Siiaw, C. J.
This is an action of assumpsit, brought to recover of the defendant a certain proportion of the rents and profits of an estate, of which the parties respectively were tenants in common. It appears that the defendant, during the [462]*462time mentioned, took the whole of the rents and profits, which were received in money of various tenants. The question is, whether upon the facts appearing in the case agreed, this action of assumpsit will lie.
It appears by the case, that whilst the premises in question were held as a tenant in common, by John Cooper, the plaintiff’s debtor, the plaintiff made an attachment of Cooper’s interest, to secure his debt, by means of which he acquired a lien on that undivided estate, which could not be defeated by the deed made by Cooper, two days after, to Kennedy & Walsh, and their mortgage back, which afterwards came to the defendant by assignment.
It further appears, that after the action had been long pend-ding, the plaintiff recovered judgment against Cooper, and that on the 31st of October, 1833, he levied his execution on §¿th parts of the moiety, which had in the mean time been set off to the debtor, Cooper, on partition. It has heretofore been held in a process for partition by petition, between these parties, that that levy was legal, and vested an undivided interest in |Jth parts of it in the plaintiff. What was the effect of this levy, and what rights did the plaintiff acquire by it ?
It has been long held, as the settled law of the Commonwealth, that the levy of an execution, pursuant to statute, vests in the creditor an actual seizin and possession, so that, from the time of delivery of seizin by the sheriff, the creditor may exercise all the rights and powers incident to acutual ownership and possession, and may maintain an action of trespass, or a real action, either against the former owner or any other person. Langdon v. Potter, 3 Mass. 215. That case seems to have been fully considered, and the opinion was delivered by Parsons, C. J. The creditor is treated as a purchaser for the full appraised value ; he has the possession and seizin of the estate, and ms titVe is as good as the debtor had. The seizin of the debtor is devested, and seizin is given to the creditor ; and as there cannot be a concurrent seizin, the creditor alone is seized, and “ the possession must be adjudged to be in him, because he has the right, and having the actual and rightful possession, he [463]*463is immediately entitled to the profits, against the defendant.” Amongst other grounds, upon which this judgment, which is very full and elaborate, is founded, is this; that in case of redemption, the creditor is to account for the rents and profits from the time of the levy, and the statute assumes throughout that he is entitled to them from that time, because he has purchased them for value. The same doctrine is held in Gore v. Brazier, 3 Mass. 523. Wyman v. Brigden, 4 Mass. 150. Bigelow v. Jones, 4 Mass. 512.
From this view of the legal effect of a levy of execution, it is manifest, that the plaintiff had a good title to the share of the rents and profits, which he claims, from October 31st, 1833, the time of his levy, to the time of the partition in 1837. It appears, that during that period, the defendant received the whole of the rents, as well the proportion belonging to the plaintiff, as his own. The question is, whether the law affords him any remedy, and if so, in what form of action.
Independent of the technical objection arising from the supposed ouster of the plaintiff by the defendant, which will be considered hereafter, it seems very clear that assumpsit will lie in this case. It has been held, that when one tenant m common has the sole occupancy of the estate held in common, no action lies by the cotenant. Each occupies per mi et per tout, and has a right to occupy the whole, if the cotenant does not choose to come in and occupy; and in such case, the sole occupation of one is not the exclusion of the other. Sargent v. Parsons, 12 Mass. 149. And at common law, it seems that if one had collected and received the whole or more than his share of the rents and profits of the estate, no action would lie, unless the one thus receiving had been appointed bailiff by his co-tenant. Co. Lit. 172 a. Wheeler v. Horne, Willes, 208. But by St. 4 & 5 Anne, c. 16, it was provided, that an action of account might be brought by one joint tenant or tenant in common against the other, as bailiff, for receiving more than his just share or proportion. It has been several times held, that this statute had been adopted and practised upon as law here, prior to the adoption of the constitution, and therefore must be [464]*464considered as the law of this Commonwealth. Brigham, v. Eveleth, 9 Mass. 538. Jones v. Harraden, 9 Mass. 540, note. This last case was decided in 1784, immediately after the adoption of the constitution, and by judges who had been well acquainted with the practice of courts, under the provincial government. Taking this statute to be law, it precisely applies! to the plaintiff’s case. The statute constitutes the receiver bailiff to his cotenant, without special appointment, and all that is requisite to bring the plaintiff within it, is to allege and prove that he is tenant in common, and that his cotenant has received more than his just share of the rents. This is what the plaintiff has alleged and proved in the present case.
