268 P. 193 | Okla. | 1928
This is an action in ejectment commenced in August, 1918, by Herman Dierks, as plaintiff, against T. B. Kelly, E. J. Kelly et al., defendants. There were several other parties interested in the original action, but they are not interested in this appeal. Plaintiff, Herman Dierks, alleged in his petition that he was the owner of an undivided two-thirds interest in certain real estate described therein; that defendants own the other one-third interest; pleaded his chain of title; asked that his title be quieted; that a partition be made of said real estate, and that he recover from the defendants rents and profits alleged to be due him by reason of the defendants having exclusively used and occupied said real estate. Defendants, by way of answer, denied generally and specifically each and all of the allegations contained in the petition, and prayed that plaintiff recover nothing. The cause was tried in March, 1920, and judgment rendered in favor of plaintiff, Herman Dierks, for $600, the rental value of the land, canceling certain deeds of record, quieting title in said plaintiff as to his two-thirds interest, and decreeing a partition of the land. From this judgment defendants appealed. This judgment was by the Supreme Court affirmed as to the amount *218
of the rental value of the land, but reversed and a new trial granted on other questions in order to permit defendants to prove that plaintiff had been divested of his title, if any, by reason of a tax sale, which proof had been excluded in the trial. The opinion on the former appeal is reported in
For a reversal of the judgment of the trial court defendants rely upon the one proposition: That the court committed error in awarding plaintiff judgment for the reasonable rental value of the land. Plaintiff offered proof of the reasonable rental value of the land, which was admitted in evidence over the objection of the defendants. Defendants contend that plaintiff is entitled to recover only his pro rata part of the rents and profits actually received, less all sums expended for taxes and improvements. In support of defendants' contention counsel rely exclusively upon the case of Airington v. Airington,
"A tenant in common in possession of the common property, who has received more than her just proportion of rents from third persons, but who is not holding the premises adversely or to the exclusion of her cotenants, is not liable to account to them for their proportion of the rental value of said premises, but must account to them for their proportion of the rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements."
It will be noted that the rule there announced excepts one who is holding the premises adversely or to the exclusion of his cotenants. That case clearly recognizes that a cotenant who has been excluded or ousted from possession and from rents and profits is entitled to recover his pro rata share of the reasonable rental value of such premises during the period of ouster. But counsel for defendants assert that there is no evidence to show that the defendants had excluded plaintiff from possession. Generally, a cotenant's sole possession of the land becomes adverse to his fellow tenants by his repudiation or disavowal of the relation of cotenancy between them. International Land Co. v. Smith,
It seems to be now reasonably well settled that where one is excluded from possession of common property by a cotenant, and such cotenant collects all rents, and does not account for same, he is liable to the excluded one for that proportion of the fair rental value of the property which the interest of the excluded party bears to the whole interest. Mackey v. Mackey,
In view of the foregoing authorities, we are of the opinion that the trial court properly admitted evidence of the reasonable *219 rental value of the premises in question during the period from 1920 to 1926, and properly rendered judgment for two-thirds of the rental value instead of two-thirds of the actual rents and profits received.
The judgment of the trial court is therefore affirmed.
BENNETT, HERR, DIFFENDAFFER, and HALL, Commissioners, concur.
By the Court: It is so ordered.