Action in equity by plaintiff Dorothy Holmes Rainer against defendants Charles James Holmes, Grace Alice Holmes, Rock county, a municipal corporation, Emily Holmes Young, and Betty Holmes Alexander, for partition of real estate and reimbursement for improvements, taxes, and insurance. The property was ordered sold and was sold for $8,500. The court referred to a referee the matter of distribution of the proceeds. After hearing the matter the referee reported to the trial court recommending judgment substantially as prayed for in the plaintiff's complaint. From a judgment in accordance with the referee's recommendation, defendants Charles James Holmes and Grace Alice Holmes appeal.

The parties inherited the real estate from their widowed mother upon her death December 25, 1936. She left surviving her 12 children. At the time of her death she was receiving county welfare aid. The property consisted of a seven-room house and a small barn situated on a lot and a half in Afton, Wisconsin. The house was in poor condition, with no running water, no bathroom, a partial basement, and the property then was worth not more than $2,000.

When the mother died eight of the children were at home, the youngest of whom was six years old. Plaintiff, who was the oldest of the children, was then twenty-seven years old, married, and living in Illinois.

The children were put on direct relief and for seven and one-half months after the mother's death the county relief department hired a housekeeper for them. This arrangement did not work out satisfactorily and on August 6, 1937, the plaintiff and her husband, Peter Rainer, gave up their home in Illinois and moved to the house in Afton to care for her younger brothers and sisters.

Charles, then aged nineteen and working, remained in the home until 1940 when he was married; later, after his war service, he and his wife stayed with the Rainers until he found work. Earl lived at the home for several months after the Rainers came and again for several months after the war. Alvin remained until 1939, Hugh until 1942, Betty until 1945, and Richard until 1947.

In 1937 when the plaintiff moved to the house in Afton it was badly in need of cleaning and repair. She worked hard at it, as did her husband and the other children who were there. Some income was provided by the welfare department and by Charles until he left in 1940. Peter Rainer secured employment in Janesville and contributed his earnings. Later he and his wife operated a school bus; in 1939 they built a garage on the property where he did automobile repairs and ran a filling station.

Plaintiff required that when her brothers were employed they should contribute to the family living expenses, but it appears that when they were old enough to do so they left the home. Other than the contributions made by Charles between 1937 and 1940, no financial help was given to the Rainers by any of the children. Until the youngest child left the home, plaintiff saw to it that all the children went to school and that their needs were cared for. She paid the property taxes and expended various sums for improvements: The furnace was replaced; the kitchen was remodeled, repaired, and refloored; the basement was completed and cemented; a garage was built; the yard was filled; sidewalks were put in; the back steps and chimney were repaired; storm windows and screens were acquired; new siding was applied to the house; insulation was installed, and a blower on the furnace; the roof was repaired; a bathroom was built and plumbing installed, etc. Most of the labor on these items was done by Peter Rainer, though it appears that the children helped where they could. It was established that Charles contributed some $165 toward the improvements. The record shows that the amount paid by the plaintiff therefor, together with taxes and insurance, amounted to $3,599.

Plaintiff never asked her brothers and sisters to pay for the improvements and never claimed any compensation for labor done by herself and her husband.

The trial court entered judgment granting the plaintiff $3,599 less her prorated share of the disbursements, granting Charles $165 for the amount he expended, and granting one twelfth of the remainder to each of the other children as their interests appeared in the action. Defendants Charles and his wife, Grace, appeal from those portions of the judgment allowing the reimbursement for improvements to the plaintiff.

MARTIN, J.

To do justice between the parties is the object of a court of equity. The rule is that a cotenant in possession may, in a partition action, be reimbursed for expenditures for improvements made in good faith for the preservation and enhancement in value of the common property. Anno. 1 A.L.R., Partition, 1189. Where he has received rents and profits from the common property during his occupancy, the value of such rents and profits is to be off set against the value of the permanent improvements made by him. Anno. 136 A.L.R., Cotenants, 1022. What appellants seek in this action is the off set of the value of use and occupancy by respondent. The authorities are divided on this question. An examination of the annotations in 27 A.L.R. 184, 39 A.L.R. 408, and 136 A.L.R. 1022, reveals, however, that generally the cotenant in possession is not held accountable for use and occupancy in the absence of ouster or agreement to pay rent. As stated in 14 Am. Jur., Cotenancy, p. 166, sec. 102:

"A number of presumptions and inferences are indulged in connection with the relation of cotenancy. Until an actual ouster is shown, the law presumes that the possession of one co-owner is the possession of all. . . ." See also Challefoux v. Ducharme (1855), 4 Wis. *554.

In view of all the authorities, we are of the opinion that an allowance for use and occupancy in a case such as this should not be made unless the equities of the particular case require it.

Appellants cite the maxim that "he who seeks equity must do equity," and argue that respondent can "do equity" only by allowing as an offset against her expenditures for improvements the value of her use and occupancy.

Both the referee and the trial court recognized, as does this court, the equity done by the respondent in this case. When she entered into the occupancy of the property in 1937 she did so at considerable personal sacrifice. Her husband gave up his work in Illinois; they gave up their home there and moved to Afton, all because her younger sisters and brothers needed someone to take care of them and keep the family together. For the next ten years she supplied the children with every need that her industry and good management could provide on a meager income; she improved the property from time to time as she could afford to and maintained it as a clean and wholesome home for their benefit as well as her own. She neither asked nor received any compensation for her care, and in gratuitously providing it she "did equity."

Respondent never excluded any of her cotenants from exercising their right to occupy the premises, either during those first ten years or afterward. There is no evidence that her sole possession of the property after 1947 was exclusive, nor is there any evidence that any of her cotenants understood or demanded that she pay rent for the use of the property. It may also be noted that none of the cotenants who occupied the premises for various periods of time after their mother's death were ever expected to pay for their use and occupation.

So far as reimbursement to respondent for the improvements, taxes, etc., is concerned, appellants argue:

"What both the referee and the trial court overlooked was the fact that the plaintiff made these improvements without any agreement for reimbursement, and in fact, never expected to be paid."

Whether the improvements were made upon some agreement between the cotenants or not is immaterial. In Kubina v. Nichols (1942), 241 Wis. 644, 648, 6 N.W.2d 657, this court adopted the rule stated in 40 Am. Jur., Partition, p. 32, sec. 39:

"`While at common law a tenant in common could not claim contribution in an action at law for partition of the property for necessary improvements made on the common property, without the consent of his cotenant, in equity a different rule applies, and the court acting on the maxim "he who seeks equity must do equity" will take such improvements into consideration in decreeing a partition, even though made without consent or promise of contribution, provided they are necessary, useful, substantial, and permanent, enhancing the value of the estate. This rule has been adopted and applied, with but rare exceptions, in every jurisdiction where the action for partition is considered as one calling for equitable interposition and relief.'"

There is no question that the improvements made by the respondent through the years of her occupancy were necessary, useful, substantial, and permanent and enhanced the value of the estate; and —

"In the absence of any evidence to the contrary, it may be presumed that an act of one cotenant favorable to all was done either with the knowledge and assent of his associates or else they thereafter ratified it." 14 Am. Jur., Cotenancy, p. 166, sec. 102.

In our opinion, both the referee and the trial court gave careful consideration to all the equities of the case and fairly concluded that the respondent should be reimbursed for her expenditures without being required to account for her use and occupancy of the premises.

By the Court. — Judgment affirmed.

BROADFOOT, J., dissents.