Hinman, J.
Several supposed errors of the judge, both in charging the jury and in omitting to charge them as requested, have been specified in argument. They are, however, so nearly assimilated to each other, as to make it somewhat inconvenient to notice them all separately; and as it is also believed to be unnecessary to distinguish between them, an answer to the whole will be given, without much regard to order, or any division of the subject into separate heads.
After the deed of the 17th of October, 1839, the plaintiff and defendant became tenants in common of the real estate mentioned in the first count of the declaration; and the defendant, having had the possession of the whole of it, from 1834 to 1842, was, by virtue of our statute, (tit. Account, sec. 4.) liable to be called upon, in this form of action, to account for the plaintiff’s share of the rents and profits, accruing after the date of said deed, and previous to the levy of the Davenport and Meade executions. The mortgage to Mr. Butler did not affect the plaintiff’s rights, as owner of a moiety of [341]*341the property. Butler had a lien upon the property, for the security of his debt; but being out of possession, he had no right to the rents and profits of the estate; and before foreclosure, he was, in no respect, to be treated as owner. The defendant was not accountable to him, but to the plaintiff alone, as the legal owner. The principle, that the mortgagee has only a chattel interest in the mortgaged estate, but that the mortgagor in possession is the real owner, has been so often decided, by this court, and has become so familiar, that a reference to the cases is unnecessary. It is enough to say, that it was expressly so decided, at the last term of this court, in the case of Cooper v. Davis, 15 Conn. R. 556.
But, it is said, that, because it appears that previous to the plaintiff’s deed of the 17th of October, 1839, the plaintiff had only an equitable title, and that subsequent to the levy of the Davenport and Meade executions, there were more than two co-tenants; and, as there was but one continued occupancy, by the defendant, of the premises; he ought to be called upon, in one action only, to account for the whole time he was the receiver of the rents arising from the estate. He, therefore, claims the plaintiff’s only remedy is in chancery.
It is doubtless true, that if the plaintiff grounds his claim to recover on his co-tenancy alone, he can not, before the auditors, recover any thing for the time when there were more than two co-tenants of the property; and therefore, he cannot recover for the rent accruing after the levy of the two executions: and perhaps it may be true also, that merely as co-tenant, he would be precluded from recovering any part of the rent, while he had only an equitable title; and therefore, he could not recover for the rent accruing previous to the 17th of October, 1839, when he received his deed. But if, during these periods, the defendant was the bailiff of the plaintiff, by appointment; if, by agreement, he was to account, and he acknowledged his liability; then, clearly, it is wholly immaterial, in whom the legal title to the property was. At common law, the defendant would be accountable, if he had been made the bailiff of the plaintiff; (Co. Litt. 200. b.) and, by our statute, (tit. Account, sec. 4.) this action is expressly given, “where two persons hold any estate as joint-tenants, tenants in common or co-parceners, and one of them receives, uses, or takes benefit of, such estate, in great[342]*342er proportion than the amount of his interest in the principal estate." So that, upon the principles of the common law, the plaintiff would have been entitled to a verdict in his favour, had he proved, that the defendant was his bailiff, by appointment; and, by force of the statute, he was also entitled to recover, upon proving that he and the defendant sustain to this property the relation of co-tenants; and, that the defendant had received rent, or had taken benefit of the estate, in greater proportion than the amount of his interest in it.
