Pascoe v Swan, 54 E.R.
201 (1859)
*201 Pascoe v. Swan
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Ct of Chancery
10 November 1859
(1859) 27 Beavan 508
54 E.R. 201
1859
Analysis
[508] Nov. 10, 1859.
[S. C. 29 L. J. Ch. 159; 5 Jur. (N. S.) 1235; 1 L. T. 17;
8 W. R. 130.]
The Plaintiff’s mother and the Defendant were tenants
in common in fee. She died in 1851 and her interest
descended on the Plaintiff, her heir (then an infant).
The Defendant, who had previously occupied the
estate, continued in possession and thenceforward
excluded the Plaintiff. The Plaintiff attained twenty-one
in 1857. Held, that the Defendant was accountable to
the Plaintiff for the whole period, and ought to be
charged with an occupation rent.
A copyhold estate called “Stumpus” stood limited upon
trust for Mrs. Swan for life, with remainder on trust for
her children as tenants in common in fee.
Mrs. Swan died in 1839, leaving three children, viz.,
Joseph Donnithorne Swan, Mrs. Pascoe and James
Swan. Joseph Donnithorne Swan afterwards occupied
the farm, and maintained his sister, Mrs. Pascoe, until
her death in 1851. Her interest in the estate descended
on the Plaintiff, her heir, according to the custom of the
manor, who was then an infant.
The Plaintiff attained his age of twenty-one years in
April 1857. After the decease of the Plaintiff’s mother,
Joseph Donnithorne Swan himself occupied and *202
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farmed the estate, but he never paid any rent to the
Plaintiff in respect of his one-third part of the estate; he
excluded the Plaintiff therefrom, and altogether denied
the Plaintiff’s right to any interest in it.
The Plaintiff, by this bill, prayed a partition, and that
one-third might be allotted to him in severalty, and that
the Defendant Joseph Donnithorne Swan might be
charged with, and decreed to pay, a proper occupation
rent for the Plaintiff’s one-third of the estate since the
death of his mother in 1851.
Mr. Follett and Mr. Southgate, for the Plaintiff, argued
that at common law one tenant in common [509] might
maintain an action against another to recover his share
of the rents under the 4 Anne, c. 16, s. 27, but if ousted
that he might recover in an action for mesne profits;
Goodtitle v. Tombs (3 Wilson, 118); Eason v.
Henderson (12 Q. B. Rep. 986); and that similar rights
existed in equity. That here the Defendant had entered
on the estate of an infant, and had made himself
accountable as guardian or bailiff. [See Crowther v.
Crowther (23 Beav. 305); and Mathew v. Brise (14
Beav. 341).]
Mr. Renshaw, for the Defendant, contended that in this
case there had been no receipt of rent. That the
Defendant had not entered on the estate of the infant,
but had merely continued the possession which he had
at the death of the Plaintiff’s mother, and that there had
been no ouster, for the possession of one tenant in
common was the possession of the other; Peaceable v.
Read (1 East, 568).
The Master of the Rolls [Sir John Romilly] held that
the Defendant must be considered as having entered
upon the estate of the infant, and must account for the
rents received by him since the death of Mrs. Swan;
that in taking the account, the Defendant must be
charged with a proper occupation rent for one-third of
the estate; but must be allowed for lasting
improvements. Reg. Lib. 1859, B. fol. 513.
54 E.R. 201
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Pascoe v Swan, 54 E.R. 201 (1859)

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