Opinion
27595.
SUBMITTED DECEMBER 11, 1972.
DECIDED MARCH 8, 1973. REHEARING DENIED MARCH 22, 1973.
Cancellation. Early Superior Court. Before Judge Geer.
Smith, Gardner, Wiggins, Geer Brimberry, Peter Zack Geer, for appellant.
Lowery S. Stone, Phillip Sheffield, for appellees.
"If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as agent or bailee of the other cotenant; and in equity the claim for such indebtedness shall be superior to liens placed on his interest by the tenant in possession receiving the profits." Code § 85-1004. However, the claim of one against his cotenant on account of the cotenant having received more than his share of the rents and profits does not take precedence over the title of a grantee of such cotenant who took without notice of such claim. Carmichael v. Citizens Southern Bank, 162 Ga. 735, 737 (8) ( 134 S.E. 771). Accordingly, a complaint brought against such cotenant and his grantee seeking to set aside the deed of the cotenant conveying his undivided one-tenth interest in the lands solely on the ground that prior to the making of such deed the cotenant, while in exclusive possession, converted to his own use the rents and profits thereof exceeding in value such cotenant's interest therein affirmatively showed that no cause of action in fact existed as against the grantee in such deed, and where the court rendered a judgment against the defendants setting aside the deed it was error to thereafter deny the motion of the defendant grantee to set aside the judgment, which motion was timely filed at the same term.
Judgment reversed. All the Justices concur.