Merwin, J. —
The plaintiff and the defendant Wright are the children and only issue of Henrietta D. Wright, who was a daughter of Henry Huntington, who died in October, 1846. He left a will by which, after providing for the payment of his debts and a specific devise to his son, Benjamin, he directed that all the rest of his estate, real and personal, be divided into five equal parts, and one of such parts he gave and devised to his executors in trust to receive the rents, profits and income thereof and apply the same to the sole and separate use of his daughter, the said Henrietta D. Wright, during [183]*183her life, and at her death he gave and devised the said part to her issue, in equal proportions, absolutely. The executors had full power to sell and convey any of the real estate. Mrs. Wright died on 23d September, 1865. Thereafter, and in January, 1866, the said executors made a transfer of divers personal securities, amounting to about $28,000, to the plaintiff tnd said B. Huntington Wright on account of their share in the estate; also another transfer of securities, as of June 1, 1866. of about $12,000; also a like transfer in August, 1868, of about $17,000; also a conveyance of divers parcels of real estatein July, 1866, in value then about $42,000. After this there was a proceeding instituted in the surrogate’s court agains' Benjamin N. Huntington, then sole executor, for an accouning which resulted in a decree which, among other things, adjudged that there was due to plaintiff and her brother from the executor, on account of their said share, about $190,000. Huntington then made a general assignment f<r the benefit of his creditors, and under this the assignee made several transfers to the plaintiff and her brother <f real and personal property in part payment of their judgmeii.
All of these transfers and conveyances were made to the plaintiff aid her brother together, so that, their legal estate in the property transferred in each case was that of tenants in common. The instruments were of different dates and from different prsons, but were all made and received towards the payment <f the same claim, that is, the share of plaintiff and her brothe- in their grandfather’s estate. To that extent all the propery was derived from the same source.
The plaiitiff and her brother lived together, and the latter has always had the management of the property as it was from time o time conveyed to them. Nearly all of the securities transerred to them in 1866 and 1868 have been converted intomoney by him and he has used the proceeds for his own be.eflt; she sometimes joined in the execution of discharges of nortgages. Much of the real estate was sold, he [184]*184doing the business and receiving the money and she joining with him in the deeds. She received from him at the rate of about $600 a year, which apparently would be much less than half the income. Evidently she knew he received the money, but what he did with it I think it does not appear that she knew. She knew that he had it and used it. This she assented to. She probably did not know the extent to wMch he was using, it. There seems to have been no defnite arrangement between them about the management or disposition of the property. It seems, however, to have been understood between them that when the estate was settled they should then have an accounting between themselves and would divide up. She, for the time being, trusted everything to her brother.
Matters ran along in this way till after the transfers from the assignee of the executor, when B. Huntington Wright failed and made a general assignment to the defendantSearles. I infer that more than one-half in the aggregate of tie property has been disposed of by B. Huntington Wright and the proceeds applied to his own use, and the question is whether the plaintiff can, in effect, have the balance for or or account of her share. This action is brought for an accountiig and to have the property undisposed of set apart to the plaintiff, or that her half of what the defendant Wright hai disposed of be declared a lien on the legal estate of Wright or his assignee in the balance.
Where tenants in common sell and convey property and one receives the entire purchase-money the other can maintain an action for m'oney had and received to recover his proportion of the price (Coles agt. Coles, 15 Johns., 59); so he could to recover his share of the rents received bythe co-tenant (1 R. S., 750, sec. 9; 2 R. S. [6th ed], 1131, but that would not bar his remedy for an equitable adjusment and lien (Scott agt. Guernsey, 48 N. Y., 124). The stiute above cited gave an action of account or for money had aid received against a co-tenant for receiving more than his just Iroportion. [185]*185The statute does not say of what it shall be the just proportion, but it is left to apply generally to whatever is the subject of the tenancy. Every case in which a tenant in common receives more than his just share is within the statute; a similar statute in England is so construed (Henderson agt. Eason, 9 English Law and Equity Rep., 340).
