a third party for the purchase of the entire estate, conceals such contract from his cotenant and obtains from him a conveyance of his interest for a sum much less than half of the amount he is to receive for the whole estate, he will be held to account to such cotenant for one-half of the amount received by him for the estate. McCutcheon v. Smith, 173 Pa. 101 (33 Atl. Rep. 881). A purchase by one cotenant at a tax sale of the common property inures to the benefit of all. Johnson v. Brauch, 9 S. Dak. 116 (68 N. W. Rep. 173; 62 Am. St. Rep. 857). In making such a purchase a cotenant will be presumed to hold the title acquired in trust for his cotenants, until the presumption is shown not to be well founded, by the refusal of the cotenants to contribute to the payment of the necessary expenses incurred to obtain the tax title. Phillips v. Wilmarth, 98 Ia. 32 (66 N. W. Rep. 1053). One of several heirs who are entitled to inherit, as tenant in common, lands of a decedent may purchase such lands at a sale thereof made to pay decedent's debts and such purchase does not inure to the benefit of the other heirs. Aubuchon v. Aubuchon, 133 Mo. 260 (34 S. W. Rep. 569). A tenant in common of a mining claim cannot buy in the title of a senior conflicting mining claim and assert it against his cotenant, and this rule applies to purchases of conflicting mining claims made in pursuance of an arrangement between one cotenant of a mining claim with a third person whereby all their mining interests should be consolidated, although the title was taken in the name of a company organized by them for the promotion of such agreement. Franklin Mining Co. v. O'Brien, 22 Colo. 129 (43 Pac. Rep. 1016). Where an outstanding title is purchased by a tenant in common his cotenant cannot claim the right to share in the benefit thereof unless within a reasonable time he contributes his share of the cost of such title. Cockrill v. Hutchinson, 135 Mo. 67 (36 S. W. Rep. 375). Citing, Mandeville v. Solomon, 39 Cal. 125, from which the court quotes approvingly as follows: "Equity does not deny to a tenant in common the right to purchase in an outstanding or adverse claim to the common property. It, however, deals with the tenants after such a purchase is made. While it will not permit one of them to acquire such a title

solely for his

own benefit or to the absolute exclusion of the other, it at the

same time exacts of that other the exercise of reasonable diligence in making his election to participate in the benefit of the new acquisition; and having, upon its own principles of fair dealing, compelled the purchasing tenant to allow his cotenant this opportunity, the latter will not be permitted to equivocate or trifle with the position thus afforded him, or to make it a means of speculation for himself, by delaying until the rise of the land, or some event yet in the future, shall determine his course. Unless he make his election to participate within a reasonable time, and contribute, or offer to contribute, his ratio of the consideration actually paid, he will be deemed to have repudiated the transaction and abandoned its benefits." A tenant in common, in possession of lands, is entitled to recover from his cotenants such portion of taxes paid by him as inured to the benefit of his cotenants. Leake v. Hayes, 13 Wash. 213 (43 Pac. Rep. 48; 52 Am. St. Rep. 34).

Sec. 927.

Ouster-Rents. Ouster may be proven by pleadings filed in a previous action between tenants in common which contain allegations of title by adverse possession. Fenton v. Miller, 108 Mich. 246 (65 N. W. Rep. 966). In the recent case of Names v. Names, 48 Neb. 701 (67 N. W. Rep. 751), the supreme court of Nebraska say: "While there is a conflict in the authorities upon the proposition whether a cotenant in the exclusive possession of the common property is liable to account for the value of such occupation, in the absence of an agreement to pay rents, where there has been no denial of the right of his co-owner to enter and enjoy with him, the weight of the adjudications in this country sustains the rule that when a tenant in common excludes his co-tenant from the enjoyment of the common property, or where he takes possession of the whole, and holds the same adversely, as owner, he is liable for the rents. Valentine v. Healey, 86 Hun. 259 (33 N. Y. Supp. 246); Almy v. Daniels, 15 R. I. 312 (4 Atl. Rep. 753); Holmes v. Best, 58 Vt. 547 (5 Atl. Rep. 385); Scantlin v. Allison, 32 Kan. 376 (4 Pac. Rep. 618); Minter v. Durham, 13 Ore. 470 (11 Pac. Rep. 231); Edsall v. Merrill, 37 N. J. Eq. 114; Gage v. Gage, 66 N. H. 282 (29 Atl. Rep. 513; 28 L. R. A. 829); Wood v. Grif

fin, 46 N. H. 230; Zapp v. Miller, 109 N. Y. 51 (15 N. E. Rep. 889); 11 Am. & Eng. Enc. Law, 1099, and cases cited." A claim by one cotenant against his deceased cotenant for rents received by him in excess of his share is a claim against his estate, and not against his heirs. McKneely v. Terry, 61 Ark. 527 (33 S. W. Rep. 953). In a suit against a cotenant who has farmed the common property to the exclusion of the other cotenants, brought by them to recover their share of the profits, he is entitled to an allowance for his services and expenses expended in producing such profits, and for taxes. Dewing v. Dewing, 165 Mass. 230 (42 N. E. Rep. 1128).

