The plaintiff’s intestate and the defendant together took title to certain premises. At the same time they entered into a contract which fixed the proportions in which the expenses were to be borne, and the interest and profits were to be divided between the parties. After the death of the intestate, his administrator brought this action at law for rents collected by the defendant. There is no allegation in the complaint from which it can be inferred that any of tire rents had accrued before the intestate’s death. On this appeal it is unnecessary for us to determine whether the parties were merely tenants in common of the land or whether the contract established a partnership between them. In the one case the complaint is defective because the interest of a tenant in common descends to the heirs, and the action should be brought by the heirs; in the second case the complaint is defective because the partner is entitled to an accounting but cannot bring an action at law.
The interlocutory judgment is reversed, with costs; and the demurrer is sustained, with costs.