dissenting.
I respectfully dissent. I would hold that Brenda is not liable for rent accrued during the second holdover period under the lease. In all other respects I join the majority opinion.
Since we have no findings of facts and conclusions of law, we must affirm the judgment of the trial court if it can be upheld on any legal theory finding support in the evidence. In the Interest of W.E.R., 669 S.W.2d 716, 717 (Tex.1984). The following facts were heard by the trial court. Brenda and Herman held the premises as joint tenants, and yet only Herman actually held over for the first and second holdover periods.
Brenda moved out of the premises two weeks prior to the beginning of the first holdover period, leaving Herman in sole possession of the premises. At that time Brenda did not personally give notice of her departure to the Marynicks. However, prior to the second holdover period, Mr. and Mrs. Marynick learned that Brenda no longer lived on the premises, when Herman told Mrs. Marynick that Brenda had moved out, leaving him alone. Thus, Mr. and Mrs. Marynick had actual notice that Brenda did not intend to holdover for the second holdover period prior to the beginning of the second holdover period. Brenda did not live on the premises at the beginning of the second holdover period nor during any part of the second holdover period. But cf. Hunger v. Toubin Bros. Inc., 164 S.W.2d 765, 767 (Tex.Civ.App.—Austin 1942, writ dism’d) (a landlord has the right to holdover the tenant for an additional term if the tenant remains on the premises for even one additional day). In our case, Brenda did not remain on the premises for any additional days.
Further, Mr. Marynick and Herman entered into a separate loan agreement for rental payments during the first holdover period. Brenda was not aware of this agreement. But for this separate agree*674ment, Herman could not satisfy the terms of the lease. This agreement, in effect, determined Brenda’s fate without her knowledge or consent.
The majority cites Fronty v. Wood, 20 S.C.L. (2 Hill) 367 (1834), for the proposition that the holdover of one of two joint tenants will be 'presumed to be the holdover of both, where one tenant occupies the premises after the expiration of the initial period, but the other tenant, not in actual possession, fails to give notice that he ceases to hold.
I agree with Fronty that a presumption is created and that persons against whom the presumption arises would have to produce evidence to rebut it. See Reiter v. Coastal States Gas Producing Co., 382 S.W.2d 243, 250 (Tex.1964). This presumption, however, should be rebuttable. The presumption that both Brenda and Herman held over for the second holdover period was rebutted in this case by the facts that Brenda did not live on the premises during any part of the second holdover period and that the Marynicks received actual notice that she did not live on the premises during the second holdover period. Because the Marynicks received actual notice during the first holdover period that Brenda had moved out, they could choose to terminate the lease or continue the lease in reliance on Herman’s ability to fulfill the obligations of the lease.
Consequently, I would hold that the trial court, as the trier of fact, could determine that, under these facts, Brenda is not liable for rent accrued during the second holdover period.