The opinion of the court was delivered by
McGowan, A. J.Elizabeth Massey died in 1858, leaving a large estate, real and personal. She had one son, James R. Massey, two daughters, Elizabeth Beckham and Sarah Jones, and three grandchildren, children of a deceased daughter Jane, viz., Mary E. Massey, Charlotte A. Beckhám and James R. Massey, Jr. The deceased left a will, of which Dixon Barnes was executor, and after his death, his executor, Daniel W. Brown, by which she devised and bequeathed to her son, James R. Massey, the mills on the Catawba river, and a hundred acres of land adjoining, one-half of the remainder of her real estate, and also some personal property, horses, stock, library, silver cup, &c. Besides the foregoing exclusively to James R.,she directed the residue of her estate to be divided into four equal parts, one-fourth to her said son, James R.; the same to Churchill B. Jones, in trust for his wife, Sarah; the same to Elizabeth Beckham, and the same to be divided among the children of Jane. The testatrix named the negroes that were to be allotted to the different parties in the division; and to her son, James R., she gave the right of election to take all of the real estate at valuation on the partition and division of the same.
*304In 1861 the shares were valued by certain persons, called together for that purpose by Dixon Barnes, the executor, and placed in the possession of the parties to whom they were given. But, for some reason, there was no effort to partition the real-estate, which was left in the possession of James B. Massey, who-remained at the homestead until 1871, when this action was commenced by C. B. Jones, trustee, against James B. Massey for partition and account of the rents and profits of the lands, &c., including an account of D. W. Brown, then executor, and a settlement of the estate of Elizabeth Massey. No objection was made. Writ of partition was issued to lay off to James B. Massey the-mills and a hundred acres, and to divide the remainder of the land among the parties according to the will. The commissioners-made return laying off mill and lands for James B., and recommending that the remainder of the land be divided according to-the interest of the respective parties. James B. Massey objected to the return and declared Ms election to take the whole land at valuation. Judge Mackey confirmed the return and ordered it executed February 23d, 1874. James B. Massey appealed to the-Supreme Court, which held that “he was entitled to take the-land at appraisement,” and that he “ should be required to account for the rents and profits of the lands held by him other than his-own share down to the time of his election.” * * * “The: judgment must be set aside and the case remanded to carry out the requirements of the judgment.” Jones v. Massey, 7 S. C. 142.
Before the above appeal upon the subject of election the matters of account had been referred, and W. M. Connors, Esq., was appointed special referee, who made a report affirming the consent partition of slaves, and charging James B. Massey with the yearly rental value of all the lands from 1861 to 1873, which, with interest, amounted in the aggregate to $13,748.20; that there were articles of personal property, not willed, to the value of' $1256, consisting principally of corn and provisions, and that there was due to James B. Massey from the estate of the-testatrix, on account of guardianship, $3114, &c. To this report James B. Massey excepted. In May, 1876, Judge Mackey overruled the exceptions and confirmed the report. From his order James B. Massey again appealed to this court, which (March *30521st, 1878), rendered a judgment reversing the Circuit order confirming the consent partition of slaves, and directing that James R. Massey “should be charged with whatever value he has derived from, the use of the slaves, prior to the emancipation, over and above the proportion of such value he was entitled to under the will, on the same ground upon which he was required by the judgment of this court to account for the rents and profits of the lands. The decree of the Circuit Court and the reports of the referee must be set aside as far as they are inconsistent with the conclusion already stated, and the same remanded for further proceedings eomformable to this decision.” Jones v. Massey, 9 S. C. 391.
