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SURVIVORSHIP IN JOINT TENANCY.

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tenants in common of a vessel, they are independent of each other in all matters of purchase and sale, and may deal with each other in the same manner as owners of separate property, and each may act upon the knowledge he has without communicating it.'

§ 21. Survivorship in Joint Tenancy. The doctrine or right of survivorship among joint tenants as it existed under the common law is not in harmony with the policy of the American law. It was never favored in courts of equity and in most of the States it has been abolished.' It may be created, however, by will or deed.'

The doctrine of survivorship is stated by Mr. Bowlby in American and English Law Encyclopædia as follows: "Where two or more persons have an estate in joint tenancy in any subject of property, each having a concurrent interest and title in and to the whole, and each being in possession of the whole, if one or more of them dies the entire tenancy remains to the survivor or survivors, and he is or they are entitled to the whole estate."

The doctrine of survivorship has no application to tenants in common.*

The right of survivorship among joint tenants has been abolished (except as to estates held in trust) in Pennsylvania, New York, Kentucky, Virginia, Indiana, Missouri, Tennessee, Alabama, Georgia, North Carolina, South Carolina and some other States. In Connecticut it never existed. 11 Am. & Eng. Ency. 1077; 2 Bouvier Law Dic. 566; 1 Washburn Real Prop. 408.

A conveyance of land in 1854 in trust for the grantor's wife and her two children, vested in each an undivided one-third of the equitable estate without right of survivorship, which was abolished by Act Miss. 1822 (Hutch. Code, p. 614, § 12), that act not containing the exception as to conveyances in trust found in Rev. Code Miss. 1857, p. 309, art. 18. Day v. Davis, 64 Miss. 253; 8 So. Rep. 203 (1890).

How. St. Mich. § 7882, providing for the partition of lands held in common, declares that, if any portion of the lands can be divided without

1 Matthews v. Bliss, 22 Pick. (Mass.) Cable, 114 Pa. St. 586; 7 Atl. Rep. 48 (1839). This rule of law applies 791 (1887); Weir v. Tate, 4 Ired. equally well to tenants in common of (N. C.) Eq. 264. real estate but the doctrine announced does not seem to be supported by the weight of authority, either ancient or modern.

Miles v. Fisher, 10 Ohio, 1; Phelps v. Jepson, 1 Root (Conn.), 48; Nichols v. Denny, 37 Miss. 59; Jones v.

Jones v. Cable, 114 Pa. St. 586; 7 Atl. Rep. 791 (1887).

411 Am. & Eng. Ency. 1077; see Blackstone's Com. (Chase's Ed.) 183. 'Blackstone's Com. (Chase's Ed.)

194.

great prejudice to the owners, it must be partitioned, and only those portions sold which can not be divided. Section 7942 provides that, if a tenant in common commit waste on the common land, he shall be subject to an action on the case: Held, that a tenant in common in lands can not convey his interest in the timber thereon, and thereby make the other tenants in common co-tenants with his grantee, so that the latter could bring partition for the timber, but that the only interest which such purchaser takes is the interest in the timber on such lands as in partition proceedings shall be set off to his grantor. Benedict v. Torrent, 83 Mich. 181; 47 N. W. Rep. 129 (1891).

Rev. St. Ill. c. 30, § 5, provides that no estate in joint tenancy shall be held or claimed under any conveyance, unless the land conveyed shall be expressly declared to pass, not in tenancy in common, but in joint tenancy. Rev. St. Ill. c. 76, § 1, provides that, if partition be not made between joint tenants, the shares of those who die first shall not accrue to the survivor, but shall be considered, to every intent and purpose, as if such joint tenants had been tenants in common: Held that, even where a deed to two persons states that the land is conveyed to them "not as tenants in common, but as joint tenants," there is no right of survivorship. Magruder, C. J., dissenting. Mette v. Feltgen (Ill.), 27 N. E. Rep. 911 (1891).

