Plaintiff does not claim that the amount is unreasonable. Plaintiff argues that he has not collected rental from third persons and relies on the rule of law announced in Airington v. Airington, 79 Okla. 243, 192 P. 689, 27 A.L.R. 182, and other cited cases, that: "A tenant in common in possession of the common property, who has received more than her just proportion of rents from third persons, but who is not holding the premises adversely or to the exclusion of her cotenants, is not liable to account to them for their proportion of the rental value of said premises, but must account to them for their proportion of the rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements."
[4] It is a recognized rule that one tenant may not maintain an action against his cotenant who is in sole possession of the property to recover rent for the cotenant's occupancy of the property, or for profits derived from the property by means of the occupant's own labor. (7 Cal. Jur. 350, secs. 18, 19; 2 Tiffany on Landlord and Tenant, 1879, sec. 312; Airington v. Airington, 79 Okl. 243 [27 A.L.R. 182, 192 P. 689]; 27 A.L.R. 190 (note); Plass v. Plass, 122 Cal. 3, 11 [54 P. 372]; Pico v. Columbet, 12 Cal. 414, 419 [73 Am. Dec. 550].) Not even in an equitable action for accounting may one tenant maintain an action against his cotenant in the exclusive possession of the property for rents or the profits of his own labor.
The law seems to be, when one of two tenants in common takes and holds possession of the common property, denying the right of the other to share in the possession and use thereof, that the one claiming and exercising such exclusive right of possession and use is liable to the other for rental value of the property. Osborn v. Osborn, 62 Tex. 495; Autry v. Reasor, 102 Tex. 123, 108 S.W. 1162, 113 S.W. 748; Stephens v. Hewett (Tex.Civ.App.) 77 S.W. 229; Airington v. Airington, 79 Okla. 243, 192 P. 689, 27 A.L.R. 182, and note beginning on page 184. Therefore we cannot say the trial court erred when he determined that appellant was liable to appellee for one-half the rental value of the Harwood street property, for appellant claimed to be the sole owner of that property, and it seems had the exclusive use thereof from October 28, 1917, the date of the judgment granting the parties a divorce.
This accords with the Oklahoma law that it is not the duty of a cotenant to account for rents unless rents are collected. Airington v. Airington, 79 Okla. 243, 192 P. 689, 27 A.L.R. 182. The fourth claim relates to certain stocks and bonds which plaintiffs allege were wrongfully held to be partnership assets.
While an accounting on a royalty basis has been held proper under the peculiar facts of particular cases (see South Penn Oil Co. v. Haught, supra, and discussion of rule in New Domain Oil Gas Co. v. McKinney, supra), we see nothing in the facts of the instant case which take it out of the general rule. The right of one cotenant to sue the other for the value of the use of the former's interest in the joint property which did not exist at common law prior to the enactment of St. 4 Anne, c. 16, is given by section 3804, Oklahoma Rev. Laws 1910 (section 7361, Compiled Okla. St. 1921). See, also, Airington v. Airington et al., 79 Okla. 243, 192 P. 689, 27 A.L.R. 182. We therefore conclude that Lizzie Allen is entitled to an accounting from Skelly Company for the market value of the oil produced less the reasonable and necessary expense of developing, extracting and marketing the same.
The case law in Ohio, however, allows a cotenant to reduce profits made from the property by any sums expended for taxes and necessary improvements. Magee v. Kiesewetter, 130 N.E.2d 704, 706 (Ohio Ct. App. 1955) (quoting Airington v. Airington, 192 P. 689 (1920)); accord Whirrett v. Mott, 601 N.E.2d 525, 528 (Ohio Ct. App. 1991) (allowing reimbursement for utilities paid as a necessary expense on property); Landrum, 1990 WL 52875 at 3. Defendant provided evidence and testimony at trial that he and Jeffrey Adkins together paid approximately $16,600.00 for maintenance and repairs to the Property since their father's death.
Plaintiffs and their grantors were cotenants with the defendants from the time of the execution of the deed by Lula Ousley. Prior to that time, she had the exclusive homestead right of possession. Subsequent thereto, the plaintiffs and their predecessors in title occupied the premises but the record conclusively discloses that no demand was made by defendants that they be let into possession nor had they attempted to enter. Therefore, the plaintiffs had not excluded them nor denied them the right of possession. Under such circumstances, it was held, in the case of Airington v. Airington, 79 Okla. 243, 192 P. 689, 27 A.L.R. 182, that a co-tenant in possession "must account to (his co-tenants) for their proportion of the rents actually received from third persons" but "is not liable to account to them for their proportion of the rental value of said premises." An occupying co-tenant is also liable for his co-tenant's proportionate part of any profit made from the occupancy and use of the premises.
Where, as here, the primary purpose of the contract (the sale of the lots) was abandoned by mutual consent the contracting parties continued to own the property as tenants in common. A tenant in common who does not hold adversely to his cotenant, or exclude his cotenant from the property, can only be held to account to his cotenant for rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements. 41 O.S. 1951 ยง 21[ 41-21]; Airington v. Airington, 79 Okla. 243, 192 P. 689, 27 A.L.R. 182; McIllwain v. Bills, 206 Okla. 238, 242 P.2d 707. As the judgment of the trial court is not against the clear weight of the evidence, the judgment must be affirmed.
Sanguin v. Wallace, 204 Okla. 28, 234 P.2d 394. In Airington v. Airington, 79 Okla. 243, 192 P. 689, it is held that it is not the duty of a cotenant to account for rents unless rents are collected. Defendant cites and relies upon certain cases holding that a partnership may own and possess real property and that it is the duty of a partner to account for the proceeds therefrom.
It was said in the recent case of State ex rel. Bingham v. District Court, 80 Mont. 97, 257 P. 1014: "When counsel appeared generally for his client, though he was not required at the time to do so, he waived her objection to any defects in the pleading attackable only by motion (31 Cyc. 725), in spite of the fact that he filed her notice of motion at the same time." ( Hanks v. Hanks, 27 Wyo. 65, 191 P. 1077, 192 P. 689; Union State Bank v. Woodside, 74 Okla. 217, 178 P. 109; Fritz v. Grosnicklaus, 20 Neb. 413, 30 N.W. 411; Collier v. Ervin, 3 Mont. 142, at p. 144; Wyman v. Hayes, 4 Ohio Dec. 202; Van Etten v. Medland, 53 Neb. 569, 74 N.W. 33.) In 21 R.C.L. 620, it is said: "Within the general principles governing waiver, it has been held that demurring generally to the plaintiff's petition is pleading to the merits."