15 Fla. 424 (1875)
WESTCOTT, J.,
delivered the opinion of the court.
The appeal in this case is from two decrees of the Chancellor — one final, the other interlocutory. The final decree, from which the appeal is taken, dismisses the bill as to the defendants, Earle & Perkins, and this action is the general error assigned as to that decree. The interlocutory decree, which the appeal brings here for review, directs the commissioners appointed to partition the lands to assign to defendant, "W. O. Bird, in the partition prayed for, that portion of the land which embraces the homestead of the family; directs an account to be taken of the rents and profits of the land which has been in the possession of W. G. Bird, and revokes the order restraining Bird from disposing of the crops.
Defendant, W. O. Bird, takes no appeal from that portion of the interlocutory decree which directs an account to be taken of the rents and profits received by him, nor do the appellants here present that question. It is, therefore, not before us for consideration.
The two general questions presented are: "Was the decree dismissing this bill, as to Earle & Perkins, error? Was the interlocutory decree erroneous insofar as it directed the commissioners, in making the partition, to assign to W. O. Bird the portion upon which was located the family homestead, and in so far as it restrained W. C. Bird from disposing of the crops?
Upon the death of Daniel Bird, in the year 1867, the plaintiffs, children of Daniel B. Bird, and grand-children of Daniel Bird, became entitled to one-third interest in a tract of land in Jefferson county; the plaintiffs, children of Pickens B. Bird, and grand-children of Daniel Bird, became entitled to one-third interest; and the defendant, W. O. Bird, the son of Daniel Bird, became entitled to the remaining third. They were tenants in common.
At the death of the grandfather, W. C. Bird was in possession of the entire tract, and has so remained up to this time, with the exception of the year 1874. As to this year, the plaintiffs allege an entire and exclusive possession, while Bird answers that he has cultivated only a part for that year, and that he has been willing for the others to occupy. Up to 1874, it is admitted that he occupied and used the entire tract, appropriating the rents, issues and profits thereof. During this period Earle & Perkins, commission merchants, advanced to him moneys, taking mortgages upon his crops, from year to year, to secure the repayment of the sums so advanced; and the defendant, Bird, in compliance with his contract, turned over his crops annually to Earle & Perkins, who sold them and applied the proceeds to the payment of the indebtedness of Bird to them.
The original bill was filed in 1869 against defendant, W. C. Bird, and its prayer was for a partition and account of the rents and profits. In June, 1870, the plaintiffs agreed to sell their interests in the land to the defendant, and the court, after ascertaining the values in accordance with the agreement, on the 27th day of May, 1872, appointed a referee and directed a sale upon the terms agreed upon. On the 10th of May, 1873, the referee reported to the court a failure on the part of defendant, Bird, to comply with the agreement of the sale, and requested further instructions, or that he be discharged. The court took no action upon this report.
On the 17th day of February, A. D., 1873, defendant, Bird, executed a mortgage upon all the crops of cotton, corn and fodder to be raised by him during that year. This mortgage was conditioned to pay advances for the crops for that year, and to apply any remaining balance to the debt due them by him for antecedent advances.
It will be seen that this mortgage was given while Bird was in possession, under a contract of purchase from the plaintiffs, which had been agreed to by them, and which had been approved by the court.
A receiver was appointed of these crops of 1873, by the court, in another suit, wherein Earle & Perkins sought a foreclosure of their mortgage, and the proceeds of the sales thereof are now under the control of the court.
Under this state of facts, the claim now here made is, that defendant, W. C. Bird, having controlled the interests of the infant plaintiffs in this land since 1867, is liable to them as trustee or guardian, and that defendants, Earle & Perkins, having received all of the crops raised thereon, are likewise liable as trustees, and that they should be decreed to account therefor. The precise question, therefore, which we have to determine, is: Is the mortgagee of crops grown by one tenant in common of the land, who has possession of the entire estate, responsible as trustee to other infant tenants in common of the land with the mortgagor, such mortgagee having received the crops and appropriated the same to the payment of his mortgage debt?
Appellants insist that the infant tenants in common had a property and title in the crops grown by their co-tenant to the extent of their interest in the land, and invoke in their behalf the familiar principle that when a person enters upon, or takes possession of the property of an infant, a court of equity will consider such person entering as guardian or trustee, and will decree an account against him. That such is the law cannot be questioned. 31 Eng. Chy., 505; 8 Fla., 153. But is it true that infant tenants in common of land are tenants in common of the crops produced thereon by their co-tenant, through a sole use and occupation of the common estate?
