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The,opinion of the Court was delivered by

Mr. Justice Fraser.

Only a brief outline of the facts will be necessary in this opinion, as the case is very fully stated in the decree of the Circuit judge. Samuel-Young, late of Laurens district, died in 1865, leaving in force a will by which, in certain contingencies, he gave his estate, real and personal, to his son, William Young, charged with pecuniary legacies of $20,000 each, to his two grandchildren, the defendants, George F. Young and Mary Young, who has intermarried with the defendant, Stobo D. Garlington. Finding this charge on the estate in his hands a very heavy one, in consequence, we suppose, of the changed condition of affairs at the close of the Confederate war, William Young conveyed, in April, 1876, the whole estate, reduced to about 8,000 acres of land and a small' amount of personalty, to *286the defendants, George F. and Mary L., as “tenants in common,” in payment for the said legacies.

The real estate consisted of a large number of parcels or tracts of land, and, amongst them, some land known as the “Calmes ■tract” of 1,300 acres, and the “Wm. R. Young tract” of 550 acres. This tract of 550 acres had been the property of W. R. Young, who died in 1863, and had been sold as a part of his estate under some proceedings and in some way not material here, and conveyed to the said Samuel Young in his life-time, and by William Young conveyed to George F. and Mary L., with the other property of his estate. These defendants having failed to pay, in due time, the taxes assesséd on these lands, and the lands or a portion of them having been sold as delinquent, the plaintiff furnished the money on several occasions to redeem them, or so much of them as had been sold for taxes.

The complaint alleges that the money was advanced on an agreement between the plaintiff, who is the respondent in this case, and the defendants, George F. and Mary L., two of the appellants, to repay the money and interest. The Circuit judge has rejected several of the sums claimed in the complaint, and. he has also found as a fact that there was no agreement made by Mary L. to repay these moneys. He has found, however, as a fact that George F. did promise to pay and is liable for $377.07, and interest from October 16, 1875, the money loaned by plaintiff to redeem a tract of land in Newberry county, for $1,136.30, and interest from December 21, 1875, the money paid to B. H. Mathews to redeem the Calmes tract, which he had bought at a tax sale, and $340.91, and interest from May 3, 1875, money advanced to buy in at a tax sale -a portion of the said real estate at the same time that plaintiff claims to have bought in the W. R. Young tract for-himself or for parties whose interest he claims to represent as executor or administrator of- W. R. Young. These sums, with interest, amount on January 16, 1881, to $2,539.90, and for this sum and interest from January 16, 1881, to the date of the decree, the Circuit judge has given judgment.

The plaintiff’s claim, thus adjudicated, is a purely legal demand, triable by a jury, and in such cases when the case has been tried, as this case has, by the Circuit judge instead of a jury, *287there can be no appeal to this court from his findings of fact. Mere errors of-calculation, however, or improper conclusions of law from the facts found by the Circuit judge, as will hereafter' appear, may be corrected in this court without any infringement of the rule which does not permit'this court to review the findings of fact by a Circuit judge in a jury case.

Besides the general denial of the plaintiff’s cause of action, the defendants set up in their answer by way of defence, 1. That on the occasion when plaintiff advanced the sum of $1,136.30, December 21, 1875, to redeem the Calmes tract, B. H.'Mathews, who had purchased the same at the tax sale, made a title, such as he had, to the plaintiff for the same, and that it was incumbent on the plaintiff in any action to recover the money to tender back to defendant such title, and that he has failed to do so here. 2. By way of counter-claim, defendants allege that plaintiff had, before the commencement of this action, brought an action against the defendant, Stobo D. Garlington, and the tenants, to recover possession of the Calmes tract; that by this action and other interference with the possession, plaintiff had caused damage to the defendants to the extent of $1,000, for which amount the defendants set up a counter-claim in this action. 3. Further, by way of counter-claim, the defendants allege that the plaintiff has been in possession of the said W. R. Young tract, and has received the rents and profits thereof from the year 1875, including that year, to the present time; that the title to the said W. R. Young tract is in the defendants, George F. and Mary L.; that the rents and profits of the said land for the time plaintiff has been in possession thereof are worth $2,650; that plaintiff agreed to pay the same; and for this sum defendants set up a counter-claim. 4. Defendants also set up as a counter-claim the sum of $6.50, money advanced for plaintiff’ in the payment of some taxes.

