SOMEBYILLE, J.
1. Tbe deed of Morris, executed on June 14th, 1873, to Beebe and Hensbaw, conveys an undivided one-half interest in the lands to tbe grantees, and vests in eacb one of them an undivided fourth interest as tenants in common. Tbe consideration received by tbe grantor is recited as moving from Eugene Beebe and Ferrie Hensbaw, and tbe conveyance is “to Beebe and Hensbaw, their beirs and assigns.” Tbis being tbe case, although a partnership existed between Beebe and Hensbaw, upon tbe death of the latter, tbe legal title of bis undivided fourth-interest descended to, and vested in bis beirs, also as tenants in common with eacb other, and with Beebe. All tbe owners must therefore join, in order to transfer tbe legal title to a purchaser. The surviving partner alone bad no capacity to make any transfer, such as a court of law would recognize. — Espy v. Comer, 76 Ala. 501; Lang v. Waring, 25 Ala. 625; Caldwell v. Parmer, 56 Ala. 405; Yeatman v. Woods, 27 Amer. Dec. 452; note, p. 454; McCormick’s Appeal, 98 Amer. Dec. 191; note, p. 197.
Tbe deed from Beebe to tbe appellant, executed in January, 1887, purports to convey tbe entire interest of himself as well as of Hensbaw’s estate, being signed by him both individually andas surviving partner of tbe late firm of Beebe & Hensbaw. Under the principle above declared, it operated only to convey Beebe’s undivided one-fourth interest, unless the conveyance can derive some force from tbe power of attorney given to Beebe by Hensbaw’s beirs, bearing date August 5th, 1879.
2. Tbis instrument, in our opinion, confers no authority to sell these lands. It only appoints Beebe attorney in fact to “settle up all matters growing out of tbe business of tbe late firm of Beebe & Hensbaw,” and to “settle up and divide [452]*452the estate of the said Eerrie Henshaw among those entitled thereto, according to their several rights at law and in equity;” and invests him with authority “to do all acts which may be necessary to accomplish said result.” Such powers of attorney are ordinarily subject to a strict construction, so as to preclude the exercise by the agent of all authority not expressly' given, or necessarily implied as usual and proper in order to execute the agency. — Cummins v. Beaumont, 68 Ala. 204. It can not be implied that the sale of the lands was necessary in order “to settle up and divide” the estate of Henshaw among those entitled. — Dearing v. Lightfoot, 16 Ala. 28; Wood v. McCain, 7 Ala. 800; s. c., 42 Amer. Dec. 612; Scarborough v. Reynolds, 12 Ala. 252; Ashley v. Bird, 14 Amer. Dec. 313; Rossiter v. Rossiter, 24 I b. 62; note, 65-66; Hay v. Mayer, 34 I b. 453.
The deed executed by Beebe, moreover, makes no reference to this power of attorney, and does not purport to have been executed under its authority. In claiming to convey “as surviving partner,” it strongly repels such an inference.
3. The suggestion, that the action of ejectment can not be maintained in the present case without proving a prior demand for possession by the plaintiff, is not sustainable. It is very true, that one tenant in common can not ordinarily maintain such an action against a co-tenant, without proving an actual ouster, or its legal equivalent. But, when the defendant sets up an adverse holding, especially under a written conveyance, and thereby repudiates the existence of a co-tenancy with the plaintiff, as is done here, no proof of a previous demand is necessary. He will not be permitted in one breath to deny the relationship of co-tenant, and in the next to claim the benefits incident to its existence. Harrison v. Taylor, 82 Amer. Dec. 159; Peterson v. Laik, 69 Ib. 441.
4. All the other assignments of error, not covered by the principles above announced, with the exception which we last consider as to recoverable rents, are, in our judgment, settled adversely to the appellant by the principles declared in Turnipseed v. Fitzpatrick, 75 Ala. 297, and since reaffirmed in Hairston v. Dobbs, 80 Ala. 589, and Dobbs v. Hairston, Ib. 594. These cases construe sections 2702-2705 and section 2706 of the Code (1886), and distinctly assert that a defendant can not, at one and the same time, claim the advantage of a defense under each of these provisions. He may (1) make a suggestion of adverse possession, for three [453]*453years next before the commencement of the suit, and obtain the benefit of the provisions embraced in sections 2702-2705, which includes the full value of all.permanent improvements made by the defendant; or (2) he may set up the fact of possession under color of title, in good faith, and thus acquit himself of responsibility for rents or damages for more than one year before the commencement of the suit, as authorized by section 2706. But,'if he claims the benefit of one of these defenses, he must relinquish the other. The two are inconsistent, and can not be simultaneously asserted. See, also, Kerr v. Nicholas, 88 Ala. 346; s. c., 6 So. Rep. 698.
5. Under the pleadings contained in the record, the defendant was authorized to set up the second defense, so as to reduce the recoverable rents to one year before suit brought. — Code, 1886, § 2706. . The question is, however, how shall such rents be computed? Shall it be on the land before or after the erection of the improvements? The statute does not say, and we are left to solve this inquiry on principles of reason and justice, and by authority.
