11
 
 PRINTING.-!^ BINDING. 
 
 ^^^1 MARKET ^^ 
 SANFILVNCISCO.CAI. . 
 
 atgb BLANKS Etc. TO ORDER. 
 
 
 D. J. DAVFES, 
 
 THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 
 GIFT OF 
 
 James R« Hutter 
 'it? Bus, Adm.
 
 COTENAJN^CY 
 
 PARTITION.
 
 COTENANCY^^ 
 
 PARTITION: 
 
 A TREATISE ON THE LAW OF CO-OWNERSHIP AS IT EXISTS 
 
 INDEPENDENT OF PARTNERSHIP RELATIONS 
 
 BETWEEN THE CO-OWNERS, 
 
 By a. C. freeman, 
 
 AUTHOR OF THE LAW OF JtTDGMEMTS. 
 
 SAN FRANCISCO: 
 
 SUMNER WHITNEY & CO. 
 
 1874.
 
 Entered, according to Act of Congress, in the year 1874, by 
 
 A. C. FREEMAN, 
 
 In the Office of the Librarian of Congress at Washington. 
 
 r 
 
 1^1 +
 
 V 
 
 CONTENTS. 
 
 CHAPTEK I. 
 
 INTRODUCTORY. 
 
 General Classification of Property, 9 1. 
 
 Co-ownership adapted to all forms of Civilization, $ 2. 
 
 The Subject and Scope of this "Work, $ 3. 
 
 The Plan, § i. 
 
 English Tenm-es, $ 5. 
 
 American Tenures, § 6. 
 
 Classification of Tenancies, § 7. 
 
 Mixed, Imperfect, and Kedundant Tenancies, $ 8. 
 
 CHAPTER 11. 
 
 JOINT-TENANCY. . ' 
 
 Definitions by Littleton and Blackstone, ^ 9. 
 
 Definitions by Kent and Preston, li 10. 
 
 Properties, § 11. 
 
 Survivorship, $ 12. 
 
 Survivorship in Equity, ^ 13. 
 
 Survivorship is Paramount to Dower and Curtesy, $ 14. 
 
 Who may bo Joint-Tenants, ^ 15. 
 
 What may be held in Joint-Tenancy, ij 16. 
 
 Created by Joint Purchase, § 17. 
 
 Presumption in regard to Creation, $ lb. 
 
 Presumption when Property is acquired in Trade, $ 19. 
 
 Presumption from Inequality in Piirchase Money, $ 20. 
 
 Presumption of Joint-Tenancy rebutted by Parol, $ 21. 
 
 Establishing Joint-Tenancy by Parol, $ 22. 
 
 Creating by Devise or Bequest, $ 23. 
 
 Cases where Devises have been regarded as Joint, ^ 24. 
 
 Creation by Deed, ^ 25. 
 
 Creation by Deed to Woman and her Children, ^ 2C 
 
 Executoiy Settlements, ^ 27. 
 
 Devise or Bequest in Joint-Tenancy does not Lapse on Death of one, ^ 28. 
 
 74076?
 
 yi CONTENTS. 
 
 Severance, meaus of, j 29. 
 
 Severance by act of either Cotenant, $ 30. 
 
 Severance by Mutual Agreement, § 31. 
 
 Severance by a Course of Dealing, ^ 32. 
 
 Severance by Process against a Tenant, § 33. 
 
 Severance by one may leave the others Joint-Tenants, § 34, 
 
 JOrST-TENANCT IN THE UNTIED STATES. 
 
 Statutes Limiting or Abolishing, § 35. 
 
 Statutes Retroactive, ^ 36. 
 
 Creation, notwithstanding Statutes, $ 37. 
 
 Not forbidden by Law, ^ 38. 
 
 Dower, where Survivorship is Abolished, § 39. 
 
 Lapsing of Legacies and Devises, § 40. 
 
 To what kinds of Property Joint-Tenancy may still apply, $ 4L 
 
 Mortgages, § 42. 
 
 Co-Trustees under American Statutes, § 43 
 
 Co-Trustees are Joint-Tenants at Common Law, § 44. 
 
 Co-Trustees, Estate of, vests in those who Accept, $ 45. 
 
 Co-Executors and Co-Administrators, <& 46. 
 
 CHAPTER in. 
 
 THE HOMESTEAD AS A JOINT-TENANCY. 
 
 Revival of Joint-Tenancy by Homestead Laws, vS 47, 
 
 In California, Nevada, and Idaho, § 48. 
 
 Resembles Tenancy by Entireties, $ 49. 
 
 General Nature of Homestead Estates, '^ 50. 
 
 Homestead not ordinarily a Cotenancy, § 51. 
 
 Interest of Wife when Homestead is not a Cotenancy, $ 52. 
 
 Interest of Wife how regarded in Iowa, § 53. 
 
 Homestead in Lands of a Cotenancy, § 54. 
 
 Homestead may be acquired in any Title or Interest in Severalty, ^ 55. 
 
 Homestead embraces Title subsequently acquired, ^ 56, 57. 
 
 Conveyance or Incumbrance of, 6 58. 
 
 Limit of, 9 59. 
 
 Partition of, 5 60. 
 
 A.fter Divorce, $ 61, 
 
 Survivorship in, $ 62. 
 
 CHAPTER IV, 
 
 TENANCY BY ENTIRETIES. 
 
 Definitions, § 63. 
 
 Difference from Joint-Tenancy, $ 64. 
 
 States in which it prevails, § 65. 
 
 States in which it does not prevail, $ 66, 
 
 Of what Estates it may be, § 67. 
 
 Of Personal Property, $ 68.
 
 CONTENTS. Vll 
 
 How Created. ^ 69. 
 
 Htieband and "Wife take as one person, ^ 70. 
 
 Cases holding they cannot take by Moieties, $ 71. 
 
 Cases holding they can take by Moieties, § 72. 
 
 Power of Husband over, $ 73. 
 
 Sale binder Execution, kS 74. 
 
 Power of Husband under Statutes, $ 75. 
 
 Dissolution by Death or Divorce, <\ 76. 
 
 CHAPTER y. 
 
 OF PAKOENERS. 
 Definitions, ^ 77. 
 Classification. ^ 78. 
 Parceners by the Common Law, $ 79. 
 Of what Estates, § 80. 
 General Properties, § 81. 
 All make biit one Heir, ^ 8'.^. 
 Continuance of, § 83. 
 Destruction, $ 84. 
 Generally Abolished in United States and in Canada, $ 85. 
 
 CHAPTER VI. 
 
 TENANCY IN COMMON. 
 Definition, 6 86. 
 
 Equal Eight to Possession essential to, $ 87. 
 What may be held by, § 88. 
 Whether Letters Patent are held by, $ 89. 
 Who may hold by, § 90. 
 Legislative Grantees, $ 91. 
 
 Created by Creating Unity of Eight of Possession, $ 92. 
 Created by Transfer of a Part, $ 93. 
 Created by Contract to Work on Shares, $ 94. 
 Created by Confusion of Goods, $ 95. 
 Created by Grant of Unsegregated Part, ^ 96. 
 Created by Trees Growing on Lino, ^ 97. 
 Created by Party Wall, § 98. 
 Created by Grants to Proprietaries, $ 99. 
 Created by Crops raised on Sharen, § 100. 
 Created by Agreement to Divide Profits, ^ 101. 
 Created by Simultaneous Mortgages from same Mortgagor, $ 102. 
 Created by Simultaneous Deeds or Devises for same Person, ^ 103. 
 Created by Voluntary Association, v'i 104. 
 Presumption of Eclative Interests, ^\ 105. 
 Presumption arifiing from Deed to two or more, ^ 106. 
 Literest of Tenant subject to Dower, ^ 107. 
 Widow before Dower assigned is not a Cotenant, $ 108. 
 Lapse of Devise or Bequest to several as Tenants in Common, ^ 109. 
 No Lapse where it is to them as a class, $ 110.
 
 vni CONTENTS. 
 
 EFFECT OF PABTNEBSHIP UPON BEAL ESTATE HELD IN NAME OF PABTNiaiS AS TENANTS 
 
 IN COMMON. 
 
 Difference between Partners and Cotenants, $ 111. 
 
 Effect, at law, of Partnership on Cotenancy of Eealty, $ 112. 
 
 Effect, in equity, of Partnership on Cotenancy of Realty, § 113. 
 
 Mere Purchase by Partners does not convert Eealty into Personalty, $ 114. 
 
 Presumption arising from Purchase with Firm Assets, ^ 115. 
 
 Eealty acquired outside of Partnership, § 116. 
 
 Eealty when treated as Personalty, 117. 
 
 Eealty for what purposes treated as Personalty, $ 118. 
 
 Conveyance by a Partner of whole of the Eealty, § 119. 
 
 Conveyance by a Partner to Purchaser with notice, ^ 120. 
 
 CHAPTEE VII. 
 
 COMMUNITY PROPERTY. 
 
 No Community at Common Law, § 121. 
 
 Nor, ordinarily, in the Civil Law, § 122. 
 
 Community in America, § 123. 
 
 Community is Legal or Conventional, ^ 124. 
 
 Community, modification of, § 125. 
 
 Community, extent of, in Holland and Spain, $ 126. 
 
 Community, extent of, in France and Lower Canada, § 127. 
 
 Community, extent of, in California, $ 128. 
 
 Commimity, extent of, in Arizona, Idaho, and Nevada, $ 129. 
 
 Community, extent of, in Louisiana, $ 130. 
 
 Community, extent of, in Texas, § 131. 
 
 Community, as affected by domicil, $ 132. 
 
 WHAT PKOPERTY IS COMMON BETWEEN Ht'SBAND AND WIFE. 
 
 Lands given by Sovereign are not, § 133. 
 
 Purchases before marriage, but Conveyance afterwards, ^ 134. 
 
 Purchases during marriage, but Conveyance afterwards, ^ 135. 
 
 Gifts to Husband and Wife, § 136. 
 
 Purchases with Funds of the Wife, § 137. 
 
 Improvements, v> 138. 
 
 Crops, § 139. 
 
 Increase of Animals, 5> 140. 
 
 Eents, increase and profits in California, § 141. 
 
 Mixed Title, $ 142. 
 
 PEESUMPTION THAT PEOPEETY IS COMMUNITY. 
 
 AE Property in name of either presumed to be Community, ^ 143. 
 Property conveyed to Wife subject to same rale, $ 144. 
 Conveyance to Wife, rebutting presumption as to, in Texas, ^ 145. 
 Conveyance to Wife, rebiitting presumption as to, in Louisiana, ^ 146. 
 Conveyance to Wife, rebutting presumption as to, in California, $ 147. 
 Authority of Husband and Wife, respectively, § 148. 
 Dissolution of the Community, § 149.
 
 CONTENTS. IX 
 
 CHAPTEE Vni. 
 
 RELATIONS OF COTEN.^NTS. 
 General Statement and Dmsion of the Subject, ^ 150. 
 
 BESTKAINTS ABISING FBOJI FACT OF COTENANCY. 
 
 Eelations generally those of Mutnal Trust, $ 151. 
 
 Cannot assail Common Title, $ 152. 
 
 An apparent exception to this rule, $ 153. 
 
 Acquisition of Adverse Title, $ 154. 
 
 Whether Adverse Title may be asserted by Tenants in Common holding iinder 
 
 different Deeds, $ 155. 
 Waiver of light to claim benefit of purchase of Adverse Title, § 156. 
 Procuiing renewal of Lease by Co-Lessee, in his own name, § 157. 
 Acquiring Tax Title, § 158. 
 Purchase from Grantee in Tax Deed, $ 159. 
 Husband of Cotenant, § 160. 
 
