This case has invited and received the careful, painstaking consideration of the court and has not been free from difficulties. It falls within the field of equity jurisprudence wherein the court may look through form to substance to avoid bogging down in the mire of legal intricacies and technicalities, leaving no right without remedy. Janney v. Buell, 55 Ala. 408; Elkins v. Bank of Henry, 180 Ala. 18,60 So. 96; Smith v. Thompson, 203 Ala. 87, 82 So. 101; Horticultural Development Co. v. Lark, 224 Ala. 193,139 So. 229; Jefferson Lumber Co. v. Powers, 223 Ala. 63, 134 So. 464; Andress v. Parrish, 239 Ala. 67, 193 So. 727; Averett v. Averett, 243 Ala. 357, 10 So.2d 16.
The court in the instant case, keeping in view the "pole star" of justice and equity between the parties as fixed and illustrated by their words and acts, must determine the nature and extent of their respective rights and interests arising out of their joint efforts and investments, practically, if not exactly, equivalent, constituting within the law a joint adventure to build a home for their use. Talley v. Talley, ante, p. 84, 26 So.2d 586; Mitchell v. Friedlander, 246 Ala. 115,119, 19 So.2d 394, 397.
We have fully stated the facts in the majority opinion promulgated October 25, 1946, and now venture only the further statement that the evidence shows that at the time of and during the continuance of the prosecution of the adventure Mrs. Mary Warner lived as a member of the family of Wm. A. Warner, deceased, in his home on Walker Street in the City of Huntsville.
Appellee insists that the court in determining and fixing the extent of the right, title and interest of the respective parties has given undue weight to the extent of possession of the respective parties of parts of the house, beginning with its completion and continuing through the life of Wm. A. Warner and since occupied by his wife, children and grandchild.
On further mature consideration we are now of the opinion that the effect of the decree of October 25, 1946, declaring and fixing the interests of the respective parties in the tenements which they occupy, creates an estate in severalty (McConnel v. Kibbe, 43 Ill. 12, 92 Am.Dec. 93; 7 R.C. L. 816, para. 8), and a cotenancy between *Page 566 the parties as to the lot upon which the house is situated — a situation which complicates the title and creates an insuperable obstacle to partition or sale for division through legal proceedings. McConnel v. Kibbe, supra.
The only essential to a cotenancy or tenancy in common is a unity of possession or right of possession of the property and a cotenancy may exist in every species of property, real, personal and mixed, corporeal or incorporeal. 7 R.C.L. 815-817, paragraphs 8-10. Though a cotenant may occupy the entire property, no liability for rent or use and occupation exists in the absence of express agreement between the parties or such hostile occupancy of the whole as is tantamount to ouster of the cotenant. 7 R.C.L. pp. 828 et seq., paragraphs 22, 23 and 24; Turner v. Johnson, 246 Ala. 114, 19 So.2d 397.7
Therefore, the fact that the occupancy of the building by Wm. A. Warner and his mother was unequal in extent is not inconsistent with the existence of a tenancy in common.
The contention of appellee that she paid more into the joint adventure than did her son is refuted by her own testimony, wherein she stated on cross-examination:
"I remember when I signed the mortgage. As to how such money I had at home or in the bank at that time, I don't know how much I had. I don't know how much I have got yet. But I didn't have enough to refinish paying for the house. That is the reason that loan was made. All the money I have spent on my house and have left is money I have saved from my pension and the insurance I got from my husband and what my children paid me. Albert was the only one of my children who ever borrowed from me. And if he ever borrowed any money from me he paid it back. He didn't owe me anything when he died, not a penny. And I didn't owe him anything."
We, therefore, hold and decree that the result of the joint adventure and its completion was to establish a tenancy in common between Mary A. Warner and William A. Warner in the property, the house and the lot upon which it was constructed, each owning a one-half undivided interest, and that the interest of said William A. Warner passed to the complainants through the process of devolution.
The costs of this suit and of this appeal are taxed, one-half against the complainants and the other half against the defendants.
To the extent indicated above the decree here rendered on October 25, 1946, is modified, but in all other respects is reaffirmed.
Opinion extended, decree modified and application for rehearing overruled.
FOSTER, SIMPSON, and STAKELY, JJ., concur.
GARDNER, C. J., and LIVINGSTON and LAWSON, JJ., dissent.