-The present appeal is taken from a decree of the Chancery Court, sustaining a motion to dismiss appellant’s bill for want of equity; also sustaining a demurrer interposed by one or more of the defendants, going to the equity of the case made by the bill. In reviewing the correctness of this ruling, we must, of course,, take as true the facts alleged in the bill, so far as well pleaded; and we can not look to, or consider, the denials of the several answers.
The claim of the appellant, Powell, here sought to be enforced, is for certain moneys alleged to have been advanced by him to pay the expenses of himself and the other commissioners, or agents, appointed by the State of Alabama to locate the “Swamp Lands” appropriated to the State by act of Congress approved September 28, 1850. It was made the duty of these agents to select and determine, by proper proof, these “ Swamp Lands ” within the limits of this' State; to make a report of their work to the Governor, and to procure patents for the same from the United States, in the name, and for the benefit of the State. The compensation to be received by them was twenty per cent, of the amount realized by the subsequent sale of these lands, whenever disposed of by the State. — Acts, 1859-60, pp. 111-118. Upon suit being brought against the State, it was adjudged that the four commissioners were each entitled to something less than twelve hundred dollars; the heirs of one of them, who had died, being made parties, under authority of a special act of the legislature. The money was collected, and is now in the custody of the attorney of the parties, subject to the control of the Chancery Court.
The bill, in substance, avers that the expenses of the commissioners, incurred in the prosecution of their official duties, were to be borne equally by them; that appellant was to advance certain moneys deemed necessary to the execution of the joint enterprise, for which he was to be re-wnbursed out of the fund of twenty per cent., when collected from the State. It is manifest that such an agreement, resting on eont/raot made between the parties, would, if proved, constitute a lien or charge upon the fund in question, which would be in the nature of an equitable mortgage. All that is required to this end is, that the intention of the parties, as dedncible from the contract, be clear in its purpose to pledge the fund as a security for the debt created. Accordingly, an agreement that a debt shall be paid out of the proceeds of certain property, or that the property shall be bowndfor the debt, has been usually construed to create an equitable mortgage. — :Miller on Equitable *399Mortgages, 3; Jones’ Chat. Mortg. § 13; Donald v. Hewitt, 33 Ala. 534, 548; Butts v. Broughton, at present term (ante, p. 294); Newlin v. McAfee, 64 Ala. 357; 1 Jones’ Mortg. §§ 166-167; Jackson, Morris & Co. v. Rutherford, at present term. Such a lien, being governed by the general doctrine of trusts,- constitutes one of the peculiar subjects of equity jurisdiction, being incapable of enforcement at law.—Dunning v. Stearns, 9 Barb. (N. Y.) 630; Kirksey v. Means, 42 Ala. 426.
Independently, however, of this alleged contract lien claimed by complainant upon this fund, an equity is originated in his favor, arising out of the relationship of the parties. We do not think this relationship is that of partners, who are joint •owners of the whole property, each having the power to transfer or dispose of the entire partnership eftects. It is rather in the nature of a tenancy in common, created in the fruits of the joint venture — a legal status, which has been likened by Pothier to a “ 27Mm-partnership ” in some of its characteristics. One of several tenants in common can not dispose of the whole property, but only of his undivided share. He possesses, as it is technically expressed in the books, “the whole of an undivided moiety of the property, and not an undivided moiety of the whole property.”—2 Black. Com. 182, 191-193; Story on Part. §§ 89-90. One of its essential attributes is unity of possession, a violation of which, by conversion or ouster, is a Sood ground of action.—Perminter v. Kelly, 18 Ala. 716; Bishop v. Blair, 36 Ala. 80. One most frequent illustration of such a co-tenancy is a cultivation or letting of land on shares, with an agreement among those interested to divide the specific products, or crops.—Smyth v. Tankersley, 20 Ala. 212; Williams v. Nolen, 34 Ala. 167; Pruitt v. Ellington, 59 Ala. 454.