Supposing that an action of account would lie, and is indeed the proper and appropriate, if not the sole remedy, it is now very clear that assumpsit will lie. In the case already cited, Brigham v. Eveleth, it is stated that in consequence of the tedious proceedings in an action of account, an action of the case on a promise to account had been substituted ; and that when the money had in fact been received, and the liability to account had resulted in a mere duty to pay money, indebitatus assumpsit well lay. This is the case where one has received in money all the profits, or more than his share. But this matter is now put beyond doubt, by the Rev. Sts. c. 118, § 43, by which the action of account is expressly abolished. This presupposes that by the law, as it stood before, assumpsit would lie in all cases where account would lie; and the statute proceeds further to provide, that when the nature of an account is such, that it cannot be conveniently settled in an action of assumpsit, it may be done upon a bill in equity. In the present case, it is a claim for money actually received by the defendant, to which in some form the plaintiff has title, and it therefore can be conveniently settled in an action of assumpsit.
From this view of the law, it seems very clear, that in ordinary cases, where one tenant in common has received the whole or the greater share of the rents, his cotenant may have an action of assumpsit, and that this is the appropriate if not the sole remedy at law, which he can have. Supposing this to be clear. [465]*465then comes the other and more material question, which is, whether during the period at which these rents were received by the defendant, the relations of the parties, as litigants in regard to the title, was such as to prevent the plaintiff from having this remedy.
1. It is objected, that it is now a well settled rule of law, that after one party has recovered judgment against another in a suit at law, on his title and possession, the only remedy for the plaintiff for the rents and profits, for the intermediate time, is an action of trespass quare clausum fregit; and that assumpsit for use and occupation, or for money had and received for the rents, will not lie ; and that this extends as well to the recovery of one tenant in common against another, as to a case 'between strangers. This is in general true; but we think it arises out of the artificial rules and technical principles, upon which actions of ejectment and real actions at law proceed. To prosecute an action on contract, for rents and profits, whilst the plaintiff has treated the defendant as a wrongdoer, would, as said by Mr. Justice Ashhurst, in Birch v. Wright, 1 T. R. 379, “be blowing both hot and cold at the same time, by treating the possession of the defendant as that of a trespasser, and that of a lawful tenant, during the same period.” The difficulty, therefore, is a technical one. In the form of an action of ejectment according to the English practice, or of a real action as adopted here, the real plaintiff treats the real defendant, that is, the tenant in possession, as a disseizor, a deforciant and wrongdoer. In an action of ejectment, by the consent rule, the tenant in pos session must admit the lease to the nominal plaintiff, his entry, and the ouster by the casual ejector. Ouster or disseizin always implies force; and by admission of lease, entry and ouster, the tenant in effect admits that the disseizor has turned the alleged lessee out, and taken the seizin to himself. Now although all this is mere fiction, and so understood, yet being matter of record, the parties are estopped by it. The real plaintiff cannot afterwards be received to deny, against his declaration in ejectment, that his lessee was ousted and disseized from the time of the demise laid ; that he had yet a freehold or possession upon [466]*466which he can maintain any action in form of contract, for rents and profits. Nor can the defendant, after his admission of record, deny that the casual ejector, for whom he defends, did not oust and disseize the nominal plaintiff.