I have no doubt an action of account will lie. That action is, in its nature, equitable; although given by statute it was before, and still is, a matter of equitable cognizance (1 Story's Equity, secs. 446, 466). It involves the idea of agency, an implied trust, and whatever remedy is appropriate in such an action can be invoked here by the plaintiff.
A more difficult question to determine is, what shall be considered the subject of the tenancy.
It is claimed by the defendant, the assignee, that the property conveyed by each instrument must be considered by itself, and that plaintiff’s rights or wrongs, with reference to the property in one instrument, cannot be remedied by seizing upon the property derived through another conveyance and that especially what was conveyed by the assignee of the executor in payment of the judgment cannot be affected by the state of accounts existing before then between the parties.
By the tenor of the will the share to the income of which Mrs. Wright was entitled, during her life, passed at her death to her issue in the same manner as it would had she been the absolute owner and died intestate. The share, therefore, vested in them as tenants in common, at common law as to the real estate, they would have been coparceners. The share was an unit. In process of collection it was divided into parts, such division not being occasioned by any particular act of the owners but by the exigencies of collection. The title of the whole share vested at the death of the mother, but the possession was not acquired only as, from time to time, the transfers were made from the executors or those who represented them. There was no division or settlement between the tenants; that was, by mutual understanding, put [186]*186off until the estate was settled, until the whole share was reduced to possession, or so much thereof as was collectible, It seems to me, therefore, that the subject of the tenancy was the undivided share of the two in the estate of their grande father and that the fact that it was handed over to them in different parcels or by different instruments does not change the subject of the tenancy. The whole is to be considered one subject.
The question then is, what are the rights of the plaintiff in the balance of the subject-matter of the tenancy.
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Merwin, J. —
The plaintiff and the defendant Wright are the children and only issue of Henrietta D. Wright, who was a daughter of Henry Huntington, who died in October, 1846. He left a will by which, after providing for the payment of his debts and a specific devise to his son, Benjamin, he directed that all the rest of his estate, real and personal, be divided into five equal parts, and one of such parts he gave and devised to his executors in trust to receive the rents, profits and income thereof and apply the same to the sole and separate use of his daughter, the said Henrietta D. Wright, during [183]*183her life, and at her death he gave and devised the said part to her issue, in equal proportions, absolutely. The executors had full power to sell and convey any of the real estate. Mrs. Wright died on 23d September, 1865. Thereafter, and in January, 1866, the said executors made a transfer of divers personal securities, amounting to about $28,000, to the plaintiff tnd said B. Huntington Wright on account of their share in the estate; also another transfer of securities, as of June 1, 1866. of about $12,000; also a like transfer in August, 1868, of about $17,000; also a conveyance of divers parcels of real estatein July, 1866, in value then about $42,000. After this there was a proceeding instituted in the surrogate’s court agains' Benjamin N. Huntington, then sole executor, for an accouning which resulted in a decree which, among other things, adjudged that there was due to plaintiff and her brother from the executor, on account of their said share, about $190,000. Huntington then made a general assignment f<r the benefit of his creditors, and under this the assignee made several transfers to the plaintiff and her brother <f real and personal property in part payment of their judgmeii.
All of these transfers and conveyances were made to the plaintiff aid her brother together, so that, their legal estate in the property transferred in each case was that of tenants in common. The instruments were of different dates and from different prsons, but were all made and received towards the payment <f the same claim, that is, the share of plaintiff and her brothe- in their grandfather’s estate. To that extent all the propery was derived from the same source.
