Woods, 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 the report of the case at law; that in 1873 Chapman and Charles Ford were equal co-tenants of the property, and continued so until November 15, 1876, (erroneously stated “1875” at page 75 of the report,) when by force of certain judicial sales, the title of Ford was transferred to Chapman, terminating the previous co-tenancy and making Chapman the sole owner of the property, subject to 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, [46]*461877, on default of redemption by Chapman.or any other, received the sheriffs deed of that date, whereby she became and has continued to be co-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 question arises here, whether, for the purpose of the accounting between the parties, this co-tenancy shall be regarded as-beginning with the execution of the deed to the plaintiff, 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 plaintiff's title is derived. The plaintiff claimed and has been allowed nothing for rent before the date of her deed; but the defendant insists upon bringing into the account his expenditures for repairs and taxes before that time, including the taxes of 1873-74, for which the defendant purchased the property at the tax sale of 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.
In support of the defendant’s claim in this respect, his counsel contend that by force 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 inadmissible. 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 interest, that the co-tenancj'- consummated by the conveyance must also be deemed, like the title, to commence with “the original” of the “divers acts concurrent to make the conveyance?” If so, then Mrs. Davis and Chapman must be held to have been co-tenants since July 2,1875, (for the relation goes as certainly to the date of the mortgage as of the sale,) notwithstanding both in law and fact she actually had neither titl» nor right of possession until she received her deed, and until November, 1875, Ford, in common with Chapman, had the title and the right.of possession, to her exclusion. To apply the doctrine of relation to these facts in the manner proposed, might be characterized as an attempt to “make that not to have been which was,” as well as to make 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 without the consent of Ford, could not have been. But if the co-tenancy during this time or any part of the time were conceded, still, in order to hold Chapman accountable to Mrs. Davis for the use or occupation of the property during such time, (as a substantive and direct cause of action,) it would be necessary to add to the fiction of co-tenancy the further assumption of an ouster, or wrongful denial of the right of the plaintiff in the premises by the defendant. But it is a recognized limitation upon the doctrine of relation that it shall not be applied in such way as to make that tortious which, when done, was lawful. 3 Washb. Real Prop. 277. Frost v. Beekman, 1 Johns. Ch. 297. The only precedent claimed [47]*47for the proposed application of the doctrine is the case of Ford v. Knapp, 6 N. E. Rep. 283. In that case the owners of an undivided half interest in a mill bought at execution sale the other half, and, being in possession, proceeded during the period of 15 months allowed by the law of New York for redemption from such sales to make necessary repairs and alterations; but before the end of that period creditors of the execution debtor redeemed from the sale, and, having acquired the title of the debtor, sued for partition; and, in determining whether there should be compensation for the repairs so made out of the proceeds of the sale of the mill ordered in the suit for partition, the court held that “by relation, and through their redemption, ” the creditors became “ vested with the right of the debtor from the date of the sale, and thereby tenants in common with the defendants from that date, by relation, or vested with the rights of such a co-tenant.” It will be seen, on reference to the opinion, that the court put out of view as immaterial the execution sale, which, it is to be observed, never ripened into a conveyance, and decided the case as if it had arisen between the original co-tenants, whose relation as such had remained undisturbed. The case would have been very different, and essentially like this one, if, no redemption from the execution sale having been effected, the purchasers had become the sole owners of the property, and afterwards, by the enforcement of some paramount lien, had lost the half interest so acquired, and, in a suit for partition thereafter brought, had sought compensation for repairs made during or before the time of their sole ownership. So, too, on the record presented here, if the mortgage to Davis had not been made, or no foreclosure or sale had been had under it, and if Ford or any creditor of Ford had redeemed from the sales to Chapman, and then sought partition, and Chapman in that proceeding had brought forward his claim for repairs made before such redemption, the question would have been the same as in the case cited, but manifestly and broadly different from the question presented upon the facts as they are in this caso. By making repairs and improvements the defendant certainly acquired no lien upon the property itself, and without such lien there seems to be no ground for enforcing his demand for compensation against the purchaser under the mortgage.
The court is of the opinion that the accounting should embrace no charge on either side for matter which occurred before January 22,1877; and, as this includes taxes accrued before that time, the error of the master in that respect is reduced to $212.43.
The finding of the master in respect to the monthly rental value of the hotel is sufficiently well supported by the proof of prices obtained by the defendant of lessees of the property, and in some measure by other evidence; and if for any part of the time this estimate could be deemed high, the overcharge has been well compensated by the master’s disposition of the subject of interest, which, computed in the ordinary way, would have added a considerable sum to the amount of the finding.
The proposition that at common law one tenant in common cannot recover of another for mere occupation is recognized, and, under the maxim that equity follows the law, I suppose the plaintiff ought not in this ac[48]
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Woods, 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 the report of the case at law; that in 1873 Chapman and Charles Ford were equal co-tenants of the property, and continued so until November 15, 1876, (erroneously stated “1875” at page 75 of the report,) when by force of certain judicial sales, the title of Ford was transferred to Chapman, terminating the previous co-tenancy and making Chapman the sole owner of the property, subject to 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, [46]*461877, on default of redemption by Chapman.or any other, received the sheriffs deed of that date, whereby she became and has continued to be co-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 question arises here, whether, for the purpose of the accounting between the parties, this co-tenancy shall be regarded as-beginning with the execution of the deed to the plaintiff, 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 plaintiff's title is derived. The plaintiff claimed and has been allowed nothing for rent before the date of her deed; but the defendant insists upon bringing into the account his expenditures for repairs and taxes before that time, including the taxes of 1873-74, for which the defendant purchased the property at the tax sale of 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.
