¶1The question whether the mere relation of tenancy in common creates a fiduciary relation among the tenants in respect of the common property seems to be unsettled. In the cases of Van Horne v. Fonda (5 Johns. Ch. 388), Dickinson v. Codwise (1 Sandf. Ch. 214) and Wells v. Chapman (4 id. 333), there were other elements besides the mere relation. The opinion of the lower court in the case of Graham v. Luddington (19 Hun, 251, n.) was in the affirmative, while the opinion of the three judges on appeal in the case of Streeter v. Shultz (45 id. 406) was in the negative. In the case of Peck v. Peek (110 N. Y. 64) there were also other elements, In the.case of Abbey v. Wheeler (85 Hun, 226) it was held that a suit for an accounting would not lie by a tenant in common against liis co-tenant, on the'ground that there was no fiduciary relation between' tenants in common, and therefore nothing to give equity jurisdiction of such a suit. And so out cases in this State run. There is a diversity of opinion elsewhere. Mr. Bispham, however,, in his scientific and altogether able treatise on the principles of equity enumerates "the relation of tenants in common among those ou t of which arises ipso facto a fiduciary relation (7th ed., § 93); and the case of Duff v. Wilson (72 Penn. St. 442) warrants his text.
¶2The present case not only brings the question up squarely, but shows that it ought to be decided in the affirmative.
¶3Judgment affirmed, with costs.