85 Iowa 77 | Iowa | 1892
The plaintiff claims that she and the defendant are tenants in common of the west half of
I. It appears that on December 21, 1888, the defendant, who then owned the land in controversy,
II. It is also claimed that the court erred in overruling the defendant’s rpotion to direct a verdict for
III. Claim is made that the plaintiff knew of the-execution of the deed from Gourley to Davis before she purchased the property in controversy, 3. Real estate: conflicting conveyances: bona fide purchasers. The evidence is very clear that she had no knowledge whatever of the fact that-Gourley had made a deed of the land to Davis until after she made the purchase and received her deed. It appears from the testimony that Gourley, when he made the deed to Davis, placed it in the hands-of one Garrett until he (Gourley) should call for it. He never called for it, but the defendant got it of Garrett, so far as appears, without Gourley’s consent.
IV. Some claim is made that Davis was in possession of the land when the plaintiff received her deed.
V. The appellant also complains of the action of the court in not instructing the jury to find for him, and in giving the instruction to the jury. It reads as follows:
“If you find for plaintiff, and if you find that defendant has had the exclusive possession of the5. Tenants in common: action against co-tenant for waste and use. premises in question since the first day of March, 1889, under a claim of sole owner- , , , ship, and when holding and claiming adversely to plaintiff, and when denying all interest or title in her, and when denying any and all right of possession on the part of plaintiff, if such is the fact, then you will allow plaintiff two-thirds of the fair rental value of said premises since March.1, 1889, and also two-thirds of the fair market value of the trees or*82 timber, if any, that defendant sold to third parties off of said land during said time. In arriving at their values, you should consider and be governed by all the evidence in the case that will afford you any light thereon.”
The contention of the appellant is that one tenant in. common cannot maintain an action against his co-tenant for rent and use of land, or for trees cut and carried away. In Sears v. Sellew, 28 Iowa, 506, it is said: “We conclude, therefore, that defendant, having held the land adversely to plaintiff — having ousted him — is liable for the yearly value of the rent.” In Austin v. Barrett, 44 Iowa, 488, it is said that, where the acts of the defendant “constituted him a disseisor of his co-tenants, he became liable to pay rents to them. ’ ’ An “actual ouster” may be found from “a possession attended with such circumstances as to evince a claim of exclusive right and title, and a denial of the right of the other tenants to participate in the profits.” Burns v. Byrne, 45 Iowa, 285; Noble v. McFarland, 51 Ill. 226. Many citations might be made of authorities which hold that-in a case like this, where the defendant is a disseisor of his co-tenant, when he ousts him, he becomes liable to an action for rents and for waste.
Other questions are discussed by counsel, which, in the view we have taken, need not be considered. We have examined the instructions asked and refused, as well as those given, and find no errors.
The judgment of the court below is affirmed.