In Coke Litt., 200, b., the common law upon the subject of tenants in common is thus announced: “ If one tenant in common maketh his companion his bailiff of his part, he shall have his action of account against him. But although one tenant in common, without being made bailiff, take the whole profits, no action of account lies against him.”
It was manifestly unjust to permit one tenant in common thus to take the whole profits of the common estate without accounting, and it was the purpose of the statute of 4 Ann, Ch. 16, to correct that evil. That statute, which is in force in this State, enacted that an action of account shall lie by one tenant in common against another who has actually received more than his share of the profits.
Under the statute of Ann, it was no longer necessary that one tenant in common should take the profits as bailiff by appointment to make him responsible. It was only necessary that he should receive more than his just share of the profits. By this act, and without appointment by his co-tenant; he became bailiff, and was responsible for what he actually received beyond his just share.
The English courts, however, held that there was not a receiving within the meaning of the statute in cases where one tenant in common had enjoyed more of the benefit of the subject or made more by its occupation than the other, and restricted the statute to cases only where one tenant in common receives money, or something else, from another person, to which both co-tenants are entitled by reason of their being tenants in common, and in proportion to their interest as such, and of which the one receives and keeps more than his just share according to that proportion. Mere occupancy by one tenant in common, under this decision, involved no liability to account to another tenant in common. These are the views announced by Baron Parke in 9 Eng. Law and Eq., 339.
The same view has obtained in the United States, in the States of Massachusetts (12 Mass., 156,) California, (12 Cal., 422,) New York, (18 Barbour, 265,) Kentucky, (7 J. J. Mar., 139,) Maryland, (30 Md., 126,) New Jersey, (3 Stock., 404,) and Missouri, (29 Mo., 366.) A different doctrine has prevailed in the States of Virginia, (16 Gratt., 21, 52,) Vermont, (44 Vt., 347,) South Carolina, (1 McMullin, 69,) and Georgia, (14 Ga., 436.)
In these States the occupying tenant has been held responsible for what he has realized beyond his just proportion, and has been sometimes charged with a yearly rental valuation.
Where there has been an ouster of one tenant in common by another, or a use of the whole property, accompanied by an exclusion, then an account is decreed. 30 Md., 126; 44 Vt., 348; 27 Ind., 52; 22 N. J., 85; 28 Iowa, 527.
After a careful examination of all the authorities upon this subject cited by the appellant, as well as many more which we have consulted, we can find no sanction for the view that the plaintiffs had any property in the products raised by defendant, Bird. Even where there is a liability, it is a liability to account for rents and profits received as distinct from a liability in an action for conversion of the property, or other like action based upon a right of property in the plaintiff. Each tenant in common has an equal right of entry and possession. The possession of one is, in contemplation of law, the possession of the other, and to rebut such presumption, an actual ouster must be shown.
The title and property in the crops raised upon the land occupied by the one tenant in common vest in him. He can mortgage and sell the entire crop, and if it is gathered before partition, the crop is his property. These crops have been the result of his separate occupation, the use of his labor, skill and industry. The crop of 1873 was made during an occupancy by consent of the plaintiffs, and under the sanction of the court. Bird, having received advances from Earle & Perkins under these circumstances, their mortgage upon the crops gathered, and the proceeds of which are now under the control of the court, is good as against the claim of property urged by plaintiffs. As to the crop of 1873, Bird was in possession by their agreement, and if plaintiffs had disturbed his possession, they would have been trespassers. They have no property in these crops. A growing crop is part of the freehold. Had plaintiffs obtained partition while the crops were growing, they would have been, as against Bird, entitled in severalty to such part as was growing upon the land assigned them. 4 Met., 415; 4 Kent, 370. Whether this would have been the rule as against the merchant making advances, through which the crops were raised, it is unnecessary here to enquire, as there has been no such partition.
Our conclusion upon this branch of the case is, that neither Bird, nor Earle & Perkins, in appropriating the crops raised upon the common estate, entered upon or used the property of an infant; that the title and ownership of these crops was in the occupying tenant, subject to liability to an account, if his possession was adverse and exclusive, or the result of ouster.
The claim that either Bird or Perkins held the legal title to these crops as trustee, or that they were in any manner trustees, cannot be entertained. If Bird had the right of property in the crop as an incident to his right of entry and possession, labor and cultivation, then it is impossible that he can be a trustee for the benefit of others in property in which he has the entire, the sole and exclusive property himself, unless one who has the absolute and unqualified ownership of a chattel can be the trustee of another as to that chattel, a proposition so manifestly erroneous, that it needs only to be mentioned to perceive its error.
