LECTURE XXIII.

ESTATES IN COMMON. (a)

§ 139. Different kinds of Joint Ownerships. I have hitherto spoken of estates as if they belonged to a single person. But in the estates before described, several persons may have a common interest. I speak not now of corporations which may happen to own realty; because the interest of corporations, whether in personalty or realty, is of the same nature, being measured by the shares they hold; which shares only give them an interest in the proceeds of the corporate property; and not an interest in the specific property itself. But I refer to natural persons having an undivided interest in the same parcel of realty, no matter how acquired; and in this lecture I am to explain the light in which the law regards such common interest. At common law, estates were divided, with respect to the number of owners, into four classes; namely, estates, in severalty, in joint-tenancy, in coparcenary and in common. But an estate in severalty means nothing more than that the land belongs to a single owner, and therefore requires no comment. With respect to the other three estates, the distinctions at common law were numerous and important. In this State, however, the prevailing sentiment in favor of simplicity, has reduced these three estates to one; namely, an estate in common. As this is an important proposition, I will briefly state the grounds on which it rests. In the first place, our legislature has generally treated them as one. In the second place, our court has expressly decided, that joint-tenancies do not exist in Ohio. The case was one where land had been devised to husband and wife, by such words as at common law would have created a joint-tenancy in any other persons; and in husband and wife would have given each the entirety, with the indestructible

(a) See 2 Black. Com. ch. xii.; 2 Kent, Com. lec. 64; 1 Swift's Dig. b. 2, ch. 10; 2 Cruise's Dig. 497; 1 Hilliard's Dig. ch. 53–55; pp. 429–62. In Sargeant v. Steinberger, 2 Ohio, 305, the court say: "It has more than once been decided on the circuit, that estates in joint-tenancy do not exist in Ohio. The reasons which gave rise to this description of estate in England never existed with us. The jus accrescendi is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understanding, habits, and feelings of the people. We have no statute recognizing the existence of any such principle as the right of survivorship. But we have various statutory provisions inconsistent with it. . . . It is from this evident that the legislature have treated a joint tenancy as a tenancy in common. It is well settled that the joint tenancy of husband and wife varies in many principles from other joint-tenancies. . . . But the right of survivorship was the same as in other cases of joint-tenancies; and in the case of husband and wife, is as much at variance with our laws and usages as in the common case." This was the case of a devise to husband and wife and their heirs. In Wilson v. Fleming, 13 Ohio, 68. it was held that they could not be jointtenants even of an equitable estate. And in Miles v. Fisher, 10 Ohio, 1, it was held that a joint-tenancy could not be created by using the very words, "to hold as jointtenants, and not as tenants in common."

right of survivorship; for as neither could sever the jointure, the whole would belong to the survivor. But the court said, that inasmuch as our legislature had uniformly treated a joint-tenancy as a tenancy in common, and inasmuch as the right of survivorship, which cut off the heirs of the deceased joint-tenant, is not conformable to the spirit of our institutions, or the feelings of our people, they would not recognize a joint-tenancy. And as the same reasons applied to the peculiar tenancy of husband and wife, it should be treated as a tenancy in common. (a) And in another case, where the devise expressly specified that the devisees should hold as jointtenants, and not as tenants in common, it was held that they were tenants in common. In the third place, although it has never been decided that coparceners differ in no respect from tenants in common, yet this follows from the reason above given, that our legislature has uniformly treated them as the same. The single exception with respect to waste, only strengthens this conclusion; for at common law, one joint-tenant or tenant in common might maintain an action for waste against another, but a coparcener could not. So that our statute, by extending this privilege to a coparcener, only operates to do away the sole remaining difference between tenants in common and coparceners.

§ 140. Tenants in common. (b) The leading incidents of estates in common are as follows: 1. The only unity required between tenants in common, is the unity of possession. They may differ in regard to interest, title, and time. They own undivided parts,

(a) Wilson v. Fleming, 13 Ohio, 68. But in most of the States, the rule of the common law still prevails, and a deed or devise to a husband and wife and their heirs makes them joint-tenants with a right of survivorship. Bates v. Seely, 46 Penn. State, 248; Woodford v. Higbee, 1 Winston (N. C.), No. 1, 237; Babbitt v. Scroggin, 1 Duvall, 272; Ketchum v. Wadsworth, 5 Wis. 95; Wright v. Sadler, 20 N. Y. 330; Thornton v. Thornton, 3 Randolph, 183; Elliott v. Nichols, 8 Am. Law Reg. (N. s.) 398. In New Jersey, by the Act of 1812, it was declared that no estate should be considered an estate in joint-tenancy unless it is expressly set forth in the deed creat ing it that such is the intention of the parties. This act, it has been held, applies also to conveyances to trustees. Boston, &c. Co. v. Condit, 4 Green (N. J.), 394.

