Lumpkin, J,
(After stating the foregoing facts.)
1. From the preceding statement’ of facts it will appear that the proceeding was not an action of ejectment to recover an undivided one-third interest in land with mesne profits, but was an equitable action praying for an accounting in regard to an estate in which the plaintiffs claimed an interest, and a distribution thereof after payment of the debts. It was alleged that the land could not be ■divided in kind, and there was a prayer that it should be sold, and that a proper decree should be entered. The plaintiffs claimed to be interested in the estate to the extent of one third, by reason •of being the widow and children of a son of the intestate, who had since died also intestate. The defendants alleged that the real estate was as described in the petition of the plaintiffs (the south half of lot of land number 139 and the north- half of lot number 161), except that the intestate owned not the south half of lot 139, but “about sixty-four acres off of the south of said lot,” with no further description. They also set up a contract in regard to [634] paying the debts of the intestate and taking care of the daughters of the intestate, for which reimbursement was to be made to the son of the intestate so agreeing, and also the maldng of certain improvements. The verdict merely found for the plaintiffs “ one-third undivided interest in the lands owned by J. M. Smith, deceased.” This,did not cover the issues made by the pleadings, or the evidence. It did not declare what land was owned by the intestate, and this was not cured by the fact that the presiding judge entered judgment in favor of the plaintiffs for an undivided one-third interest “in land sued for, to wit: the north one-half of lot 161 and 64 acres off of south part of lot 129 set out in def’ts’ answer.” Neither the verdict nor the decree made any provision for partition or distribution by sale or otherwise, and, except by such implication as may be derived from silence on the subject, made no,determination as to the matters of accounting claimed by the parties.
2. The plaintiffs were the widow and children of J. A. Smith, the son of the intestate whose estate was the subject-matter of the controversy. They claimed as heirs of J. A. Smith. It was contended that the widow is not in all events an heir of her husband who leaves children, and that it did not appear that she had elected to take a child’s part instead of dower, so as to authorize her to recover. The statute declares that dower may be barred by an election to take a child’s part in the realty, in lieu of dower, “within twelve months -from the grant of letters testamentary or of administration on the husband’s estate.” LaGrange Mills v. Kener, 121 Ga. 429 (49 S. E. 300). The defect in the argument stated is that it does not appear either that there had been administration on the Husband’s estate or that she had applied for dower. By joining in this suit she elected to claim as an heir of her husband, and not as a dowress.
3. It was contended that the plaintiffs were not entitled to recover, under the ruling in Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44). It was argued in the brief of counsel for plaintiffs in error that it must be alleged and proved that there was never any administration on the estate of J. A. Smith. It was not so alleged.. But no point was .made on the pleading, and evidence was introduced without objection to show that there had been no administration. A new trial would not be granted on that ground, were there no other reason for such grant.
[635] 4. The principal defendant testified,- that, at the death of his father, the latter owed him $200, and also that the defendant paid á physician’s bill, and certain other debts, and that he was “to be reimbursed out of the land” for such expenditures, and also for all improvements made by him. He further testified that there was no agreement with J. A. Smith about the latter’s part of the estate, but that J. A. Smith got a horse, bridle and saddle, a gun, farming tools, two feather-beds and bed clothes, all of the value of about $218. He also said: “I never directly purchased my brother’s, J. A. Smith’s, interest in the farm. Am claiming that I am entitled to my interest in it as a brother of J. A. Smith, and as 'a son of John M. Smith. I want the payment of the debts and an equal division of the estate; 'and if J. A. Smith’s wife and children are entitled [to] anything in the estate,' on account of his share, I want them to have it.” The son of this witness testified that he heard an agreement between his father and J. A. Smith, to the effect that the former was to take care of their mother and sisters, and to receive the rents of the place for their support. He also testified: “My grandfather was in debt some, and my father was to pay- off his indebtedness,” specifying certain items. Later he said: “A short time before J. A. Smith’s death I had a conversation with him about these matters, there at my house. . He claimed that my father held enough against the place to take it. He did not then tell me anything -about the agreement that my father should have an interest in the place, own the improvements, or pay for them. That was all agreed to before then, at the start, and was not discussed between me and him.” It will thus be seen that while the evidence of the son conflicted with that of the father, and was more beneficial to the father than the latter claimed, neither of them made out any -case of an agreement by which J. A. Smith sold or agreed for O. B. Smith to have his interest in the land, but at most that O. B. Smith was to-receive the rents for the ' support of his sisters, and an admission that the father of the witness “held enough against the place to take it.” This seems to contemplate that O. B. Smith might assert claims -against -the estate and subject the land, but does not amount to a contract to transfer title to him or a recognition of title in him.
