Williams v. Nolen

34 Ala. 167

Opinion

STONE, J.

In Smyth v. Tankersley, 20 Ala. 212, it was held, that a contract, by which the owner of land lets it to another, and agrees to receive as compensation a portion of the specific products, is a letting oh shares, and creates a tenancy in common in such products. The contract between Williams and Wright, as disclosed by the evidence, brings tbis case precisely within the prin. ciple above stated, and constitutes Williams one of the tenants in common, in the right to the cotton in controversy.

[2.] There being no pleadings in this record, we are left in doubt as to the form o'f the action. Trover is the action most favorable to the accomplishment of the plaintiff's wishes. We may concede, for the purposes of this appeal, that the action was trover, and still the judgment must be reversed. The bill of exceptions purports to set out all the evidence. It is nowhere shown that the cotton had been destroyed, sold, or otherwise disposed of. •For aught that we can know, the cotton was in the possession of Williams when this suit was brought. He had an equal right with his co-tenant to the possession, and the possession of one was the possession of both. This precise question was considered, and so ruled, in the case of Perminter v. Kelly, 18 Ala. 716.

The ruling of the circuit court was in conflict with these views.

Reversed and remanded.