(b) See 2 Black. Com. 191; 4 Kent, Com. 367; 2 Cruise's Dig. 549; 1 Hilliard's Dig. chap. 54, page 438. A tenant in dower, being also tenant in common of the remainder, may have partition. Morgan v. Staley, 11 Ohio, 389. Where land is purchased with partnership funds, the partners are tenants in common. Greene v. Graham, 5 Ohio, 261. A levy and sale of the interest of a tenant in common, setting off his share by metes and bounds, instead of taking his undivided share in the whole tract, is only good for his share in the portion so set off. Treon v. Emerick, 6 Ohio, 391. One tenant in common cannot make partition by conveying a portion of the common property by metes and bounds. His deed will only convey his undivided share in the portion conveyed. Dennison ". Foster, 9 Ohio, 126. But see White v. Sayre, 2 Olio, 110. Where husband and wife conveyed in trust to reconvey to them "jointly, their heirs and assigns, and to the survivor of them," &c., which was done, the husband took the entire fee on the death of the wife. Lewis v. Baldwin, 11 Ohio, 352. Where land is devised to a brother and his wife, they take as tenants in common, and if the wife die without issue, her brothers will inherit her share, though not of the blood of the ancestor. Penn v. Cox, 16 Ohio, 30. Where the owner and occupier of a farm are, according to a contract between them, to share the crops, they are tenants in common of the crops until a division. Walker v. Fitts, 24 Pick. 191; Caswell v. Districh, 15 Wend. 379; Putnam v. Wise, 1 Hill, 234; Case v. Hart, 11 Ohio, 364; Frost v. Kellogg, 23 Vt. 308; Smyth v. Tankersley, 20 Ala. 212. Carr v. Dodge, 40 N. H. 403; Knox v. Marshall, 19 Cal. 617.

and occupy promiscuously, because neither knows his own severalty. In legal language, they take by distinct moieties, and have no entirety of interest; and therefore, there is no right of survivorship, as there would be in a joint-tenancy; but on the death of either, his undivided interest descends to his heirs. 2. Tenants in common may have partition made at any time, by pursuing the course pointed out in the statute, and thus become tenants in severalty. Or they may make partition by mutual agreement. The proceedings in partition will be described hereafter. (a) 3. Tenants in common may maintain waste against each other, the nature of which has been already described. (b) 4. The possession of one tenant in common is the possession of the other. Therefore neither becomes a trespasser by entering upon any part of the common. premises; but if one actually ousts the other, and claims the whole to himself,.ejectment may be brought against him. Nor does an actual ouster imply force. Whenever one tenant in common, either by words or actions, denies the common tenancy, and claims to hold the whole, as exclusive owner, this will be equivalent to an actual ouster. (c) But the mere taking of all the rents by one, will not amount to such ouster. The other can only compel him to account in equity. (d) 5. Estates in common are liable to curtesy and dower, and are alienable, descendible, and devisable, like any other estates. These various matters will be explained hereafter. 6. Tenants in common may be compelled to contribute for necessary repairs, but not for new improvements; the law presuming that the former must be beneficial to all concerned. (e) 7. Tenants in common may convey their undivided shares in the same manner as property held in severalty; but it is generally held that one tenant in common cannot convey a distinct portion of the common estate by metes and bounds. Our court, (f) however, has decided differ

(a) It is held in New York that partition may be made by parol, if followed by actual enjoyment in accordance with the agreement. Wood v. Fleet, 36 N. Y. 499. (b) But see Darden v. Cooper, 7 Jones, Law, 210.

(c) Defending an ejectment suit brought by his cotenant, and setting up the statute of limitations, is an ouster. Noble v. McFarland, 51 Ill. 226.

(d) A tenant in common, it has been held, who has received in money more than his share of the profits of the estate, is liable to his cotenant, in an action at law for the surplus. But mere occupancy and taking the profits, without receiving money for the same, will not give such right of action. Shepard v. Richards, 2 Gray, 424; Peck v. Carpenter, 7 id. 283. And mere occupation of the entire premises, without attorning to his cotenant or excluding him from his rights, does not render him liable for use and occupation, to his cotenant. Badger v. Holmes, 6 Gray, 118. See Huff v. McDonald, 22 Geo. 131; Davis v. Lottich, 46 N. Y. 393; Crow v. Mack, 52 Ill. 332; Israel r. Israel, 30 Md. 120; Crane . Waggoner, 27 Ind. 52; Ballou v. Hale, 47 N. H. 347; Webster v. Calef, 47 N. H. 289. There must be either an actual conversion or destruction of the property. Strong v. Colter, 13 Minn. 82. But the destruction need not be total. An action of tort for misuse of the property, as for wasting water in an aqueduct, may be maintained. McLellan v. Jenness, 43 Vt. 183.