The precise point arose in Dozier v. Mitchell, 65 Ala. 511, a case in equity, where a mortgagee, having purchased the mortgaged lands at his own sale,' conveyed them to a purchaser, who was shown to have held possession under color of title, and in good faith. The purchaser made valuable permanent improvements on the premises. He was held chargeable, like the mortgagee himself, with rents upon the estate as it came into his hands, and not upon the increased value of the property arising from improvements.
The same rule is held also to apply to actions at law, according to what we deem to be the more just view, especially where no allowance has been made the defendant for the value of the improvements. In Jackson v. Loomis (4 Cow. 168), 15 Amer. Dec. 347, a leading case on this subject, which was trespass for mesne profits, a bona fide purchaser was allowed the value of permanent improvements made, to the extent of the rents aud profits due the plaintiff; but it was said by Savage, C. J.: “Most clearly the defendant should not be compelled to pay an enhanced rent in consequence of his own improvements.” In Iowa, where there is a statute similar to our own, the occupant is held not to be chargeable with rents on improvements made by himself, but only on the land itself. — Dungan v. VanPuhl, 8 Iowa, 265.
The same ruling has been made in Indiana, Wisconsin [454]*454and other States. — Elliott v. Armstrong, 4 Blackf. 424; Davis v. Lenk, 30 Wis. 308. In Mississippi it is held, that the defendant in possession is not to be charged with increased rent by reason of improvements made by him, and for which he has been allowed no compensation. — Phillips v. Chamberlain, 61 Miss. 740; Tatum v. McClellan, 56 Ib. 352.
Free access — add to your briefcase to read the full text and ask questions with AI
SOMEBYILLE, J.
1. Tbe deed of Morris, executed on June 14th, 1873, to Beebe and Hensbaw, conveys an undivided one-half interest in the lands to tbe grantees, and vests in eacb one of them an undivided fourth interest as tenants in common. Tbe consideration received by tbe grantor is recited as moving from Eugene Beebe and Ferrie Hensbaw, and tbe conveyance is “to Beebe and Hensbaw, their beirs and assigns.” Tbis being tbe case, although a partnership existed between Beebe and Hensbaw, upon tbe death of the latter, tbe legal title of bis undivided fourth-interest descended to, and vested in bis beirs, also as tenants in common with eacb other, and with Beebe. All tbe owners must therefore join, in order to transfer tbe legal title to a purchaser. The surviving partner alone bad no capacity to make any transfer, such as a court of law would recognize. — Espy v. Comer, 76 Ala. 501; Lang v. Waring, 25 Ala. 625; Caldwell v. Parmer, 56 Ala. 405; Yeatman v. Woods, 27 Amer. Dec. 452; note, p. 454; McCormick’s Appeal, 98 Amer. Dec. 191; note, p. 197.
Tbe deed from Beebe to tbe appellant, executed in January, 1887, purports to convey tbe entire interest of himself as well as of Hensbaw’s estate, being signed by him both individually andas surviving partner of tbe late firm of Beebe & Hensbaw. Under the principle above declared, it operated only to convey Beebe’s undivided one-fourth interest, unless the conveyance can derive some force from tbe power of attorney given to Beebe by Hensbaw’s beirs, bearing date August 5th, 1879.
2. Tbis instrument, in our opinion, confers no authority to sell these lands. It only appoints Beebe attorney in fact to “settle up all matters growing out of tbe business of tbe late firm of Beebe & Hensbaw,” and to “settle up and divide [452]*452the estate of the said Eerrie Henshaw among those entitled thereto, according to their several rights at law and in equity;” and invests him with authority “to do all acts which may be necessary to accomplish said result.” Such powers of attorney are ordinarily subject to a strict construction, so as to preclude the exercise by the agent of all authority not expressly' given, or necessarily implied as usual and proper in order to execute the agency. — Cummins v. Beaumont, 68 Ala. 204. It can not be implied that the sale of the lands was necessary in order “to settle up and divide” the estate of Henshaw among those entitled. — Dearing v. Lightfoot, 16 Ala. 28; Wood v. McCain, 7 Ala. 800; s. c., 42 Amer. Dec. 612; Scarborough v. Reynolds, 12 Ala. 252; Ashley v. Bird, 14 Amer. Dec. 313; Rossiter v. Rossiter, 24 I b. 62; note, 65-66; Hay v. Mayer, 34 I b. 453.
The deed executed by Beebe, moreover, makes no reference to this power of attorney, and does not purport to have been executed under its authority. In claiming to convey “as surviving partner,” it strongly repels such an inference.