§ 22. Tenants of the Entirety-Husband and Wife at Common Law.-The common law doctrine is: If an estate be given to a man and his wife, they are neither properly joint tenants nor tenants in common; for husband and wife being considered as one person in law, they can not take the estate by moieties, but both are seized of the entirety per tout et non per my, the consequence of which is, that neither husband nor wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.' So, where land is held by husband and wife as tenants by the entirety, as at the common law, the sale of the same on execution against the husband, followed by a sheriff's deed, will fail to pass any title whatever. It will not pass the undivided half, as in the case of the sale of the interest of one of two tenants in common."

In 1855 a conveyance of land was made to H. J., N. J., his wife, and M. A. J., his daughter, under which H. J., as the head of the family, took possession: Held, that the husband and his wife became seized of an undi1 2 Blackstone's Com. 182; Almond berger, 3 Ham. (O.) 305; Whittlesey v. Bonnell, 76 Ill. 536 (1875); Lux v. Fuller, 11 Conn. 337. v. Hoff, 47 Ill. 425; Jackson v. McConnell, 19 Wend. (N. Y.) 175; Jack son v. Stevens, 16 Johns. (N. Y.) 115. The rule seems to be the same in all the States excepting Ohio and

Connecticut. Sergeant v. Stein

2 Almond v. Bonnell, 76 Ill. 536 (1875); Rogers v. Grider, 1 Dana (Ky.), 242; Roanes v. Archer, 4 Leigh (Va.), 550; see Barber v. Harris, 15 Wend. (N. Y.) 615.

JOINDER OF TENANTS IN COMMON AS PLAINTIFFS.

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vided half thereof, as tenants by the entirety, and the daughter of the other half as a tenant in common, and that upon the death of the husband the wife continued to hold the same interest which the two, as one person, had held before. Park Commissioners v. Coleman, 108 Ill. 591 (1884). This law has been changed by statute in Illinois.

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§ 23. Joinder of Tenants in Common as Plaintiffs. - - In those States where the old action of ejectment has been abolished, it may be doubted whether tenants in common can unite in a real action, inasmuch as their title and their interest are several. The new codes of procedure usually provide that all persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs. This is the rule that prevailed in equity proceedings, but it is by the codes made general, and applies as well to actions at law as in equity. Notwithstanding the title of tenants in common is several, they have an interest in the subject of the actionthat is, in the property in respect to which the action is brought, and in obtaining the relief demanded provided the disposition applies to all. If the occupant holds adversely to all the tenants in common, and they all join to recover possession, the pleading should show the interest of each, that the judgment may conform to it. Parties are not required to join as plaintiffs unless they are united in interest—that is, have a joint interest, and consequently tenants in common may sue severally, each for his own interest. It would seem, however, in the absence of statutory authority, that they must all join for the whole tract, or each sue for his individual interest.'

§ 24. Extent of the Recovery.-While, perhaps, a considerable majority of the reported cases, involving the questions of the extent of the recovery of one of several tenants in common, in actions for the recovery of the possession of real property, hold, that one tenant in common may recover the possession of the whole estate in an action of ejectment brought against a stranger to the common title, yet there are many very respectable authorities to the contrary. At common law tenants in common could not join in an action of ejectment.' The

'Mattis v. Boggs, 19 Neb. 698; 28 N. W. Rep. 825 (1886); Bliss on Code Pleading, title, Parties; Kirk v. Bowling, 20 Neb. 260; 29 N. W. Rep. 928 (1886); see Crook v. Vandevoort, 13 Neb. 505; 14 N. W. Rep. 470.

? Mattis v. Boggs (Neb.), 25 N. W. Rep. 616 (1885); Dewey v. Brown, 2 Pick. (Mass.) 387; Dawson v. Mills, 32 Pa. St. 302; Gray v. Givens, 26 Mo. 291.

Freeman on Co-tenancy, § 341.

reason usually given for this rule of the common law is, that the title of each co-tenant is separate and distinct and hence a joint action will not lie thereon. This rule has been changed in many States by statute, but in those States having no statute upon the subject, it seems that the common law rule must prevail. If, by the common law, tenants in common, present and co-operating, can not maintain a joint action of ejectment for the possession of the premises owned by them jointly, how is it that one of them suing alone can recover the whole of the joint premises as against a stranger, the judgment having the effect of a joint recovery. It seems illogical to say that it can. The better rule seems to be that the recovery of a joint tenant in the absence of statutory enactments to the contrary, must be limited to his right or interest in the premises. For it might well be that the other tenants in common may prefer the person in actual possession of the premises to the person seeking to recover it from him.'

