Spiller v. Mackereth

Facts

In February, 1973, Spiller bought an undivided one-half interest in a lot in downtown Tuscaloosa. That made him a cotenant (a co-owner who shares the right to possess the whole property) with Mackereth and others. An automobile supply business called Auto-Rite was renting the lot. In May, 1973, Spiller offered to buy Mackereth's interest. She refused and offered to buy his, and he refused. On July 11, 1973, Spiller filed suit seeking a sale for division among the cotenants. In October, 1973, Auto-Rite left the building, which it had rented for $350 per month, and Spiller began using the entire building as a warehouse. On November 15, 1973, Mackereth's attorney sent Spiller a letter demanding that he either vacate one-half of the building or pay rent. Spiller did not answer the letter, leave, or pay. He had put locks on the building, but he testified that Auto-Rite removed the locks when it moved out and that he needed new ones to secure his stored merchandise. No evidence showed that any cotenant asked for keys or was kept from entering. Mackereth counterclaimed for the rent she said Spiller owed. Her attorney also placed newspaper advertisements for the sale, there was competitive bidding, and Spiller himself bought the property.

Issues

1. Is a cotenant in possession liable to his cotenants for rent when their only demand was that he vacate half of the building or pay rent, and there is no evidence that they tried to enter or were kept out?
2. Did the trial judge abuse his discretion by awarding a fee, in the sale for division, to the attorney for the cotenants who sought the accounting?

Holding

Spiller was not liable for rent. A demand to vacate half the building or pay rent, plus locks put on without evidence of intent to exclude, did not show an ouster. The $2,100 rental award was reversed. The attorney's fee award was within the trial judge's discretion and was affirmed.