There' -can be no adverse possession against a eotenant until actual ouster, or exclusive possession after demand, or express notice [636] of adverse possession. Civil Code (1910), § 3725. None of these things were shown. Omitting any question of administration, under the evidence the plaintiffs were the owners, by inheritance under J. A. Smith, of an undivided third interest in the land left by John M. Smith, as against the defendants; there was nothing which authorized a verdict otherwise, and a charge to that effect was not erroneous.
5. In an accounting, were the defendants entitled to any judgment against the plaintiffs or against their interest in the land? If there was an agreement between J. A. Smith and 0. B. Smith by which the latter was to support their mother and sisters, and receive the rents for that purpose, so long as he carried out the contract he would be entitled to the rents, but not more, for that purpose. If O. B. Smith, without agreement on the part of J. A. Smith, held or took up debts against the estate of their father, and desired to subject the property of the estate, it was incumbent on him to proceed for that purpose within -the time fixed by the statute of limitations applicable to such claims, or they would be barred.
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Lumpkin, J,
(After stating the foregoing facts.)
1. From the preceding statement’ of facts it will appear that the proceeding was not an action of ejectment to recover an undivided one-third interest in land with mesne profits, but was an equitable action praying for an accounting in regard to an estate in which the plaintiffs claimed an interest, and a distribution thereof after payment of the debts. It was alleged that the land could not be ■divided in kind, and there was a prayer that it should be sold, and that a proper decree should be entered. The plaintiffs claimed to be interested in the estate to the extent of one third, by reason •of being the widow and children of a son of the intestate, who had since died also intestate. The defendants alleged that the real estate was as described in the petition of the plaintiffs (the south half of lot of land number 139 and the north- half of lot number 161), except that the intestate owned not the south half of lot 139, but “about sixty-four acres off of the south of said lot,” with no further description. They also set up a contract in regard to [634] paying the debts of the intestate and taking care of the daughters of the intestate, for which reimbursement was to be made to the son of the intestate so agreeing, and also the maldng of certain improvements. The verdict merely found for the plaintiffs “ one-third undivided interest in the lands owned by J. M. Smith, deceased.” This,did not cover the issues made by the pleadings, or the evidence. It did not declare what land was owned by the intestate, and this was not cured by the fact that the presiding judge entered judgment in favor of the plaintiffs for an undivided one-third interest “in land sued for, to wit: the north one-half of lot 161 and 64 acres off of south part of lot 129 set out in def’ts’ answer.” Neither the verdict nor the decree made any provision for partition or distribution by sale or otherwise, and, except by such implication as may be derived from silence on the subject, made no,determination as to the matters of accounting claimed by the parties.
2. The plaintiffs were the widow and children of J. A. Smith, the son of the intestate whose estate was the subject-matter of the controversy. They claimed as heirs of J. A. Smith. It was contended that the widow is not in all events an heir of her husband who leaves children, and that it did not appear that she had elected to take a child’s part instead of dower, so as to authorize her to recover. The statute declares that dower may be barred by an election to take a child’s part in the realty, in lieu of dower, “within twelve months -from the grant of letters testamentary or of administration on the husband’s estate.” LaGrange Mills v. Kener, 121 Ga. 429 (49 S. E. 300). The defect in the argument stated is that it does not appear either that there had been administration on the Husband’s estate or that she had applied for dower. By joining in this suit she elected to claim as an heir of her husband, and not as a dowress.
3. It was contended that the plaintiffs were not entitled to recover, under the ruling in Greenfield v. McIntyre, 112 Ga. 691 (38 S. E. 44). It was argued in the brief of counsel for plaintiffs in error that it must be alleged and proved that there was never any administration on the estate of J. A. Smith. It was not so alleged.. But no point was .made on the pleading, and evidence was introduced without objection to show that there had been no administration. A new trial would not be granted on that ground, were there no other reason for such grant.
