## Facts

- John Robert Spiller and Hettie Mackereth (and others) owned a downtown Tuscaloosa commercial lot and building as tenants in common, each holding an undivided one-half interest.
- When Spiller acquired his interest, the building was leased to a third-party tenant for $350 per month.
- After negotiations to buy each other out failed, Spiller filed an action seeking sale for division (partition by sale).
- The third-party tenant later vacated, and Spiller began using the entire building as a warehouse.
- Mackereth’s counsel sent Spiller a letter demanding that he either “vacate one-half of the building or pay rent.”
- Spiller neither paid rent nor vacated any portion of the building.
- Mackereth filed a counterclaim in the partition action seeking rent, alleging Spiller’s exclusive occupancy and refusal to comply with the letter constituted an ouster.
- The trial court ordered the property sold for division and, after hearing, awarded Mackereth $2,100 in rent and awarded $3,000 in attorney’s fees to Mackereth’s lawyer from the proceeds of sale.
- Spiller appealed, challenging both the rent award and the attorney-fee allocation.

## Issues

1. Whether a cotenant in possession becomes liable to other cotenants for rent when the other cotenants demand that he “vacate one-half or pay rent,” and he continues sole occupancy.
2. Whether attorney’s fees may be awarded from the partition sale proceeds to a cotenant’s attorney whose services benefitted the common fund.

## Decision

- The Supreme Court of Alabama reversed the rental award, holding that Spiller did not oust his cotenants and therefore owed no rent absent an agreement to pay rent.
- The Court affirmed the attorney’s-fee award, holding that fees were authorized where counsel’s services benefitted the common estate created through the partition sale.
- The case was affirmed in part, reversed in part, and remanded.

## Legal Principles

- A cotenant in possession is not liable to other cotenants for the value of use and occupation absent (1) an agreement to pay rent or (2) an ouster.
- For rent liability among cotenants, ouster requires conduct that prevents other cotenants’ use and enjoyment, typically shown by a demand for shared possession followed by the occupying cotenant’s refusal of that demand.
- A demand that the occupying cotenant “vacate one-half or pay rent,” without asserting a right to enter and share possession, is insufficient to establish ouster when ignored.
- The mere presence of locks does not establish ouster without proof the occupying cotenant used them to exclude others (e.g., denial of entry after a request for access).
- In a partition or sale-for-division proceeding, attorney’s fees may be awarded from the common fund when counsel’s services inure to the benefit of the common estate.

## Conclusion

The court held that a cotenant’s sole occupancy does not create rent liability unless the other cotenants demand shared possession and are refused, and it upheld awarding attorney’s fees from partition proceeds when the attorney’s work benefitted all owners through creation of a common fund.


Spiller v. Mackereth, 334 So. 2d 859 (Ala. 1976)