statute of limitations in his favor as to the rents and profits received by him. It may be here noticed that at least one of the plaintiffs in error was an infant at the time of the filing of the cross-complaint, but the disability of infancy is not pleaded nor is -it relied upon in the case.
It follows that the plaintiffs in error rightfully recovered their share of the rents and profits in controversy during the four years next prior to the filing of their cross-complaint on January 9, 1899, and that their recovery for rents and profits accruing prior thereto was unjustifiable.
2 The next question presented is in regard to the allowance of interest upon rents and profits received by the defendant in error and adjudged to be due the plaintiffs in error. Plaintiffs in error seek to- found their claim for interest upon section 2550 of the Compiled Laws of 1897, which provides that interest shall be allowed at six per cent “on money received to the use of another and retained without the owner’s consent, expressed or implied.” In view of the provisions of this statute and of the facts in this case, it becomes unnecessary to attempt to trace the various principles upon which interest is allowed in the several States. This statute provides that interest shall be allowed upon money received to the use of another and retained by the recipient. In order to avoid the payment of interest the owner’s consent, either express or implied must appear. There was no express consent in this case, nor do we think any implied consent is shown. It is to be remembered that the defendant in error came into this estate a stranger to any relation with the plaintiff in error except such as the law imposed, and held adversely from the beginning. He held in hostility to all the world, both as to possession and rents and profits. The mere failure to demand, under such circumstances, it seems could not be construed to amount to an implied consent to the retention of the rents and profits. It might well be that where the relation of cotenancy had been established and recognized between cotenants, a failure to demand an accounting might-be held to amount to an implied consent to the retention of the rents and profits. But as to this we are not called upon to decide, and interest, even under such circumstances, has often been allowed. See Huff v. McDonald, 22 Ga. 131; McGowan v. Bailey, 179 Pa. St. 470; Scott v. Guernsey, 60 Barb. 163, 180; Earley v. Friend, 16 Gratt. (Va.) 21, 58. This view of the statute would seem to meet every requirement of justice between cotenants. If one receives his cotenant’s share and has the benefit of its use, he ought in equity to pay interest unless his cotenant consented to such retention and use.
3 The next point presented is as to the allowance to defendant in error for taxes paid by him for the years 1896, 1897 and 1898. It appears that the defendant in error returned the whole property for taxation in his own name and paid taxes, and at a time when the plaintiffs in error were litigating with him for an interest in the same. The mistake of the defendant in error in deeming himself the sole owner was one of law. He was a volunteer when he paid the taxes on the interest in the premises belonging to the plaintiffs in error. Homestead Co. v. Railroad, 17 Wall. (U. S.) 166. He could not maintain an action for contribution against them. O’Hara v. Quinn, 20 R. I. 176.
Bnt in this case a different question is presented. The plaintiffs in error come into a court of equity and ask its aid for an accounting of the proceeds of this property. They certainly have, in the absence of any wrongdoing on the part of the defendant in error, no right to more than their share of what, the property has produced. If it appeared that the property had been returned at more than its value, or in bad faith, by the defendant in error for the purpose of embarrassing the plaintiffs in error it might authorize a court of equity in refusing to take1 the taxes paid into the account. But here only a just share of the public burdens has been charged upon this property by the act of the defendant in error and of the discharge of that burden by the defendant in error, the plaintiffs in error have had the advantage and benefit, it would violate the maxim, “He who seeks equity must do equity,” to allow the plaintiff In error to take the proceeds of this property and not contribute their share of its public burdens. See Parks v. Watson, 20 Fed. 764, per Brewer, J.
4 The next point is as to the allowance to defendant-, in error for certain repairs and improvements for which the plaintiffs in error were charged forty-six dollars and twenty cents as their share. As to the repairs it is not shown that they were necessary further than is to be inferred from the fact that they were made. As to the improvements it is not shown that they increased the rental value of the premises or that they added to its permanent value, except that the defendant in error testified that his improvements had enhanced the value of the premises about five hundred dollars. His total expenditures for such purposes, however amount, to only two hundred and thirty-one dollars. It is impossible to determine from the testimony whether the repairs were necessary and whether the improvements added to the rental or permanent valiie of the premises. . Counsel for plaintiffs in error concedes that were these facts made to appear, plaintiffs in error would be properly chargeable with their share of the cost. He simply contends against the allowance because not shown to be of benefit to his clients. This position is we think well taken.
It follows from the foregoing that the plaintiffs in error are entitled to interest on each monthly receipt of rents and profits accruing within four years prior to the filing of their cross-complaint on January 9, 1899 and amounting to $263.54 together with $46.20 erroneously charged against them for repairs and improvements, making a total of $309.74 for which judgment will be rendered against defendant in error in this court.
Mills, C. J., Baker and McFie, JJ., concur.