¶1delivered the opinion of the court:
¶2The claim set up by the complainants for the interposition of .a Court of Equity, seems, from the proofs submitted, both for ■and against the injunction, not to be well founded.
¶3Without going into the question of the right of one tenant in .common, or coparcener, to call upon his co-tenants to contribute -for valuable improvements made, and necessary for the enjoyment of the estate, and to which they have assented, or to have, under a partition process, that portion of the land improved by ■one of them allotted to him, or under what circumstances he may take possession and make improvements, we will simply advert to some prominent facts in this case, as they appear from the affidavits.
¶4James Beasley, on the part of the defendants, deposes, that Rowan, one of the complainants, said to him on several occa•sions, that the old house on the “ Home farm ” was not fit for the old lady — the widow of Dr. Reed'and the mother of Mrs. Rowan — to live in; that he intended to build a house purposely for her to live in, and if the heirs — who are these defendants— •did not help pay for it, they could go to hell.
¶5Mrs. Reed, the widow, deposes, that at the time of her husband’s death, in Eeb., 1847, the dwelling-house — “the homestead ” — was in a dilapidated condition, and unsafe to live in, and that complainant, Rowan, in 1848, built the brick house and -delivered it up to her.
¶6It appears further from the affidavits, that on the completion of this house, complainants went into it and occupied it four years, the old lady, Mrs. Reed, remaining in the old house all that time.
¶7Mrs. Reed further states, that Rowan was her tenant and acted as her agent, but does not say he ever paid any rent. She was tenant in dower, and claimed the rents.
¶8How it is quite apparent that the defendants cannot be chargeable for this improvement, or be bound to contribute anything towards it, as there is no proof that they advised it or assented to it, and there being full proof that it was not made for the benefit of the estate, but solely for the use and enjoyment of the widow, in which the complainants exclusively participated for four years.
¶9The use of the improved land on this home farm, which complainants also enjoyed, without paying any rent, for four or more years, is a fair set-off to any additions he may have made to it by taking in and subjecting to cultivation such portions of wild land upon it as he cleared and fenced, and for the ditch he made to give a proper direction to the brook. We have not made a precise calculation, in dollars and cents, of either, but the facts in the case show it was a valuable estate which they enjoyed, to the exclusion of the defendants, who had an interest in it greater, when combined, than their own.
¶10This enjoyment of the estate by complainants, is, in our judgment, ample compensation for all the improvements made, and no equities exist, which we can notice, favorable to their cause.
¶11The decree of the Circuit Court, refusing the injunction and dismissing the bill, is affirmed.