 Dui'ation of Eestraints arising from Cotenancy, Ji 161. 
 Eestraints of Cotenancy terminated by Eviction, $ 162. 
 Whether there must be Title to make Cotenancy, § 163. 
 No Restraint on Cotenants contracting with one another, ^ 164. 
 No Restraints on buying interest of the other at forced sale. $ 165. 
 
 ACTS PKEStraiED TO BE Df SUPPORT OF COICUOX TITLE. 
 
 Act of one presumed to be for Common Benefit, vS 166. 
 Entry of one confers Seizin on aU, § 167. 
 
 ACTS JCH) EESTKATXTS OF ONE COTENANT AFFECTING THE OTHEBS. 
 
 Estoppel against one, $ 168. 
 
 Admissions of one, § 169. 
 
 Representations of one, § 170. 
 
 Notice to one, 9 171. 
 
 Acts of one not to prejudice the other, 9 172. 
 
 Refusal by one, $ 173. 
 
 Beneficial Acts, § 174. 
 
 Acts to save Common Property, ^ 175. 
 
 Redemption of Lands, $ 176. 
 
 Receiving Payment of Joint Rents, $ 177. 
 
 Receiving Payment of Joint Demand, ^ 178. 
 
 Release by one, § 179. 
 
 Giving Notice to Quit, $ 180. 
 
 Receiving Notice to Quit, § 181. 
 
 Cannot Contract for one another, $ 182. 
 
 Cannot Transfer for one another, § 183. 
 
 Cannot Pledge for one another, $ 184. 
 
 Cannot create Easement, § 185. 
 
 Mity acquire Easement, ^ 186. 
 
 Easement, when not extinguished, $ 187. 
 
 Agency and Ratification, ^ 188.
 
 X CONTENTS. 
 
 CHAPTER IX. 
 
 TRANSPERKING AND LEASING LANDS OF A COTENANCY. 
 
 Conveyance by one Tenant in Common to another, $ 189. 
 
 Conveyance by one Joint-Tenant to another, § 190. 
 
 Conveyance by one Coparcener to another, § 191. 
 
 Conveyance by Cotenant out of possession, § 192. 
 
 Conveyance to Strangers, 5 193. 
 
 Each may Convey his Moiety at pleasure, § 194. 
 
 Eight to Convey by Metes and Bounds, § 195. 
 
 Conveyance by one Cotenant not to prejudice another, $ 196. 
 
 Conveyance by one Cotenant as Color of Title, § 197. 
 
 Conveyance of Ores by one Cotenant, $ 198. 
 
 Conveyance of part void as to other Cotenants, $ 199. 
 
 Eeasons for this rale, $ 200. 
 
 Rule denied in Ohio, § 201. 
 
 Eule denied in Virginia, $ 202. 
 
 Eule denied in Califoi'nia, § 203. 
 
 Eule denied in Missouii, § 204. 
 
 Grantee can acquire no higher Bight than Grantor, ^ 205. 
 
 Conveyance of part as between Grantor and Grantee, ^ 206. 
 
 Conveyance of part, effect after Partition, 207. 
 
 Conveyance where Cotenancy includes distinct Parcels, ^ 208. 
 
 Conveyance where each Grantor Covenants for himself alone, $ 209. 
 
 Covenant of Seizin, when broken, §, 210. 
 
 General words restrained to interest specified, ^ 211. 
 
 Eelative Eights of different Grantees in Severalty, 6 212. 
 
 Conveyance by Sale under Execution, § 213. 
 
 Officer may Levy and take exclusive Possession, ^ 214. 
 
 Ofiicer must take exclusive Possession, § 215. 
 
 Levy upon and Sale of part by Metes and Bounds, ^ 216. 
 
 Levy upon interest of one, under Execution against all, $ 217. 
 
 Conveyance as affecting Policy of Insurance, ^ 218. 
 
 Change of Possession, ^ 219. 
 
 Leasing, §i 220. 
 
 CHAPTER X. 
 
 OF THE OUSTER OF ONE COTENANT BY ANOTHER. 
 
 Difference between Evidence of, and of ordinary Ouster, ^\ 221. 
 
 Burden of Proving, § 222. 
 
 By Adverse Entry, (J 223. 
 
 By Entry under Deed of the Whole, §§ 224, 225. 
 
 Conveyance of the Whole, without Entry, § 226. 
 
 Possession under Decree of Partition, 9 227. 
 
 Exclusive Possession of Part, § 228. 
 
 Notice of Ouster, whether must be given Tenant Ousted, '^^ 229, 2C0. 
 
 Difference between Ouster as Defence and as Cause of Action, 231. 
 
 Is a question for the Jury, ^ 232.
 
 CONTENTS. XI 
 
 Mnst be fmond in direct terms, ^ 233. 
 
 Ouster by Force, i 234. 
 
 Ouster by Denial of Cotenanf s Right, ei 235. 
 
 Ouster by Eefusal to let Cotenant in Possession, ^ 236. 
 
 Ouster by Eefusal, what demand necessary to, ^ 237. 
 
 Ouster by Receiving Rents, $ 238. 
 
 Ouster by Cutting Timber, $ 239. 
 
 Ouster by Building Permanent Structure, § 240. 
 
 Ouster, unequivocal acts essential to, $ 241. 
 
 Ouster, when may be inferred, ^ 242. 
 
 Disseizor, taking Deed from a Cotenant, § 243. 
 
 Onster, Statute in England concerning, $ 244. 
 
 CHAPTEE XI. 
 
 THE RIGHTS OF COTENANTS BETWEEN QUE ANOTHER, 
 
 Eight to Possession of Chattels, $ 245. 
 
 Right to Possession of Chattels by Bailee, § 246. 
 
 Right to Possession of Title Deeds, (^ 247. 
 
 Right to Possession of every part of Realty, $ 248. 
 
 Right to Possession is not a right to injure, $ 249. 
 
 Right to take Possession, ^ 250. 
 
 Right to iise Common Property, $ 251. 
 
 Right to sever Personal Property, § 252. 
 
 Right of Lessee or Licensee, ^ 253. 
 
 Right of Cotenants of Crops, § 254. 
 
 Right of Owners of Party Wall, $ 255. 
 
 Right of Owners of Party Wall, duration of, $ 256. 
 
 CHAPTEK XII. 
 
 LIABILITIES OF COTENANTS TO ONE ANOTHER. 
 
 Classification of, ^ 257. 
 
 For Use and Occupation, ^S 258. 
 
 For Rents and Profits, § 259. 
 
 For Sei-vices of Cotenant, ^ 2G0. 
 
 For Repairs, $201. 
 
 For Improvements, § 262. 
 
 For Removal of Lien, Claim, or Title, ^ 263. 
 
 For Money collected on Insurance, $ 264. 
 
 For Injuries arising from Repairing or Presei'ving, $ 265. 
 
 For Negligence, ^ 266. 
 
 Of Owners of Party Wall, ^ 267. 
 
 CHAPTER XIII. 
 
 LEGAL REMEDIES BETWEEN COTENANTS. 
 For Matters independent of the Cotenancy, 6 268.
 
 Xll CONTENTS. 
 
 FOR RECEIPTS AND FOR USE AHD OCCTIPATIOW. 
 
 No Remedy at Common Law, § 269. ' 
 
 Account given by Statute, § 270. 
 
 Account onlj' when case is within the Statute, § 271. 
 
 Account, classification of cases, ^ 272. 
 
 Account for Rents and Profits received, § 273. 
 
 Account for Use and Occupation — English Rule, $ 274. 
 
 Account for Use and Occupation in America, § 275, 276. 
 
 Account must be for balance due as result of final settlement,. $ 277. 
 
 Account, Ofi"-sets allowed defendant, § 278. 
 
 Account, Off-sets for Improvements, § 279. 
 
 Assumpsit in Massachiisetts, ^ 280. 
 
 Assumpsit in Maine, § 281. 
 
 Assumpsit in Michigan, § 282. 
 
 Assupmsit in Pennsylvania, § 283. 
 
 Assumpsit in New York, § 284. 
 
 Assumpsit in England, § 285. 
 
 Assumpsit for Use and Occupation, $ 286. 
 
 FOE POSSESSION OF 0HATTEL8. 
 
 No Remedy at Law, ^ 287. 
 Detinue, $ 288. 
 Replevin. § 289. 
 
 FOR POSSESSION OF REALTY. 
 
 Ejectment, $ 290. 
 
 Necessity of Ouster, $ 291. 
 
 Proof of Ouster when not required, $ 292. 
 
 What Judgment plaintiff may have, § 293. 
 
 Interest of plaintiff less than that sued for, § 294. 
 
 Forcible Entry and Unlawful Detainer, § 295. 
 
 Trespass to try Titles, § 296. 
 
 FOR ACTS OF TRESPASS. 
 
 Action on the case, ^ 297. 
 Trespass sustainable in two cases, $ 298. 
 Trespass sustainable for Destruction, § 299. 
 Trespass sustainable for Ouster, § 300. 
 Trespass, what Ouster sustains, § 301. 
 Trespass, what Destruction sustains, ^ 302. 
 Trespass for Mesne Profits, § 303. 
 Trespass against Lessee of Cotenant, $ 304. 
 Waste, § 305. 
 
 FOR CONVERSION. 
 
 Trover, $ 306. 
 
 Trover, when sustainable, § 307. 
 
 Trover for selling Chattel, § 308. 
 
 Trover for selling Chattel denied in some States, ^ 309. 
 
 Trover for selling Chattel under Execution, ji 310. 
 
 Trover against Vendee of a Cotenant, $ 311. 
 
 Tiover for destruction of Property, $ 312.
 
 CONTENTS. xiii 
 
 Trover for destmction of Cotenant's Eights, 6 313. 
 
 Trover for destruction of Cotenant's Eights by emancipating slave, ij 314. 
 
 Trover for destruction of Cotenent's Eights by allowing Chattel to be lew. 
 
 ^315. 
 Trover for destruction by changing form of Chattel, $ 316. 
 Trover for destruction by removal, ^ 317. 
 
 Ti-over for destruction by refusal to apply Chattel to proper use, $ 318. 
 Trover by refusing to allow Severance, $ 319. 
 
 FOR REPAras. 
 Writ to compel, v> 320. 
 
 CHAPTER XIV. 
 
 EQUITABLE REMEDIES BETWEEN C0TENANT8. 
 
 Accounting, § 321. 
 
 Contribution, § 322. 
 
 Injunctions, generally. 6 323. 
 
 Injunction when Defendant is Insolvent, § 321. 
 
 Injunction when one Cotenant is Trustee or Lessee ^f the- other, $ 325. 
 
 Quieting Title, 5 326. 
 
 Eeceivers, appointment of, § 327. 
 
 CHAPTER XV. 
 
 ACTIONS BY COTENANTS AGAINST STRANGERS TO THE COTENANCY. 
 
 ACTIONS AT LAW. 
 
 General View of the Eights and Eemedies of Cotenants, §■ 328. 
 
 Joinder of Joint-Tenants, ^ 329. 
 
 Joinder of Coparceners, $ 330. 
 
 Joinder of Tenants in Common, 6 331. 
 
 .Joinder in case of Mixed Cotenancy. $ 332. 
 
 Assumpsit, 6 333. 
 
 .A.vowries, § 334. 
 
 Case, § 335. 
 
 Covenants, $ 336. 
 