So in our form of real action : The plaintiff alleges that the defendant, or some other person, disseized him or his ancestor. Now, as said by Mr. Chief Justice Parsons, in Langdon v. Potter, before cited, although there may be a concurrent posses sion, there cannot be a concurrent seizin of lands. When therefore the plaintiff alleges, as he must, that he or his ancestor was disseized, he admits in the most formal manner, of record, that from such disseizin he ceased to have any freehold or possession, and of course takes away the only ground upon which he would have a title to claim rents and profits as of right, and maintain any action for them founded on a supposed. contract. Hence it has been laid down as a maxim, that after such a recovery, which restores the freehold, the plaintiff, in the form of an action of trespass, may recover not only the actual value of the rents, but the costs of the ejectment, and all costs incident to the alleged ouster and deforcement. The principles of this action were settled on great deliberation, in Aslin v. Parkin, 2 Bur. 668. It had been argued, that the plaintiff had not proved possession, and as the action was brought in the name of the nominal plaintiff in ejectment, the court must judicially know that there could be no possession. But the court there say, that the tenant is concluded by the judgment in ejectment, and cannot controvert the title, and that the possession is part of the title.
But it is quite apparent, that when this technical reason ceases, the rule ceases; and therefore the judgment concludes nothing as to the length of time the tenant in possession is liable for, or as to the value of the premises ; because these facts wore not in issue, in the first suit.
That the objection against an action of assumpsit for rents, or for use and occupation, or any action founded in contract, is the technical one arising from the nature of the action, and the facts admitted or proved in it, is well shown by a case before cited, [467]*467Birch v. Wright, 1 T. R. 378. In this case, it was held, that after a recovery in ejectment, the plaintiff might maintain an action for use and occupation, for the time prior to the time of the demise laid in the action of ejectment, but not afterwards. And this was decided upon the reason already, stated; because the iudgmen in ejectment did not establish the relation of disseizor and disseizee, prior to the time of the demise laid. But a case of this sort can seldom arise, because it is now usual to lay the demise as far back as when the plaintiff’s title commenced, with a view of recovering the mesne profits for the whole time not barred by the statute of limitations; and when there are doubts as to the period when the lessor’s right accrued, it is cus tomary to state different demises on different days. Adams on Ejectment, (2d. ed.) 185.
The same principle is illustrated and explained, in the case commonly cited to show that after a recovery in ejectment, one tenant in common may have trespass against another, for mesne profits. Goodtitle v. Tombs, 3 Wils. 118. The court say, that after a recovery in ejectment, by which the tenant in possession admits ouster of the plaintiff, the court will presume that the plaintiff was actually and forcibly removed and expelled from the premises, by the tenant in possession. It was, no doubt, of importance to hold as a part of English jurisprudence, that after it was established that ejectment was a proper form in which to try titles, and that, upon a recovery, an action of trespass for mesne profits was the appropriate remedy for the profits, as a consequence of the recovery in ejectment, that the uni formity of the rule and practice should not be broken in upon, by technical distinctions. And as one tenant in common may be disseized by his cotenant, by an actual and forcible expulsion, the court would, for the sake of this convenient and equitable remedy, consider the confession of lease, entry, and ouster, in ejectment by one tenant in common against another, as an admission of such actual and forcible expulsion.
2. Such being the principle upon which it is held, that trespass and not assumpsit is the proper remedy for mesne profits, after a recovery in ejectment, or in a real action ; the question [468]*468is, whether the same rule applies, after a judgment for partition in favor of the plaintiff, on a petition for partition; and we are of opinion that it does not.
