Page:Federal Reporter, 1st Series, Volume 2.djvu/521

 614 FEDERAL REPORTER. �Under this decree, the railway company and Taylor having failed to execute the conveyances within the 20 days, the same •were executed by the clerk of the supreme court, with the covenants authorized by the decree. These conveyances were executed September 14, 1875. �The defendant "Hervey" obtained his interest in the lands from Savery on June 19, 1875, and Stewart fromMrs. McKay on September 25, 1875, after the decree for a specifie perform- ance, and it is agreed by a stipulation on file that the pres- ent interest of parties is : Taylor, one-half (J ;) Sherman, as- signee, one-fourth (J;) Stewart, one-eighth (^;) Hervey, one- eighth (i.) �In considering the question presented it is necessary, first, to determine McKay's rights under the contract. It -was clearly the intention that he should become a tenant in com- mon to the extent of an undivided one-half of ail the swamp lands he might secure to the oounty of Cerro Gordo, and his equitable interest was fîxed on Mareh 13, 1868, when the land was patented by the state of lowa to the county. Mc- Kay having fuUy performed his part of the contract was entitled to a deed from the county for the undivided one-half (|-) of the land, and had a right to the use of the property as a tenant in common. �The contract, after its fulfiUment by him, impliedly gave a license to Buch possession as is secured to tenants in common^ AU that was necessary to be done by the county was to give a deed and thus complete the contract. �In equity, McKay is considered the owner of an undivided one-half of the lands at the time the county obtained the deed from the state. He was entitled from that time to one-half of any income derived from the property. He was interested in protecting the property from waste, and was entitled to ail increase and gain on its value, and must share in ail the dis- advantages, expanses and outgoings. It is claimed that under this contract the right of exclusive possession to the entire lands remained in Cerro Gordo county and the railway company, and its grantee, Taylor, until a conveyance was made under the decree for a specifie performance. I do not ����