The contention made that appellants owned a 3/16 interest in the land and therefore that the court erred when he found that they owned only a 26/144 interest, must be overruled. The interest owned by appellants does not appear from the testimony forming a part of the record sent to this court. The burden was on them to prove the extent of their interest in the land; and, having failed to do so, they have no right to complain that the interest awarded to them was less than the interest they in fact owned. Laferiere v. Richards, 28 Tex. Civ. App. 63, 67 S.W. 125; 30 Cyc. 244.
The contention made that the court erred in holding that, in the partition to be made of the land, appellee was entitled to have the part he had improved allotted to him, also must be overruled. It appeared from the testimony that the part of the land unimproved was equal in value per acre to the part improved by appellee, but for the improvements thereon, and that the part improved consisted of only 50 or 55 acres — much less in quantity that the court found appellee was entitled to. It is the rule in this state, in effecting a partition of land owned in common by the parties, where one of them has improved a part of the land, to allot same to him if it can be done without detriment to the interest of his cotenants. Broom v. Pearson, 180 S.W. 895; Taylor v. Taylor, 26 S.W. 889; Baker v. Hamblen. 48 Tex. Civ. App. 529, 107 S.W. 577; Ord v. Waller, 107 S.W. 1166; Holloway v. Hall, 151 S.W. 895. Appellants' insistence seems to be that the rule is not applicable to this case for two reasons. The first is that the pleadings on the part of appellee did not, they assert, authorize the court to grant appellee such relief. This insistence cannot be sustained, in view of the fact that appellee in his first supplemental answer set out in detail improvements which, he alleged, he had made on the land, and asked that the "part of same on which his improvements were situated" be allotted to him. It is next insisted in support of the complaint made that appellee was not entitled to such relief because it appeared that he had willfully disregarded appellants' rights by setting up the statute of limitations as a bar to a recovery by them of any of the land. The argument is that it therefore appeared that appellee had improved the land for the purpose of embarrassing appellants in the assertion of their rights. But the
court found, and we think there was evidence authorizing the finding, that appellee made the improvements in good faith, which, in effect, was finding that he did not make them for the purpose of embarrassing appellants in the assertion of rights they had in the land. The only evidence which it could be claimed was opposed to the court's finding was that showing that a part of the improvements on the land were placed there by appellee after this suit against him was commenced. We think the right in appellee as an owner in common with appellants of the land to possess and improve it was neither destroyed nor suspended by the commencement of appellants' suit against him; and therefore that the fact that he continued to make improvements on the land after the commencement of the suit was not inconsistent with an absence on his part of a purpose to thereby "embarrass" appellants in the assertion of rights they had, and did not, standing alone, show that to be his purpose. Whitmire v. Powell, 103 Tex. 232, 125 S.W. 889; Spicer v. Henderson, 43 S.W. 27; Lynch v. Lynch, 130 S.W. 461. If it appeared that appellee was not an owner with appellants of the land, and that his right as a litigant depended solely upon the fact that he had in good faith made improvements thereon, appellants' insistence that, having placed the improvements on the land with notice of their claim thereto, appellee was not entitled to claim anything of them on account of same, would present a different question and would be more strongly supported by many of the authorities they cite than it is on the facts as they appear in the record before us.
The only other contention presented by the assignments which we will refer to is that, it appearing that the land had a rental value of $1,000, as found by the court, during the time appellee was in actual possession of a part and constructive possession of the remainder thereof, it was error to refuse to award appellants a recovery of any sum as rents, notwithstanding it further appeared that such rental value was due entirely to improvements made on the land by appellee. The insistence is that such possession by appellee, and his pleading "not guilty" and setting up the statute of limitations as a bar to their suit, constituted an ouster of appellants from the land, and that, therefore, the rule which denies to one tenant in common a right to recover against his cotenant on account of occupation and use by the latter of the premises (Akin v. Jefferson, 65 Tex. 137) did not apply to the case. In support of their insistence, appellants cite Autry v. Reasor, 102 Tex. 123,108 S.W. 1162, 113 S.W. 748; Stephens v. Hewitt, 77 S.W. 229; Duke v. Reed, 64 Tex. 716; and Stephens v. Taylor, 36 S.W. 1084. In neither of those cases did it appear, as it did in this one, that the land was without rental value except for improvements placed thereon by the respective defendants. Those cases therefore cannot be regarded as authority for saying the court erred in holding as he did in the particular stated on the facts of this case. The action of the court seems to be fully sustained by the ruling in Thompson v. Jones, 77 Tex. 626,14 S.W. 222; Spicer v. Henderson, 43 S.W. 27; and Whitmire v. Powell,103 Tex. 232, 125 S.W. 889. The Jones Case was one of trespass to try title by Thompson. The defendants answered, as the appellee here did, by a plea of not guilty, and set up the statute of limitations and improvements made by him in good faith. The plaintiff replied that the statute of limitations and claim for improvements were not available as against her, because she was a minor. The judgment in the trial court was in her favor for one half the land for rents, and in favor of the defendant for the other half of the land. In disposing of the appeal, Judge Gaines said:
"We are clearly of opinion that defendants should not have been charged with rent of the land in this case until a demand for possession was made, and then not upon their improvements."
The judgment is affirmed.