BOND, J.
This is an action of forcible entry and detainer for the recovery of possession of one hundred and ninety acres of land, $100 damages, and $10 monthly rents and profits. It was begun before' a justice of the peace, taken by appeal to the circuit court, where the plaintiff had judgment, from which defendant appealed to this court.
In July, 1896, the premises in controversy were let to plaintiff for farming purposes by oral agreement with the owner. On the thirtieth of December, 1896, plaintiff’s brother, William Stewart, and family moved upon the land. Being interrogated by the court as to the contract between himself and his brother, plaintiff answered, to wit: “Well, I rented the place and I told him it was more than I could attend myself, I says, if you want it come on, and I says I will let you have it and we will pay the rent out of the crop then we will divide up.” Being recalled at the conclusion of his other testimony plaintiff testified that his brother came to [27] keep house for him; that he did not rent to his brother, whereupon he was again cross-examined, to wit:
“Q. He had as much interest in the property as you had ? A. After the rent was paid, yes sir. Q. Then you moved off the place? A. No, sir; I didn’t. Q. You left the place, anyhow, didn’t you? A. I left it for a time, yes, sir.. Q. And went over to work for McGruder? A. Yes, sir. Q. At'sixty cents a day ? A. Well, I believe I asked him about fifteen dollars a month, I lived there, I think it was the third of March that my sister-in-law died and I didn’t work any after that, I think, but I won’t say positive about that. Q. You did testify your brother had possession of your things and control of them and was using them ? A. He was using them. Q. After you left? A. He was using them. Q. One-half of everything' that was raised on that place after the rent was paid belonged to your brother? A. That’s what he was to get.”
It further appeared that when William Stewart moved upon the farm he occupied one of two dwellings houses situated thereon, plaintiff occupying the other; that plaintiff’s wife died about that time, whereupon plaintiff vacated his house which was subsequently occupied by William Stewart; that plaintiff sent one of his children to its grandmother, and took the other to reside with him upon another farm, where he was hired as a work hand for sixty cents per day, or about $15 per month, carrying with him also his only bedroom set of furniture, and where plaintiff remained until about the first of March, 1897, when he returned to the premises in controversy and found that defendant, who had rented the place from a purchaser under the foreclosure of a deed of trust thereon, was in possession by the consent and aid of plaintiff’s brother, William Stewart. There was much evidence tending to show that when plaintiff left the premises it was with the avowed intention of abandoning his tenure. Plaintiff, however, testified that such was not his intention. [28] Tbe evidence further shows that the owner who originally let the place to plaintiff acting upon the information of plaintiff’s brother that plaintiff intended to leave the place, contracted Avith one Paige to put him in possession thereof on March 1, 1897, who Avas prevented from so doing by the prior entry of defendant, who was the.lessee of the purchaser at the trustee’s sale of the land by the agreement and assistance of plaintiff’s brother, William SteAvart, who Avas then in full charge and possession of the premises.
[29] Tenants in common. [28] The first question for determination upon the foregoing facts is, what was the legal relation created thereby between plaintiff and his brother, William Stewart? That they were tenants in common of all the yield of the lairds, by express agreement to that effect, can not be be doubted under the rulings of the following cases: Johnson v. Hoffman, 53 Mo. 504; Donnell v. Harshe, 67 Mo. 173; Van Hoozier, v. Railroad, 70 Mo. 149; Lindenbower v. Bentley, 86 Mo. 519; State v. Hunnerwardle, 44 Mo. App. loc. cit. 479. That the peculiar terms of their contract int&r se rendered them also tenants in common in the possession of the demised premises, is equally clear upon reason and authority. The one thing necessary to constitute tenants in common of lands or chattels is unity of possession. The parties may have diverse titles, interests and tenure, but if the possession of each is pen' my and pen' tout, they -are tenants in common. Wash-burn on Real Prop. [5 Ed.] 415; 11 Am. and Eng. Ency. of Law, p. 1058, and citations. By the contract between the Iavo Stewarts the possession of the farm was held in common for the purpose of its joint cultivation and an equal division of all its products after the payment of the rent. If the contract in question had not provided that plaintiff should remain on the farm and take part in its cultivation, its other provisions would have made William Stewart the tenant of plaintiff, entitled as such to the sole possession of the premises, and Avould have made the two parties tenants in common [29] only of the products of the farm; but as the contract did provide for joint possession and joint labor, it created the status of tenants in common both as to the estate in the land and its entire yield.
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BOND, J.
This is an action of forcible entry and detainer for the recovery of possession of one hundred and ninety acres of land, $100 damages, and $10 monthly rents and profits. It was begun before' a justice of the peace, taken by appeal to the circuit court, where the plaintiff had judgment, from which defendant appealed to this court.
In July, 1896, the premises in controversy were let to plaintiff for farming purposes by oral agreement with the owner. On the thirtieth of December, 1896, plaintiff’s brother, William Stewart, and family moved upon the land. Being interrogated by the court as to the contract between himself and his brother, plaintiff answered, to wit: “Well, I rented the place and I told him it was more than I could attend myself, I says, if you want it come on, and I says I will let you have it and we will pay the rent out of the crop then we will divide up.” Being recalled at the conclusion of his other testimony plaintiff testified that his brother came to [27] keep house for him; that he did not rent to his brother, whereupon he was again cross-examined, to wit:
“Q. He had as much interest in the property as you had ? A. After the rent was paid, yes sir. Q. Then you moved off the place? A. No, sir; I didn’t. Q. You left the place, anyhow, didn’t you? A. I left it for a time, yes, sir.. Q. And went over to work for McGruder? A. Yes, sir. Q. At'sixty cents a day ? A. Well, I believe I asked him about fifteen dollars a month, I lived there, I think it was the third of March that my sister-in-law died and I didn’t work any after that, I think, but I won’t say positive about that. Q. You did testify your brother had possession of your things and control of them and was using them ? A. He was using them. Q. After you left? A. He was using them. Q. One-half of everything' that was raised on that place after the rent was paid belonged to your brother? A. That’s what he was to get.”
It further appeared that when William Stewart moved upon the farm he occupied one of two dwellings houses situated thereon, plaintiff occupying the other; that plaintiff’s wife died about that time, whereupon plaintiff vacated his house which was subsequently occupied by William Stewart; that plaintiff sent one of his children to its grandmother, and took the other to reside with him upon another farm, where he was hired as a work hand for sixty cents per day, or about $15 per month, carrying with him also his only bedroom set of furniture, and where plaintiff remained until about the first of March, 1897, when he returned to the premises in controversy and found that defendant, who had rented the place from a purchaser under the foreclosure of a deed of trust thereon, was in possession by the consent and aid of plaintiff’s brother, William Stewart. There was much evidence tending to show that when plaintiff left the premises it was with the avowed intention of abandoning his tenure. Plaintiff, however, testified that such was not his intention. [28] Tbe evidence further shows that the owner who originally let the place to plaintiff acting upon the information of plaintiff’s brother that plaintiff intended to leave the place, contracted Avith one Paige to put him in possession thereof on March 1, 1897, who Avas prevented from so doing by the prior entry of defendant, who was the.lessee of the purchaser at the trustee’s sale of the land by the agreement and assistance of plaintiff’s brother, William SteAvart, who Avas then in full charge and possession of the premises.
[29] Tenants in common. [28] The first question for determination upon the foregoing facts is, what was the legal relation created thereby between plaintiff and his brother, William Stewart? That they were tenants in common of all the yield of the lairds, by express agreement to that effect, can not be be doubted under the rulings of the following cases: Johnson v. Hoffman, 53 Mo. 504; Donnell v. Harshe, 67 Mo. 173; Van Hoozier, v. Railroad, 70 Mo. 149; Lindenbower v. Bentley, 86 Mo. 519; State v. Hunnerwardle, 44 Mo. App. loc. cit. 479. That the peculiar terms of their contract int&r se rendered them also tenants in common in the possession of the demised premises, is equally clear upon reason and authority. The one thing necessary to constitute tenants in common of lands or chattels is unity of possession. The parties may have diverse titles, interests and tenure, but if the possession of each is pen' my and pen' tout, they -are tenants in common. Wash-burn on Real Prop. [5 Ed.] 415; 11 Am. and Eng. Ency. of Law, p. 1058, and citations. By the contract between the Iavo Stewarts the possession of the farm was held in common for the purpose of its joint cultivation and an equal division of all its products after the payment of the rent. If the contract in question had not provided that plaintiff should remain on the farm and take part in its cultivation, its other provisions would have made William Stewart the tenant of plaintiff, entitled as such to the sole possession of the premises, and Avould have made the two parties tenants in common [29] only of the products of the farm; but as the contract did provide for joint possession and joint labor, it created the status of tenants in common both as to the estate in the land and its entire yield.
