The opinion of the court was delivered by

— In the skeleton of the charge which this record furnishes, contained in fewer words than I have now written, and composed of the simple note of affirmance or denial of the defendants’ propositions, the difficulty is to discover on what principle the cause was ruled. The mere reception of profits by one tenant. in common, is an insufficient foundation for the presumption of an ouster of his co-tenant. It is just as true, that from an exclusive occupancy and enjoyment of profits for a longer period than the time relied on by these defendants, the jury were not bound to find the fact of an ouster. The reasons are obvious. The possession of one tenant in common is lawful. In it there is nothing to awaken the suspicion of an exclusive claim. The inference is that he holds for both, until a hostile intention appears, and this must be disclosed by unequivocal acts fitted to apprise the co-tenant of the existence of an adverse holding. So far as he went, the judge was right, but the jury heard nothing adapted to the facts which they were to decide. One tenant had died in debt to the others, and apparently insolvent. The surviving owners and their representatives during nearly forty years paid the taxes and ground-rent, for a suspension of these payments would have lost them the whole estate, comparatively worthless then, but valuable now. They mortgaged the property, and placed their mortgage on record. At different times, they erected and re-erected buildings suitable to their business. They received the profits of the land, smaller probably than its expenses, but large in the aggregate, without accounting or being called to account. When the property has become valuable, certain of the dead man’s heirs come forth and recover a proportionate part, without paying a dollar of the expenditures. Considered separately, each of these *510facts may have been inconclusive; together they bore powerfully on the result, for if “ improving lands, and receiving the rents, issues, and profits thereof, are in all cases the highest acts of ownership which can be exercised over them, and the exercise of these acts strongly marks the possession with exclusiveness and hostility,” 6 Barr 211, the defendant’s testimony ought to have given a preponderance to the scale. To tell the jury that perception of profits was insufficient, and that from all the facts in evidence they were not bound to presume an ouster, was to fall short of the mark. The facts tending to prove the ouster should have been submitted to the jury for their decision, with the instruction, that if found undenied or unexplained, and believed to be true, they would justify the finding of the ouster claimed to have taken place. In the defendant’s propositions this idea was developed imperfectly, but sufficiently to have reached the mind of the court. Without noticing it, justice could not bé done, and this continues to be one of the objects of trying causes.

Judgment reversed and a venire de novo awarded.