The plaiitiff and her brother lived together, and the latter has always had the management of the property as it was from time o time conveyed to them. Nearly all of the securities transerred to them in 1866 and 1868 have been converted intomoney by him and he has used the proceeds for his own be.eflt; she sometimes joined in the execution of discharges of nortgages. Much of the real estate was sold, he [184]*184doing the business and receiving the money and she joining with him in the deeds. She received from him at the rate of about $600 a year, which apparently would be much less than half the income. Evidently she knew he received the money, but what he did with it I think it does not appear that she knew. She knew that he had it and used it. This she assented to. She probably did not know the extent to wMch he was using, it. There seems to have been no defnite arrangement between them about the management or disposition of the property. It seems, however, to have been understood between them that when the estate was settled they should then have an accounting between themselves and would divide up. She, for the time being, trusted everything to her brother.
Matters ran along in this way till after the transfers from the assignee of the executor, when B. Huntington Wright failed and made a general assignment to the defendantSearles. I infer that more than one-half in the aggregate of tie property has been disposed of by B. Huntington Wright and the proceeds applied to his own use, and the question is whether the plaintiff can, in effect, have the balance for or or account of her share. This action is brought for an accountiig and to have the property undisposed of set apart to the plaintiff, or that her half of what the defendant Wright hai disposed of be declared a lien on the legal estate of Wright or his assignee in the balance.
Where tenants in common sell and convey property and one receives the entire purchase-money the other can maintain an action for m'oney had and received to recover his proportion of the price (Coles agt. Coles, 15 Johns., 59); so he could to recover his share of the rents received bythe co-tenant (1 R. S., 750, sec. 9; 2 R. S. [6th ed], 1131, but that would not bar his remedy for an equitable adjusment and lien (Scott agt. Guernsey, 48 N. Y., 124). The stiute above cited gave an action of account or for money had aid received against a co-tenant for receiving more than his just Iroportion. [185]*185The statute does not say of what it shall be the just proportion, but it is left to apply generally to whatever is the subject of the tenancy. Every case in which a tenant in common receives more than his just share is within the statute; a similar statute in England is so construed (Henderson agt. Eason, 9 English Law and Equity Rep., 340).
I have no doubt an action of account will lie. That action is, in its nature, equitable; although given by statute it was before, and still is, a matter of equitable cognizance (1 Story's Equity, secs. 446, 466). It involves the idea of agency, an implied trust, and whatever remedy is appropriate in such an action can be invoked here by the plaintiff.
A more difficult question to determine is, what shall be considered the subject of the tenancy.
It is claimed by the defendant, the assignee, that the property conveyed by each instrument must be considered by itself, and that plaintiff’s rights or wrongs, with reference to the property in one instrument, cannot be remedied by seizing upon the property derived through another conveyance and that especially what was conveyed by the assignee of the executor in payment of the judgment cannot be affected by the state of accounts existing before then between the parties.
By the tenor of the will the share to the income of which Mrs. Wright was entitled, during her life, passed at her death to her issue in the same manner as it would had she been the absolute owner and died intestate. The share, therefore, vested in them as tenants in common, at common law as to the real estate, they would have been coparceners. The share was an unit. In process of collection it was divided into parts, such division not being occasioned by any particular act of the owners but by the exigencies of collection. The title of the whole share vested at the death of the mother, but the possession was not acquired only as, from time to time, the transfers were made from the executors or those who represented them. There was no division or settlement between the tenants; that was, by mutual understanding, put [186]*186off until the estate was settled, until the whole share was reduced to possession, or so much thereof as was collectible, It seems to me, therefore, that the subject of the tenancy was the undivided share of the two in the estate of their grande father and that the fact that it was handed over to them in different parcels or by different instruments does not change the subject of the tenancy. The whole is to be considered one subject.
The question then is, what are the rights of the plaintiff in the balance of the subject-matter of the tenancy.
A partner has a lien upon all the property of the partnership for the balance due him on a final settlement between the partners (1 Story Eq., 675; Buchan agt. Sumner, 2 Barb. Chy., 197, 200). The basis of this lien is an implied trust or pledge (2 Story’s Eq., see. 1243). The whole partnership estate is considered as set apart and held not only to pay the debts of the partnership but as security to each partner for the ultimate balance due to him for his own share of the partnership effects.
