Beck, J.
Several objections are made by appellant to the judgment and rulings of the District' Court. We will proceed to notice them in the order in which they are presented in the argument of appellant’s counsel.
l. reference affldav?t°of: refeiee. I. The referee’s report was not accompanied by the affidavit required by section 3100 of the Revision. This section prescribes that the referee shall make an affidavit for the faithful performance of his duties, which shall be returned with his report. Defendant moved to set aside this report, because no such affidavit was made or returned. Pending the motion, the plaintiff filed the affidavit of the referee, to the effect that he made the affidavit prescribed by law, previous to his entering upon the discharge of his duty as referee. An affidavit, as to the same fact, made by the notary administering the oath, was also filed, and the referee certifies to the same fact in his report. Prom these statements it appears the affidavit required by sec[505]*505tion 3100 was made, but was lost, and for that reason did not accompany the report.
This evidence is entirely sufficient to satisfy us, as it did the court below, that the affidavit was made. The fact that it was lost could not annul the proceedings before the referee. The requirement that the affidavit be filed with the report is directory; evidence that it was made, but afterward lost, shows a sufficient compliance with the law. The motion was properly overruled.
g.-practice II. It is insisted that the findings of the referee are not supported by the evidence. The evidence embodied in the record is certified by the referee to be J Ci tlie substance of all the evidence in said cause, so far as the same seemed material, and referee believes that it contains the substance of all the evidence that was taken.” It has been repeatedly held by this court, that we cannot review the findings of a. referee upon the facts, unless all the evidence is before us. We must decide the case upon the whole evidence and not on part of it. We must determine for ourselves what is the substance or material parts of the evidence. That duty cannot be done for us by the referee or court below. We cannot, therefore, review the findings of the referee in this case.
3. tenants in bffity?o¿ents: disseizin. III. The defendant excepted to the report of the referee, on the ground that he is charged with the value of one-half of the rent of the lands, and that, if liable at all, he is only liable for the amount ^ plaintifi’s share of the rent received by him. But it is claimed, that, having received neither rents nor profits according to the finding of the referee, he cannot be held liable in this action.
The question for us to determine is this: Is the defendant, who received no portion of the rent, liable for the value of his co-tenant’s interest in the profits of the lands ?
[506]*506It is insisted that plaintiff and defendant were tenants in common, and that to render a tenant in common liable to his co-tenant he must have been an agent of the co-tenant, in which case he is liable at common law, or he must have received more than his share of the rents, and then he would be liable as under the statute of 4 and o, Ann. c. 16. Inasmuch as defendant was not the agent of plaintiff, and did not receive any portion of the rent due plaintiff, it is argued, that he is not liable in this action. The statement of this principle is correct so far as it goes, but it does not reach far enough. There are facts appearing in the record which take the case from the operation of this doctrine.
This rule is based upon the following admitted principles. The possession of one tenant in common, unless it be adverse, is the possession of his co-tenant. He is seized per my and not per tout. He is entitled to his proper shai’e of the profits of the land, and may appropriate them, when they come into his hands, to his own use to the extent of his share, without liability to his co-tenant. There is no principle of law that will require him to divide his share with his co-tenant. If he receives no more than his share he cannot, therefore, be made liable.
But the case is different when he disseizes his co-tenant and ousts him of the possession. That he may do so is a settled principle of law. See 1 Greenleaf’s Cruise Digest, tit. 1, § 34, note 3 ; tit. 20, § 14, note 3. It is then simply the case of a disseisor turning the rightful owner out of the possession of lands. This is the case made by the record before us. According to the finding of the referee the defendant held the land adversely to plaintiff— he was a disseisor, and ousted jolaintiff of the lands. There exists in reason no distinction between this case and one where a disseisor holds lands of another, and no [507]*507question as to tenancy in common arises. If A. ousts B. of Ms lands, B. can recover of A. the value of the rents and profits, without inquiry as to the fact whether A. collected rents or received profits. The ouster, A.’s possession, and the value of the rents and profits, are the only facts necessary to be shown in order to enable B. to recover. If A. realized nothing from the land while he held possession, it is no reason that he shonld deprive B. of the just value of the rents and profits for the time he was wrongfully kept out of the possession. There can be no plainer, proposition than this, and it requires no other support than its simple statement. We conclude, therefore, that defendant, having held the land adversely to plaintiff— having ousted him, — is liable for the yearly value of the rent, without regard to the fact that he realized nothing from the land while he held it in possession.