Proof of title in A and B, and a conveyance from B to C, and a deed of trust from C to D, and his death, leaving the plaintiffs his only heirs, will not sustain a judgment in ejectment in favor of the plaintiffs for the entire interest in the land. At most, such evidence shows a right of recovery only of the undivided half of the land. Strean v. Lloyd, 128 Ill. 495 (1889).

§ 25. A Contrary Doctrine.-A tenant in common as against every person but his co-tenants is entitled to the possession of the entire tract held in common, and may maintain ejectment therefor against a stranger to the common title.'

26. A Co-tenant's Right to Purchase an Outstanding Title. It is a well settled rule of law that one tenant in common or joint tenant can not purchase an outstanding title or incumbrance and assert it against his companions in the estate without first affording them an ample opportunity of reimbursing him for his expenditure. The rule requires tenants who desire to participate in the benefits accruing from

'Brown v. Dewey, 2 Pick. (Mass.)

387.

Sherin v. Larson, 28 Minn. 523; 11 N. W. Rep. 70 (1881); Hart v. Robinson, 21 Calif. 346; Robinson v. Roberts, 31 Conn. 145; Hibbard v. Foster, 24 Vt. 542.

3 Flogg v. Mann, 2 Sumn. (U. S.) 486; Rothwell v. Dewees, 2 Black (U. S.) 613; Britton v. Handy, 20 Ark. 381;

Bracken v. Cooper, 80 Ill. 221; Smith v. Osborne, 86 Ill. 606; Wilton v. Tazwell, 86 Ill. 29; Gossom v. Donaldson, 18 B. Mon. (Ky.) 230; Venable v. Beauchamp, 3 Dana (Ky.); Brown v. Horman, 1 Neb. 448; Boskowitz v. Davis, 12 Nev. 446; Van Horn v. Fonda, 5 Johns. Ch. (N. Y.) 389, 407; Tisdale v. Tisdale, 2 Sneed (Tenn.) 596; Picot v. Page, 26 Mo. 421.

DOCTRINE STATED BY CHANCELLOR KENT.

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the purchase of an outstanding title to make the necessary reimbursement within a reasonable time, or they will be deemed to have repudiated the transaction.1 As the gen

eral presumption of the law is, as we have seen, that these tenants hold the estate for the joint and mutual benefit of all, one of them will not be permitted to purchase an outstanding title for his individual benefit."

In trespass to try title by a co-tenant against one claiming adversely under a tax deed, it is immaterial that the portion owned by the co-tenant is identified in his conveyance by a particular description. As co-tenant, he could recover the entire tract. McDonald v. Hamblen, 78 Tex. 628; 14 S. W. Rep. 1042 (1891).

In trespass to try title, part of the tenants in common of a tract of land may recover the whole tract against a mere trespasser. Harber v. Dyches (Tex.), 14 S. W. Rep. 580; Am. Dig. 1891, 4255.

27. The Doctrine Stated by Chancellor Kent.-It is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus undermine and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties as joint devisees, created. Community of interest produces a community of duty, and there is no real difference on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title to disseize and expel his co-tenant."

Though a tenant in common can not buy an outstanding paramount title so as to oust his co-tenant, yet there is no reason why he may not buy in the independent interest of another tenant in common similarly situated. Snell v. Harrison (Mo.), 16 S. W. Rep. 152; Am. Dig. 1891, 4252.

Where defendant is in possession under a deed making him tenant in common with the plaintiff, he can not set up an outstanding title to defeat the action. Baintree v. Battles, 6 Vt. 395; Boskowitz v. Davis, 12 Nev. 446; see Paige v. Branch, 97 N. C. 97; 1 S. E. Rep. 625.

Where complainants, by their bill in eje‹m nt, claimed and sued for all the lands embraced within the calls of a grant to them, and defendants

'Mandeville v. Solomon, 39 Calif.

125.

* Knolls v. Barnhart, 71 N. Y. 474; Duff v. Willson, 72 Pa. St. 442.

3 Van Horne v. Fonda, 5 Johns. Ch. (N. Y.) 389.

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