In a case of precisely similar character to this in many respects, and where infants were plaintiffs, the court of appeals of South Carolina held expressly that defendants occupying the relation that Bird does in this case to the plaintiffs, could not be regarded as trustees of the complainants. 1 Speer’s Eq. Cas., 264.
If Bird cannot be so regarded, as a matter of course his mortgagee for value, with knowledge of the state of his title, cannot be treated as a trustee.
The bill as to Earle & Perkins was properly dismissed. Plaintiffs had neither equitable nor legal right as against them. If they had any right against Bird, it did not extend beyond a right to an account; there was neither lien nor property in the crops raised by his labor and occupation.
The next and only remaining question presented by this appeal is, was the interlocutory decree erroneous in so far as it revoked the restraining order of November 27, 1874, and in so far as it directed the commissioners in making the partition to assign to W. O. Bird the portion upon which was located the family homestead?
The order of November 27 restrained Bird from disposing of the crops made by him. He alleges in his answer that he did not, for the year 1874, cultivate more than one-third of the land. He swears positively that he did not exclude his co-tenants. As to the other crops the plaintiffs we have seen have no property in them or lien thereon. We can see no ground for the restraining order. It was properly revoked.
The next question is as to the matter of the partition.
The power of the chancellor over the entire subject cannot be denied. He cannot be bound against his own views of right, and in the exercise of his general discretion, by the action of the commissioners. And while it is unquestionably true, as a general rule, that the chancellor should adopt the action of parties appointed by himself to take testimony, inspect the lands, and after consideration of the entire subject, to act; still there is no absolute rule making it his duty so to do. Under the statute he has power to remove the commissioners, and the whole matter is one of judicial discretion with which this court will not interfere, unless in a plain case of wrong and injustice. It is the general doctrine prevailing in appellate courts that they will not, except in plain cases, interfere with such discretions. Except as is otherwise provided in the statute, the chancellor had all the powers of a court of equity over the subject. The court is invested with all the cumulative powers created by the statute, and retains all chancery attributes except as otherwise provided by the act.
It cannot be denied that it was within the power of the court to direct the commissioners to assign to Bird that part of the land upon which was situated the homestead. Mr. Justice Story says: “The court should assign to the parties respectively such parts of the estate as would best accommodate them and be of most value to them with reference to their respective situations in relation to the property before the partition.” Nor will courts of equity, in making these adjustments, “ confine themselves to the mere legal rights of the original tenants in common, but will have regard to the legal and equitable rights of all other parties interested in the estate, which have been derived from any of the original tenants in common.”
We cannot see that the plaintiffs, either the children of Daniel B. Bird or of Pickens B. Bird, stand in any such relation to the homestead in this cause as would induce us to control the discretion of the chancellor, and direct its assignment against his judgment to one or the other of them, except upon one hypothesis. If the fact be that the allotment of the homestead placed to W. C. Bird will result in its being subject to a heavy mortgage debt of such character as will render it subject to sale, and it is not made to appear by W. C. Bird that he can retain it as his homestead, then it should be assigned to the children of one or the other of the brothers as the chancellor may, in his discretion, determine is best under all the circumstances. The plaintiffs allege that such a mortgage deed exists; that defendant Bird is in no condition to redeem; that the assignment of the homestead place to him is an assignment virtually to his creditors or to purchasers at a sale to be had under the mortgage; that both he and his wife have waived all right of homestead in the premises, and have executed deeds by which they have consented to a sale to pay their debt. If this will be the result, then it is manifestly and plainly unjust to prefer the creditors of W. C. Bird to the children of his brothers. If this will not be the result, then defendant Bird has certainly an equal right to the homestead, and such assignment should not be disturbed. The assignment cannot be affected by a liability to account, if there be such liability, or the appropriation of past crops. It should be made with reference to the respective situations of those interested to the property before partition. In this case the homestead was occupied by W. C. Bird; the plaintiffs, infants, had other homes. Why should they be given the homestead, and W. C. Bird denied it? W. C. Bird is the only surviving son, and has been occupying it as a home.
The record now before the court does not enable us to come to any conclusion upon this subject, nor did the testimony and record before the chancellor enable him to pass upon this question. The result is that this case must go to the court below for a determination of the question of partition and for further proceedings. The decree dismissing the bill as to Earle & Perkins is affirmed. The interlocutory decree, so far as it assigns to defendant W. C. Bird the homestead place, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion and conformable to law.