Now, there was proof tending to show, that the defendant was the plaintiff’s bailiff by appointment. The motion finds, that the plaintiff gave evidence to prove, and claimed he had proved, that from the “dissolution of said partnership (in 1834) to the 1st day of April, 1842, the defendant had let and demised the said Roxbury works to the firm of J. D. Weeks & Co.; and had received all the rents and profits thereof, and had accounted for and paid to the plaintiff a part, and a part only, of said rents and profits.” But the instruction the court was requested to give, was, that the plaintiff could not maintain his action, for any reception by the defendant of the rents and profits, during the time he had the legal title of the whole thereof; nor during the time of Butler’s mortgage; nor for the time after the levy of the Davenport and Meade executions; and that the plaintiff’s only remedy was in chancery. The court were, therefore, requested to take from the jury the whole case, and prevent them from finding even that the defendant was the plaintiff’s bailiff, by appointment, and by agreement of the parties. Any such instruction would have been clearly erroneous; and as the court was not bound to give any modified instruction from the one asked for, and that being clearly erroneous, there is, therefore, no error in this part of the case, even upon the supposition, that the plaintiff would not be entitled to recover at all, unless he is entitled to recover for the whole time from 1834 to 1842.
But the instruction asked for, would have been erroneous, had it been given, upon every principle. The only question involved in the issue, was, whether the defendant was the bailiff and receiver of the plaintiff of the property, or any of it, mentioned in the several counts of the declaration? If so, then, upon the count or counts, upon which the defendant was [343]*343so found to have been the plaintiff’s bailiff, the plaintiff must recover. For, however small the amount of personal property that the defendant might have sold, or however short the time during which he received the rents and profits of the estate, or any portion of it; still, if he had sold some of said property, or received some of the rents, or collected some of the debts, under such circumstances as to make him accountable, this issue must be found against him; because in either of these cases, he would be the bailiff and receiver of the plaintiff. Nor, is there any foundation in principle, nor can any authority be found, to sanction the idea suggested by the defendant, that there is any such thing, as a variance between the declaration and proof, because the proof did not satisfy the triers, that the defendant was the plaintiff’s bailiff during the whole time from 1834 to 1842. There is no more reason for the adoption of any such principle, in the action of account, than in any other action. Had the plaintiff declared, that the defendant had received of him ten tons of iron to account for, and on the trial, he could only prove that he had received but one ton, no one doubts, that the issue, upon the plea of never bailiff and receiver,
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Hinman, J.
Several supposed errors of the judge, both in charging the jury and in omitting to charge them as requested, have been specified in argument. They are, however, so nearly assimilated to each other, as to make it somewhat inconvenient to notice them all separately; and as it is also believed to be unnecessary to distinguish between them, an answer to the whole will be given, without much regard to order, or any division of the subject into separate heads.
After the deed of the 17th of October, 1839, the plaintiff and defendant became tenants in common of the real estate mentioned in the first count of the declaration; and the defendant, having had the possession of the whole of it, from 1834 to 1842, was, by virtue of our statute, (tit. Account, sec. 4.) liable to be called upon, in this form of action, to account for the plaintiff’s share of the rents and profits, accruing after the date of said deed, and previous to the levy of the Davenport and Meade executions. The mortgage to Mr. Butler did not affect the plaintiff’s rights, as owner of a moiety of [341]*341the property. Butler had a lien upon the property, for the security of his debt; but being out of possession, he had no right to the rents and profits of the estate; and before foreclosure, he was, in no respect, to be treated as owner. The defendant was not accountable to him, but to the plaintiff alone, as the legal owner. The principle, that the mortgagee has only a chattel interest in the mortgaged estate, but that the mortgagor in possession is the real owner, has been so often decided, by this court, and has become so familiar, that a reference to the cases is unnecessary. It is enough to say, that it was expressly so decided, at the last term of this court, in the case of Cooper v. Davis, 15 Conn. R. 556.
But, it is said, that, because it appears that previous to the plaintiff’s deed of the 17th of October, 1839, the plaintiff had only an equitable title, and that subsequent to the levy of the Davenport and Meade executions, there were more than two co-tenants; and, as there was but one continued occupancy, by the defendant, of the premises; he ought to be called upon, in one action only, to account for the whole time he was the receiver of the rents arising from the estate. He, therefore, claims the plaintiff’s only remedy is in chancery.