This conclusion, in our opinion, is based upon obvious reasons and distinctions, and is just and satisfactory to the legal mind. It avoids, too, the application of an arbitrary and technical rule of the law to facts not truly within its scope and operation. It is in harmony with undisputed rules governing the rights of tenants in common. A tenant in common may maintain ejectment against his co-tenant, who has ousted him. So he may bring his proper action against his co-tenant for waste or destruction of the realty or chattel real. Certainly, in these actions he may recover the value of the rights of which he is deprived, without regard to the profits received by his co-tenant through his possession or waste of the realty or destruction of the chattel real. We are unable to perceive why a like rule should not prevail in this case, where one tenant in common holds adversely, denying the rights of the other and wrongfully depriving him of the benefits of his estate.
[508]*508IV. 'It is a ground of objection to the judgment made by defendant’s counsel, that, in this case, plaintiff has I’ecovered a judgment against IT. B. Miller. No such objection was raised in the court below; it cannot be first made here. Besides, we are at a loss to see how the judgment against Miller in any way is prejudical to defendant. Miller, in no form, objected to the judgment in the court below; neither does he appeal. If he is content with the judgment against himself, appellants ought not to be dissatisfied.
V. The order of reference was made before service of notice upon Miller. This is another ground of. objection. We cannot see how defendant is prejudiced-, even if it be error.
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Beck, J.
Several objections are made by appellant to the judgment and rulings of the District' Court. We will proceed to notice them in the order in which they are presented in the argument of appellant’s counsel.
l. reference affldav?t°of: refeiee. I. The referee’s report was not accompanied by the affidavit required by section 3100 of the Revision. This section prescribes that the referee shall make an affidavit for the faithful performance of his duties, which shall be returned with his report. Defendant moved to set aside this report, because no such affidavit was made or returned. Pending the motion, the plaintiff filed the affidavit of the referee, to the effect that he made the affidavit prescribed by law, previous to his entering upon the discharge of his duty as referee. An affidavit, as to the same fact, made by the notary administering the oath, was also filed, and the referee certifies to the same fact in his report. Prom these statements it appears the affidavit required by sec[505]*505tion 3100 was made, but was lost, and for that reason did not accompany the report.
This evidence is entirely sufficient to satisfy us, as it did the court below, that the affidavit was made. The fact that it was lost could not annul the proceedings before the referee. The requirement that the affidavit be filed with the report is directory; evidence that it was made, but afterward lost, shows a sufficient compliance with the law. The motion was properly overruled.
g.-practice II. It is insisted that the findings of the referee are not supported by the evidence. The evidence embodied in the record is certified by the referee to be J Ci tlie substance of all the evidence in said cause, so far as the same seemed material, and referee believes that it contains the substance of all the evidence that was taken.” It has been repeatedly held by this court, that we cannot review the findings of a. referee upon the facts, unless all the evidence is before us. We must decide the case upon the whole evidence and not on part of it. We must determine for ourselves what is the substance or material parts of the evidence. That duty cannot be done for us by the referee or court below. We cannot, therefore, review the findings of the referee in this case.
3. tenants in bffity?o¿ents: disseizin. III. The defendant excepted to the report of the referee, on the ground that he is charged with the value of one-half of the rent of the lands, and that, if liable at all, he is only liable for the amount ^ plaintifi’s share of the rent received by him. But it is claimed, that, having received neither rents nor profits according to the finding of the referee, he cannot be held liable in this action.
The question for us to determine is this: Is the defendant, who received no portion of the rent, liable for the value of his co-tenant’s interest in the profits of the lands ?