(e) The repairs must be absolutely necessary to the enjoyment of the property. Dech's Appeal, 57 Penn. State, 467. In Massachusetts it seems to be held that he cannot claim for repairs made without the consent of his cotenant. Calvert v. Aldrich, 99 Mass. 74.

(f) See White v. Sayre, 2 Ohio Rep. 110. Such a cotenants, is good as against the grantor by estoppel.

deed, though void as to the McKey v. Welch, 22 Texas,

ently. The facts were, that partition was made among eight heirs, and the portions set off to each. The plaintiff purchased three of these shares, and took separate deeds from each of the owners. After this, the partition was set aside for error. The plaintiff then brought ejectment. The court held that he could recover one undivided eighth part of the land conveyed by each of the deeds. The correctness of this decision is very questionable; and in the dissenting opinion of Judge Burnet, the objections to it are placed in a very strong light. The decision, in fact, amounts to this, that one tenant in common may of himself make a partition which shall bind the rest. 8. Where partners hold real estate, they are treated in all respects as tenants in common. 9. Tenants in common must join in an action of trespass (a) and in debt for rent; but in ejectment they have an option, either to join or sever. It has been said that they cannot declare on a joint demise, because tenants in common cannot in fact make a joint demise; but such is not the law here. By our statute, they may either declare on a joint demise or on several demises. These matters will be better understood hereafter, when we come to consider the technicalities of practice.

§ 141. Joint Interest in Personally. (b) In general, the joint owners of personalty are partners, whose relation to each other has already been described. Their interest is rather that of jointtenants, than of tenants in common; because there is a qualified right of survivorship. And this is true generally of all joint interests in personalty, though the owners be not. strictly partners. Either of the joint owners may control the possession, and even transfer the title, during the lives of all; and when either of them dies, this power remains in the survivors. The representatives of the deceased can only call the survivors to account for their doings, and for a proper share of the ultimate proceeds of their management. Nor can any one of the joint owners convey his undivided share of any specific article to a third person. To avoid the effect of any of these rules of law, recourse must be had to chancery. But the maritime law makes an exception with respect to ownership of vessels, which extends also to steamboats and other kinds of water craft used on our interior waters. Joint owners of vessels are called part owners, (c) to distinguish them from partners. They are strictly tenants in common; for each part owner may dispose of his undivided share during life, and at death it goes to his representatives. Nor can one of the part owners control or dispose of the vessel without authority from the rest. A court of admiralty will even restrain a majority from employing a vessel against the will of the minority, without giving them security.

I have heretofore mentioned the consolidation of all tenancies

390; Holcomb v. Coryell, 3 Stockton, 548. A levy upon the undivided interest of a tenant in common in a part only of the land held in common is void as against his cotenants. Whitton v. Whitton, 38 N. H. 127.

(a) This rule is not changed by the code. Depuy v. Strong, 37 N. Y. 372. (b) 2 Kent, Com. 350.

(c) Abbott, on Shipping, 68-84; 3 Kent, Com. 151.

of realty, into that of a tenancy in common, as one of the instances in which our land law has been simplified. The brevity of this lecture proves this proposition. It would have required four times the space to discuss this title of the English law, even in the same general manner. Here, then, we have a decided gain on the score of simplicity, and without any countervailing disadvantage.

LECTURE XXIV.

ESTATES UPON CONDITION.

§ 142. Conditions in general. (a) Hitherto, I have considered estates only in their simple and absolute character, unaffected by any conditions or qualifications; but in the creation of estates, it often happens that certain conditions are annexed, according to which they either become vested, enlarged, or defeated; and these conditions may be as various as the dispositions of men. They are not, however, of frequent occurrence here, our conveyances being generally of the most simple character. With the exception of leases and mortgages, which form classes by themselves, we rarely meet with conditions in a deed; whereas in the English law they are very frequent. Indeed, under the feudal system, as we have seen, all estates were held upon conditions, on failure of which, they might be resumed by the lord of whom they were held. I shall give a very general description of the conditions which may be met with here, and of the rules which govern them. Conditions may be annexed to estates in fee, for life, and for years. Thus, if I grant an estate to you and your heirs, so long as you continue to reside in this State, this would be a conditional fee. It is a fee, because it may continue for ever; but since its continuance depends upon your residing in this State, it is called a qualified, base, or determinable fee. Again, if I grant an estate to you as long as you continue in a certain occupation, this is in like manner a conditional estate for life. Lastly, if I lease you an estate for a term of years, on condition that you occupy it in a certain way, this is a conditional estate for years. Conditions are either express or implied. Express conditions are those which are inserted in the deed, and are called conditions in deed. Implied conditions are those which are created by the common or statute law, without express words in the deed. But as none of the examples of implied conditions which are given in the books, will apply to the law of this State, we should probably be safe in saying that none but express

(a) 2 Black. Com. ch. 10; 4 Kent, Com. lec. 57; 1 Hilliard's Dig. ch. 27, 28, pp. 217-255.