3. The suggestion, that the action of ejectment can not be maintained in the present case without proving a prior demand for possession by the plaintiff, is not sustainable. It is very true, that one tenant in common can not ordinarily maintain such an action against a co-tenant, without proving an actual ouster, or its legal equivalent. But, when the defendant sets up an adverse holding, especially under a written conveyance, and thereby repudiates the existence of a co-tenancy with the plaintiff, as is done here, no proof of a previous demand is necessary. He will not be permitted in one breath to deny the relationship of co-tenant, and in the next to claim the benefits incident to its existence. Harrison v. Taylor, 82 Amer. Dec. 159; Peterson v. Laik, 69 Ib. 441.
4. All the other assignments of error, not covered by the principles above announced, with the exception which we last consider as to recoverable rents, are, in our judgment, settled adversely to the appellant by the principles declared in Turnipseed v. Fitzpatrick, 75 Ala. 297, and since reaffirmed in Hairston v. Dobbs, 80 Ala. 589, and Dobbs v. Hairston, Ib. 594. These cases construe sections 2702-2705 and section 2706 of the Code (1886), and distinctly assert that a defendant can not, at one and the same time, claim the advantage of a defense under each of these provisions. He may (1) make a suggestion of adverse possession, for three [453]*453years next before the commencement of the suit, and obtain the benefit of the provisions embraced in sections 2702-2705, which includes the full value of all.permanent improvements made by the defendant; or (2) he may set up the fact of possession under color of title, in good faith, and thus acquit himself of responsibility for rents or damages for more than one year before the commencement of the suit, as authorized by section 2706. But,'if he claims the benefit of one of these defenses, he must relinquish the other. The two are inconsistent, and can not be simultaneously asserted. See, also, Kerr v. Nicholas, 88 Ala. 346; s. c., 6 So. Rep. 698.
5. Under the pleadings contained in the record, the defendant was authorized to set up the second defense, so as to reduce the recoverable rents to one year before suit brought. — Code, 1886, § 2706. . The question is, however, how shall such rents be computed? Shall it be on the land before or after the erection of the improvements? The statute does not say, and we are left to solve this inquiry on principles of reason and justice, and by authority.
The precise point arose in Dozier v. Mitchell, 65 Ala. 511, a case in equity, where a mortgagee, having purchased the mortgaged lands at his own sale,' conveyed them to a purchaser, who was shown to have held possession under color of title, and in good faith. The purchaser made valuable permanent improvements on the premises. He was held chargeable, like the mortgagee himself, with rents upon the estate as it came into his hands, and not upon the increased value of the property arising from improvements.
The same rule is held also to apply to actions at law, according to what we deem to be the more just view, especially where no allowance has been made the defendant for the value of the improvements. In Jackson v. Loomis (4 Cow. 168), 15 Amer. Dec. 347, a leading case on this subject, which was trespass for mesne profits, a bona fide purchaser was allowed the value of permanent improvements made, to the extent of the rents aud profits due the plaintiff; but it was said by Savage, C. J.: “Most clearly the defendant should not be compelled to pay an enhanced rent in consequence of his own improvements.” In Iowa, where there is a statute similar to our own, the occupant is held not to be chargeable with rents on improvements made by himself, but only on the land itself. — Dungan v. VanPuhl, 8 Iowa, 265.
The same ruling has been made in Indiana, Wisconsin [454]*454and other States. — Elliott v. Armstrong, 4 Blackf. 424; Davis v. Lenk, 30 Wis. 308. In Mississippi it is held, that the defendant in possession is not to be charged with increased rent by reason of improvements made by him, and for which he has been allowed no compensation. — Phillips v. Chamberlain, 61 Miss. 740; Tatum v. McClellan, 56 Ib. 352. But a distinction seems to be made, where the defendant has obtained compensation for such improvements, and the plaintiff recovers against him in ejectment. — Miller v. Ingram, 56 Miss. 510. The Supreme Court of Texas, in Evetts v. Tendick, 44 Tex. 570, held the defendant liable for rents on the land in its improved condition, following former decisions, but observed that the contrary rule was more equitable.
The more just rule, and the one.sustained by a preponderance of authority, is believed to be, that the bona hde occupant should not be charged with income from his own improvements, where he is so situated as not to be entitled to claim allowance for his expenditures in erecting them. Sedgwick and Wait’s Trial of Title to Land, (2d Ed.) § 678, and cases cited. That is this case, and we need not at present extend the principle any further.
It is very true, that there is no evidence contained in the record to repel the idea that the improvements in the present case may have been made after the commencement of the present suit; and where such is the case, no recovery can be had for the improvements. — Gordon v. Tweedy, 74 Ala. 232; 49 Amer. Rep. 813. But the charge given by the court assumes the contrary to be true. It asserts that, “if the jury believe the evidence, the plaintiffs are entitled to recover as damages the rental value of the land sued for, as the same has been improved by defendant, from one year before the commencement of the suit to date.” This charge was equivalent to an instruction authorizing the jury to assess rents on the improvements and land, commencing one year before the commencement of suit. Under the principles announced above, this ruling was erroneous, as were several others relating to the same phase of the case.
Reversed and remanded.