[506]*506It is insisted that plaintiff and defendant were tenants in common, and that to render a tenant in common liable to his co-tenant he must have been an agent of the co-tenant, in which case he is liable at common law, or he must have received more than his share of the rents, and then he would be liable as under the statute of 4 and o, Ann. c. 16. Inasmuch as defendant was not the agent of plaintiff, and did not receive any portion of the rent due plaintiff, it is argued, that he is not liable in this action. The statement of this principle is correct so far as it goes, but it does not reach far enough. There are facts appearing in the record which take the case from the operation of this doctrine.
This rule is based upon the following admitted principles. The possession of one tenant in common, unless it be adverse, is the possession of his co-tenant. He is seized per my and not per tout. He is entitled to his proper shai’e of the profits of the land, and may appropriate them, when they come into his hands, to his own use to the extent of his share, without liability to his co-tenant. There is no principle of law that will require him to divide his share with his co-tenant. If he receives no more than his share he cannot, therefore, be made liable.
But the case is different when he disseizes his co-tenant and ousts him of the possession. That he may do so is a settled principle of law. See 1 Greenleaf’s Cruise Digest, tit. 1, § 34, note 3 ; tit. 20, § 14, note 3. It is then simply the case of a disseisor turning the rightful owner out of the possession of lands. This is the case made by the record before us. According to the finding of the referee the defendant held the land adversely to plaintiff— he was a disseisor, and ousted jolaintiff of the lands. There exists in reason no distinction between this case and one where a disseisor holds lands of another, and no [507]*507question as to tenancy in common arises. If A. ousts B. of Ms lands, B. can recover of A. the value of the rents and profits, without inquiry as to the fact whether A. collected rents or received profits. The ouster, A.’s possession, and the value of the rents and profits, are the only facts necessary to be shown in order to enable B. to recover. If A. realized nothing from the land while he held possession, it is no reason that he shonld deprive B. of the just value of the rents and profits for the time he was wrongfully kept out of the possession. There can be no plainer, proposition than this, and it requires no other support than its simple statement. We conclude, therefore, that defendant, having held the land adversely to plaintiff— having ousted him, — is liable for the yearly value of the rent, without regard to the fact that he realized nothing from the land while he held it in possession.
This conclusion, in our opinion, is based upon obvious reasons and distinctions, and is just and satisfactory to the legal mind. It avoids, too, the application of an arbitrary and technical rule of the law to facts not truly within its scope and operation. It is in harmony with undisputed rules governing the rights of tenants in common. A tenant in common may maintain ejectment against his co-tenant, who has ousted him. So he may bring his proper action against his co-tenant for waste or destruction of the realty or chattel real. Certainly, in these actions he may recover the value of the rights of which he is deprived, without regard to the profits received by his co-tenant through his possession or waste of the realty or destruction of the chattel real. We are unable to perceive why a like rule should not prevail in this case, where one tenant in common holds adversely, denying the rights of the other and wrongfully depriving him of the benefits of his estate.
[508]*508IV. 'It is a ground of objection to the judgment made by defendant’s counsel, that, in this case, plaintiff has I’ecovered a judgment against IT. B. Miller. No such objection was raised in the court below; it cannot be first made here. Besides, we are at a loss to see how the judgment against Miller in any way is prejudical to defendant. Miller, in no form, objected to the judgment in the court below; neither does he appeal. If he is content with the judgment against himself, appellants ought not to be dissatisfied.
V. The order of reference was made before service of notice upon Miller. This is another ground of. objection. We cannot see how defendant is prejudiced-, even if it be error. Miller appeared before the referee and answered, and neither excepted to the finding of the referee nor to the judgment. The objection was not raised by defendant in the court below; it cannot be first raised here, even if the action of the court in the premises was erroneous.
5. — discharge of incumbranees. VI. It is insisted that the judgment for taxes paid by plaintiff, over and above the one-half thereof, is not warranted by the law. We think differently. " ° One tenant in common, who lias removed an incumbrance from the joint estate, may compel his co-tenant by an action at law to contribute his just proportion of the expenses thus incurred. Dickinson v. Williams, 11 Cush. 258.
This rule certainly applies in the case where taxes are paid by one tenant in common.
We find no error in the record. The judgment of the District Court is therefore
Affirmed.