334 So. 2d 859
In February 1973, John Robert Spiller purchased an undivided one-half interest in a lot in downtown Tuscaloosa.1 His cotenants were Hettie Mackereth and the other appellees.2 At the time of purchase the lot was rented to an automobile supply business called Auto-Rite for $350 per month.3
In May 1973 Spiller offered to purchase Mackereth's interest in the property.4 Mackereth refused and made a counteroffer to purchase Spiller's interest, which Spiller declined.5 On July 11, 1973, Spiller filed a complaint seeking sale for division among the tenants in common.6
Auto-Rite vacated the building in October 1973.7 Spiller then began using the entire building as a warehouse for his merchandise.8 On November 15, 1973, Mackereth's attorney sent Spiller a letter demanding that he either vacate one-half of the building or pay rent.9 Spiller did not respond, did not vacate, and did not pay rent.10
Mackereth filed a counterclaim alleging ouster and seeking an accounting.11 By agreement of the parties the trial court entered a decree ordering sale of the property.12 After an ore tenus trial on the counterclaim the court found that Spiller had ousted Mackereth, awarded her $2,100 in rent, and awarded $3,000 of the total attorney's fees to Mackereth's attorney for services benefiting the common fund.13 Spiller appealed both awards.14
Whether a cotenant in possession who receives a demand to vacate half the premises or pay rent but neither vacates nor pays rent has ousted his cotenants so as to become liable for rent?15
Under Alabama law, a cotenant in possession is not liable to cotenants for the value of use and occupation absent an agreement to pay rent or an ouster, and ouster for rent liability requires that the occupying cotenant denied the other cotenants the right to enter, which in turn requires a demand or attempt to enter by the cotenants asserting their possessory rights.16
No. Mackereth's attorney sent Spiller a letter on November 15, 1973 demanding that he either vacate one-half of the building or pay rent. Spiller did not respond to the letter, vacate the premises, or pay rent. The letter did not demand equal use and enjoyment of the premises.17 There is no evidence that Mackereth or any of the other cotenants ever requested keys to the locks or were ever prevented from entering the building because of the locks.18
Spiller did not oust his cotenants by failing to respond to the demand to vacate or pay rent and therefore is not liable for rent.19
Whether a cotenant in possession who places locks on the building without evidence of intent to exclude his cotenants has ousted them so as to become liable for rent?20
Under Alabama law, a cotenant in possession is not liable to cotenants for the value of use and occupation absent an agreement to pay rent or an ouster. Ouster for rent liability requires that the occupying cotenant denied the other cotenants the right to enter. This in turn requires a demand or attempt to enter by the cotenants asserting their possessory rights. Merely placing locks without intent to exclude does not constitute such a denial.21
No. After Auto-Rite vacated the building Spiller began to use the entire building as a warehouse and placed locks on the building to secure his merchandise. There is no evidence that Spiller was attempting to do anything other than protect the merchandise he had stored in the building.22 There is no evidence that Spiller intended to exclude his cotenants by use of the locks.23
Spiller did not oust his cotenants by placing locks on the building without evidence of intent to exclude them and therefore is not liable for rent.24
Whether the trial court abused its discretion in awarding a portion of the total attorney's fees to the attorney for one group of cotenants for services that benefited the common fund?25
The allowance of attorney's fees in sales for division is statutory under Title 46, § 63, Code, and is based solely on benefits inuring to the common estate and the tenants in common; the awarding of attorney's fees in partition sales is entrusted to the sound discretion of the trial judge and will not be disturbed on review without a showing that the trial judge abused that discretion.26
No. Mackereth's attorney placed advertisements in the Tuscaloosa News for the sale for division.27 There was competitive bidding at the sale and Spiller himself actually bought the property.28 Any efforts of Mackereth's attorney to encourage competitive bidding would have the effect of increasing the total fund inuring to the common estate.29
The trial court did not abuse its discretion in awarding $3,000 of the total attorney's fees to Mackereth's attorney.30