When one co-tenant 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 co-tenant is not liable or accountable to his co-tenant out of possession unless such co-tenant in exclusive possession holds adversely or as the result of ouster or the equivalent thereof.
Overlooked in the parties' divorce proceedings, an office building thereby became a tenancy in common. Petitioner ex-husband continued in possession, exercising complete control over the building. Eventually, respondent ex-wife sought partition and an accounting for one-half of the building's rental value. Petitioner counterclaimed for partition of respondent's home. The trial court granted respondent's claim, but denied petitioner's counterclaim. The appellate court affirmed, specifically finding that respondent was entitled to an accounting because defendant's actions were the equivalent of ouster. Petitioner appealed.
Is the respondent, the ex-wife of the petitioner, entitled to an accounting of the rental value of a building which was overlooked during the divorce proceedings?
The court quashed and remanded, holding that respondent was not entitled to an accounting because the record was devoid of any evidence that prior to the filing of the partition suit, petitioner had advised respondent that he was claiming adversely to her, or that he had taken any action adverse to her interest or title, or that he had taken any steps to actually or constructively oust her from possession, or that she knew or should have known that he was claiming any right of title adverse to her. Petitioner's unsworn pleadings to the contrary were not evidence.