A tenant in common has a lien upon the share or interest of any co-tenant for any rents that may be due from such co-tenant (Scott agt. Guernsey, 48 N. Y, 124; S. C., 60 Barb., 180; Hannan agt. Osborne, 4 Paige, 343). The reason for this rule is not given in the cases cited. The increase or rents are common property as much as the principal or the original estate. When one, therefore, takes of the increase or rents he takes a part of the common fund or property, and it may well be said that there is on his part an implied agreement to have what he has received applied on his share, or that on division he will bring it in, to the end that it may be charged to him on division, and that a court of equity works out this result through the operation of an equitable lien.
If two persons jointly purchase an estate and pay unequal proportions of the purchase-money and take the conveyance in their joint names they are deemed to purchase as in the nature of partners, and to intend to hold the estate in propor[187]*187tion to the sums which each has advanced (2 Story’s Equity, sec. 1206).
Coming down to the present case I don’t think it can he said that the plaintiff on any occasion when she joined with her brother in the transfer or conveyance of any of the property sold her interest in the property then conveyed to her brother. She never treated him as purchaser of her interest, or trusted to his credit for her proportion. He was her agent in the management, and it was his duty either to invest in their joint names over again or to charge to his own share. There is no evidence of any intention on the part of either that she should release her claim on the whole for her share. There was not only a community of interest between the two but the relation of agency also existed, and, therefore, all intendments would be in favor of the plaintiff. True the plaintiff assented to her brother receiving the proceeds of the sales or collections, but with the idea that when the estate was settled she should receive her share of the whole, at the least, the contrary cannot be inferred. Ho release of any equitable right she might have had should be inferred. A vendor’s lien for the purchase-money is not waived unless security is taken. So the plaintiff’s lien in equity, if she had one, should not be deemed waived in absence of pl’oof showing any intention to waive it.
Take the case of the large judgment, I see nothing in the way of plaintiff claiming that the entire consideration of that judgment was, in fact, hers, and that as between her and her brother she would be entitled to have whatever was received on it. This would fall within the rule as to purchasers of property furnishing the consideration in unequal proportions. Hor do I see why the logic of the rule giving a lien for rents would not apply and with greater force to the receiving of a portion of the body of the estate. If B. Huntington Wright has received from the subject of the tenancy more than the plaintiff, the excess should be considered as brought in upon and before division and then charged over to him in extin[188]*188guishment of so much of his share of the whole. The same result is worked out by giving the plaintiff an equitable lien on the share of her brother in the balance as it now exists for her share of what her brother has received in excess of her.
Under the circumstances of this case, I hold, she has such a lien.
In this view of the case I don’t see how the statute of limitations would apply.
The rights of the assignee of B. H. Wright are no greater than the rights of the latter would be. The assignee takes subject to all equities of third persons.
I do -not understand it to be disputed but that B. Huntington ■ Wright has received more than one-half. If so, very likely, the state of accounts between him and the plaintiff may be agreed on and the value of the remaining property fixed, and his half be formally transferred to her in extinguishment of so much of the balance due her.
If these things should be agreed on, no further proceedings would be necessary in order to a final decree.
If, however,- those things should not be agreed on, then there should be a reference to take and state the account, also to ascertain and report the property undisposed of, with a full description thereof and its value, and the manner in which it should be sold or disposed of and report the evidence with his findings. I see no reason why, in this action, the court has not full power to finally close up and adjust the subject-matter of the tenancy and the rights of all therein. In case of reference all further questions will be reserved until the coming in of the report.
The appropriate findings or order may be settled before me on two days’ notice.
Interlocutory judgment was entered in the action declaring the rights of the parties and appointing referee to state the-account, &c. Upon the coming in of the referee’s report the same was confirmed and final judgment was entered November 29, 1879. ■