36 Ind. App. 636 | Ind. Ct. App. | 1905
Action by appellees for rent of land owned by all the parties as tenants in common. Trial by jury and verdict and judgment in appellees’ favor.
The complaint avers that prior to September, 1903, the appellant and appellees and another were owners as tenants in common of certain lands, and that appellees were entitled to one-third of all crops raised and all pasture on the land; that appellant had sole and exclusive possession of the land during the years' 1902 and 1903 and excluded appellees therefrom until partition of the land in September, 1903; that during that time appellant took and appropriated to his own use the corn for the year 1902, and wheat, oats and hay for the year 1903, and that he took and appropriated to his own use all the pasture for the years 1902 and 1903; that appellees’ shares of all such crops and pasture were and are reasonably worth $500; that demand was made and refused. With the general verdict the jury returned answers to interrogatories in substance'as follows: Appellees owned a life estate in an undivided one-third of the land, and appellant owned one-third in fee. Appellees offered and made effort to enter into possession of the land during the time in question, and such efforts were made when $720 per year was offered appellant by appellees as rental, and also by constant demand for partition of the land. Appellant excluded appellees from possession and occupancy of the land at the time appellant was offered the rental, and thereafter, by occupying the land.
At appellant’s request the court properly told the jury that where one tenant in common possesses the entire premises without any agreement with his cotenants as to his possession, or any demand on their part to enjoy the premises with him, the tenant in possession is not bound to account to the others for use and occupation.
Upon some matters the evidence is directly conflicting, hut upon the material facts necessary to a recovery there is some evidence. The record does not disclose any error prejudicial to the rights of appellant.
Judgment affirmed.