Consider Dickinson vs. Charles Williams, 11 Cush. 258

Dewey, J. It is objected to the maintenance of the present action that the plaintiff’s only remedy is by a bill in equity. This point is urged as one necessarily resulting from the relation of these parties as tenants in common of the real estate, in reference to which the plaintiff claims that the defendant is indebted to him for money paid out and expended for the common benefit, and also for his proportionate share of money received from sales of the common property.

As between such parties, it is contended that assumpsit will not lie to recover a proportional part of any money that one party has received beyond his share from the sale or use of the common property, or for a proportional share of money advanced by one party to relieve the estate from a common burden which both were equally bound to remove. But this position, we think, cannot be maintained. Numerous cases in oar own reports hold the contrary doctrine. The cases of Brigham v. Eveleth, 9 Mass. 538, and Jones v.

Harraden, 9 Mass. 540, cited in a note to the former case, are decisions that in debitatus assumpsit will lie by one tenant in common against another who has received more than his share of the profits of the common property. This form of action was allowed in Miller v. Miller, 7 Pick. 133, and 9 Pick. 34, to recover money due for the share of one tenant in common in a sale of trees standing on the common land. It was allowed in Fanning v.

Chadwick, 3 Pick. 426, where Wilde, J. says, “ when a plain, convenient, and adequate remedy may be had at law, a party ought not to be turned over to a court of equity.” The Rev. Sts. c. 118, § 43, abolishing the action of account, gives a bill in equity only in cases “ where it cannot be conveniently and properly adjusted in an action of assumpsit.” In Munroe v.

Luke, 1 Met. 459, which was assumpsit by one tenant in common against his cotenant to recover his share of rents, it was held that where it was a claim for money actually received by defendant, to which in some form the plaintiff has title, it can be conveniently settled in an action of assumpsit. Money expended by the plaintiff to pay off a common incumbrance necessary to be removed to discharge their joint ■covenants, must equally be the proper subject of an action of assumpsit by one tenant in common against his cotenant.

Even -in the case of copartners, assumpsit has been held to lie if there are no outstanding demands against the partners or outstanding debts to be collected, so that the judgment to be rendered will be a final settlement between the parties. Rockwell v. Wilder, 4 Met. 556; Bromley v. Kupfer, 6 Pick, l79; Williams v. Henshaw, 11 Pick. 79. The present case, if tested even by this rule, would be maintainable. This judgment, when rendered, will be a final settlement between the parties.

The judgment will adjust all their former liabilities for moneys received, and money advanced for the common benefit, and leaves each the holder of his interest in the land remaining unsold. The claim of the plaintiff is not barred by the statute of limitations, the accounts existing between the parties oeing such as show “ a mutual and open account current ” within the decision of Penniman v. Rotch, 3 Met. 216. Judgment for the plaintiff.