It is doubtless true, that if the plaintiff grounds his claim to recover on his co-tenancy alone, he can not, before the auditors, recover any thing for the time when there were more than two co-tenants of the property; and therefore, he cannot recover for the rent accruing after the levy of the two executions: and perhaps it may be true also, that merely as co-tenant, he would be precluded from recovering any part of the rent, while he had only an equitable title; and therefore, he could not recover for the rent accruing previous to the 17th of October, 1839, when he received his deed. But if, during these periods, the defendant was the bailiff of the plaintiff, by appointment; if, by agreement, he was to account, and he acknowledged his liability; then, clearly, it is wholly immaterial, in whom the legal title to the property was. At common law, the defendant would be accountable, if he had been made the bailiff of the plaintiff; (Co. Litt. 200. b.) and, by our statute, (tit. Account, sec. 4.) this action is expressly given, “where two persons hold any estate as joint-tenants, tenants in common or co-parceners, and one of them receives, uses, or takes benefit of, such estate, in great[342]*342er proportion than the amount of his interest in the principal estate." So that, upon the principles of the common law, the plaintiff would have been entitled to a verdict in his favour, had he proved, that the defendant was his bailiff, by appointment; and, by force of the statute, he was also entitled to recover, upon proving that he and the defendant sustain to this property the relation of co-tenants; and, that the defendant had received rent, or had taken benefit of the estate, in greater proportion than the amount of his interest in it.
Now, there was proof tending to show, that the defendant was the plaintiff’s bailiff by appointment. The motion finds, that the plaintiff gave evidence to prove, and claimed he had proved, that from the “dissolution of said partnership (in 1834) to the 1st day of April, 1842, the defendant had let and demised the said Roxbury works to the firm of J. D. Weeks & Co.; and had received all the rents and profits thereof, and had accounted for and paid to the plaintiff a part, and a part only, of said rents and profits.” But the instruction the court was requested to give, was, that the plaintiff could not maintain his action, for any reception by the defendant of the rents and profits, during the time he had the legal title of the whole thereof; nor during the time of Butler’s mortgage; nor for the time after the levy of the Davenport and Meade executions; and that the plaintiff’s only remedy was in chancery. The court were, therefore, requested to take from the jury the whole case, and prevent them from finding even that the defendant was the plaintiff’s bailiff, by appointment, and by agreement of the parties. Any such instruction would have been clearly erroneous; and as the court was not bound to give any modified instruction from the one asked for, and that being clearly erroneous, there is, therefore, no error in this part of the case, even upon the supposition, that the plaintiff would not be entitled to recover at all, unless he is entitled to recover for the whole time from 1834 to 1842.
But the instruction asked for, would have been erroneous, had it been given, upon every principle. The only question involved in the issue, was, whether the defendant was the bailiff and receiver of the plaintiff of the property, or any of it, mentioned in the several counts of the declaration? If so, then, upon the count or counts, upon which the defendant was [343]*343so found to have been the plaintiff’s bailiff, the plaintiff must recover. For, however small the amount of personal property that the defendant might have sold, or however short the time during which he received the rents and profits of the estate, or any portion of it; still, if he had sold some of said property, or received some of the rents, or collected some of the debts, under such circumstances as to make him accountable, this issue must be found against him; because in either of these cases, he would be the bailiff and receiver of the plaintiff. Nor, is there any foundation in principle, nor can any authority be found, to sanction the idea suggested by the defendant, that there is any such thing, as a variance between the declaration and proof, because the proof did not satisfy the triers, that the defendant was the plaintiff’s bailiff during the whole time from 1834 to 1842. There is no more reason for the adoption of any such principle, in the action of account, than in any other action. Had the plaintiff declared, that the defendant had received of him ten tons of iron to account for, and on the trial, he could only prove that he had received but one ton, no one doubts, that the issue, upon the plea of never bailiff and receiver, must, nevertheless, be found for the plaintiff; and it is equally true, that if he declares, that the defendant was his bailiff of certain real estate from 1834 to 1842, and he is only able to prove him to have been such for only one of those years, he must, nevertheless, recover. Sturges v. Beach, 5 Day, 452.