In a petition for partition, the petitioner sets forth his own title to a part of the premises, but alleges no disseizin or other unlawful act on the part of the repondents, whether named or not; on the contrary, he avers that they are seized as tenants in common with him. Nor does a respondent, if he comes in and pleads, thereby admit that he has disseized or deforced the petitioner. If he plead sole seizin in himself, it is merely by way of inducement, and the fact is not traversable ; and he must conclude with a traverse of the plaintiff’s seizin. Otherwise the plea will be bad. Kingston & wife, Petitioners, 6 Dane Ab. 484. The only matters put in issue by the pleadings, made either by the respondents named in the petition or others allowed to come in, are those which draw in question the petitioner’s right of partition as prayed for. And though respondents may give in evidence their own title, yet it is to rebut the title of the petitioner, and to show that he is not tenant in common, as set forth in his petition, or that he does not hold the share set forth. Cook v. Allen, 2 Mass. 462. Loring v. Gay, 9 Pick. 66. And the judgment follows the petition; it decides that the petitioner is seized and has the right of possession, as prayed for, or for such part as he shall establish his right to. The petitioner is not estopped to show his actual title, possession, and right of possession, pending the petition, by any averment that he has been disseized or deforced ; nor is the respondent concluded by any admission, or by the form of the judgment, as a wrongdoer. The reason, therefore, why a plaintiff may not have assumpsit for mesne profits, after a recovery in a real action, does not exist. And when the reason fails, this rule does not apply; as in Cummings v. Noyes, 10 Mass. 433, where one entered under a judgment of law and writ of seizin, and held two years, and then the judgment was reversed; it was held that assumpsit lay for the mesne profits; and the distinction is taken between that case and the case of a demandant after a recovery 'n a real action, where there must have been a tortious [469]*469entry or deforcement. In the present case, the claim which the plaintiff now makes to treat die defendant as his bailiff, and to recover upon an implied contract and statute liability, is perfectly consistent with all the averments in his petition, and all the proceedings under the process of partition, in which he claimed title to eleven thirtieths of the estate, and averred the defendant to be cotenant with him.
3. The only remaining question is, whether the facts found, independent of the judgment on the process of partition, show such an actual disseizin of the petitioner, and such exclusive seizin and possession on the part of the plaintiff, that his freehold, for the time, was defeated and turned into a mere right of entry, so that he had no title to the actual enjoyment and possession of the estate, and of course no right to take the rents and profits.
The facts upon which this question arises are these : After the plaintiff’s levy, on the 31st of October, 1833, the defendant, on the 12th of November, 1833, entered upon the estate and took possession of Cooper’s half of all the estate formerly owned in common by him and Sowden, rented the same, and continued to receive the rents and profits thereof, until partition was made on the plaintiff’s petition. The title, under which the defendant entered, was that of a mortgage, made under these circumstances : On the 17th of May, 1826, two days after the plaintiff’s attachment, Cooper conveyed his undivided moiety of the whole estate to Kennedy & Walsh in fee, and took back their note and mortgage for the whole consideration, payable in seven years, without interest; and this mortgage was assigned to Luke, the defendant, by Cooper, November 2d, 1833, two days after the plaintiff’s levy.
From this statement of the conveyances and dates, it appears that Cooper conveyed to Kennedy & Walsh, subject to the plaintiff’s attachment; that Kennedy & Walsh mortgaged back to Cooper, subject to the same lien ; and that Cooper assigned the mortgage to the defendant, subject to the same incumbrance, it being still open to redemption, by paying the plaintiff’s judgment. The right of the defendant, therefore, at the time of Ills [470]*470entry, was to take and hold the estate subject to the lien and incumbrance of the plaintiff’s attachment and levy. The genera) rule is, in the absence of any proof to repel the presumption, that when a party enters on land, having a right, his entry is intended to be, and in fact is, conformable to his right. Here he had a right to enter as mortgagee, and to hold the whole estate subject to the incumbrance of the plaintiff’s levy, and to redeem and discharge that incumbrance ; and there is no act or declaration qualifying his entry, to show that he intended to take any other possession, than that conformable to his right.
It is extremely difficult to determine, by any fixed rule, what constitutes a disseizin, especially between tenants in common ; because in many cases a party, upon slight acts, may aver a disseizin by the tenant, for the sake of his remedy by writ of entry, in which, if the defendant contests the plaintiff’s title, and pleads nul disseizin, he does not put in issue the fact of disseizin, but only the title ; so that there is no occasion to prove the fact. Higbee v. Rice, 5 Mass. 344. In general, it is true that the acts of a disseizor, in respect to the lawful owner, are to be limited to an actual ouster and exclusive occupation by the disseizor. Brimmer v. Proprietors of Long Wharf, 5 Pick. 131. Poignard v. Smith, 8 Pick. 272.
