a title. Van Ormir v. Harley, 102 Ia. 150 (71 N. W. Rep. 241). Where land is held by one person under a secret trust for himself and another, a purchase of the land by the latter at a foreclosure sale inures to the benefit of both parties. Hodgson v. Fowler, 24 Colo. 278 (50 Pac. Rep. 1034). A cotenant in possession of the property which is mortgaged to secure his debt, cannot obtain title thereto by procuring a third person to bid in the property at a foreclosure sale, the making of which is concealed from the other cotenants, and buying the land from such purchaser. Saladin v. Kraayvan

ger, 96 Wis. 180 (70 N. W. Rep. 1113). Where the interests of cotenants in land are separately assessed, and the taxes levied upon each undivided interest, one cotenant may buy in for his own benefit at a tax sale the undivided interest of another cotenant. Bennet v. North Colo. Springs L. & Imp. Co., 23 Colo. 470 (48 Pac. Rep. 812). Citing, Brittin v. Handy, 20 Ark. 381 (73 Am. Dec. 497); Roberts v. Thorn, 25 Tex. 728 (78 Am. Dec. 552). One tenant in common cannot claim reimbursement for taxes paid by him which were assessed against him alone, when he and the officer making the assessment both believed the entire estate to belong to such cotenant. O'Hara v. Quin, 20 R. I. 176 (38 Atl. Rep. 7).

Sec. 925. Ouster-Liability for rent. Ejectment cannot be maintained by one cotenant against another where the former has not been actually ousted and there is no exclusive possession of the latter after demand and no express notice by him of a claim of adverse possession. Daniel v. Daniel, 102 Ga. 181 (28 S. E. Rep. 167). Where in an action of ejectment by a tenant in common against his cotenant the latter asserts by his answer, title by adverse possession for the prescriptive period, and the court finds an adverse holding for less than the prescriptive period, an ouster by the defendant is established. Grant v. Paddock, 30 Or. 312 (47 Pac. Rep. 712). Where one cotenant occupies the common property, but his occupation is not adverse and he does not exclude therefrom his cotenant, he is not liable for rent, although his cotenant does not share in the use of the premises; but when there is an ouster and a tenant in common occupies

and uses the property adversely to his cotenant, or where he leases it to a third person, he is liable to his cotenant for rent. A cotenant in possession, who procures a sale of the land for taxes, does not thereby oust his cotenant until the tax deed is made. Van Ormer v. Harley, 102 Ia. 150 (71 N. W. Rep. 241). Possession of the premises by one cotenant with the aquiescence of the others, does not render him liable to pay rent or give a right to charge for inconsequential improvements. Hixon v. Bridges, Ky. (38 S. W. Rep. 1046). The English rule that one in possession by consent of his cotenant, cannot be required to account to his cotenant for a share of the profits arising from his use of the premises, cannot be carried so far as to permit the cotenant in possession to have the exclusive use of the premises after entry or demand of possession until the crop growing at the time of the entry or demand shall mature. Moreland v. Strong, 115 Mich. 211 (73 N. W. Rep. 140). As a general rule the friendly occupation of the common estate by one tenant, does not render him liable to account for the rents and profits; but where one tenant in common actually receives rents for the common property from those to whom he rents it, he may be compelled to account for such profits actually received. McCaw v. Barker, 115 Ala. 543 (22 So. Rep. 131); Wipff v. Heder, Tex. Civ. App. (41 S. W. Rep. 164). Where a tenant in common who has furnished funds to reimburse one who has advanced money to discharge a mortgage on the estate has reimbursed himself from the rents without objection from the other cotenants, he will not be compelled to refund the amount so obtained, on partition. Ostermeyer v. Ostermeyer, Ky. (39 S. W. Rep. 22). Mont. Code Civ. Proc., § 592-occupancy and use of property by joint tenants and tenants in common-actions betweenamended, Laws 1899, p. 134.

Sec. 926. Injury to property by cotenant-Remedies. A tenant in common may be enjoined from making alterations in a building which interfere with the rightful occupancy by his cotenant of a portion of the building. Woods v. Early, 95 Va. 307 (28 S. E. Rep. 374). Applying W. Va. Code 1891, ch. 92, § 2, making one tenant in common liable to another for waste, it is held that a tenant in common

who takes petroleum oil from the land thereby commits waste and is liable to his cotenants to the extent of their right in the land. Williamson v. Jones, 43 W. Va. 652 (27 S. E. Rep. 411; 64 Am. St. Rep. 891; 38 L. R. A. 694).

Sec. 927. Miscellaneous notes. A tenant in common of land in posession of the whole, cannot make a valid lease of the whole. Moreland v. Strong, 115 Mich. 211-(73 N. W. Rep. 140). Where pending an action by several cotenants for damages to their land one of them dies, the suit survives as to the other parties and may be proceeded in by them. In such a case the suit abates as to the deceased party. Rowe v. Shenandoah Pulp Co., 42 W. Va. 551 (26 S. E. Rep. 320; 57 Am. St. Rep. 870). Where two tenants in common convey real estate to a purchaser and one of them entrusted with the delivery of the deed takes a bond and mortgage for the purchase money in his own name without the consent of the other, such act operates to terminate the relation of the parties as tenants in common and the party taking the bond and mortgage may be subjected to a suit for conversion of his cotenant's interest by the latter although the bond and mortgage is not yet due. Knope v. Nunn, 151 N. Y. 506 (45 N. E. Rep. 940; 56 Am. St. St. Rep. 642). Particular agreement

between tenants in common as to the sale of the common estate and division of the proceeds, construed. Goldsborough v. Goldsborough, 86 Md. 413 (38 Atl. Rep. 934).