The case went back a second time. May 20th, 1878, Judge Mackey, at Chambers, granted an order appointing D. A. Williams, referee, and directed him to “ revise ” the former reports and make a report conformable to the judgment of the Supreme Court. March 7th, 1879, Judge Pressley presiding, at Lancaster, made an order appointing the same referee, and directing the parties in possession of the land to account' to James R. Massey. [It does not appear, but we suppose these parties had been put into possession under the writ of partition before that part of it was set aside.] Exceptions were filed to the order of Judge Mackey by James R. Massey, and to that of Judge Pressley by Jones et al. Referee Williams, under both orders, made a report, which, amongst other things, transferred into his own report so much of the repaid of Connors as charged James It. Massey with the rental of the lands, bringing the interest dawn to September .16th, 1876, and malting the aggregate of $22,742.87. To this report both sides filed exceptions, which were argued before Judge Wallace, from whose decree the appeal comes to this court.
We shall not consider as distinct the exceptions taken to the orders of May, 1878, and March, 1879. So far as they were orders of reference to carry out the second judgment of this court they were merely administrative and not final. The same referee was appointed by both orders. He made his report under both, and in considering the exceptions to that report and the decree based upon it, all exceptions previously taken to the orders may come under review. The exceptions to the report and the decree *306are numerous — made by both parties — and to prevent confusion we shall not take them up seriatim but according to the subject matter.
The most important question in the case is as to the principle of the accounting of James R. Massey for occupation of the lands between the death of his mother and the time he became sole owner by election. This subject is made somewhat complicated by the claim that it is res adjudícala. Connor’s report, made before the second judgment of this court, charged James R. Massey with the rental value of the land and interest for fifteen years, as if he were a stranger, and this on action for use and occupation. Judge Mackey confirmed that report, and it is. claimed, although the second appeal was from that decree, and it was set aside, so far as inconsistent with the conclusion therein stated, that the particular part of the report and decree which luid reference to the account for rent was not reversed because it was not appealed jrom and was not inconsistent with the judgment of the Supreme Court. The allegation is that Judge Wallace had no right to consider that part of the report of the referee, Williams, for the reason that Williams merely transferred it and incorporated it into his report from that of Connors, where it had been confirmed by Judge Mackey and not appealed from, and, therefore, was res adjudicada.
We have looked carefully through the record of this case back to the original complaint and answer. We find that James R. Massey did except to the report of Connors as to rents, and did appeal from the order confirming it. To the report he excepted, “ that he had been charged with rent of lands belonging to the estate,” and to the order confirming the report, upon the ground, among others, “ that the court erred in overruling said exception.” Jones v. Massey, 9 S. C. 382, 386. That, it is said, was a general appeal as to all rents and not as to the difference between “ rents and profits ” and “ rental value.” That is true; but the whole includes all its parts. It is said that point was not argued. It may be that upon that appeal the weight of the argument was directed to the point of accountability for the slaves; but whether the matter of the land rent was argued or not, it was in the record, and this court ruled upon it, repeating almost the same *307words as the former judgment. [See quotation from that judgment hereinbefore made.] The decree and the reports of the referee were set aside, “so far as they are inconsistent with the-conclusion herein stated.” Under these circumstances we cannot accept the view that the item for the rental value, in the report of Connors, was finally adjudged by the Circuit decree of 1876, on the ground that it was not appealed from; that Referee Williams had the right to transfer it. to his report, and that Judge Wallace had no right to consider it, because it had been adjudged. We agree with him that the matter was not adjudged, and that the charge as to rents was “inconsistent” with the ■judgment of the Supreme Court and vacated.
If we were not reluctant to shut off inquiry we would hold that the proper principle of the accounting had been adjudged by this court to be for “rents and profits,” and not for “rental value.” This court, in both of its judgments pronounced by the same judge, so expressed its view in words, and, in the last, particularly declared that the account for the slaves and the land . should stand “ on the same grounds.” But the precise difference between “rents and profits” and rental value,” had not been argued before this court, and as we are inclined to the opinion that the words “ rents and profits ” in the judgments, were used in their general sense, we entertain that point now as for the first time before this court.
