O'Connor v. Delaney

| Minn. | May 11, 1893

Gilfillan, C. J.

Except in regard to the claim of respondent for rent of his interest in the real estate, the joint property of the parties, there is no question but of the sufficiency of the evidence to sustain the findings of fact, and we think it sufficient.

It is also sufficient to sustain the finding of fact on the claim for rent. But it is objected that the complaint for the rent alleges that appellant was to pay the value of the use of the property, while the finding, not following the pleading, is that it was agreed appellant should pay for the first year an amount equal to the interest on a certain mortgage, to wit, $160, and that appellant held over and continued in possession after the first year. On the trial no objection was made to the evidence as to amount agreed on for rent, nor any question raised of variance between the pleading and the proofs, and we must hold the objection to have been waived.

It is objected that, according to the evidence, the defendant agreed to pay the $160 interest on the mortgage to the mortgagee, and he did so, and so plaintiff cannot recover it. Of course it was intended plaintiff should have the benefit of such payment, and, as the amount so paid was credited to the defendant in the partnership account, it was proper for the court, in adjusting in one judgment all matters between the parties, (including partnership matters,) to credit the amount to plaintiff; otherwise, the payment would be no benefit to him. One credit offsets the other, and it stands now as though neither party had been credited with it.

Where there is no agreement between the parties, and one cotenant is not excluded by the other from enjoyment of the common property, neither can recover from the other for the use, rents, and profits of the estate. But, by agreement, one may become tenant of the other of his part of the estate; and, when the relation of landlord and tenant is thus created, we think the tenant co-owner, if he *249remain in exclusive possession after the term for which his cotenant’s share was let to him, will he held to do so in his character of tenant, and the same rules will apply - as in case of any other tenant holding over. It was therefore correct to charge the defendant, during the time of his so holding over, at the rate of rent agreed ■on for the term.

Order and judgment affirmed.

Vanderburgh, J., took no part in this decision.

(Opinion published 54 N. W. R-ep. 1108.)