Sec. 928. Injury to property by cotenant-Injunction. Construing and applying Mont. Code Civ. Proc., § 592, which provides that "if any person shall assume and exercise exclusive ownership over, or take away, destroy, lessen in value or otherwise injure or abuse any property held in joint tenancy or tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such joint tenancy or tenancy in common did not exist," it is held that where one while conducting mining operations on a claim belonging to him extracts ore from an adjoining claim which he owns in common with another, although in a proper manner and without committing waste, his co-tenant may enjoin him from continuing such extraction of ore. Anaconda Copper Min. Co. v. Butte & B. Min. Co., 17 Mont. 519 (43 Pac. Rep. 924).

TITLE.

Sec. 929.

EPITOME OF CASES.

Good and marketable title-Vendee entitled to. The title of one who claims under a judicial sale held under a special statute, the validity of which has been upheld by the courts, will not be held insufficient to sustain specific performance because of the possibility that the court may, at some time in the future, when other parties are before it, dis

regard its own precedent, and decide the same question, depending on the same facts, in a different way. Ebling v. Dreyer, 149 N. Y. 460 (44 N. E. Rep. 155). A court of equity will not compel the purchaser to take a title which is not free from reasonable doubt and which might in reasonable probability expose him to the hazards of litigation; and this rule should be applied with emphasis where the proposed vendor has no record title. Trustees of Sharp St. Station M. E. Church v. Rother, 83 Md. 289 (34 Atl. Rep. 843); Daniel v. Shaw, 166 Mass. 582 (44 N. E. Rep. 991). To entitle a vendor to specific performance he must be able to tender a marketable title. A purchaser ought not to be compelled to take property, the possession of which he may be obliged to defend by litigation. He should have a title that will enable him to hold his land free from probable claim by another, and one, that if he wishes to sell will be reasonably free from any doubt which would interfere with its market value. McPherson v. Schade, 149 N. Y. 16 (43 N. E. Rep. 527). Where a vendor of land, in his contract of sale, obligates himself to convey "by good and sufficient deed," he does not discharge his covenant by the execution of a deed good merely in point of form, but, fully to comply with his obligation, he is bound to make a good and perfect title to the land contracted to be sold, and to remove any existing incumbrance, or to protect the vendee against it. A vendee will not be compelled to accept a conveyance under an executory contract until the vendor exhibits a regularly deduced title, free from incumbrances, and apparently sufficient to assure the estate according to the contract. Frazier v. Boggs, 37 Fla. 307 (20 So. Rep. 245).

Sec. 930. Good title-Deed defectively witnessed. A purchaser who is entitled to a good title is not bound to accept a deed executed by several grantors which is not entitled to be recorded, because it appears upon its face that its execution by a part of the grantors has not been properly witnessed as required by the statute, although it has been duly acknowledged by all of them. Harrass v. Edwards, 94 Wis. 459 (69 N. W. Rep. 69). The court say: "The plaintiff, as a purchaser, could not be required to accept a defective or unmarketable title. He has an undoubted right to a good

title; and, while a title may be good, yet, if there is reasonable doubt of its validity, the purchaser is not obliged to take it, Allen v. Atkinson, 21 Mich. 351; Shriver v. Shriver, 86 N. Y. 575; and so it follows that a title may be valid, and yet not marketable, Reynolds v. Strong, 82 Hun. 202 (31 N. Y. Supp. 329). A material defect in the title to land is such a defect as will cause a reasonable doubt and just apprehension in the mind of a reasonably prudent and intelligent person, acting upon competent legal advice, and prompt him to refuse to take the deed at a fair value. Eggers v. Busch, 154 Ill. 604, 607 (39 N. E. Rep. 619, 620); Hellreigel v. Manning, 97 N. Y. 56. If a doubt exists, so as to make it probable that the purchaser's right may be a matter of legal investigation, or if the title depends upon facts to remove it which can only be established by parol evidence should the title be attacked, he will not, in general, be compelled to complete the purchase, He will not be compelled to buy a law suit. Moore v. Will iams, 115 N. Y. 586 (22 N. E. Rep. 233; 5 L. R. A. 654). In so far as the title depends upon the execution, attestation, acknowledgment, and effect of conveyances as they appear upon the record, they must be free from reasonable, doubt upon their face as to their validity, and must have been properly and legally recorded, or be such as are legally entitled to record. Shechy v. Miles, 93 Cal. 288 (28 Pac. Rep. 1046); Moore v. Williams 115 N. Y. 586 (22 N. E. Rep. 233; 5 L. R. A. 654); McPherson v. Schade, 149 N. Y. 16 (43 N. E. Rep. 527); Irving v. Campbell, 121 N. Y. 353 (24 N. E. Rep. 821; 8 L. R. A. 620); Holly v. Hirsch, 135 N. Y. 590598 (32 N. E. Rep. 709-711); Townsend v. Goodfellow, 40 Minn. 312-316 (41 N. W. Rep. 1056, 1057; 12 Am. St. Rep. 736; 3 L. R. A. 739); Fairchild v. Marshall, 42 Minn. 18 (43 N. W. Rep. 563)."

Sec. 931. Sufficiency of a tax title. It is held that a tax deed, under the provisions of the Wisconsin Rev. Stat., § 1176, making it evidence of the regularity of all proceedings in which it is issued, which is fair upon its face, is prima facie a marketable title which the vendee is bound to accept. as such unless specific objection is made, and at the hearing or upon the usual inquiry or reference as to the state of the title