The question then being open, what principle should govern in stating the account of James R. Massey for use and occupation of the lands up to the time he took them by election ? Upon the death of Mrs. Elizabeth Massey the title to these lands devised rested iu the respective devisees, subject, of course, to all just claims against the testatrix. They stood to each' other as tenants in common in unequal interests. Each had the same right to occupy his proportion of the land. James R. Massey had the largest interest, and, in common with the others, he had the right to be there. One tenant in common cannot maintain a possessory action against his co-tenant except for an actual ouster. If James R. Massey had ousted the other co-tenants, and kept them out by force, which is not alleged, then he would have been liable as a trespasser for the rental value beyond his *308share. But as it is not alleged that he kept the other tenants out of the possession of their respective parts, they were in default in not occupying or claiming partition, and he is liable for the rents and profits which he received from the lands beyond his own share, just as he was held to account for whatever value he “ derived from the use of the slaves over and above the portion of such value he was entitled to under the will.” Jones v. Massey, 9 S. C. 376; Valentine v. Johnson, 1 Hill’s Ch. 49; Lyles v. Lyles, Id. 86.
We cannot suppose that the application of this principle to the case will work any injustice. From 1'861 to 1874 the country was in an unsettled state. For a portion of that period James • B. Massey was a minor; for a large portion war was raging, and he was absent in the service of the Confederate States; and after military operations ceased the labor of the country was disorganized, affecting injuriously the income from lands. We note that James B. Massey states in his answer “that so far from having received any profit from said plantation for which he should account, the possession of the same entailed upon him great loss.” But be that as it may, the rule as to the accountability between tenants in common is established, and is nowhere better expressed than by an elementary writer of high standing, (Adams), who says: “ In addition to the decree for a partition, the court may, also, if either of the co-owners has been in the exclusive reception of the rents, decree an account of his receipts. But the mere fact of his having occupied the property will not, of itself, make him liable for an occupation rent, for the effect of such a rule would be that one tenant in common, by keeping out of the actual occupation of the premises, might convert the other into his bailiff, and prevent him from occupying them, except upon the terms of paying rent.” Adams’ Eq. 233.
We concur with the Circuit judge as to the principle upon which the accounting should be stated, but it seems to us that his orders of reference embrace more than his ruling required. We cannot see that it is necessary or that it will promote progress in this long litigation to order an inquiry — outside of the rights of the parties — as to “ what the same lands were worth each year under the control and management of a farmer of good *309ordinary skill and industry.” According to the foregoing principles, the relation of the parties does not authorize them to hold James R. Massey responsible for bad husbandry, or to require him to make good any deficiency which may have arisen from his not being “ a farmer of good ordinary skill and industry.” He was not a lessee for value, but part owner. His possession was not tortious but permissive, and might have been ended at any moment by the parties claiming their own. The accounting should be conducted as follows: Ascertain whether James R. Massey cultivated more of the tillable land than his proportion before election. If not, then there is. nothing due by him. If hé did, then he should be charged with the rents and profits of that excess; that is to say, if he rented the land he should be charged with.the rents received; and if he cultivated them himself, then with the profits actually received from such cultivation, without regard to the skill which he happened to possess as a farmer or his habits as to industry.