The Circuit judge has rejected this defence and all of these counter-claims. There has been no appeal as to the items in the complaint rejected by the Circuit judge, or as to the item of. $377.67, advanced October 16, 1875, or as to the counter-claim of $6.50.' The appeal brings up all the other questions in the case on exceptions by the defendants.

*2881. The first two exceptions are as to the findings of fact by the Circuit judge on the plaintiff’s cause of action, and have been disposed of above.

2. The 3d, 4th, and 9th exceptions relate to the failure of the plaintiff to tender back title to'the Calmes tract, and damages to the possession thereof. It is clear from the testimony that B. H. Mathews conveyed to plaintiff such title as he had to the Calmes tract only as a security for the repayment of the money, $1,136.-30, advanced by plaintiff to the defendant, George F., for its redemption, the said George F. going into possession thereof and retaining it, either by himself or others. If this had been an agreement between the plaintiff and George F. for the sale to George F. of the Calmes tract on the payment of $1,136.30, there would have been good reason for the claim now made by George F., that plaintiff should have tendered title either before action or, at least, in his complaint, in which he sues for the purchase money, before he could be allowed to recover. A creditor who holds a claim secured by a mortgage of real estate, or other collaterals, is under no obligation to resort to his mortgage or other collaterals, in the first instance, if he is satisfied to sue for and obtain a purely personal judgment against his debtor. Neither is he under any obligation to tender back title to the mortgaged property or a delivery of the collaterals, in his complaint, as a condition of his right to recover a judgment for his debt. If the defendant, the mortgagor, is apprehensive of injury or loss, as he might well be when the mortgage has been made by way .of a deed absolute on its face, or when the property pledged for the payment of the debt consists of negotiable securities, the proper remedy for the defendant is to tender in his answer the money due to the plaintiff and demand, by way of counter-claim, a reconveyance of his land unincumbered by the plaintiff, or a redelivery of his securities.

It is not difficult to conceive of circumstances which would make this course necessary and proper on the part of the defendant in order to protect himself against a loss of his securities after he has paid the debt for which they were pledged; but in such cases it would be the duty of the defendant debtor and not of the plaintiff creditor to tender performance as the foundation *289of bis demand for judgment. It was not the duty of the plaintiff in this case in his complaint to tender back such title as he has to the Calmes tract, and which, it seems, he has once failed to establish in the courts, but of the defendant, George F., to tender payment, in his answer, of the amount secured by such title. If this had been done, the court might have ordered a reconveyance as a condition of a payment for this sum in favor of plaintiff, but not otherwise.

3. Defendants also set up a counter claim for damages growing ■ out of an action brought by plaintiff against the defendant, Stobo D. Garlington, and certain tenants, to recover the possession of the Calmes tract, and other alleged interference with the possession of defendants. If any action would lay in this or in any other case for merely bringing an action to recover possession of land, which proves unsuccessful, or if there has been any thing in the conduct of the plaintiff in reference to the possession of the Calmes tract, as shown by the testimony taken in this case, on which an action could be founded, such action cannot, in any proper sense, be said to be founded on contract. If any thing, these matters are torts, either trespass or case, and are not proper subjects of a counter-claim in an action founded on a contract for the payment of money loaned.

Exceptions 5, 6, 7, 8, and 10, refer to the title of the W. R. Young tract and the counter-claim set up in reference to the rents and profits of said tract while in possession of the plaintiff. We will consider first the counter-claim for rent. It appears that this tract of land was at one time the property of W. R. Young, and after his death was conveyed by some process, the validity of which is in dispute between the plaintiff and the defendants, to Samuel Young, and was conveyed by William Young, who.claimed under the will of Samuel Young, to the defendants, George F. and Mary L., “as tenants in common.” Assuming, for the purposes of this case, so far as the question of rent is concerned, that the title of Wm. R. Young has passed to Samuel Young, and that Samuel Young’s title has passed to defendants, George F. and Mary L., under the deed made by William Young, a.nd that there has been no valid conveyance of the W. R. Young tract to plaintiff, the title remains in George F. Young and Mary Young *290Garlington, “as tenants in common.” They have this title if any, and no other.

