Turner v. Johnson
| Decision Date | 11 October 1944 |
| Docket Number | 6 Div. 218. |
| Citation | 19 So.2d 397,246 Ala. 114 |
| Parties | TURNER v. JOHNSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; E.M. Creel judge.
Hayden & Hayden, of Birmingham, for appellant.
Jackson Rives & Pettus, of Birmingham, for appellee.
Bill by Bertha Johnson, appellee, against Estella Turner, appellant and others to sell land for division among joint owners and for an accounting by appellant of rents and profits collected from the common property.
The bill contained equity so the general demurrer thereto was correctly overruled. Alabama & Southern Digest Equity, k232, 233.
The testimony was ore tenus and, after a full and considerate hearing, the trial court adjudicated the respective ownerships in the property, stated an account between the joint owners, and ordered a sale for division of proceeds. Under the presumption of verity appertaining in such cases [Lewis v. Wilkinson, 237 Ala. 197(3), 186 So. 150(3) ] this court is not disposed to disturb the trial court's conclusions of fact under the conflicting evidence as, that Bertha Johnson was an heir of Joe Ayers (a deceased predecessor in title), the necessity of a sale for division because of the inequableness of a partition in kind, and the amounts due each other by the respective joint owners. The evidence on these issues was conflicting and this court is not as well advantaged to appraise it as the trial court who saw and heard the witnesses testify. Careful study of the entire record convinces us that the trial court concluded correctly on these disputed issues and dealt fairly and equitably toward all parties.
Appellant contends that it was error to charge her either with rents collected or for a reasonable rental of the premises occupied by herself.
The principle controlling as to rents collected is: Tenants in common in possession of land will not be required to account for rents to a cotenant who has voluntarily left the premises, and from whom there was no withholding of a net excess of a proper proportion of rent collected from a stranger tenant. Cochran v. Leonard, 204 Ala. 163 85 So. 693.
The rule of liability for an accounting for use or rent for occupancy of the joint property by a cotenant is that, in absence of an agreement to pay rent to the other cotenants mere occupancy of the premises owned in common, by one of the tenants in common, does not result in a liability to...
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...55, 57, 33 So.2d 16; Warner v. Warner, 248 Ala. 556, 566, 28 So.2d 701; Burk v. Burk, 247 Ala. 91, 92, 22 So.2d 609; Turner v. Johnson, 246 Ala. 114, 115, 19 So.2d 397; Cochran v. Leonard, 204 Ala. 163, 164, 85 So. 693; McCaw v. Barker, 115 Ala. 543, 548, 22 So. 131; Gayle v. Johnston, 80 A......
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Shaddix v. Wilson
...186, Title 47, Code of 1940]. If there is any defect in pleading, the demurrer must be directed specially to it.' See Turner v. Johnson, 246 Ala. 114, 19 So.2d 397. The bill in the instant case alleges that the complainants and the respondents except the respondent Andrew Shaddix are joint ......
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... ... tantamount to ouster of the cotenant. 7 R.C.L. pp. 828 et ... seq., paragraphs 22, 23 and 24; Turner v. Johnson, ... 246 Ala. 114, 19 So.2d 397 ... Therefore, the fact that the occupancy of the building by Wm ... A. Warner and ... ...
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