It is stated by the court, in Barnard v. Pope, 14 Mass. 438, as to the disseizin of a cotenant, that “ every dispossession does not amount to a disseizin, especially of tenants in common. For the possession of one is the possession of all, unless by an actual ouster, or an exclusive pernancy of the profits, against the will of the others, one shall manifest an intention to hold the land by wrong, rather than by the common title.” And in Cummings v. Wyman, 10 Mass. 468, it was said that whether the entry of a tenant in common shall enure to the benefit of the cotenants, or be deemed an ouster of his companions, is often a question of fact depending on'intent. No such intention is stated in the present case, and none is to be presumed.
In some cases it has been held that an exclusive possession oy one tenant in common may be deemed adverse, so as to give effect to the statute of limitations. Jackson v. Tibbits, 9 Cow. [471]*471241. But we think there may be such adverse possession, sufficient to give effect to the statute of limitations, which would not amount to such actual disseizin of the cotenant, as to defeat his claim to rents and profits. It seems very clear by all the authorities, that a mere silent possession, accompanie d w th no act which can amount to an ouster, or give notice to his cotenant that his possession is adverse, cannot be so considered, Mc Clung v. Ross, 5 Wheat. 124. Ricard v. Williams, 7 Wheat. 121. Besides, the very fact, that the plaintiff could maintain his petition for partition, shows that he was seized; because, if actually ousted, he must have been driven to an entry or action for possession. Liscomb v. Root, 8 Pick. 376. The same case establishes the point, that as a general rule the possession of a party entering shall be construed to be according to his rights.
The facts of the present case show nothing more than that the defendant entered after the plaintiff’s levy, upon the assignment of a mortgage, made after the plaintiff’s attachment, and of course subject to it. It is found that he received the whole of the rents and profits, but not that he forbade the plaintiff to receive them, or that he received them contrary to the will of the plaintiff. It does not appear that the plaintiff claimed the rents and profits, or any part of them, until his claim was finally settled in the process of partition. That judgment, affirming the validity of his levy, decided that he had been actually seized, and had a lawful right of possession from the date of that levy. We think, therefore, that there was nothing in the judicial proceedings between the parties, or in their acts in pais, mentioned in the agreed statement of facts, which can pievent the plaintiff from maintaining this action.
We have, in this opinion, foreborne to consider whether or not an action of trespass for the mesne profits would lie in the present case, because if it would, it would not follow as a necessary consequence that assumpsit would not. But if trespass would not lie, it adds much to the strength of the reasoning in favor of an action of assumpsit; because, in that case, assumpsii for mesne profits would be a party’s only remedy at law, and [472]*472if that could not be maintained, the party would be without lega remedy.
On principle, it seems difficult to perceive how such an action could be maintained. Trespass for mesne profits is a common action of trespass quart clausum, in which a tortious entry must be averred and proved. But a tenant in common has a right to enter, and to occupy and take the rents and profits ; and therefore something more is necessary to render his entry and occupation tortious. The plaintiff has no estoppels, no admissions of record,- to rely upon, as in the case where one brings trespass after a recovery in ejectment, or in a real action. A strong doubt was expressed by Jackson, J. in a case somewhat similar, (Cummings v. Noyes, 10 Mass. 435,) whether trespass would lie. In Allen v. Carter, 8 Pick. 175, it was held that a constructive ouster, by an heir claiming the whole estate under a devise, will not sustain an action of trespass brought by a coheir. There had been no recovery by the plaintiff in a real action ; but a recovery, had been had by another co-heir, which equally settled the question of title. It was argued in that case, that the possession of the defendant, claiming the whole estate, amounted to an ouster. The court say it may, for some purposes, as to sustain a writ of entry ; but such a fictitious ouster is not sufficient to support an action of trespass. It is extremely doubtful whether, in a case like the present, an action of trespass for mesne profits could be maintained ; but for the reasons already given, we think it is not necessary, in the present case, to decide that question; because whether it could or not, we think this action of assumpsit is well sustained upon the grounds stated.
Defendant defaulted