[30] Dispossession. [29] The next question is, can the present action be maintained under the admitted facts ? This is not a suit by one tenant in common against the other to be restored to a joint possession on the ground of forcible exclusion. Lewis v. Oesterreicher, 47 Mo. App. loc. cit. 82, 83; McHose v. Ins. Co., 4 Mo. App. 514, but it is an action of forcible entry and detainer against the tenant of the title holder to the land who has been let into possession by the aid and consent of the cotenant of plaintiff. Conceding one tenant in common, without joining his cotenant, may have an action of forcible entry and detainer in a proper case against a stranger. Turner v. Lumbrick, 1 Meigs (Tenn.) 7; Jones v. Phillips, 10 Heisk. (Tenn.) 562; Bowers v. Cherokee Bob, 45 Call. 495; Wood v. Phillips, 43 N. Y. 152; Rabe v. Fyler, 10 S. & M. (Miss.) 440, 'the question remains was there a forcible entry and detainer under the facts in this record? According to plaintiff’s admissions on the witness stand he was not on the farm when the defendant was inducted to the peaceable possession by plaintiff’s brother, and tenant in common, who was at the time in full charge of the premises and everything thereon. Whatever possession plaintiff then had to the premises rested solely upon the legal presumption that the possession of lands by one tenant in common inures to the benefit of his cotenant, in the absence of' evidence of a contrary intention. Unless the possession accruing to plaintiff in this way amounted to “actual possession,” he could not maintain this action. Ford v. Fellows, 34 Mo. App. 630; Armstrong v. Hendrick, 67 Mo. 542. Assuming that it was such an actual possession in plaintiff as to enable him to sue, the next inquiry is, was he dispossessed in such a manner as to [30] bring the case within the statute (R. S. 1889, sec. 5088) providing for an action of forcible entry and detainer? In discussing which it will be granted that the evidence need not show that the entry was made with actual force or threats, bur that it is sufficient to show that it was upon plaintiff’s peaceable possession and against his will. The admitted facts are, that the entry was made after plaintiff had left the farm in the sole possession of his cotenant, and that the latter peaceably inducted the defendant into possession and that when plaintiff returned he found the defendant in the possession which had been accorded to him by plaintiff’s representative on the place. It is evident that there was no force, actual nor constructive, in such an entry, nor can it be said that it was a violation of the peaceable possession of plaintiff against his will for he knew nothing of the entry of defendant until it had been peaceably accomplished. Lacking any of these elements the possession of defendant was not a violation of the statute defining forcible entry and detainer. These facts do, however, make a case for relief within the second classification of unlawful detainer specified in the statute, which is: “When any person wrongfully and without force, by disseizin, shall obtain and continue in possession of any lands, tenements or other possessions, and after demand made, in writing, for the delivery of the possession thereof by the person having the legal right to such possession, his agent or attorney, shall refuse or neglect to quit ■such possession, such person shall be deemed guilty of an unlawful detainer. R. S. 1889, sec. 5089. If the present suit had been brought for an unlawful detainer of the above class, and written notice to quit had been shown, there might have been some basis for a recovery. Anderson v. McClure, 51 Mo. App. loc. cit. 96; Hyde v. Goldsby, 25 Mo. App. 29. As that was not done, the judgment herein is wholly unwar[31] ranted. It will therefore be reversed.
Judge Bland, concurs; Judge Biggs dissents.