[635] 4. The principal defendant testified,- that, at the death of his father, the latter owed him $200, and also that the defendant paid á physician’s bill, and certain other debts, and that he was “to be reimbursed out of the land” for such expenditures, and also for all improvements made by him. He further testified that there was no agreement with J. A. Smith about the latter’s part of the estate, but that J. A. Smith got a horse, bridle and saddle, a gun, farming tools, two feather-beds and bed clothes, all of the value of about $218. He also said: “I never directly purchased my brother’s, J. A. Smith’s, interest in the farm. Am claiming that I am entitled to my interest in it as a brother of J. A. Smith, and as 'a son of John M. Smith. I want the payment of the debts and an equal division of the estate; 'and if J. A. Smith’s wife and children are entitled [to] anything in the estate,' on account of his share, I want them to have it.” The son of this witness testified that he heard an agreement between his father and J. A. Smith, to the effect that the former was to take care of their mother and sisters, and to receive the rents of the place for their support. He also testified: “My grandfather was in debt some, and my father was to pay- off his indebtedness,” specifying certain items. Later he said: “A short time before J. A. Smith’s death I had a conversation with him about these matters, there at my house. . He claimed that my father held enough against the place to take it. He did not then tell me anything -about the agreement that my father should have an interest in the place, own the improvements, or pay for them. That was all agreed to before then, at the start, and was not discussed between me and him.” It will thus be seen that while the evidence of the son conflicted with that of the father, and was more beneficial to the father than the latter claimed, neither of them made out any -case of an agreement by which J. A. Smith sold or agreed for O. B. Smith to have his interest in the land, but at most that O. B. Smith was to-receive the rents for the ' support of his sisters, and an admission that the father of the witness “held enough against the place to take it.” This seems to contemplate that O. B. Smith might assert claims -against -the estate and subject the land, but does not amount to a contract to transfer title to him or a recognition of title in him.
There' -can be no adverse possession against a eotenant until actual ouster, or exclusive possession after demand, or express notice [636] of adverse possession. Civil Code (1910), § 3725. None of these things were shown. Omitting any question of administration, under the evidence the plaintiffs were the owners, by inheritance under J. A. Smith, of an undivided third interest in the land left by John M. Smith, as against the defendants; there was nothing which authorized a verdict otherwise, and a charge to that effect was not erroneous.
5. In an accounting, were the defendants entitled to any judgment against the plaintiffs or against their interest in the land? If there was an agreement between J. A. Smith and 0. B. Smith by which the latter was to support their mother and sisters, and receive the rents for that purpose, so long as he carried out the contract he would be entitled to the rents, but not more, for that purpose. If O. B. Smith, without agreement on the part of J. A. Smith, held or took up debts against the estate of their father, and desired to subject the property of the estate, it was incumbent on him to proceed for that purpose within -the time fixed by the statute of limitations applicable to such claims, or they would be barred.
When the presiding judge charged to the effect that if there was an agreement that 0. B. Smith "was to be paid out of the land, or be paid out of the rents of the land, as the case may be, and you find that he did make such a contract, and that he did pay certain debts, and you can ascertain the amounts, and the value of the improvements, then I charge you, gentlemen, you will be authorized to offset such debts so paid under such contract against any mesne profits that the plaintiffs may be entitled to in the case,” he committed no error harmful to the defendants, though the charge seemed to mingle improvements and debts, and stated an alternative contract. And likewise there was no error, 'as against the defendants,. in the charge complained of in the fourth ground of the motion for a new trial. »
6. This was not an action of ejectment against one holding land as a mere trespasser, and the rule as to the right of a trespasser to set off, against a claim for mesne profits, improvements which have increased the value of the premises, and the extent to which this may be done, embodied in the Civil Code (1910), § 5671, had no application to the case. Neither did the facts of this ease make applicable the rule laid down in §§ 5587 et seq., [637] which deal with cases where an action is brought for the recovery of land, and give to a defendant “who has bona fide possession of such land under adverse claim of title” the right to set off the value of improvements bona fide placed thereon by himself or other bona fide claimants under whom he claims. O. B. Smith did not have an adverse claim of title against his cotenant until ouster, or exclusive possession after demand, or express notice of adverse possession; and, as we have seen, there was no evidence of any oi these things, or of any contract which operated -to transfer title from the plaintiffs to him.
