50 So. 914 | Ala. | 1909
This is an action by the appellant (plaintiff) against the appellee (defendant) to recover rent claimed to.be done. The plaintiff and defendant own the land for which rent is claimed as tenants in common. On or about the 20th of December, 1905, the plaintiff rented her half of the land to the defendant for the year 1906; the rental being 12 bales of middling cotton. The contract was in writing, and was surrendered to the defendant on the payment of the rent in the fall of that year. Defendant planted oats on part of the land in 1906, which did not mature, and consequently were not harvested until 1907. He re-, mained in possession of the land, and gathered a crop in 1907; but in the fall of 1906, the defendant sent the witness Holmes to the husband and agent of the plaintiff, who informed said husband that he would not rent the interest of the plaintiff for the year 1907 for the same rent, but would be willing to rent it for 8 bales. Said husband and agent returned .as answer that he would not rent the interest of his wife for 8 bales; that he wanted the lands sold for division. This was the message delivered to the defendant. . The
There is no controversy as to this principle.—Wolffe v. Wolff & Bro., 69 Ala. 549, 554, 44 Am. Rep. 526; Robinson & Ledyard v. Holt, 90 Ala. 115, 117, 7 South. 441. It is also true that each tenant in common holds for1 himself and his co-tenant, and that the relation of landlord and tenant does not exist between them.* though one be in the actual occupancy of the lands, and appropriating the proceeds thereof. — Gayle v. Johnston, 80 Ala. 396, 400. Tenants in common can, however, enter into an agreement by which one becomes the tenant of the other, and responsible for rent.—Evans v. English, 61 Ala. 416, 427. So the question for decision is whether the mere fact that the tenant,, who has rented his co-tenant’s interest for one year, is conclusively presumed to continue the tenancy by remaining in possession of the premises.
The presumption is, as to any party, a rebuttable one (24 Cyc. 1014), a.nd the reason given for raising the ‘presumption is that the tenant cannot deny his landlord’s title, and by remaining in possession he must necessarily be either a trespasser or, by the acquiescence of the landlord, a tenant upon the same terms as before obtained. The reason of the rule cannot apply to a tenant in common. He was in possession before the tenancy was created, and is entitled to remain . in possession, as tenant in common, after the relation of landlord and tenant has terminated.
The judgment of the court is affirmed.
Affirmed.