
    Belknap v. Belknap et al.
    
    Real Estate: tenants in common: recovery of rent by one against THE OTHER. Where land is owned by tenants in common, and is occupied exclusively for a number of years by a part of them only, and there is no agreement to pay rent, and no demand for possession is made of the occupying tenants and refused, and they have received no rent from third persons, they are not liable to pay rent to their co-tenants who have not been in possession. (See opinion for cases followed.)
    
      Appeal from, Des Moines District Court. — Hon. Charles H. Phelps, Judge.
    Filed, January 30, 1889.
    The defendants are six in number, and are the wife and children of a brother of the plaintiff. The plaintiff and defendants took by inheritance from a common ancestor a quantity of land in Des Moines county. In 1884 a suit was instituted in the circuit court of said county by the plaintiff herein against the defendants for the partition of said land. The decree in said suit awarded to the plaintiff, as heir, six-fortieths of the land, and he became by purchase the owner of three-fortieths more, purchased from other heirs not parties to this suit. The defendants in this suit were awarded the other thirty-one-fortieths of the land.. The decree of partition was entered in the district court, May 11, 1886, in a cause known by number as “3,466.” This suit is brought to recover of the defendants for the use of plaintiff’s nine-fortieths of said land prior to the partition. The defendants aver that they and the plaintiff, prior 'to May 11, 1886, owned and occupied the land as tenants in common, and that all matters and things set forth in plaintiff’s petition in this suit could and should have been adjudicated in said suit 3,466, and that the plaintiff is therefore estopped from recovery in this action. After the close of the testimony the jury was, on motion of the defendants, instructed to return a verdict for them on the testimony introduced, and this action of the court is assigned as error.
    
      Newman é Blake, for appellant.
    
      8. L. Glasgow, for appellees.
   Granger, J.

The testimony in the case, other than some documentary proofs as to the partition suit, and some oral testimony as to the rental value of the premises, isas follows: “Ñ. Q. Belknap. I am plaintiff. Six-fortieths of the land in controversy was decreed to me, and I purchased three-fortieths after decree. I brought suit in 1880 (2,774) and tried to get my share of that real estate. Brought second suit (3,466) in 1884. The rental value of land from 1880 to 1887, inclusive, per year, is three ($3) dollars per acre for cultivated land, and one ($1.50) dollar and ñfty cents for wood and pasture land.” “id G. Belknap, recalled. For six years prior to September 1, 1887, I did not occupy this land, nor did any person for me. Defendant occupied it. I never got any rent whatever.” Defendants’ motion asked the court to direct a verdict for them “on the recorded testimony introduced,” and the record does not disclose the particular reason or view of the court in so doing. The facts are undisputed, so far as the plaintiff’s right to recover is concerned, and to that extent the case only involves a question or questions of law. If the plaintiff may recover, a jury should assess the damage ; for the testimony is not entirely harmonious on that question. Several errors are assigned, but they are all embraced in the one “ that the court erred in its instruction for the jury to return a verdict for defendants.”

Prior to the partition the plaintiff and defendants in this suit were tenants in common of the premises partitioned, and it is urged by appellees that under the facts of this case the appellant cannot recover for rents during such tenancy. There is no pretense in this case of any agreement to pay rent; that a demand for possession was made and refused ; or of defendants having received rent from third persons. With these undisputed facts, can plaintiff, as a matter of law, recover rent from the defendants ? This question has received a careful consideration at the hands of this court, and their answer to such a question is in the negative. The case of Reynolds v. Wilmeth, 45 Iowa, 693, deals with this precise question, and settles it favorably to the action of the court below. The rule has since been followed in James Brown, 48 Iowa, 568, and in Varnum v. Leek, 65 Iowa, 751. This point was first presented in appellees’ brief, and we have not been favored with a reply, and incline to the belief that the point is conceded. With this view we need not consider other questions presented.

Affirmed.  