The ascertainment and enforcement of the liabilities growing out of such co-tenancies is a fruitful source of equity jurisdiction, especially in the matters of contribution and account. — 1 Story’s Eq. Jur. §§ 466, 505; Freeman on Co-Tenancy, § 269. It is true that one tenant in common, like a partner, can not recover of his co-tenant compensation for services performed by him, ordinarily, in managing or taking care of the property, without an express or implied promise topa/y for such services. The plain reason is, that he is doing nothing more than his duty. But the rule is otherwise, where he performs services not imposed by his relation of co-tenancy; for these may be regarded as extraordinary in their character — not within the dirty of the one, nor the contemplation of the other. Freeman’s Co-Ten. and Partition. So, of expenses necessarily incurred, or money advanced for the benefit of a joint adventure, the fruits of which are to be enjoyed in common. If the *400duty to be performed is joint, or common to all, and not several as to any one, the performance of it would be the removal of a burden or associated liability, much in the nature of discharging an incumbrance, or satisfying a lien.—Van Horne v. Fonda, 5 John. Ch. Rep. 388; Gwinneth v. Thompson, 19 Amer. Dec. 350. “ The purchase of an outstanding title, the removal of a tax, or other lien or incumbrance,” says Mr. Freeman, “ and the payment of a sum of money for the preservation of the common property, or for the protection or assertion of some common right, or the redress of some common injury, are all spoken of, in general terms, as affording a ground of contribution in favor of one co-tenant, and against another,”' limited, it maybe, to “the declaration and enforcement of a lien against the property,” and not to be established as a personal liability for which a recovery could be had as upon an implied assumpsit.—Freeman Co-Ten. and Part. § 263; Newbold v. Smart, 67 Ala. 326.
This right of contribution exists, Mr Story says, “for all charges and expenditures incurred for the common benefit.”' 1 Story’s Eq. § 505. It is not founded upon express contract, but, like a vendor’s lien, it is an equity originating from the nature of the transaction. True, it arises incidentally from contract; but the equity itself is implied from the relationship of the parties,- and the character and necessity of the duty performed for which compensation or contribution is claimed. It has been pronounced “ a general equity, founded on the equality of burdens and benefits.”—Screven v. Joyner, 1 Hill’s Ch. 260. In Rankin v. Black, 1 Head (Tenn.), 650, which was a joint purchase of land, and an unequal payment of the-purchase-money, it was said, that “ where the adventure is joint,, each is entitled to participate equally in profit or loss, without regard to equality in payment. But it is a clear principle of equity, that the common property will be bound for any excess-paid by one over the other. It is analogous to the law of partnership, by which, as between the partners,the capital must be re-turnecl out of the partnership effects, before the profits can be divided.” This underlying principle, governing the liabilities of tenants in common, is fully discussed and recognized in Newbold v. Smart, 67 Ala. 326, where many cases are cited in full support of the doctrine.
Under these principles, the joint fund realized as compensation by the commissioners would be chargeable for any moneys advanced by one of the part-owners for the common benefit of all; the share of each being charged with the amount received by him, in excess of what he has paid out for like common benefit-, on account taken as in ordinary cases of partnership dealings.
*401We do not think the heirs of Houston can claim any more than his rights in the litigated fund, apart from any consideration of the statutes of limitation and of non-claim. The act of December 17,1873 (Acts 1873, pp. 65-67), authorizing “the legal representatives or hews ” of Houston to unite with the other commissioners in their bill against the State', was purely remedial, and was not intended to create or confer any new right. When they recover their proportionate part of the fund, they must take it eum onere — charged with all incumbrances, if any, created by their ancestor, and not discharged by operation of law, or the act of the parties.
The claim in question does not appear, from the averments of the bill, to have been barred by the statute of limitations, or to come within the class of demands usually designated as stale. The moneys are alleged to have been advanced by the complainant, to aid in carrying out the joint adventure — the execution of the official duties imposed by the statute creating the agency. The further averment is made, that these moneys “ were to be refunded to him out of the compensation to be received from the State.” This compensation was not received or collected until some time in the year 1878; and until then it is manifest that complainant’s claim did not accrue, and n© right of action could, therefore, vest in him prior to that time. Hence, the statute did not commence to run until within less than one year before the present bill was filed.
The question of res adgudicata we leave undecided, as from the face of the bill, and without some proof, we can not clearly see that the matters here litigated were either actually decided,- or necessarily involved, in any previous suit or proceeding between the same parties.—McDonald v. Mobile Life Ins. Co.; 65 Ala. 358.
The decree of the chancellor dismissing the bill was erroneous, and must be reversed, and the causé will be remanded.