Coggan v. Coggan

• Decision Date: 13 July 1970
• Docket Number: No. 39325,39325
• Citation: Coggan v. Coggan, 239 So.2d 17 (Fla. 1970)
• Parties: George H. COGGAN, Petitioner, v. Sarah M. COGGAN, Respondent.
• Court: Florida Supreme Court

Page 17

239 So.2d 17

George H. COGGAN, Petitioner, v.Sarah M. COGGAN, Respondent.

No. 39325.

Supreme Court of Florida.

July 13, 1970.

Rehearing Denied Sept. 21, 1970.

Henry P. Trawick, Jr., of Millican & Trawick, Sarasota, for petitioner.

Charles E. Early, of Early & Early, Sarasota, for respondent.

MOODY, Circuit Judge.

This cause is before this court on petition for writ of certiorari to review the decision of the District Court of Appeals, Second District, in the case of Coggan v. Coggan, 230 So.2d 34.

Petitioner, husband, defendant in the trial court, owned an office building jointly with his wife, plaintiff below, which he occupied as his medical office.In 1963the parties were divorced and they thereby became tenants in common of the property.No provision was made in the decree, or by agreement, as to its use and possession.The defendant continued in possession, paying the taxes, making necessary repairs, and otherwise exercising complete control.In 1967 the former wife filed a partition suit praying for an accounting of one-half the rental value of the office building from the date of the final decree of divorce.The defendant counterclaimed for partition of the plaintiff's home which, by the terms of the final decree, was purchased as a tenancy in common with the exclusive possession granted to the plaintiff.The trial court ordered a partition sale of the office building and an accounting in favor of the plaintiff for one-half the rental value of the premises since the date of the divorce.The counterclaim was denied.

The defendant appealed to the Second District Court of Appeals, asserting error in the denial of the counterclaim and in the order directing an accounting.The District Court affirmed the lower court in the dismissal of the counterclaim.We find no basis for assuming jurisdiction to consider the legal sufficiency of this determination.

On the question of the accounting, the District Court also affirmed the lower court and in its opinion correctly stated the governing law as follows:

'* * * when one cotenant has exclusive possession of lands owned as tenant in common with another and uses those lands for his own benefit and does not receive rents or profits therefrom, such cotenant is not liable or accountable to his cotenant out of possession Unless such cotenant in exclusive possession holds adversely or as the result of ouster or the equivalent thereof.This was the rule of common law, as modified by the Statute of Ann, and as it was expressly adopted as the law of Florida in 1875 by our Supreme Court in Bird v. Bird(Fla.1875), 15 Fla. 424.The rule has persisted unchanged and has heretofore been recognized by this court.See, Taylor v. Taylor(Fla.App.2d1960), 119 So.2d 811, 813.Thus it appears that appellant's point is well taken unless the case falls within one of the exceptions to the rule; i.e., unless it is shown that appellant held exclusive possession of his professional office adversely to appellee, or as the result of ouster Or the equivalent thereof.See, 51 A.L.R.2d 388, 437, § 13.'

It then found, based on the undisputed facts, that the defendant's actions were 'the equivalent of ouster.'The facts being undisputed, it becomes a question of law as to whether or not the tenant in possession held the property adversely or as a result of ouster or the equivalent thereof.

The possession of a tenant in common is presumed to be the possession of all cotenants until the one in possession brings home to the other the knowledge that he claims the exclusive right or title.Chasteen v. Chasteen(Fla.App.1968)213 So.2d 509.What is called 'exclusive possession' may amount merely to sole possession without actual exclusion of a cotenant or denial, or invasion of the rights of such cotenant.

There can be no holding adversely or ouster or its equivalent, by one cotenant unless such holding is manifested or communicated to the other.Where a tenant out of possession claims an accounting of a tenant in possession, he must show that the tenant in possession is holding the exclusive possession of the property adversely or holding the exclusive possession as a result of ouster or the equivalent thereof.This possession must be attended with such circumstances as to evince a claim of the exclusive right or title by the tenant in possession imparted to the tenant out of possession.Tatum v. Price-Williams(1910)59 Fla. 634, 52 So. 3.Bird v. Bird, supra.

In the case of Stokely et al. v. Conner(1915)69 Fla....