It is, therefore, no answer to the claim of the plaintiff alleging that the defendant was his bailiff and as such, received the rents of certain real estate, for the defendant to say, that “for a part of the time for which you claim, I am only liable to be called upon in chancery.” If the fact is so, that for a part of the time, the defendant is only accountable in chancery, then the auditors will exclude that part of the time from their finding, and will only report for the time when he is accountable. The argument of the defendant, therefore, is wholly untenable.
Of a similar character, and equally unfounded, is the claim, that the court erred, because it omitted to charge the jury, that the second and third counts could not be supported, because they called for an account for a part only of the property that had belonged to the Roxbury works; it not [344]*344appearing that said property was described separately from the rest.
This claim seems to be founded upon the idea, that some different rule is applicable to these counts, because the property mentioned in them originally belonged to the copartnership that had existed between these parties. But we can recognize no such distinction as this. This is not a suit to settle copartnership accounts, but a suit to compel the defendant to account for property, which he had in his possession, and which belonged to the parties jointly. And it is perfectly immaterial how they acquired their title to it—whether it had belonged to the Roxbury works, or was purchased by the parties with their joint funds, after the dissolution of the partnership, or whether they acquired title to it in any other way. Indeed, it appears, that a part of the property mentioned in the third count, was claimed by the plaintiff never to have belonged to the Roxbury works. But, however the fact may have been, it is wholly immaterial. The defendant, certainly, is just as liable to account for the property, if it had belonged to the partnership, as if it had not. The objection, then, resolves itself into this, namely, the defendant is not liable in this action, because he is not called upon to account for all the property he had in his hands, as the plaintiff’s bailiff. This, we think, has been sufficiently shown to be untenable. The property, however, mentioned in each of these counts, did, so far as we know, in fact include all the personal property belonging to these parties in any way. It no where appears, that there was any personal property belonging to them, not included in these counts; and we believe the fact to be, that there was none. The case, then, is simply this. These parties jointly owned real and personal estate, and had debts due them; and in the first count, the defendant is called upon to account for all the property belonging to the Roxbury works; in the second and third counts, he is called upon to account for all the personal property they owned; and in the fourth count, he is called upon to account for the avails of certain debts he had collected. In all this, we are unable to see any thing objectionable.
It was said, that the effect of the finding was, to compel the defendant to account for as many distinct trusts as there [345]*345were counts in the declaration, though there was but one trust in all. If there is any thing in this argument, it applies equally to every other case, where there is but one cause of action, and the plaintiff, for the purpose of guarding against an insufficient statement in one count, or to accommodate the statement to any possible state of the proof, sees fit to insert two or more counts in his declaration. The argument, therefore, if it proves any thing, proves too much; for, unless there can be shown to be a distinction in this respect between the action of account and other actions, in which two or more counts may be joined in the declaration; it shows, that in every such case, where there is but one cause of action, but one count can be inserted in the declaration.
The defendant has not attempted to show any such distinction. We know of none; and we do not think there is any foundation for the defendant’s argument. If there were in fact as many distinct trusts as there are counts in the declaration, the defendant ought to account for them all. If there was in fact but one trust, which applies only to one of the counts, the auditors will not hold the defendant accountable for any other. Whether the plaintiff or the defendant is in arrear, is the precise question before the auditors. It is not to be presumed they will find either party to be so, without evidence ; and if there is no evidence of but one dealing between the parties, the defendant, of course, can not be found to be in arrear on any other.
If we are right in what has been said, it follows, that there is no error, either in the charge to the jury, or in the omission of the court to charge them as requested.
We do not, therefore, advise a new trial.
In this opinion the other Judges concurred.
New trial not to be granted.