There has been no proof of any express contract on the' part of plaintiff to pay to George F. or Mary L., or either of them, rent for the W. B. Young tract. They can stand, therefore, only upon the implied agreement based upon the plaintiff’s use and occupation of the land, the title to which is in them “as tenants in common.” Their claim for rent on an implied promise is joint, and not several. “As each (tenant in common) has a separate and distinct freehold, if they have been disseized and ■ seek to recover the estate they must bring separate actions and may not join. And if one tenant in common recover judgment for possession in an action for the whole land, he can recover damages pro rata according to-his actual interest in the estate. But as they have one possession, they must join in actions for injuries to this, as trespass quare clausum fregit, nuisance, and the like.” 3 Wash. Real Prop., 572. To the same effect, see 1 Chit. Pl., 13, note 1, with the authorities cited. The wrong done here was to the possession, and the tenants in common are permitted to elect to sue on the implied contract instead of the trespass. Their possession is one, and any claim based on this possession must necessarily be joint.

If there had been an express contract, the case would have been different, and the contract would have been joint or several according to the agreement'of the parties. The claim for rent of this land is therefore one for which George F. and Mary L. could only have sued jointly, and the question now is, can this joint demand be set up in this action, in which it is found that plaintiff has a valid demand against only one of these defendants. It is conceded, that if the plaintiff had failed entirely in his action against all and each of the defendants, such a counter-claim, though it be joint, could be set up against him. Pom.\Rem., 739: In the case before the court, the plaintiff has established his demand against one and only one of the defendants. By setting up a counter-claim, the defendants become, in reference thereto, the plaintiffs) and the plaintiffs become quoad hoc defendants. Plyler v. Parker, 10 S. C., 464.

The general rule laid down in Pom. Rem., 761, is this: *291“Fifthly, when two or more persons have a joint right of action and unite as plaintiffs to enforce the same, a counter-claim cannot be admitted against one or some- of them in favor of any or all the defendants.” According to this rule, if defendants had brought a joint action for rent and established their demand, plaintiff could not have set up his several claims against one of them as a counter-claim. These two matters cannot be adjudicated in the same action, and one of them must be rejected. Plaintiff has come into court to enforce his demand, and cannot be deprived of his right by the presentation of a counter-claim, the allowance of which would have the effect of remanding him to another action. If either party must resort to another action, the defendants' in this case must do so. Plaintiff has chosen his ground for the contest, and if he has rights,' they must be accorded to him here. There may perhaps be cases of insolvency, or other circumstances where the application of this rule might be practically a. total defeat of the party, who is turned out of court for the reason here assigned, but no such circumstances or special equity have been alleged by the defendants here.

These exceptions also allege as error that the Circuit judge did not settle the questions between plaintiff and defendants as to the title to the W. R. Young tract. We have examined the pleadings in the case carefully and do not find any such issue raised by them; whatever is said in reference to this subject is merely bv way of recital to explain the matters above alluded to, and as to which relief is sought. The complaint is not framed with any view to enforce the performance of any contract in reference to the W. R. Young tract, and the answer is not framed with any view to recover possession of said land. While parties may have any relief to which it appears by the evidence they are entitled, it must be something within the scope of the pleadings. There was,' therefore, no error in refusing in this action to adjudicate the title or possession of the W. R. Young tract.

All that it is intended to decide in reference to these counterclaims, and as. to the titles to the Calmes tract and the W. R. Young tract is, that these are not proper matters to be adjudicated in this action.

_ As above intimated, there are several errors or mere inadver*292tencies apparent on the face of the Circuit decree which should be corrected. 1st. The whole amount paid by plaintiff on May 3, 1875, as found by the Circuit judge, was $661.89, and not $757.59, as alleged in the complaint. The defendant, Greorge F., was to pay of this amount in the proportion which 450 acres bears to 1,000 acres of land. The true sum, from this finding of the Circuit judge, should have been- $297.85, and not, as stated in the decree, $340.91. The total of the principal will therefore be $1,810.96, and of the interest $667.70, in all, $2,478.68, and not $2,529.90, as stated in the decree. 2d. Of this sum only the principal should bear interest from January 16, 1881, the date ■of ’the commencement of the action, to the date of the decree, August 30, 1883, while the Circuit decree allows interest on the whole sum, principal and interest. The judgment should have been for $2,478.66, and interest on $1,810.96 from January 16, 1881, to August 30, 1883.

Subject to these modifications as to the amount of the plaintiff’s demand, it is ordered and adjudged that the judgment of the Circuit Court be affirmed.

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