McKnight v. Basilides

"The generally accepted rule is that at common law one tenant in common who occupies all or more than his proportionate share of the common premises is not liable, because of such occupancy alone, to his cotenant or cotenants for rent or for use and occupation." 62 C.J. 446, Tenancy in Common, § 64.

This rule accords well with the rule that, in the absence of an ouster, the cotenant's possession is not adverse. In the face of the presumption of permission, the hostile character of the possession must fail. Therefore, the majority opinion rightly holds that appellant's claim to title by adverse possession cannot prevail.

By the same token, since the adverse possession failed by reason of the permissive nature of his possession, he cannot be held liable for rent for the use of the "big house." His cotenants deliberately let him "carry the burden" during the depression years. They cannot now deny their permission without establishing his hostile possession. Of course, the rentals for the "little house" were received in trust for his cotenants.

Appellant has been charged in the accounting with his share of $8,001 of the rental value on the "big house" for the period beginning November 20, 1929, and ending May, 1943, which is over thirteen years. Rem. Rev. Stat., § 157 [P.C. § 8162], limits an action for the rents and profits or for the use and occupation of real estate to a period of six years. He should have been charged nothing. Even a stranger to the title could have been held for only six years. I dissent.

December 11, 1943. Petition for rehearing denied.