7. As a general rule, heirs can not, in this State, have an equitable accounting for personal property of their ancestor, even though there may be no administration. Special circumstances, such as collusion by an administrator with the other party, which may make an exceptional case, are not involved here. Carr v. Berry, 116 Ga. 373 (42 S. E. 726), and citations; Murphy v. Pound, 12 Ga. 278; Moughon v. Masterson, 140 Ga. 699 (5), 704 (79 S. E. 561).
8. While the title to land descends by inheritance, subject to administration, mesne profits or rents which one tenant in common may owe to another are not realty, but are in the nature of a chose in action; and the fact that in partitioning proceedings, under certain circumstances, they may be declared to create a charge or equitable lien on the land set apart to the cotenant who owes them, does not change them into realty. Such a right to have an accounting does not pass to heirs by inheritance, but is enforceable by a legal representative alone. It falls within the rule laid down in the preceding paragraph of this decision. Hence, the plaintiffs were not entitled as heirs to an accounting for mesne profits prior to the death of J. A. Smith, under whom they claimed. The rule that in ejectment the land and mesne profits must be sued for in one action^ and can not be sued for separately in this State (Civil Code (1910), §§ 5575, 5576), does not affect the decision above.made.
9. Complaint was made that the court did not restrict the jury, in finding mesne profits,- to four years next preceding the bringing of the suit. This is the usual period of limitation where a claim to recover mesne profits is included in an action of ejectment, and the statute is pleaded; but even then the rule may not be absolute, where the defendant seeks to set off improvements made more than [638] four years before the institution of the suit. Mills v. Geer, 111 Ga. 276 (4), 294 (36 S. E. 673, 52 L. R. A. 934). In Huff v. McDonald, 22 Ga. 131 (68 Am. D. 487), it was held, that if .one ten'ant in common receives more than his share, he is liable to his cotenant for such surplus, and the statute of limitations does no.t commence to run in his favor, so as to har an action of account by the cotenant, until the tenant begins to hold such surplus adversely to his cotenant and knowledge of that fact comes to the latter. In that .case one tenant in common brought an action against others, for an accounting for gold mined on the property, and for profits derived from it and from rentals received from other persons for the privilege of digging gold on the property.
In this part of the discussion we leave out of view the question whether in the present case there was any agreement as to the appropriation or use of rents for the support of the mother and sisters of O. B. Smith and J. A. Smith. If there was such an agreement and the rents or profits of the place were used by 0. B. Smith for the agreed purpose, he would have no occasion to rely on the statute of limitations as to them.
We do not discuss the difference among the authorities as to the liability of a tenant in common to account for rents received from third persons. In Huff v. McDonald, supra, this court apparently takes position with one side of the conflicting authorities.
10. It was not proper to permit the widow of J. A. Smith to testify that he “claimed an interest always in the estate of John M. Smith,” and that he “ claimed all the while a child’s part in the estate of J. M. Smith.” Declarations of one in possession of land are sometimes admissible as tending to show the character of such possession. But broadly to admit statements of one in his own favor, regardless of whether he was then in possession or not, and of whether other parties interested were present or not, was error.
11. So likewise, it was error to admit the testimony of a witness to the effect that John M. Smith’s “request was for it [the land] to remain just as it was until his wife’s death, and then it was to be sold and divided.” It did not appear to whom any such request was made, or that it had any connection with or effect on the parties to this case or the person under whom the plaintiffs claim. Standing alone, as a mere expression of a desire as to his property after his death, it could have no testamentary effect.
[639] The pleadings and evidence do not make ont a case of 'a tenant in common .who, while recognizing such tenancy, in good faith erects permanent and valuable improvements for the purpose of honestly bettering the property and not to embarrass his eotenant or encumber the estate or hinder partition, so as to invoke, in 'a proceeding for equitable partition, the rule announced in Smith v. Smith, 133 Ga. 170 (65 S. E. 414), and Helmken v. Meyer, 138 Ga. 457 (75 S. E. 586, 45 L. R. A. (N. S.) 738). But this case is more analogous to Bazemore v. Davis, 55 Ga. 504 (10), 519.
Judgment reversed.
All the Justices concur.