In support of the defendant’s claim in this respect, his counsel contend that by force 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 inadmissible. 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 interest, that the co-tenancj'- consummated by the conveyance must also be deemed, like the title, to commence with “the original” of the “divers acts concurrent to make the conveyance?” If so, then Mrs. Davis and Chapman must be held to have been co-tenants since July 2,1875, (for the relation goes as certainly to the date of the mortgage as of the sale,) notwithstanding both in law and fact she actually had neither titl» nor right of possession until she received her deed, and until November, 1875, Ford, in common with Chapman, had the title and the right.of possession, to her exclusion. To apply the doctrine of relation to these facts in the manner proposed, might be characterized as an attempt to “make that not to have been which was,” as well as to make 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 without the consent of Ford, could not have been. But if the co-tenancy during this time or any part of the time were conceded, still, in order to hold Chapman accountable to Mrs. Davis for the use or occupation of the property during such time, (as a substantive and direct cause of action,) it would be necessary to add to the fiction of co-tenancy the further assumption of an ouster, or wrongful denial of the right of the plaintiff in the premises by the defendant. But it is a recognized limitation upon the doctrine of relation that it shall not be applied in such way as to make that tortious which, when done, was lawful. 3 Washb. Real Prop. 277. Frost v. Beekman, 1 Johns. Ch. 297. The only precedent claimed [47]*47for the proposed application of the doctrine is the case of Ford v. Knapp, 6 N. E. Rep. 283. In that case the owners of an undivided half interest in a mill bought at execution sale the other half, and, being in possession, proceeded during the period of 15 months allowed by the law of New York for redemption from such sales to make necessary repairs and alterations; but before the end of that period creditors of the execution debtor redeemed from the sale, and, having acquired the title of the debtor, sued for partition; and, in determining whether there should be compensation for the repairs so made out of the proceeds of the sale of the mill ordered in the suit for partition, the court held that “by relation, and through their redemption, ” the creditors became “ vested with the right of the debtor from the date of the sale, and thereby tenants in common with the defendants from that date, by relation, or vested with the rights of such a co-tenant.” It will be seen, on reference to the opinion, that the court put out of view as immaterial the execution sale, which, it is to be observed, never ripened into a conveyance, and decided the case as if it had arisen between the original co-tenants, whose relation as such had remained undisturbed. The case would have been very different, and essentially like this one, if, no redemption from the execution sale having been effected, the purchasers had become the sole owners of the property, and afterwards, by the enforcement of some paramount lien, had lost the half interest so acquired, and, in a suit for partition thereafter brought, had sought compensation for repairs made during or before the time of their sole ownership. So, too, on the record presented here, if the mortgage to Davis had not been made, or no foreclosure or sale had been had under it, and if Ford or any creditor of Ford had redeemed from the sales to Chapman, and then sought partition, and Chapman in that proceeding had brought forward his claim for repairs made before such redemption, the question would have been the same as in the case cited, but manifestly and broadly different from the question presented upon the facts as they are in this caso. By making repairs and improvements the defendant certainly acquired no lien upon the property itself, and without such lien there seems to be no ground for enforcing his demand for compensation against the purchaser under the mortgage.
The court is of the opinion that the accounting should embrace no charge on either side for matter which occurred before January 22,1877; and, as this includes taxes accrued before that time, the error of the master in that respect is reduced to $212.43.
The finding of the master in respect to the monthly rental value of the hotel is sufficiently well supported by the proof of prices obtained by the defendant of lessees of the property, and in some measure by other evidence; and if for any part of the time this estimate could be deemed high, the overcharge has been well compensated by the master’s disposition of the subject of interest, which, computed in the ordinary way, would have added a considerable sum to the amount of the finding.
The proposition that at common law one tenant in common cannot recover of another for mere occupation is recognized, and, under the maxim that equity follows the law, I suppose the plaintiff ought not in this ac[48]*48tion to recover anything for such mere use or occupation by the defendant; that is to say; for the time after August, 1885, when, the action at law having been decided, the defendant acknowledged the plaintiff’s title and invited her to share in the possession and management of the property. But while such use and occupation may not be made the direct ground of recovery, it does not follow that it may not be considered in connection with', and made an equitable set-off against, the defendant’s claim for repairs, which, at common law, in the absence of agreement, are likewise not the subject of an action between co-tenants. The same principle which admits one of these claims into the computation opens the door to the other as a set-off against the first. The case of Hyatt v. Cochran, 85 Ind. 231, affords a close analogy. That was an action for rents and profits of real estate under a statute which permitted a recovery for six years only The defendant claimed an allowance for repairs, and the plaintiff was permitted to bring forward in set-off a demand for rents accrued more than six years before the commencement of the action.
The attitude and conduct of the defendant in the case have shown him throughout a determined and persistent litigant,' and the result has shown him to have been in the wrong; but in the judgment of the court, if the subject of bona fides be within the scope of the present inquiry, there is not such, proof of bad faith on the part of the defendant as to exclude his claims' from all equitable cognizance. Upon a careful consideration of the case in all its aspects, as presented by counsel, the court is not able to discover a basis of adjustment different from that adopted by the master, which it could regard as more consonant with equity and good conscience; and the amount reported, reduced by $212.43, that is, to say, $3,545.55, to be paid by defendant to complainant, is confirmed, and all exceptions to the report inconsistent with this conclusion are overruled. Decree and judgment accordingly.