As to the time when the bond for the land should bear date and put in motion the credit of ten years, it cannot be as contended when the commissioners in partition made their return, for if there was no other reason that return never recommended election, but ignored it. In this respect the case is not analogous to that of Huson v. Wallace, 1 Rich. Eq. 6, in which the parties were in possession wider the retwn that was afterwards, nunc pro tunc, confirmed. Here the exact reverse is the case— the possession was held in opposition to the right of election. The bond should bear date when the election was consummated-. At that moment the relative rights of the parties changed. Massey became the owner of the lands and the account against him as tenant in common must cease. He never indicated his election until after the return of the commissioners had been made, December, 1873. To that return he excepted and declared his election. His exceptions were overruled. The return was confirmed and ordered to be enforced February, 1874. That order was reversed by judgment of this court, (1876), which allowed the election. It should have received legal sanction in the order of February, 1874, but it was refused, and, pending the appeal, he Was denied the rights incident to it. When must he be consid*310ered to have elected? When the Circuit order was passed which should have decreed it, or when he realized the fruits of it? We concur with the Circuit judge that the election must be considered to have been legally made at the date of the Circuit order. It is true his enjoyment was postponed until after the judgment of the Supreme Court, but that judgment did not create the right, it only declared error in the Circuit order, and it must be referred back and read for that order. The judgment itself indicates this view, for it says that James R. Massey should give his bond and mortgage “for the principal in annual installments, with interest upon it from the date of the judgment.” This may operate hardly on Massey, but what has been done cannot be undone; all that can be done is to put the parties, as nearly as possible, in the condition in which a correct judgment would have placed them at that time. The right of Massey attached at the date of the Circuit order, so as to give him from that time an account of rents from those in possession of the lands, and he must be held to the corresponding obligation of arranging the purchase money by giving the bond and mortgage at that date. What is the proper date of that order? The first order of Judge Mackey was rescinded and replaced by another. In the first report of the case, (7 8. C. 139), the date is given as February 23d, 1874, but in the decree of Judge Wallace it-is referred to as February 13f/i.. We conclude that this is a mistake, and that the proper date is February 23d, 1874, and that fixes the time for the date of the bond and mortgage from which the credit of ten years began to run.
We see no objection to the temporary injunction against “foreclosing said mortgage for any installment due thereon until the coming in of the report and the adjudication upon the accounts between the parties.” It is manifest that some of the parties will be indebted to James R. Massey in some amounts growing out of this litigation. They have cross equities, which, as far as they go, should be set off one against the other. This cannot be done with certainty unless the parties are kept in statu quo until their rights are determined. There seems to be propriety in it,, for the reason that James R. Massey is required to give bond for the purchase money of lands two years before his right was *311declared to the lands so purchased, and the possession of which was held by those who are entitled to receive the purchase money secured by the bond. The rents for these lands during the very years in which the interest was' running and the installments falling due, most certainly should be credited on the bond.
In regard to the slaves, this court, after argument, directed in what manner the account should be stated. Under that direction the referee reported “ that under the decision of the Supreme Court in this cause, James II. Massey should account for whatever value he derived from the use of the slaves and not for their hiring value, and, accordingly, reports from the testimony that James R. Massey derived no benefit from the use of the slaves over and above their expenses.” The Circuit judge referred it back to report “what the value of their services would have been in the hands and control of a person of average skill, industry and perseverance. What they would have hired for,” &c. In the view which we expressed as to the rents and profits of the lands, we think this reference was unnecessary and would only increase the expenses and cause further delay in the case. The principle of the account for the possession of the slaves was settled by this court in its second judgment, and we can do no more than re-affirm it in the words there stated. “ It is proper that he [James R. Massey] should be charged with whatever value he has derived from the use of the slaves prior to emancipation, over and above the proportion of such value he was entitled to under the will, on.the same ground upon which he was required by the judgment of this court to account for the rents and profits of the lands.” The evidence is not before us upon which the referee based his report, and we can pronounce no judgment thereon.
We concur with the Circuit judge in reference to the account for corn, plantation supplies, &e., alleged to have been on the place at the death of Mrs. Massey. That property, not specifically disposed of, like the slaves, fell under the residue clause of the will. The report of Referee Connors upon the subject of this property, was excepted to in the words “ slaves and other property.” The matter was before the Supreme Court in the exception for error “ in overruling said exceptions.” The same prin*312ciple of accountability, which was expressly declared as to the slaves, should be applied to this property, which, in its nature, was consumable in the use.
We also concur with the judge in refusing to disturb the report of the referee in regard to the guardianship claim against the estate of Mrs. Massey. That was a distinct claim by James B. Massey, having no connection with the points argued, and the objection now made for the first time comes too late. And we concur in refusing to allow the charge against Elizabeth Beckham, Sarah Jones and James B. Massey, Jr., for damages caused, as alleged, by an illegal levy upon the property of James B. Massey. This claim was properly disallowed.
Subject to the modifications herein made, the decree is affirmed and the appeals dismissed.
McIvek, A. J., concurred.