Long v. Grant, 50 So. 914

Long v. Grant

50 So. 914 | Ala. | 1909

SIMPSON, J.

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 *510court gave the general charge in favor of the defendant, which the appellant claims was error, invoking the principle of law that, when a tenant holds over after the expiration of his term, the option rests with the landlord either to treat said tenant as a trespasser or to hold him to a continuance of the tenancy on the same terms.

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.

*511While it may he that a tenant in common who, after having rented the interest of his co-tenant, should, without anything being said, remain in the same exclusive occupancy after the termination of the term, would be presumed to have continued the tenant of his co-tenant, on the same terms, yet. where he distinctly notifies the co-tenant that he will not rent again on the former terms, and they fail to agree on any terms, his occupancy, at the end of the first term, becomes, as it was before, the possession of one tenant in common for all. He could not give up the physical possession of the interest of his co-tenant without at the same time surrendering his own, which he is under no obligation to do.

The judgment of the court is affirmed.

Affirmed.

Dowdell, C. J., and McClellan and Mayfield, JJ., concur.