This is an action brought by one co-tenant against another to recover for the use and occupation, and for the rents and profits of the common property.
Each tenant in common is seized per mi and per tout, and has a right to occupy the whole if his co-tenant does not interfere. The common law gives no remedy for a mere sole úse and occupation by one tenant. Where one tenant in common has the sole occupancy, no action is maintainable upon an implied promise. To entitle the plaintiff to recover for use and occupation an express promise must be shown. Sargent v. Parsons, 12 Mass. 148 ; Wilbur v. Wilbur, 13 Met. 404.
It has been repeatedly held in Massachusetts that the stat. 4 & 5 Anne, c. 16, which provided, that an action of account might be brought by one joint tenant or tenant in common against another, as bailiff, for receiving more than his just share or proportion of the rents and profits of the common estate, has been adopted and practised upon as law prior to the adoption of their constitution, and therefore must be considered as the law of that Commonwealth. Brigham v. Eveleth, 9 Mass. 538; Munroe v. Luke, 1 Met. 459. In the case already cited, of Brigham v. Eveleth, it was held, that where money had in fact been received and the liability to account had resulted in a duty to pay money, that indebitatus assumpsit might be maintained.
But the plaintiff fails to show that the defendant has re*59ceived any rents or profits and does not bring himself within the stat. of Anne, even if that were to be regarded as part of the law of this State. “ Though an action” says Willes, C. J., in Wheeler v. Horne, Willes, 208, “ therefor may be brought by one tenant in common against another, since this statute, yet it is an action of a very different nature from an action of account against a bailiff at common law. Because a bailiff at common law is answerable not only for his actual receipts, but for what he might have received of the land, without his wilful default, as is expressly held in Co. Lit. 172, a, and in many other books; but by the plain words of the statute, a tenant in common, when sued as bailiff, is answerable only for so much as he has actually received more than his just share and proportion.” This, as is remarked by Pollock, C. B., in Stinton v. Richardson, 13 Mees. & Weis. 17, has not been contradicted by any subsequent decision and must be regarded as law. No case can be found where an action of assumpsit can be sustained unless where one tenant has actually received rents and profits, or holds the share of the other as bailiff. Mason v. Mason, 1 Law Rep. N. S. 119. The case of Munroe v. Luke, 1 Met. 459, and of Buck v. Spofford, 31 Maine, 34, which have been cited by the counsel for the plaintiff, are in no respect adverse to the principles here advanced. In both of those cases the defendant had received the rents and profits in money, and was justly held to account for the same. But such was not the fact here. There is no evidence that the defendant has received any thing from the tenant occupying the premises. The burthen was on the plaintiff to show that he has in his hands more than his just share and proportion. This the plaintiff has entirely failed to do and must therefore submit to a nonsuit.
Plaintiff nonsuit.