Brief for the Appellant.

therefor: Held, on bill for partition, that he was chargeable with the value of the use of his co-tenants' interest in the same.

6. DECREE IN PARTITION-construed-as to the rule adopted for payiny a sum due to one of several tenants in common from the others. On bill for partition of land between four tenants in common, the court, in taking an account, found $1148 due from the estate to one of the tenants in common, and ordered a sale of the land, and out of the proceeds the payment of three-fourths of the sum so found due, to the party entitled thereto: Held, that this did not require that the share of each tenant should pay an equal fourth part of three-fourths, but that three-fourths of that sum should be paid out of the shares of the other three tenants in common.

APPEAL from the Circuit Court of Whiteside county; the Hon. WILLIAM BROWN, Judge, presiding.

Messrs. C. J. & C. C. JOHNSON, for the appellant:

At common law, one tenant in common of real estate is not liable to an action of account for the mere use and occupation. Coke on Littleton, 200, 209; 1 Bacon's Abr. 44; 4 Kent's Com. 369; 1 Washburn on Real Prop. 570.

On decree of partition, if either of the co-tenants has been in the exclusive receipt of the rents, he may be required to account, but mere occupancy will not make him liable for rent. Adams' Eq. (2d Am. ed.) 438; 1 Washburn on Real Prop. 570; Freeman on Co-tenancy, sec. 258; Sargent v. Pearson, 12 Mass. 149; Badger v. Holmes, 6 Gray, 118; Peck v. Carpenter, 7 id. 283; Brown v. Wellington, 106 Mass. 318; Nelson v. Clay, 7 J. J. Marsh. 138; Israel v. Israel, 31 Md. 120; Kean v. Connelly, 25 Minn. 222.

The court should have granted the prayer of the cross-bill, and compelled the specific execution of the contract of appellant with his father. The finding of the master and the evidence show that Francis paid the full amount advanced by his father, with interest. But even if a few dollars were owing of the interest, he would not be in such default as to authorize the heirs in rescinding the contract. Sanford v. Emory, 34 Ill. 468; Murphy v. Lockwood, 21 id. 610; Taylor v. Longworth, 14 Pet. 172.

Brief for the Appellees.

Francis, by the devise to him, was not put upon his election. When the testator has a present interest in the estate disposed of, though not entirely his own, the doctrine of election does not apply. 2 Story's Eq. Jur. sec. 1089; Wilbanks v. Wilbanks, 18 Ill. 20.

On bill for the specific performance of a contract for the sale of land, if the vendor has disabled himself from performing, the court will not dismiss the bill, but will grant relief by way of compensation. Hovenden on Frauds, 4; Sugden on Vendors, 78, and note; Greenman v. Adams, 12 Ves. 395; Phillips v. Thomson, 1 Johns. Ch. 132; Parkhurst v. VanCourtland, id. 273; King v. Bardeau, 6 id. 273; Johnson v. Glancy, 4 Blackf. 94; Kelly v. Bradford, 3 Bibb, 317; Morse v. Ellendorf, 11 Paige, 288; Williams v. Ordway, 106 Mass. 232.

The measure of damages in covenant for failure to convey land, is the value of the land at the time it should have been conveyed. Buckmaster v. Grundy, 1 Scam. 310; McKee v. Brandon, 2 Scam. 339; Gale v. Dean, 20 Ill. 320; Plummer v. Rigdon, 78 id. 222.

The court erred in charging him with his share of the incumbrance held by him, and requiring payment of the balance out of the entire estate.

Messrs. BENNETT & GREEN, for the appellees:

It is true that at common law a tenant in common is to account only when he receives, not takes, more than his just share. (Henderson v. Eason, 17 Ad. & El. 701.) But a more liberal construction is adopted in the following cases: Thompson v. Bostwick, 1 McMullen's Eq. 75; Holt v. Robertson, id. 475; Valentine v. Johnson, 1 Hill's Ch. 49; Early v. Friend, 16 Gratt. 47; Buffum v. Lewis, 7 Leigh, 720; Graham v. Pierce, 19 Gratt. 38; Shiels v. Stark, 14 Ga. 435; Carter v. Carter, 5 Munf. 180; Cooper v. Cooper, 19 N. J. Eq. 566; Hancock v. Day, 1 McMullen, 69; Cutler v. Currier, 54 Me.

Brief for the Appellees.

81; Darden v. Couper, 7 Jones, 210; Hayden v. Merrill, 44 Vt. 348.

Our statute uses language quite different from that of the English statute, making a tenant in common liable if he "shall take and use the profits or benefits," etc. Rev. Stat. title "Accounts."

The cases in this court recognize the liability of such tenant to account when he takes and uses more than his just share. Rowan v. Reed, 19 Ill. 28; Howey v. Goings, 13 id. 95; Holderman v. Graham, 61 id. 359; Mahoney v. Mahoney, 65 id. 406; Louvalle v. Menard, 1 Gilm. 39; Dean v. O'Meara, 47 id. 120; Bean v. Scroggins, 12 Bradw. 328.

If one takes upon himself the charge and care of a lunatic's or infant's estate without appointment, he will be chargeable as a bailiff, and must account. Willard's Equity Jur. 134; Davis v. Harkness, 1 Gilm. 173; Casey v. Casey, 14 Ill. 112; Van Epps v. Van Douser, 4 Paige, 71; Wadsworth v. Connell, 104 Ill. 369. And he is chargeable not only with what he actually received, but also with what he might have received by proper care. Gilbert v. Guptil, 34 Ill. 112; Rowan v. Kirkpatrick, 14 id. 11; Perry on Trusts, 468, 470, 471; Bond v. Lockwood, 32 Ill. 214; Hill on Trustees, mar. page 375. And with annual interest thereon. Bond v. Lockwood, 32 Ill. 314; 2 Sutherland on Damages, 238; Sedgwick on Measure of Damages, 209, note.

The answer of appellees to the cross-bill of Francis Woolley also sets up the fact that he had made his election to take under the will, and therefore can not claim against its express provisions. The doctrine of election is fully settled in the following authorities: 1 Jarman on Wills, 443; 2 Williams on Executors, 1449; 2 Redfield on Wills, 357, 362; Wilbanks v. Wilbanks, 18 Ill. 20; 1 Sandf. Ch. 387; 16 Wend. 141.

In the case of a verbal contract, to which the Statute of Frauds is successfully pleaded, the recovery is not had upon

Opinion of the Court.

the contract, but upon the theory of a rescinded or invalid contract, and a quantum meruit. This is the measure of compensation stated in the cases cited by appellant, and also by the following authorities: 2 Sutherland on Damages, 226; Fuller v. Reed, 38 Cal. 29; McClowry v. Groghans, Admr. 31 Pa. St. 22; King v. Thompson, 9 Pet. 204.

Mr. CHIEF JUSTICE MULKEY delivered the opinion of the Court:

The appellees, Florence A. Schrader and Benjamin D. L. * Woolley, on the 27th day of May, 1881, filed in the circuit. court of Whiteside county a bill for the partition of certain lands, hereinafter mentioned, against Hartson C. Woolley, Francis M. Woolley, and others. The defendants not named were formal parties, merely, and have no interest in the questions to be determined. The appellant, Francis M. Woolley, filed a cross-bill, in which he claimed to be the exclusive owner of one of the tracts sought to be partitioned. The court, upon the hearing, found all the lands subject to partition, as prayed for in the original bill, and entered a decree accordingly, from which Francis M. Woolley alone has appealed to this court.

It appears that Benjamin F. Woolley, the father of the parties above mentioned, and through whom all of them claim, died testate some time in December, 1872, leaving Margaret Woolley, his widow, and five children, viz., Maria, Hartson C., Francis M., Florence, and Benjamin D. L., the last two being then minors; that at the time of his death he was the owner, subject to certain incumbrances and alleged. equities, of five farms in Whiteside county, severally known as the "Platt Farm," the "Watson Place," the "Old Homestead," the "Gennessee Farm" and the "Jordan Farm," containing, respectively, one hundred and twenty, eighty, one hundred and sixty, eighty, and ninety-two acres. The tract last mentioned, and which is the main cause of the present controversy, was purchased in 1863, of one Alexander, for Francis,

3-116 ILL.

Opinion of the Court.

though the deed was taken in his father's name, with the understanding that the premises were to be conveyed to Francis upon his father being reimbursed all advances made by him on the purchase. In pursuance of this arrangement, Francis took possession of the place and made valuable improvements thereon, amounting to $800 or $900. He was residing on the place at the time of the old man's death, in 1872, and continued to so reside on it, without accounting to any one for the use and occupation thereof, up to the time of filing this bill. It is also shown by the master's report, which we can not say was unwarranted by the proofs, that Francis paid to his father, in his lifetime, on account of the purchase of this land, altogether, $2297.81. A reference to the time of these payments satisfactorily shows that there was but little, if anything, due from Francis to his father on account of the purchase of the land, at the time of his death, and if there were no other facts affecting the question besides those we have mentioned, we would have no hesitancy in holding that this piece of land was not subject to partition between the devisees under the will, as is directed to be done by the decree in this case, and that the court therefore erred in not granting Francis the relief prayed for under his crossbill. But there are other important facts in the case to be considered.

By his last will and testament, Benjamin F. Woolley directed all the lands above mentioned, except the Platt farm, which constituted the then homestead, should be equally divided between his three sons and his daughter, Florence, subject to the limitation that Francis was to be reimbursed for the improvements made by him on the Jordan farm; but the cost of such improvements was not, in any event, to exceed $800. The method of ascertaining the value of the improvements was expressly provided for by the will. It directed that they should be valued by three disinterested persons, two of whom should be chosen by the executors of