TITLE.

EPITOME OF CASES.

Sec. 928. Good and marketable title-Title acquired by adverse possession. A title acquired by prescription is a marketable title, Rother v. Trusteee of Sharp St. Station M. E. Church, 85 Md. 528 (37 Atl. Rep. 24); Meibaum v. Brennan, 49 La. 580 (21 So. Rep. 853); and is sufficient to satisfy a contract to convey land " in fee and unincumbered." Barnard v. Brown, 112 Mich. 452 (70 N. W. Rep. 1038). Cit

(70 Fed. Rep. 529);

ing, O'Connor v. Huggins, 113 N. Y. 521 (21 N. E. Rep. 184); Foreman v. Wolf, Md. (29 Atl. Rep. 837); Tewksbury v. Howard, 138 Ind. 103 (37 N. E. Rep. 355); Elder v. Mc Claskey, 17 C. C. A. 251 Bicknell v. Comstock, 113 U. S. 149 (5 Sup. Ct. Rep. 399); Leffingwell v. Warren, 2 Black 599; Murray v. Harway, 56 N. Y. 337; Shriver v. Shriver, 86 N. Y. 575; Ballou v. Sherwood, 32 Neb. 666 (49 N. W. Rep. 790; 50 N. W. Rep. 1131); Schall v. Railway Co., 36 Pa. St. 191; Moore v. Luce, 29 Pa. St. 260 (72 Am. Dec. 269); Hodges v. Eddy, 41 Vt. 485 (98 Am. Dec. 612); Crowell v. Druley, 19 Ill. App. 509; Ottinger v. Strasburger, 33 Hun 466; Simson v. Eckstein, 22 Cal. 580; Clancey v. Houdlett, 39 Me. 451; Walker v. Ray, 11 Ill. 315; De Long v. Mulcher, 47 Ia. 445; Thacher v. Booth, Ky. (6 S. W. Rep. 460); Lurman v. Hubner, 75 Md. 268 (23 Atl. Rep. 646); Ford v. Schlosser (Com. Pl.), 34 N. Y. Supp. 12; 1 Am. & Eng. Enc. Law (2d Ed.) 883, and cases cited; Dupont v. Starring, 42 Mich. 492 (4 N. W. Rep. 190); Bunce v. Bidwell, 43 Mich. 542 (5 N. W. Rep. 1023).

Sec.929. Good and marketable title-Title acquired in violation of a trust relation. The title to lands of a deceased owner claimed through a foreclosure sale, which is subject to a possible attack by his minor heirs on account of a purchase at the sale having been made in violation of a trust relation, is not a good and perfect title within the meaning of a contract by a vendor to convey such a title. Ford v. Wright, 114 Mich. 122 (72 N. W. Rep. 197). A contract to make a vendee "a good and sufficient title in fee simple" is not complied with by tendering a title which may be assailed by the heirs of a deceased owner, on account of the lands being purchased at his administrator's sale by a firm of which the administrator was a member. Griffith v. Maxfield, 63 Ark. 548 (39 S. W. Rep. 852). The court say: "In Vought v. Williams, 120 N. Y. 253 (24 N. E. Rep. 195; 17 Am. St. Rep. 634; 8 L. R. A. 591), the court said: 'It is an established principle of law that every purchaser of real estate is entitled to a marketable title free from incumbrance and defects, unless he expressly stipulates to accept a defective

*

title. A marketable title is one that is free from reasonable doubt. There is reasonable doubt when there is uncertainty as to some defects appearing in the course of its deduction, and the doubt be such as affects the value of the land, or will interfere with its sale. A purchaser is not to be compelled to take property the possession of which he may be compelled to defend by litigation. He should have a title that will enable him to hold his land in peace, and, if he wishes to sell it, be reasonably sure that no flaw or doubt will arise to disturb its market value.' Dobbs v. Norcross, 24 N. J. Eq. 327; Swayne v. Lyon, 67 Pa. St. 436: Yeates, v. Prior, 11 Ark. 76; Gill v..Wells, 59 Md. 492; Close v. Stuyvesant, 132 Ill. 607 (24 N. E. Rep. 868; 3 L. R. A. 161); Butts v. Andrews, 136 Mass. 221; Wat. Spec., Perf. Cont., § 412."

Sec. 930. Good and marketable title-Vendee's rights-Particular cases. A marketable title is one that is free from reasonable objection to a reasonable purchaser. If there is an adverse claim to a tract of land, or a considerable part thereof, evidenced by the record title papers, with possession thereunder in dispute or doubtful, such adverse claim is sufficient to throw a cloud on the title, and render the same unmarketable until such title papers are cancelled. Morrison v. Waggy, 43 W. Va. 405 (27 S. E. Rep. 314). A purchaser is not bound to take a defective title from his vendor; nor is the vendor bound to have a perfect title at the date of the contract to sell. It is sufficient if the title is perfect at the time it is attempted to be enforced either by the vendor or purchaser. McNeill v. Fuller, 121 N.C. 209 (28 S. E. Rep. 299). A contract to convey land by good and sufficient deed, does not bind the party merely to execute a deed good in point of form, but it obligates him to make a title to the land free from reasonable doubt and to remove any existing incumbrance or protect the vendee against it. The vendee is entitled to a conveyance so drafted and executed as to leave no reasonable doubt as to its legal sufficiency to convey the land and free from such interlineations and erasures as are reasonably calculated to throw suspicion or cast doubt upon the paper as a valid bona fide conveyance. Shouse v. Doane, 39 Fla. 95 (21 So. Rep. 807).