 Detinue and Eeplevin, $ 337. 
 
 Dethiue and Eeplevin of Severable Chattels, $ 338. 
 
 Ejectment by Joint-Tenants, ^ 339. 
 
 Ejectment by Coparceners, v^ 340. 
 
 Ejectment by Tenants in Common, vS 311. 
 
 Ejectment where interest of Plaintift' is iiupropei'ly described, $ 342. 
 
 Ejectment, whether one can recover the whole, $ 343. 
 
 Forcible Entry and Unlawful Detainer, <5 344. 
 
 For Insurance, $ 345. 
 
 For Eent, ^ 346. 
 
 Trespass, $ 347. 
 
 Trespass to Try Titles, $ 348. 
 
 Trover, $ 349. 
 
 Waste, ^ 350.
 
 XIV CONTENTS. 
 
 Proceediugs to Restrain or Abate a Nuisance, v^ 351. 
 
 Proceedings to obtain Damages for Location of High-way, $ 352. 
 
 Failure to object to Non-Joinder of Cotenant, § 353. 
 
 Failure to object to Non-Joinder of Cotenant in Actions on Contracts, $ 354. 
 
 Failure to object to Non-Joinder of Cotenant in Replevin, § 355. 
 
 Failure to object to Non-Joinder, whether entitles Plaintiif to recover the 
 
 whole, § 356. 
 Failure to object to Non-Joinder of Joint-Tenant, § 357. 
 Failure to object to Non-Joinder is waiver in future cases, § 358. 
 Joining Persons who are not Cotenants, ^ 359. 
 Misjoinder, how taken advantage of, $ 360. 
 Misjoinder, how taken advantage of under the Codes, ^ 361. 
 Death of one Cotenant before suit, § 362. 
 Death of all the Cotenants before suit, $ 363. 
 Death of a Cotenant pendente lite, § 364. 
 
 Survivorship of Actions prevails notwithstanding Statute, $ 365. 
 Joinder of Actions against Cotenants, § 366. 
 
 PROCEEDINGS IN EQUITY. 
 
 General principles as to Joinder of Cotenants, ^ 367. 
 Joinder of Joint-Tenants, § 368. 
 Joinder of Tenants in Common, § 369. 
 Joinder of Co-Legatees, § 370. 
 Foreclosure against Co-Mortgagors, § 371. 
 Foreclosure by Co-Mortgagees, $ 372. 
 
 CHAPTEK XVI. 
 
 EFFECT OP STATUTE OP LIMITATIONS ON ACTIONS BY AND BETWEEN 
 
 COTENANTS. 
 
 Actions between Cotenants, $ 373. 
 
 Actions against third persons, § 374. 
 
 Disability of one Cotenant iu Joint Action, § 375. 
 
 Statutes construed to allow all the benefit of one's disability, $ 376. 
 
 Suit by Cotenant under disibility, without joining the others, ^ 377. 
 
 Joinder of barred Cotenant, when fatal, ^ 378. 
 
 CHAPTEK xyn. 
 
 PART OWNERS OF SHIPS. 
 
 Part Owners are Tenants in Common, § 379. 
 
 Number of Shares into which a Ship may be divided, § 380. 
 
 Difference between Part Owners and other Tenants in Common, § 381. 
 
 Cause of this difference, § 382. 
 
 Relations of Part Owners, inter sese, § 383. 
 
 Power of Part Owner to bind his Co-owners, $ 384. 
 
 Rights, Remedies, .and Liabilities, iiiter sese, § 385. 
 
 Lien of Part Owner, 6 386.
 
 CONTENTS. XV 
 
 Actions against third persons, $ 387. 
 Liability to third persons, $ 388. 
 Disagreement as to employment of Ship, ^ 389. 
 Security for Safe Return of Ship, $ 390. 
 Compulsory Sale, denied in England, § 391. 
 Compulsory Sale, when ordered in United States, § 392. 
 
 CHAPTER XVin. 
 
 VOLUNTARY PARTITION. 
 
 Inti-oductory Definitions and Observations, $ 393. 
 
 Voluntary Partition, and the Devices employed for making the Allotments 
 
 therein, § 394. 
 Partition by Arbitrators. § 395. 
 
 Of the necessity of Conveyances, and of Partition by Parol, fi 396. 
 Parol Pai-titions said to be invalidated by Statute of Frauds, § 397. 
 Parol Partitions upheld notwithstanding Statute of Fi-auds, $ 398. 
 Parol Partition of Trust Estates, § 399. 
 Parol Partition, whether it can pass the legal title, § 400. 
 Parol Partition, American text-^\Titers averse to, $ 401. 
 Parol Partition, when enforced in equity, § 402. 
 Parol Partition by gi-antee of interest to be located, § 403. 
 Parol Partition under Mexican law, $ 404. 
 Parol Partition of lands of a Proprietary, § 405. 
 
 Partition by Mutual Conveyances, § 406. 1 
 
 Partition by Separate Conveyances in Severalty, $ 407. > 
 
 Partition, when presumed, § 408. 
 
 Warranty does not arise from Voluntary Partition, ^ 409. 
 WaiTanty implied in some of the States, $ 410. 
 Effect on Wife's right to Dower, § 411. 
 Effect on interest of Cotenant who is a feme covert, § 412. 
 Effect of Partition between Cotenants who have intermarried, $ 413. 
 Effect on Infant Cotenant, $ 414. 
 Effect on Incumbrancers, $ 415. 
 
 Effect on Persons having Estates in Remainder or Reversion. ^ 416. 
 Powers delegating authority to make Partition, § 417. 
 Agreements to make Partitions, ^ 418. 
 Agreement or Deed void as to one is void as to all, § 419. 
 
 CHAPTER XIX. 
 
 OF THE COURTS HAVING JURISDICTION TO COMPEL PARTITION, AND 
 THE SOURCE AND NATURE OF THEIR AUTHORITY. 
 
 Partition at Common Law confined to Estates in Parcenary, ^'i 420. 
 English Statutes extending the Eight of Partition, $ 421. 
 General Outline of a Partition at Law, $ 422. 
 Origin and Rise of Chancery Jurisdiction, $ 423. 
 B
 
 xvi CONTENTS. 
 
 Right to Partition in Chancery, whethe;r absolute, $ 424. 
 Advantages of Proceeding in Chancery, § 425. 
 Partition of Personal Property, § 426. 
 
 Diflference between a Judgment and a Decree of Partition, $ 427. 
 Jurisdiction over Partition in the United States, $ 428. 
 
 Proceedings in Court exercising Common Law, Equity, and Statuatory Juris- 
 diction, ^ 429. 
 
 CHAPTEE XX. 
 
 OF WHAT PARTITION MAY BE COMPELLED. 
 
 General Division of the Subject, ^ 430. 
 
 Property must be held in Cotenancy, $ 431 . 
 
 Lands subject to Dower, § 432. 
 
 Difficulty in making Partition, § 433. 
 
 Incorporeal Hered>!taments, § 434. 
 
 Mines, § 4^35. 
 
 Growing Timber, § 436. 
 
 Joinder of Parcels, § 437. 
 
 Property which Courts will not Partition, $ 438. 
 
 Of the Estates which may be Partitioned, $ 439. 
 
 Of Estates in Reversion or Remainder, § 440, 441. 
 
 Agreements not to Partition, $ 442. 
 
 Partnership Property, § 443. 
 
 Tenancy by Entireties, § 444. 
 
 Community Property, $ 445. 
 
 CHAPTEE XXI. 
 
 WHO MAY COMPEL A PARTITION. 
 
 Only Cotenants entitled to Possession, $ 446. 
 
 Only Cotenants not Disseized, § 447. 
 
 Exception as to Personal Property, § 448. 
 
 Exception where Eqt»"ty has Jurisdiction for some other purpose, § 449. 
 
 States permitting Disseized Cotenant to apply, $ 450. 
 
 Grantee of Cotenant, § 451. 
 
 Mortgagor and Mortgagee, § 452. 
 
 Holder of Equitable Title, $ 453. 
 
 Administrator and Heir, § 454. 
 
 Tenant for Life or Years, ^ 455. 
 
 Tenant by Curtesy and in Dower, $ 456. 
 
 Infants, § 457. 
 
 Married Women, § 458. 
 
 Joinder of Applicants, $ 459. 
 
 After-acquired Rights, $ 460. 
 
 Cotenant by Disseizin of Tax Title, $ 461.
 
 CONTENTS. XVn 
 
 CHAPTER XXII. 
 
 OF PARTIES DEFENDANT AND THE PERSONS BOUND BY PAETITION. 
 
 Division of the Subject, $ 462. 
 
 All the Cotenants must be Parties, § 463. 
 
 If Cotenant dies, his Heirs must be brought into Court, $ 464. 
 
 Grantee of part, bj' Metes and Bounds, § 465. 
 
 Cotenanis under Disability of Coverture, $ 466. 
 
 Cotenants under Disability of Infancy, $ 467. 
 
 Granting Infants a new Partition, $ 468. 
 
 Lunatics, $ 469. 
 
 Purchasers pendente lite, ^ 470. 
 
 Administrators, $ 471. 
 
 "Wife of Cotenant, claiming Dower, § 472. 
 
 Wife of Cotenant, when claiming Homestead, § 473. 
 
 Wife of Cotenant, claiming Dower, how affected by Sale, $ 474. 
 
 Wife of Cotenant, where Husband sold before Partition, 6 475. 
 
 Widow of Cotenant, how affected bj- Sale in Partition, $ 476. 
 
 Husband of Cotenant, claiming Life Estate, § 477. 
 
 Incumbrancers, how affected by Partition, $ 478. 
 
 Inciunbrancers, how affected by Partition Sale, $ 479. 
 
 Lessees, $ 480. 
 
 Disseizors, § 481. 
 
 Persons not in esse, ^ 482. 
 
 Unknown Owners, $ 483. 
 
 CHAPTER XXin. 
 
 THE applicant's PLEADINGS, 
 
 The Declaration at Common Law, ^ 484. 
 
 The allegation that the Parties hold together, § 485. 
 
 The Deraignment of Title, $ 486. 
 
 The Description of the Premises, ^ 487. 
 
 The Statement of the Moieties of the respective Parties, $ 488. 
 
 Variance between the Interest Stated and that Proved, $ 489. 
 
 Allegation of a Demand for Partition, § 490. 
 
 Allegation of necessity of a Sale, ^ 491. 
 
 The Replication, ^92. 
 
 The Service of Process, § 493. 
 
 The Defendant's Default, § 494. 
 
 CHAPTER XXTV. 
 
 DEFENCES AND THEIR PRESENTATION, 
 
 The Defendant's Pleadings, vS 495. 
 
 Pleas in AVmtement, $ 496. 
 
 The General Issue, $ 497. 
 
 Defences allowed in the United States, $ 498. 
 
 Stating the Defendant's Title and Equities, $ 499. 
 
 C. & P.— 2
 
 Xviii CONTENTS. 
 
 Intervening, $ 500. 
 
 Defences necessitating 'a reference to Legal Tribtmals, § 501. 
 
 Disputed Title, § 502. 
 
 Disputed Title — States where it may be-determined in the Paxtifion Suit, $ 503. 
 
 Answers and Cross-biUs, § 504. 
 
 CHAPTER XXV. 
 
 RELIEP GRANTED IN EQUITY, IN CONNECTION WITH PARTITIONS. 
 
 All Equities may be Considered and Adjusted, ^ 505. 
 
 Except those which do not arise out of the Common Property, $ 506. 
 
 Granting Owelty, § 507. 
 
 Making Partial Partition, $ 508. 
 
 Awarding Cotenant his Improvements, § 509. 
 
 Compensating Cotenant for his Improvements, $ 510. 
 
 States where Compensation is not allowed, § 511. 
 
 CompelUng an Accounting, ^ 512. 
 
 Compelling Convej'ance, § 513. 
 
 Injunction against Waste, o 514, 
 
 Injunction against Partition at Law, $ 515. 
 
 CHAPTER XXYI. 
 
 THE JUDGMENTS, AND THE PROCEEDINGS THEREUNDER. 
 
 The First Judgment, § 516. 
 
 The First Judgment determines the Moieties, § 517. 
 
 The First Judgment, Special Directions in, § 518. 
 
 The First Judgment is not Final, ^519. 
 
 Issiung the Writ, ^ 520. 
 
 Issuing the Commission in Chancery, § 52!. 
 
 The Commissioners and their Duties, $ 522". 
 
 Report of the Commissioners, § 523. 
 
 Vacancies in the Commissioners, 6 524. 
 
 Vacating Commissioner's Report for Error in Judgment, $ 525. 
 
 Vacating Commissioner's Report for Error in Proceeding, $ 526. 
 
 The Final Judgment or Decree, § 527. 
 
 CHAPTER XXVII. 
 
 EFFECT OF THE PARTITION. 
 
 Sustained against Collateral Assaults, § 528. 
 Whether it binds Title or Possession only, $ 529. 
 Is Conclusive on all the Issues, $ 530. 
 Where Title is in Issue, it is Bound, § 531. 
 After-acquired Title, $ 532. 
 Failure of Title after Partition, § 533. 
 Vacating and Correcting in Equity, § 534. 
 Confirming Invalid and Imperfect Partitions, $ 535.
 
 CONTENTS. XIX 
 
 CHAPTER XXVin. 
 
 BALE INSTEAD OF PAETITION. 
 
 Sale, History of Authority of the Courts to order, $ 536. 
 
 When ordered in the United States, § 537. 
 
 Not granted where the Parties are not entitled to a Partition, $ 638. 
 
 Is a matter of Eight, § 539. 
 
 Laws authorizing, are Constitutional, $ 540. 
 
 Appraisement before Sale, § 541. 
 
 When preferred to actual Partition, § 542 . 
 
 Necessity for, when and by whom determined, $ 543. 
 
 Proceedings after ordering the Sale, § 544. 
 
 Vacating Sale against the wish of the Purchaser, $ 545. 
 
 Vacating Sale made to Commissioner or Guardian, § 54&. 
 
 Releasing the Purchaser, ^ 547. 
 
 The Conveyance and its effect, § 548. 
 
 Distribution of the Proceeds, $ 549.
 
 TABLE OF CASP]S. 
 
 Abbott's Appeal, 50 Pa. S. 238, $ 117, 120. 
 Abbott r. Berry, 46 N. H. 369, $ 508. 
 
 V. Wood, 13 Me. 115, § 87. 
 Abel t'. Heathcote, 2 Ves. Jr. 98; S. C. 4 
 
 Bro. C. C. 278, $ 417. 
 Ablett V. Skinner, 1 Siderf. 229, 294, 9 342. 
 Ackley v. Dygert, 33 Barb. 189, $ 455. 
 Ackroyd v. Briggs, 14 W. R. 25, $ 323. 
 Acton V. Smallmau, 2 Vera. 556, § 13. 
 Adam v. Ames Iron Co., 24 Conn. 235, 
 $ 221, 447. 
 I'. Briggs Iron Co., 7 Cush. 365. 
 $ 200. 433. 
 Adams i'. Butts, 9 Conn. 79, § 482. 
 V. Beale, 19 Iowa, 67, § 53. 
 I'. Briggs Iron Co., 7 Cush. 368. 
 
 $198. 
 V. Frothingham, 3Mass. 352, $405. 
 V. Taunton, 5 Mad. 435, $ 45. 
 Addison v. Overend, 6 T. R. 770, $ 353. 
 Adie V. Cornwall, 3 Monr. 283, $ 408. 
 Agar V. Fairftix, 17 Ves. 552, $ 423, 433, 
 517, 527. 
 V. Holdsworth, 17 Ves. 533. 
 Agnew V. Jolinson, 17 Pa. St. 377, $ 318. 
 Ainsworth v. Allen, Kirby, 140, $ 359. 
 Albergottie v. Chaplin, 10 Rich. Eq. 428, 
 
 $447. 
 Alexander v. Alexander, 2 Ves. Sr. 645, 
 $28. 
 It. Kennedy, 3 Grant's Ca. 380, 
 
 $160. 
 0. Kennedy, 19 Tex. 496, $ 230, 
 224. 
 Alford V. Bradeen, 1 Nev. 230, $ 251, 253. 
 V. Dewin, 1 Nev. 211, $ .341, 
 V. Vickery, 1 Car. & M. 280, $ 180. 
 Allen V. Allen, $ 530. 
 
 V. Allen, 2 Jones Eq. 237, $ 502. 
 
 Allen t). Allen, 6 Rob. La. 104, $ 132. 
 V. Barkley, Speer Eq. 264, $ 512. 
 0. Beal's Heirs, 3 A. K. Marsh. 554, 
 
 $376. 
 V. Gault, 27 Pa. St. 473. $ 479. 
 ('. Gibson, 4 Rand. 477, $ 344. 
 V. HaU, 1 McCord, 131. 6 166, 236, 
 
 238. 
 V. Hall, 50 Me. 263, $ 522. 
 V. Harper, 20 Ala. 690, $ 312. 
 V. Hoyt, 5 Met. 326, $ 508. 
 V. Woodward, 2 Foster, 544, $ 179. 
 Alley V. Bay, 9 Iowa, 509, $ 58. 
 Allison V. Kurtz, 2 Watts, 185, $ 23. 
 Almony v. Hicks, 3 Head, 39, $ 439. 
 Altbause v. Radde, 3 Bosw. 410, $ 467. 
 Alvarez r. Brannan, 7 Cal. 510, $ 361. 
 Ames ('. Norman, 4 Sneed, 692, $ 65. 73, 
 
 74, 76. 
 Anable v. Patch, 3 Pick. 363, $ 36. 
 Anders v. Anders, 2 Dcv. 531, $ 397. 
 Anderson v. Donelson, 1 Yerg. 198, $ 96. 
 I). Knight. Geo. Decis. Part 2, 
 
 p. 123, $ 364. 
 V. Tompkins, 1 Brock. 463, $ 119. 
 Andrew v. Bradley, 10 La. An. 606, $ 144. 
 Andrew's Heirs v. Broivn's Admrs.. 21 
 
 Ala. 443, $ 112, 119. 
 Andrews u. Murphy, 12 Ga. 431, $ 217. 
 Anon. 3 Atk. 726, $ 68. 
 3 Leon, 6, $ 80. 
 2 Roll. 255, $ 97. 
 1 Swan, 139, $ 403. 
 Appleton V. Boyd, 7 Mass. 134, $ IG, 42. 
 Ards V. Watkins, Cro. Eliz. 037,651, $.346. 
 Armstrong V. Armstrong, L. II. 7 Eq. 518. 
 $ 23. 
 V. Eldridgo, 3 Bro. C. C. 215. 
 
 $24. 
 V. Huston's Heirs, 8 Oliio, 552, 
 $546.
 
 XXll 
 
 TABLE OF CASES, 
 
 Arnold «, Arnold, 30 Ind. 305, $ 65, 75. 
 V. Jack's Executors, 24 Penn. St. 
 
 57, $ 33. 
 V. Wainwright, C Minn. 358, § 117. 
 Arnot V. Beadle, Hill & Denio, 181, § 222. 
 Ai-thur V. Gayle, 38 Ala. 264, $ 308. 
 
 V. Lamb, 2 Dr. & Sm. 430, $ 323. 
 Ashley v. Eector, 20 Ark. 359, § 223. 
 Atcheson v. Atclieson, 18 L. J. Eep. (N.S.) 
 
 Chanc. 230; 11 Beav. 485, § 70. 
 Atkinson i-. Bemis, 11 N. H, 47, § 405. 
 
 V. Teasdale, 3 Wils. 278, $ 297. 
 Attomey^Gteneral v. Avon, 11 W. R. 1050, 
 §460. 
 V. Bacchus, 9 Price, 30, 
 
 §68. 
 V. Fletcher, L. K. 13 
 
 Eq. 128, § 23. 
 V. Hamilton, 1 Madd. 
 Ch. 122, § 417. 
 Atwood V. Ernest, 13 Com. B. 889, (76 
 
 E. C. L. 889) , § 246, 288. 
 Auman v. Auman, 21 Pa. St. 347, § 65. 
 Austin V. Charlestown Seminary, 8 Met, 
 202, § 528. 
 V. Hall, 13 Johns. 286, § 179, 331, 
 347. 
 Aveling v. Knipe, 19 Ves. 441, § 13, 18. 
 Avery v. Payne, 12 Mich. 549, $ 442. 
 
 B. 
 
 Babb V. Dudeny, Tothill's Transaction, 
 
 tit. Partition, f. 155, § 423. 
 Babbitt v. Scroggin, 1 DutqII, 273, § 65, 
 
 69. 
 Back V. Andrew, 2 Vern. 120, § 70. 
 Backler v. Farrow, 2 Hill's Cb. Ill, § 512. 
 Badger v. Holmes, 6 Gray, 118, § 253, 300. 
 Bagley v. Cook, 3 Drew. 662, § 23. 
 Bagwell V. Dry, 1 P. Wms. 700, § 109. 
 Baily v. Hobson, 22 L. T. R. 594; S. C. 2 
 Alb. L. J. 74, § 514. 
 
 0. Trammell, 27 Tex. 328, § 221. 
 BaUey V. Hobson, L.R. 562, 180, § 3^3, 325. 
 
 V. Sissan, 1 R. I. 233, § 428, 434. 
 Bain v. Lesher, 11 Sim. 397, § 109, 110. 
 Baird v. Corwiai, 17 Pa. St. 466, § 470. 
 Baker v. Chastang, 18 Ala. 417, § 342. 
 
 V. Harwood, 7 Sim. 316, § 369. 
 
 V. Jewell, 6 Mass. 460, § 179, 354. 
 
 V. Shepherd, 30 Ga. 706; S. 0. 37 
 Ga. 15, § 105, 371. 
 
 V. Wheeler, 8 Wend. 507, § 251, 253. 
 
 Baker v. Whiting, 3 Sumn. 485, $ 166. 
 Baldwin v. Aldrick, 34 Vt. 532, § 440, 537. 
 V. Breed, 16 Conn. 65, $ 515. 
 V. Johnson, 3 Bro. C. C. 455, § 46. 
 Ball V. Deas, 2 Strob. Eq. 24, § 28. 
 Ballard v. Sitwell, Clayt. 32, § 190. 
 
 V. Wood, 8 Cush. 48, § 251, 323. 
 Balmain v. Shore, 9 Ves. Jr. 500, $ 112, 
 
 116, 118. 
 Ballon V. Hale, 47 N. H. 347, $ 306, 397. 
 Bambaugh v. Bambangh, 11 S. & R. 193, 
 
 § 25, 36. 
 Bank of LouisvUle v. Hall, 8 Bush. 678, 
 
 §118. 
 Barber i'. Babel, 36 Cal. 17, § 50, 58. 
 
 V. Barber, 3 My. & Cr. 683, § 110. 
 V. Harris, 15 Wend. 617, § 70-73. 
 Barbour v. Fairchild, 6 Lower Canada 
 
 Rep. 113, § 143. 
 Barclays. Hendrick's Heirs, 3 Dana, 378, 
 
 380, § 13. 
 Baring v. Nash, 1 Ves. & B. 555, § 421, 
 
 424, 455, 478. 
 Barker v. Giles, 9 Mod. 157, § 109, 112. 
 
 V. Giles, 2 P. Wm^. 281, § 24. 
 Barnai-d v. Pope, 14 Mass. 436, § 450, 
 Barnardiston v. Chapman, 4 East, 121, 
 
 § 312, 317, 385. 
 Barnes v. Bartlett, 15 Pick. 71, § 289, 385. 
 Barney v. Baltimore City, 6 Wall. 284, 
 
 § 463. 
 Barnhaidt v. Campbell, 50 Mo. 598, § 200, 
 
 204. 
 Barnum v. Landon, 25 Conn. 150, § 270, 
 
 271, 273. 
 Barratt v. Collins, 10 T. B. Moore, 446, 
 
 §359. 
 Barrett v. Cobum, 3 Met. Ky. 513, § 221. 
 Barrow's Lessee v . Nave, 2 Yer'g, 228, § 341 , 
 
 375, 378. 
 Bartlett v. Harlow, 12 Mass. 348, § 199. 
 Barton v. Burton, 27 Vt. 95, § 309. 
 
 V. Williams, 5 Bam. & Aid. 403, 
 §309. 
 Bassett v. Messner, 30 Tex. 604, § 62. 
 Bateman v. Bateman, 25 Tex. 270, § 140. 
 Bates V. Dandy, 2 Atk. 207, § 73. 
 
 V. Martin, 12 Grant's Ch. 491, § 328. 
 V. McCrory, 3 Yeates, 192, § 497. 
 V. Seely, 46 Pa. St. 249, § 65. 
 Battel V. Smith, 14 Gray, 497, § 96. 
 Batterson v. Chiles, 12 B. Monr! 354, § 463. 
 Bavington v. Clarke, 7 Penr, & W. 115, 
 
 § 414, 415. 
 Baxter v. Knowles, 1 Ves. Sr. 494, $ 434.
 
 TABLE OF OASES. 
 
 XXIU 
 
 Bayley r. Gumming, 10 Irish Eq. 401, 
 
 § 45. 
 Baylies v. Bussey, 5 Greenl. 131, $ 450, 483. 
 Baylor's Lessee v. Dejamette, 13 Gratt. 
 
 152, 6 482. 
 Beach v. Child, 13 Wend. 343, $ 297. 
 Beard v. Knox, 5 Cal. 256, ^ 123. 
 Beaumont's Case, 9 Kep. 140 b, § 73. 
 Beaumont v. Crane, 14 Mass. 400, $ 94, 
 
 219. 
 Becket v. Bromley, Noy, 107, $ 489. 
 Becnel v. Becncl, 23 La. An. 150, $ 258, 
 
 262. 
 Beebe v. Griffing, 14 N. Y. 238, § 447, 519. 
 Beekman v. Bunn, Hill & Denio, Supp. 
 
 265, $ 371. 
 Beeler's Heirs v. Bullitt's Heirs, 3 A. K. 
 
 Marsh. 283, § 428. 
 Beers v. Hawley, 2 Conn. 469, $ 102. 
 Begnie v. Crook, 2 Bing. N. C. 70; 2 Scott, 
 
 128, § 28. 
 Beigel V. Lange, 19 La. An. 112, ft 148. 
 Bell V. Hogan, 1 Stew. 537, 9 337. 
 
 V. Humphries, 2 Starkie, 345, § 383. 
 V. Layman, 1 Mon. 40, § 307. 
 V. Phyn, 7 Ves. 453, ^ 118. 
 Belmont v. O'Brien, 12 N. Y. 400, $ 44. 
 Benedict v. Howard, 31 Barb. 571, § 317. 
 Benjamin v. Stremple, 13 111. 466, $ 104, 
 
 320. 
 Bennett v. Bullock, 35 Pa. St. 367, § 303. 
 V. Child, 19 Wis. 365, § 65, 73, 74. 
 V. Clemence, 6 Allen, 18, $ 240, 
 
 300, 301. 
 V. Hethington, 16 Serg. & R. 195, 
 $168. 
 Benson v. Musseter, 7 H. & J. 212, § 294. 
 Bentley v. Long Dock Co., 1 McCartner, 
 
 489, § 537, 539. 
 Berdan v. Van Riper, 1 Harr. N. J. 10, 
 
 $36. 
 Bemal i-. Hovious, 17 Cal. 547, $ 214. 
 Bernard v. Walker, 2 U. Canada, E. & A. 
 
 146, $ 169. 
 Bemocker v. Miller, 40 Mo. 474, § 167. 
 Berthold v. Fox, 13 Minn. 507, $ 222. 
 Bethell v. Lloyd, 1 Dall. 2, $ 497. 
 Bickliam v. Knight, 5 Scott, 629, $ 384. 
 Biddle v. Starr, 9 Pa. St. 4G5, $ 485. 
 Biehii V. Bithn, 18 Grant's Ch. 497, $ 509. 
 Bigelow V. .Jones, 10 Pick. 162, $ 224. 
 V. Littlefield, 52 Mo. 25, $ 508. 
 V. Topliff. 25 Vt. 273, $ 196. 
 Bird V. Bird, 40 Me. 403, $ 14, 192. 
 Bishop V. Blair, 36 Ala. 85, $ 14, 299. 
 
 Bishop B. Hubbard, 23 Cal. 517, $ 54. 
 Bister v. Menge, 21 La. An. 216, $ 148. 
 Blackborough «. Graves, 1 Mod. 102, $ 353. 
 Blake v. Sanborn, 8 Gray, 154, § 42. 
 Blakely v. Calder, 15 N. Y. 623, $ 441. 
 Blakeney v. Ferguson, 20 Ark. 547, § 241. 
 Blanchard v. Baker, 8 Greenl. 253, $ 297, 
 
 302. 
 Bledsoe v. Wiley, 7 Humph. 507, § 522. 
 Blewitt V. Roberts, 10 L. J. N. S. 342; 1 
 
 Car. & P. 274, § 23. 
 Bliss V. Rice, 17 Pick. 23, § 251, 323. 
 Blissetto. Cranwell, 2 Lev. 373; Salk. 326, 
 §23. 
 V. Hart, Willes, 508, $ 297. 
 Block V. Melville, 22 La. An. 147, § 143, 
 
 144. 
 Blodgett I!. HQdreth, 8 Alien, 187, § 452. 
 Blood V. Goodi-ich, 9 Wend. 79, § 173. 
 Blossom v. Brightman, 21 Pick. 284, 285, 
 
 § 199, 465. 
 Bloxam v. Hubbard, 5 East, 420, $ 353. 
 Blue V. Blue, 38-111. 18, § 55, 61. 
 Boddy I'. Kent. 1 Mer. 364, $ 3G4. 
 Bodicoate v. Steers, 1 Dick. 69, § 434. 
 Bogard v. Jones, 9 Humph. 739, § 167. 
 Bogardus v. Trinity Church, 4 Paige, 178, 
 
 § 224. 
 Bogert V. Bogert, 45 Barb. 121, § 547. 
 Boggs V. Chambers, 9 Geo. 1, $ 428. 
 Bohart v. Atkinson, 14 Ohio, 236, 228, 
 
 § 528, 546. 
 BoUo V. Navarro, 33 Cal. 465, § 503, 505. 
 Bolton V. Bolton, L. R. 7 Eq. 298, $ 502. 
 V. Hamilton, 2 Watts & S. 299, 
 $238. 
 Bomar v. Mullins, 4 Rich. Eq. 80, $ 73. 
 Bompart v. Roderman, 24 Mo. 398, $ 398, 
 
 400, 459. 
 Bond V. Hilton, Busb. 309, $ 268, 297. 
 
 V. Simmons, 3 Atk. 21, $ 68. 
 Bone V. Pollard, 24 Beav. 283, $ 13. 
 Boner v. Juner, Ld. Raym. 726, $ 340. 
 Bonifant v. Greenfield, Cro. Eliz. 30; S. 
 
 C. 1 Leon, 60, $ 45. 
 Bonnell v. Smith, 53 111. 383, $ 61. 
 Bonner v. Gill, 5 La. An. 630, $ 140. 
 V. Latham, 1 Ired. 271, $ 288, 
 V. The Proprietors, 7 Mass. 475, 
 $447. 
 Boobier v. Boobier, 39 Me. 409, $ 349. 
 Booth V. Adams, 11 Vt. 160, $ 299. 
 
 V. Sherwood, 12 Minn. 429, $ 297. 
 Borah «. Archer, 7 Dana, 177, $ 463. 
 Borol V. RolIinB, 30 Cal. 413, $ 417.
 
 XXIV 
 
 TABLE OF CASES. 
 
 Bornheimer v. Baldwin, 42 Cal. 34, $ 152. 
 Borrell's Administrator r. Borrell, 33 Pa. 
 
 St. 494, § 283. 
 Bost Ex parte, 3 Jones Eq. 483, $ 545. 
 Boston Franklinite Co. v. Condit, 19 N. J. 
 
 Eq. 394, 401, § 36, 43, 198, 199. 
 Bouligny v. Fortier, 16 La. An. 213, § 143. 
 Bovard v. Wallace, 4 Serg. & R. 499, § 169. 
 Bovill V. Hammond, 6 Barn. & C. 149. 
 
 §386. 
 Bowers v. Cherokee Bob. 45 Cal. 495, 
 
 §295. 
 Bowes V. Seeger, 8 "Watts & S. 222, § 178. 
 Bowles' Case, 11 Co. 82 h, § 261, 320. 
 Bowman v. Norton, 16 Cal. 217, § 52. 
 Bowra v. Wright, 4 De G. & S. 265; S. C. 
 20 L. J. N. S, Ch. 216; S. C. 3 Eng. L. 
 & E. 190, § 467. 
 Bowyer v. Judge, 11 East, 287, § 377. 
 Boyd V. Doty, 8 Ind. 373, § 523, 534. 
 Boyle V. Levings, 28 111. 314, § 320. 
 Boyleston v. Cordes, 4 McCord, 144, § 342. 
 Boylston Ins. Co. v. Davis, 68 N. C. 20, 
 
 §94. 
 Boyton v. Bees, 9 Pick. 530, § 265. 
 Bradbee v. Christ's Hospital, 4 Man. & Gr. 
 
 714, 760, § 267. 
 Bradburne v. Botfield, 14 Mees. & W. 559, 
 
 §336. 
 Braden v. Gardner, 4 Pick. 456, § 386. 
 Bradford v. Kimberly, 3 Johns. Ch. 433, 
 
 §260. 
 Bradley Fish Co. v. Dudley, 37 Conn. 144, 
 §186. 
 I'. Fuller, 23 Pick. 4, § 452, 478. 
 V. Harkness, 26 Cal. 77, § 88, 111, 
 
 194, 433. 
 «. Wilson, 13 Grant's Ch. (Upper 
 Canada) 642, § 109. 
 Bradehaw v. Callaghan, 5 Johns. 80, § 432, 
 V. Callaghan, 8 Johns. 563, 
 § 432, 472, 486. 
 Bradstreet v. Huntington, 5 Pet. 445, 
 
 §224. 
 Brady v. Arnold, 19 C. P. (U. Canada) 
 
 47, § 306, 309. 
 Braintree v. Battles, 6 Vt. 395, § 152. 
 Brater v. Devereaux, 8 Paige, 513, § 158. 
 Branch v. Doane, 17 Conn. 415, § 353. 
 Brashear v. Macey, 3 J. J. Marsh. 93, § 463. 
 Brennan v. Wallace, 25 Cal. 114, § 52. 
 Brewer v. Wall, 23 Tex. 588, § 148. 
 Bricker v. Whately, 1 Vern. 233, § 68, 70. 
 Briggs V. Call, 5 Met. 504, § 264. 
 Brigham v. Eveleth, 9 Mass. 541, § 280. 
 
 Brinekerhoff v. Wemple, 1 Wend. 473 
 
 §284. 
 Briscoe v. McKee, 2 J. J. Marsh. 372, § 23, 
 
 331. 
 British Empire Shipping Co. v. Somes, 1 
 El. B. & E. 535; 30 L. J. Q. B. 229, 
 §388. 
 Brittin v. Handy, 20 Ark. 381, § 155, 156, 
 
 165. 
 Brizendine v. Frankfort B. Co., 2B. Monr. 
 
 33, § 349. 
 Broad v. Broad, 40 Cal. 496, § 149, 495. 
 Brock V. Eastman, 28 Vt. 660, § 447. 
 Brodie v. Cowan, 6 L. Can. Jur. 96, § 132. 
 V. Howard, 17 Com. B. 109; S. C. 
 33 E. L. & E. 146, § 384. 
 Bronson v. Adams, 10 Ohio, 135, § 377, 
 
 378. 
 Brooke v. Washington, 8 Graft. 256, § 116. 
 Brookes v. Burt, 1 Beav. 106, § 369. 
 Brookfield v. Williams, 1 Green's Ch. 341, 
 
 §509. 
 Brooks V. Curtis, 50 N. Y. 644, § 98, 255, 
 267. 
 V. Harris, 12 Ala. 560, § 182. 
 ('. Hyde, 37 Cal. 373, § 54. 
 Broom y. Broom, 3 M. & K. 443, § 118, 
 
 119. 
 Broughton v. Howe, 6 Vt. 267, § 465. 
 Broussard v. Bernard, 7 La. 222, § 149. 
 Brown v. Adams, 2 Whart. 188, § 107. 
 V. Bates. 55 Me. 522, § 16. 
 V. Brown, 3 M. & K. 443, § 117. 
 P. Brown, 8 N. H. 94, § 440. 
 I'. Bulkley, 11 Cush. 168, § 522 
 V. Cobb, 10 La. 181, § 137. 
 V. Gale, 5 N. H. 416, § 74. 
 V. Graham, 24 111. 630, § 167. 
 V. Hedges, 1 Salk. 290, § 306. 
 V. Hedges, 1 Salk. 290, § 353. 
 V. Homau, 1 Neb. 448, § 154. 
 V. Lane, 19 Tex. 203, § 215. 
 V. Lincoln, 47 N. H. 468, § 100. 
 V. Lutheran Church, 23 Pa. St. 
 
 500, § 438. 
 I'. Pentz, 11 N. Y. Leg. Obs. 24, 
 
 §98. 
 V. Eaidle, 3 Ves. 256, § 30. 
 V. Turner, 1 Aik. 353, § 433. 
 V. Windsor, 1 Comp. & Jer. 20. 
 §267. 
 Brownell y. Brownell, 19 Wend. 367, §446. 
 Brownson v. Hull, 16 Vt. 309, § 65, 76. 
 BrownweU v. Bradley, 16 Vt. 106, § 437. 
 Brundel's Case, 5 Co. 9 A., § 16.
 
 TABLE OP CASES. 
 
 XXV 
 
 Brnnean r. Bmnean's Hoirs. 9 Mart. 210, 
 
 $143. 
 Bruton v. Rutland, 3 Humph. 435, $ 502, 
 Bryan v. Atwatcr, 5 Day, 19L $ 166, 242. 
 Bryan v. Hinman, 5 Day, 218, $ 377. 
 Bryan's Ex. v. Thompson's Adm., 6 i. J. 
 
 Marsh. 586, ^ 46. 
 Bryant i'. Hunter, 6 Bush. 75, $ 117. 
 
 V. Twigg, 37 L. J. 249, L. R. 3 
 Chan. 183, $ 23. 
 Buchan v. Snmner, 2Barb. Ch. 199, $ 112, 
 
 117, 120. 
 Buchanan's Estate, 8 Cal. 509, § 52. 
 Buchanan t-. King, 22 Gratt. 414. $ 156. 
 Buck I'. Spofford, 40 Me. 328, § 281. 
 
 V. Wolcott, 15 Gray, 502, $ 522. 
 Buckley v. Barber, 6 Ex. 164, § 387. 
 
 V. Garrett, 47 Pa. St. 204, ^ 218. 
 Buckman iJ. Brett, 22 How. Pr. 233, $ 379. 
 Buckmaster I'. Necdham, 22 Yt. 617, § 166. 
 Buddington v. Stewart, 14 Conn. 408, 
 
 $213. 
 Buffalo S. E. Works v. Sun Mutual Ins. 
 
 Co. 17 N. Y. 412, § 218. 
 Buflfar V. Bradford, 2 Atk. 220, § 28. 
 Buffnm V. Buffum, 49 Me. 108, § 117. 
 Bughardt v. Turner, 12 Pick. 538, § 37. 
 Bulkley i'. Barber, 6 Ex. Ch. 164; S. C. 1 
 
 Eng.L. &E. 506, ^ 379. 
 Bulkley v. Dayton, 14 Johns. 387, $ 178. 
 Bull V. Nichols, 15 Vt. 335, § 515. 
 Bulkr I'. Bishop of Exeter, IVes. Jr. 340, 
 
 § 80, 434. 
 Bullock V. Hay\vard, 10 Allen, 460, 6 350. 
 Burges v. Purvis, 1 Burr. 326, $ 294, 342. 
 Burgess v. Eastham, 3 Bush. 476, $ 537. 
 Burghardt v. Van Deuzen, 4 Alien, 375, 
 
 ^530. 
 Burhans v. Burhans, 2 Barb. Ch. 405, 
 
 ^ 447, 463, 512. 
 Bumhams v. Van Zandt, 7 Barb. 91, $ 152. 
 Bumes v. Keas, 21 Iowa, 257, § 62. 
 Burnside v. Merrick, 4 Met. 537, $ 117. 
 Burke v. Clarke, 11 La. 206, $ 388. 
 Burnett y. Pratt, 22 Pick. 557, § 16, 42, 372. 
 Burr V. Sim, 1 Wliart. 266, $ 44. 
 Burrell v. Bull, 3 Sandf. Ch. 30, $ 1.57. 
 Burt V. Hellyar, L. R. 14 Eq. 160, § 502. 
 Burton v. Neville, 2 Cox, 242, § 247. 
 Bustard v. Saunders, 7 Beav. 92, $ 26. 
 Butler V. King, 2 Yorg. 122, $ 502. 
 
 V. Porter, 13 Mich. 292, $ 158. 
 Butler t) RoyB, 25 Mich. .54, $ 208, 216. 
 
 Buttcrfield v. Lathrop, 71 Pu. St. 225. 
 ^101. 
 
 Buxton r. Bowcn, 2 W. & M. 3(55, } 416. 
 Byers v. Bvers, 21 Iowa, 268. $ 61. 
 V. Dknley, 27 Ark. 77, $ 501. 
 
 C. & A. Turnpike Co. c. Jarrett, 4 Ind. 
 215, $ 108. 
 
 Cabell V. Vaughan, 1 Saund. 291/, 6 353, 
 366. * 
 
 Cain V. Furlow, 47 Geo. 674, $ 224. 
 
 V. Wright, 5 Jones Law, 283, 6 337, 
 
 355. 
 
 Caldwell v. Auger, 4 Minn. 217, $ 169, 214. 
 
 V. Fellowes, L. R. 9 Eq. 410, $ 30. 
 
 V. Lieber, 7 Paige Ch. 483, $ 260. 
 
 Calhoun v. Hays, 8 W. &. S. 132, $ 398, 
 
 414. 
 Call V. Barker, 12 Me. 327, $ 450, 452. 
 Calmady v. Calmady, 2 Ves. Jr. 568, § 517. 
 Calvert v. Adams, 2 Dick. 478, § 327. 
 
 V. Aldiich, 99 Mass. 76, $ 261, 320. 
 V. Bradley, 16 How. U. S. 596, 
 §336. 
 Cameron v. Steves, 4 All. 141, $ 193. 
 Camp V. Homesley, 11 Ired. 212, $ 303. 
 Campau v. Godfrey, 18 Mich. 38, $ 205, 
 
 201, 207. 
 Campbell v. Campbell, 3 Stock. Ch. 276, 
 §512. 
 I'. Campbell, 4 Bro. 15, § 23. 
 V. Campbell, 2 Murph. 65, § 288. 
 I'. Mesier, 4 Johns. Ch. 334. 
 § 256, 322. 
 CJaines v. Grant, 5 Bin. 122, § 20. 
 Canfield v. Ford, 28 Barb. 242; How. Pr. 
 
 473, 435, § 4.35, 463. 
 Canning v. Canning, 2 Drewry, 434, § 522. 
 Cannon v. Hemphill, 7 Tex. 202, § 457. 
 V. Murphy, 31 Tex. 407, § 135. 
 V. Stockmon, 36 Cal. 539, § 106. 
 Caperton v. Gregory, 11 Gratt, 508, § 223. 
 Card V. Hope, 2 Barn. & C. 661, § 383. 
 Carlyle v. Patterson, 3 Bibb. 95, § 183, 
 
 288. 
 Carpenter t>. Schermerhoni, 2 Barb. Ch. 
 322, $ 409. 
 V. Thayer, 15 Vt. 556. § 235. 
 Carpentier v. Gardiner, 29 Cal. 160, § 2.34. 
 I). Mondonhall, 28 Cal. 487, 
 
 $ 2.32, 233, 213, 291. 
 V. Mitchell, 29 Cal. 333, $ 303, 
 
 322. 
 V. Small, .35 Cal. .356, § 243. 
 U. Webster, 27 CaL 562, § 228, 
 230, 237, 248.
 
 XXVI 
 
 TABLE OF CASES. 
 
 Carr v. Dodge, 40 N. H. 408, § 100 308. 
 V. Passaic L. & I. B. Co. 22 N. J. 
 Eq. 85, § 258. 
 Carroll v. Norwood, 5 Hor. & J. 155; 1 
 Hor. & J. 100, § 19,^, 208, 294, 342. 
 V. Waters, 9 Mart. 500, § 388. 
 Carter v. Taylor, 3 Head. 35, § 439, 501. 
 Cartwright v. Cartwright, 18 Tex. G29, 
 § 140. 
 V. Pultiiey, 2 Atk. 380, § 424, 
 439. 
 Carver v. Miller, 4 Mass. 5G1, § 261. 
 Cashion v. Faina, 47 Mo. 133, § 547. 
 Castelli v. Cook, 7 Hare, 89, § 389. 
 Castle V. Eate, 7 Beav. 296, § 110. 
 
 V. Matthews, Hill & D. 438, § 528. 
 Castleman v. Perry, 50 Mo. 583, $ 467. 
 Catlin V. Kidder, 7 Vt. 14, $ 238. 
 Cave i;. Holford, 3 Ves. 656, § 529. 
 Cavender v Bultul, 29 L. T. E. N. S. 710, 
 
 §120. 
 Cecil V. Dorsey, 1 Md. Ch. 225, § 522. 
 Challefox «. Ducharme, 8 Wis. 287, 4 Wis. 
 
 554, $ 241, 207. 
 Chamberlain v. Bussey, 5 Greenl. 170, 
 
 §99. 
 Chambers v. Chambers, 3 Hawks. 232, 
 
 § 238, 303. 
 Champion v. Spencer, 1 Root. 147, § 488, 
 
 489. 
 Chandler v. Cheney, 37 Ind. 408, § 74, 75. 
 
 V. Spear, 22 Vt. 388, § 356. 
 Chanet v. Villeponteaux, 3 McC. 29, § 45. 
 Channon v. Liisk, 2 Lans. 213, § 252, 319. 
 Chapin v. Powers, 7 Paige, 147, § 157. 
 Chaplin v. Tillinghast, 1 R. I. 173. 
 Chapman v. Alden, 15 Tex. 278, § 143. 
 Chase v. Abbott, 20 Iowa, 154, § 53. 
 Cheesborongh v. Green, 10 Conn. 320, 
 
 §87. 
 Cheeseman y. Thorne, 1 Ed. Ch. 629, § 482. 
 Cheek v. Bellows, 17 Tex. 616, § 148. 
 Chelsey i; . Thompson, 3 N. H. 1 , § 266, 297. 
 Cheney v. Cheney, 26 Vt. 606, § 359. 
 
 V. Dale, 39 Me. 164, § 397. 
 Cheslyn v. Cresswell, 3 Bro. C. P. 246,-2 
 
 Eden, 123, § 109. 
 Chester v. Willan, 2 Saund. 96, § 190. 
 Childi-ess v. Cutter, 16 Mo. 41, § 126. 
 Cliinn V. Eespass, 1 Monr. 25, § 289. 
 Choteau v. Paul, 2 Mo. 263, § 459. 
 Christie v. Saunders, 2 Grant's Ch. 670, 
 
 § 325. 
 Christian's Devisee v, Christiaii, 6 Munf, 
 534, § 513. 
 
 Christ's Hospital v. Rugdin, 2 Vem. 683, 
 
 §68. 
 Church V . Church, 3 Sandf . Ch . 437, § 479 . 
 CiUey v. Huse, 40 N. H. 358, § 117. 
 City Ins. Co. v. Steamboat Lizzie Sim- 
 mons, 19 La. An. 249, § 143. 
 Claiborne v. Tanner, 18 Tex. 72, § 142. 
 Clapp ». Beardsley, 1 Vt. 162, § 96. 
 
 •I'. Bromagham, 9 Cow. 530, § 224, 
 447, 531. 
 Clark V. Clark, 14 Ab. Pr. 299; S. C. 21 
 How. Pr. 470, § 457, 547. 
 V. Crego, 47 Barb. 617, § 291. 
 V. Griffiths, 24 N. Y. 595, § 252. 
 17. Huber, 20 Cal. 197, § 343. 
 V. Richardson, 32 Iowa, 401, § 432. 
 V. Shannon, 1 Nev. 568, § 58. 
 V. Vaughan, 3 Conn. 193, § 224, 342. 
 Clason V. Clason, 6 Pai. 545, § 542. 
 
 I'. Rankin, 1 Duer, 341, § 292, 
 Clay's Heirs v. Miller, 3 Monr. 146, § 376. 
 Clemens v. Clemens, 37 N. Y. 59, § 482. 
 Clerk V. Clerk, 2 Vem. 323, § 30. 
 Clester v. Gibson, 15 Ind. 10, § 519. 
 Cloud V. Webb, 4 Dev. 290, § 242. 
 Clowes V. Hawley, 12 Johns. 484, § 247, 
 
 288. 
 Glum V. Brewer, 2 Cm'tis C. C. 524, § 89. 
 Clymer v. Dawkins, 3 How. U. S. 689, 
 
 §166. 
 Clymer's Lessee v. Dawkins, 3 How. U. S. 
 
 689, § 223, 224, 227. 
 Coale V. Barney, 1 G. & J. 341, § 439, 453. 
 Coble V. Clapp, 1 Jones Eq. 173, § 470. 
 Cochran v. Carrington, 25 Wend. 409, 
 
 §284. 
 Cockbum v. Thompson, 16 Ves. 324, §372. 
 Code V. Huling, 27 Pa. St. 88, § 114. 
 Codmau v. Hall, 9 Allen, 337, § 362. 
 Coe V. Harahan, 8 Gray, 198, § 209. 
 Coffin V. Heath, 6 Met. 80, § 320. 
 Cogswell V. Reed, 12 Me. 198, § 199, 207, 
 
 535. 
 Coker v. Pitts, 37 Ala. 693, § 467. 
 Colburn v. EUenwood, 4 N. H. 99, § 405. 
 
 V. Mason, 25 Me. 435, § 235. 
 Cole V. Hall, 2 Hill, 627, § 483, 528, 530. 
 V. Irvine, 6 Hill, 639, § 342. 
 V. Patterson, 25 Wend. 457, § 346. 
 Coleman v. Coleman, 3 Dana, 403, § 162. 
 V. Coleman, 19 Pa. St. 100, § 438, 
 
 442. 
 V. Hutchenson, SBibb, 214, § 873. 
 Coles V. Coles, 15 Johns. 159, § 112,J284, 
 432, 456, 472.
 
 TABLE OF CASES. 
 
 XXVH 
 
 Ctoles V. Coles, 2 Beas. Ch. 3G6, $ 527. 
 
 V. Wooding, 2 Pat. & H. 197, ^ 398. 
 CoUamer i». Hutchmgs, 27 Vt. 73i, $ -151. 
 Collier v. Corbett, 15 Cal. 185, $ 3i3. 
 Collins V. Jolmson, 8 Sim. 35G, ^ 110. 
 
 I'. Prentice, 15 Com. 42G, § 185. 
 Colman v. Clements, 23 Cal. 2i5, $ 167. 
 CoUins V. Warren, 29 Mo. 336, $ 118. 
 Collumb I'. Pwead, 24 N. Y. 505, 1 112, 114, 
 
 115, 117. 
 Colton V. Smith, 11 Pick. 311, § 452, 478. 
 ColweU V. Carper, 15 Ohio St. 279, $ 55. 
 Comeau i'. Fontenot, 19 La. 407, $ 137. 
 Commissionera v. Smith, 9 Eich. 516, 
 
 $547. 
 Cammon-vvealth v. Lakeman, 4 Gush. 597, 
 $248. 
 V. Nase, 1 Ashmead, 242, 
 
 $109, 
 V. Rigney, 4 Allen, 317, 
 $254. 
 Comstock u. Piu-ple, 49 111. 167, $ 545. 
 Conant v. Smith, 1 Aitk. 67, $ 433. 
 Conklin v. Barton, 43 Barb. 435, $ 361. 
 
 V. Foster, 57 111. 104, $ 55. 
 Conkling v. Brown, 57 Barb. 265, $ 398. 
 Conn V. Davis, 33 Tex. 208, $ 149. 
 Conover v. Earl, 26 Iowa, 169, $ 93, 245, 
 
 426. 
 Converse v. Ferre, 11 Mass. 326, $ 261. 
 Converse v. McKee, 14 Tex. 30, $ 215. 
 Converse v. Symmes, 10 Mass. 378, $ 353, 
 
 366. 
 Constantino v. Van Winkle, 6 HUl, 196, 
 
 $192. 
 Cook V. Allen, 2 Mass. 467, $ 483. 
 
 V. Brightly, 46 Pa. St. 445, $ 346. 
 V. Cook, 2 Vem. 545, $ 11. 
 V. Famam, 21 How. Pr. 286; 34 
 Barb. 95; 12 A. Pr. 359, $ 547. 
 I). Knickerbocker, 11 Ind. 230, $ 519. 
 V. Webb, 19 Minn. 170, $ 441, 440. 
 450. 
 Cooke V. Bremond, 27 Tex. 460, $ 143, 145. 
 
 V. Crawford, 13 Sim. 96, $ 45. 
 Cookson V. Cookson, 8 Sim. 529, $ 116, 118. 
 Cooper V. Fisher, 10 L. J. R. (N. S.) Ch. 
 221, $465. 
 
 Coppin V. , 2 P. Wras. 496, $ 63. 
 
 Copplnger v. Gubbins, 3 Jones & L. 397, 
 $251. 
 V. nice, 33 Cal. 425, $ 159. 
 Coldly V. Crane, 1 Root, 69, $ 522. 
 Oorbcttv. Laurens, 5 Rich. Eq. 301, $ 373. 
 p. NorcroHS, 35 N. II. 114, $ 405. 
 
 Corbin v. Cannon, 31 Miss. 573, $ 234. 
 
 V. Jackson, 14 Wend. 621, $96, 403. 
 Cornish v. Gest, 2 Cox's Ca. 27, $ 480. 
 Cornwall v. Cornwall, 6 Bush, 372, $ 118, 
 Coster I'. N. Y. & Erie R.R. Co., 6 Duer. 
 
 40 S. C. 3 Abb. Pr. 346, $ 337, 337. 
 Cotten V. Thompson, 25 Ala. 679, $ 236. 
 Cotton V. Wood, 25 Iowa, 43, $ 62. 
 Cowan V. Buyers, Cooke's Tenn. K. 58, 
 
 $ 306, 308. 
 Cowdin V. Perry, 11 Pick. 503, $ 28. 
 Cowles V. Garrett's Admr. 30 Ala. 350, 
 
 $ 287, 308. 
 Cowper V. Fletcher, 6 Best & S. 470, $ 164, 
 268. 
 V. Scott, 3 P. Wms. 120, $ 68. 
 Cox V. McBurney, 2 Sandf. 561, $ 115. 
 
 V. McMuUin, 14 Gratt. 90, $ 207, 507, 
 Coxe V. Smith, 4 Johns. Ch, 276, $ 439, 
 
 501. 
 Coykendall v. Rutherford, 1 Green. Ch. 
 
 360, $ 44. 
 Cradelbaugh v. Pritchett, 8 Ohio St,-649, 
 
 $479. 
 Craft V. Wilcox, 4 Gill. 506, $ 35. 
 Crafts V. Crafts, 13 Gray, 360, $ 509. 
 Craig V. Barker, 4 Dana, GOl, $ 528. 
 V. Craig, Bai. Eq. 103, $ 535. 
 V. Craig, 3 Barb. Ch. 101, $ 68. 
 V. Taylor, 6 B. Monr. 459, $ 397. 
 Craighead v. Given, 10 S. & 11. 351, $ 109. 
 Crane v. Waggoner, 27 Ind. 52, $ 258, 275. 
 Crary v. Campbell, 24 Cal. 637, $ 175. 
 
 V. Willis, 2 P. Wms. 530, $ 11. 13. 
 Crawshay v. Maule, 1 Swaust. 495, $ 118, 
 
 443, 
 Crenshaw v. Creek, 52 Mo. 100, $ 466. 
 Crowe V. Dicken, 4 Yes. 97, $ 45. 
 Crocker v. Fox, 1 Root, 323, $ 108. 
 Crockett «. Crockett, 3 Phill. 553, $ 26 
 Croft V. Rains, 10 Tex. 250, $ 348. 
 Crogan v. Livingston, 17 N. Y. 218, $ 457, 
 
 528, 517. 
 Crompton v. Ulmer, 2 Nott. & McC, 432, 
 
 $433. 
 Crooke v. De Vandcs, 9 Vcs. 204, $ 23. 
 Crosby w. Loop, 13 III. 627, $ 340, 
 Ci-0£8 V. Robinson, 21 Conn, 385, $ 291, 
 Crosse v. Bcdinficid, 12 Sim. 35, $ 169. 
 Crossfield v. Such, 8 Exch. 828; 22 Eng. 
 
 L. E. 555, $ 16, 285. 
 Crow V. Marlv, 52 111, 332, $ 273, 285, 
 
 V. Van Sickle, 6 Nov. 148, $ 148. 
 Crowcll w. Woodbury, 52 N. II. 613, $ 522. 
 Crugor i;. McClaughry , 51 Barb. 614,$ 346.
 
 XXVlll 
 
 TABLE OF CASES. 
 
 Cryer v. Andrews, 11 Tex. 181, § 227. 
 Cubitt V. Porter, 8 Bam. & C. 257, § 98, 
 
 297, 299, 300, 320. 
 Culler t). Motzer, 13 Serg. & E. 358, § 224. 
 Culley V. Spearman, 2 H. Bla. 486, § 334. 
 0, Taylerson, 11 Ad. & El. 1017' 
 § 244. 
 Culver V. Culver, 2 Root, 278, § 440. 
 Cumming's Appeal, 25 Pa. St. 269, § 120. 
 Cummings v. Wyman, 10 Mass. 468 § 232. 
 Cunningham v . Pattee, 99 Mass. 251 , $ 207. 
 V. Robersou, 1 Swan, 138, 
 §166. 
 Currie v. Tibb's Heirs. 5 Monr. 443, § 109. 
 Currin v. Spraull, 10 Gratt. 147, § 502. 
 Curtis V. Swearingen, Breese, 160, § 164. 
 Curzon v. Lyster, Seaton's Forms, 191, 
 
 $521. 
 Gushing v. Breed, 14 Allen, 380, $ 95, 220. 
 Custis V. Snead, 12 Gratt. 264, § 472. 
 Cutting V. Derby, 2 H. Bla. 1075, 1077, 
 
 §295. 
 Cutler V Currier, 54 Me. 81, § 320. 
 Cutts V. King, 5 Greenl. 482, § 291. 
 Cuyler v. FerriU, 1 Ab. C. C. 181, § 450. 
 C. I. Co. of Cinn., 23 Ind. 445, § 522. 
 
 D. 
 
 Daggett V. Eankin, 81 Cal. 322, § 102. 
 Dain v. Cowing, 22 Me. 349, § 308, 311. 
 Dale V. Hamilton, 5 Hare, 369, § 19. 
 Dall V. Brown, 5 Cush. 289, § 188, 206. 
 V. The Confidence Silver M. Co.. 3 
 Nev. 555, § 505. 
 Dalson v. Tyson, 3 Salk. 204, $ 334. 
 Dan V. Brown, 4 Cow. 492, § 169. 
 Daniel v. Green, 42 111. 473, § 502. 
 
 V. Woodroffe, 2 H. L. Cas. 834, 
 § 223, 244. 
 Daniels v. Brown, 34 N. H. 459, § 254. 
 
 V. Daniels, 7 Mass. 135, § 297, 
 335, 351. 
 Danvers u. Dorrity, 14 Ab. Pr. 208, § 443. 
 Darby v. Darby, 3 Drewry, 495, § 118, 
 
 443. 
 Darden v. Cowper, 7 Jones' Law, 210, 
 
 397. 
 Darlington's Appropriation, 13 Pa. St. 
 
 430, § 414, 507. 
 DasMel v. Collier, 4 J. J. Marsh. 602, 
 
 $105. 
 David V. Elvi, 4 La. 106, § 388. 
 Davidson v. Bowden, 5 Sneed, 129, § 457, 
 537. 
 
 Davidson v. Heydon, 2 Yeates, 463, § 33. 
 V. Stuart, 10 La. R. 147, $ 144. 
 V. Thompson, 22 N. J. Eq. 84. 
 §512. 
 Davis V. Andrews, 30 Vt. 681, § 52. 
 
 V. Bartholomew, 3 Lad. 485, § 107. 
 V. Chi-istian, 15 Gratt. 11, § 117, 119. 
 V. Clark, 26 Lid. 424, § 65, 75. 
 V. Davis, 2 Ired. Eq. 607, § 537. 
 V. Logan, 9 Dana, 185, § 39. 
 V. Lottich, 46 N. Y. 396^ § 289. 
 V. Norris, 8 Pa. St. 125, § 507. 
 V. Smith, 4 Harr. 68, § 37. 
 V. The Seneca, Gilp. 10; 3 Wall. Jr. 
 395; 18 Am. Jur. 486; 6 Penn. 
 L. J. 213, § 392. 
 V. "Whiteside, 1 Bibb, 510, § 294. 
 Davis' Lessee v. Whitesides, 1 Bibb, 513, 
 
 §342. 
 Davoue v. Fanning, 2 Johns. Ch. 254, 
 
 §44. 
 Da\7 V. Kemp, O'Bridg. 387, § 28. 
 Dawson v. Mills, 32 Pa. St. 302, § 343. 
 
 V. Lawrence, 13 Ohio, 546, §409, 
 Dayrell v. Champness, 1 Eq. Cas. Ab. 400. 
 
 §482. 
 Dean v. Hooper, 31 Me. 109, § 528. 
 V. O'Meara, 47 111. 120, § 510. 
 De Armas v. Mayor of N. Orleans, 5 La. 
 
 R. 132, § 6. 
 De Blanc v. Lynch, 23 Tex. 28, § 139. 
 Decamp v. Hall, 42 Vt. 485, § 41. 
 Dech's Appeal, 57 Pa. St. 472, § 261, 278. 
 Decharms v. Horwood, 4 Moore & S. 400, 
 §346. 
 I'. Horwood, 10 Bing. 526, § 336. 
 Decker v. Johnson, 15 Johns. 481, § 177. 
 V. Livingston, 15 Johns. 481, § 334, 
 346. 
 Deering v. Earl of Winchelsea, 1 Cox, 318; 
 
 S. C. 2 Bos. & Pull. 270, § 322. 
 Deery i'. McClintock, 31 Wis. 202, § 502, 
 
 503. 
 De Godey v. Godey, 39 Cal. 164, § 123, 445. 
 DeJohnson v. Sepulbeda,5 Cal. 150, § 341. 
 Delaney v. Root, 99 Mass. 547, § 308, 313. 
 Delmonico v. Gmllaume, 2 Sandf. Ch. 
 
 366, § 119. 
 Deloney v. Hutcheson, 2 Rand. 183, § 116. 
 
 ' V. Walker, 9 Porter, 497, § 536. 
 
 DeMm V. Lockwood, 3 Blatchf. 61, § 359. 
 
 Den V. Hardenberg, 5 Halst. 44, § 65, 69, 
 
 72. 
 
 exdem. WoodhuU v. Longstreet, 3 
 
 Harr. (18 N. J. Law) , 414, § 397.
 
 TABLE OF CASES. 
 
 xxix 
 
 Denman v. Prince, 40 Barb. 217, ^ 261. 
 Denn v. Gasldn, Co\vp. 657, ^ 23. 
 Dermiug v. Corwiu, 11 Wend. 652, $ 483. 
 Dennison v. Foster, I) Ohio, 126, ij 201, 212. 
 Deunistoun v. Nutt, 2 La. An. 483, $ 143. 
 De Puy V. Strong, 37 N. Y. 373: S. C. 4 
 
 Abb. Pr. N. S. 344, ^ 347. 
 De Uprey v. De Uprey, 27 Cal. 332, ■^ 473, 
 
 491. 
 Deveney i'. Mahonoy, 8 C. E. Green, 241, 
 
 §117. 
 Dewey v. Brown, 2 Pick. 388, § 342, 343. 
 V. Lambier, 7 Cal. 347, § 36, 339. 
 DeWitt V. Ackerman, 17 N. J. Eq. 215, 
 §502. 
 V. Harvey, 4 Gray, 491, § 207. 
 V. Sau Francisco, 2 Cal. 298, § 15, 
 90. 
 DeWitte v. DeWitto, 11 Sim. 41, § 26. 
 Dexter Lime Rock Co. v. Dexter, 6 R. I. 
 
 373, § 170. 
 Dey V. The Poughkeepsie Mutual Ins. 
 
 Co., 23 Barb. 627, § 218. 
 Dias V. Glover, 1 Hoffman Ch. 76, § 71. 
 Dicks V. Batten, M. S., § 536. 
 Dickey v. Ai-mstrong's Devisees, 1 A. K. 
 
 Marsh. 41, § 359, 375, 378. 
 Dickinson u. Williams, 11 Cush. 260, §280. 
 Dietrich v. Dietrich, 4 Watts, 1G7, § 169. 
 Dikeman v. Parrish, 6 Pa. St. 225, § 224. 
 Dillett t). Whitner, Cheves Eq. 213, § 262. 
 Dinehart v. WUson, 15 Barb. 595, § 100. 
 Disbrow v. Folger, 5 Abb. Pr. 54, § 466. 
 Dixv. The Mercantile Ins. Co., 22111. 272, 
 
 §218. 
 Dixon V. Warters, 8 Jones, 450, § 527, 530. 
 Doane v. Badger, 12 Mass. 65, § 320. 
 Dockwray v. Dickinson, Skinner, 640, 
 
 § 353. " 
 Dodd V. Acklom, 6 Man. & Gr. 672, § 188. 
 V. Acklom, 7 Scott N. R. 415, § 188. 
 V. Watson, 4 Jones Eq. 48, § 251. 
 Doddington v. Hallctt, 1 Ves. Sr. 497, 
 
 § 386, 388. 
 Dodds V. Dodds, 26 Iowa, 311, § CO. 
 Dodge V. Clyde, 7 Rob. 412, § 284. 
 Doe V. Abcy, 1 Maulc & S. 428, § 8-12. 
 d. Aslin V. Summcrsett, 1 Bam. & 
 
 Ad. 140, § 180. 
 (/. Bradford v. Watldiis, 7 East, 551, 
 
 §181. 
 V. Errington, 1 Ad. & El. 750, § 341. 
 d. Eatabrooks v. Harris, 2 Alien N.B. 
 
 42, § 414. 
 V. Feun, 3 Camp. 190, § 339. 
 
 Doe r. GaiTison, 1 Dana, 35, § 64, 6.5. 
 i>. Xeen, 7 T. R. 386, § 166. 
 d. Kinderslcy v. Hughes, 7 Mv^^ <t 
 
 W. 14l", § 180. 
 V. Parrott, 5 T. R. 652, § 69, 73. 
 V. Wilson, 4 Barn. & A. 303, § 70. 
 d. Macartney r. Crick, 5 Esp. 196, 
 
 § 181. ' 
 on dem. of McGillis v. McGillivray, 
 
 9 Q. B. (Upper Can.) 9, § 12. 
 V. Pearson, 6 East, 179, § 340. 
 V. Potts, 1 Hawk, 409, § 341. 
 d. Poole V. Errington, 1 Ad. & E. 
 
 755, § 331. 
 V. Prosser, Cowp. 217, § 234, 235,238, 
 
 301. 
 V. Reed, 12 East, 57, § 30, 339. 
 on dem. of Short v. Prettymau, I 
 
 Hous. Del. 334, § 532. 
 V. Sheffield, 13 East, 526, § 110. 
 Dominguez v. Lee, 17 La. 300, § 138, 146. 
 Donncll v. Matecr, 7 Ired. Eq. 94, § 433. 
 
 V. