¶1We can not agree with appellant that section 3231, sub-division 6, of the Code of 1876, fixes the limitation of this action. It is a substitute for an action for mesne profits, is in the nature of a suit for use and occupation, or for arrears of rent, is authorized by the statute, and, we think, it falls within section 3226 of the Code. To hold that it is a civil action for an “injury to the rights of another,” is certainly a very indefinite, if not an inaccurate definition. All the analogies assign it a place under section 3226 of the Code.
¶2In ordinary cases, one tenant in common is not liable to his co-tenant for use and occupation. This results from the fact that such tenant, when in possession, is only in the exercise of the rights the law and his title clothe him with. He is in possession, has the right to be in possession; and such possession does not, fer se, dispossess the other co-tenant, nor deny to him the equal right to enter and occnpy. The mere posséssion of one tenant in common is not adverse to the claim or right of his co-tenant, but is presumed to be taken and held under the common title, in recognition of the common right, for the benefit of all the tenants in common, and not in hostility to such common right. Such peaceable possession, being in recognition of the equal rights of the other tenants, has in it none of the elements of an adverse' holding. In cases of this kind, the tenant out of possession can recover nothing for mere use and occupation against the tenant in possession, although the latter may have occupied and utilized the entire premises. This, because in presumption of law, it was the mere neglect or fault of the tenant out of possession, that he did not enter and occupy with his co-tenant. If, however, the tenant in possession actually realize rents for the premises, or a part of *324them, he can be made to account to his co-tenant for his share of such receipts.—Newbold v. Smart, 67 Ala. 326 ; Terrell v. Cunningham, 70 Ala. 100.
¶3When there has been a forcible eviction of one tenant in common by another, or the one in possession keeps the other out, or refuses to let him enter, then the case is governed by different rules. Then, and only then, can the tenant out of possession maintain an action to be let in ; for only in such case has he been evicted. This constitutes the ouster, indispensable to the maintenance of ejectment. And in such action, the plaintiff may recover his share of the value of the use and occupation, which has been wrongfully withheld from him.
¶4It is contended for appellant, that this rule should not apply to this case, first, because it is not shown that Trott, the plaintiff, was hindered from occupying the premises under his title. This is answered by the recovery of Trott v. Kirkland, in the statutory real action. If there had been no hindrance to Trott’s entry, that action could not have been maintained. The recovery and judgment in that suit render this question res adjudícala, between these parties.
¶5It is contended, in the second place, that after the recovery in the circuit court, Trott could have entered, and therefore he should not recover in this proceeding. The answer to this ob-, jection is, that Kirkland all the while litigated Trott’s right to enter; and after verdict and judgment in the circuit court, he appealed to this court, and superseded the judgment in the circuit court. After the affirmance in this court, Trott was guilty of no undue delay in obtaining possession.—Kirkland v. Trott, 66 Ala. 417. It does not lie in Kirkland’s mouth to say the supersedeas bond was insufficient. It was intended to operate as a supersedeas, expresses that it does supersede the judgment, and Kirkland can not complain that Trott submitted to it, without testing its sufficiency. It furnishes a sufficient excuse to Trott for not attempting to take possession, which we feel bound to presume would have been resisted. Nor was there any error in receiving evidence of the bond, and other proceedings on the appeal. They were but evidence showing how Trott was kept out of possession, and it was not necessary to plead them.
¶6The transfer by Kirkland, made pending the appeal, of his possession, and all the right and title he had, to another, can cut no figure in this trial. Lis pendens was notice to his vendee, and she was as much concluded by the judgment as he was; and the writ of possession was as potent against her, as against him.—Peevey v. Cabaniss, 70 Ala. 253. Her possession, derived from him, was as much a wrongful keeping of Trott *325out of possession, as if he bad remained in possession himself, or had placed a tenant there to hold for him. Affected with notice, as Mrs. Battle was, she acquired no greater rights or immunities than her vendor had.
¶7Affirmed.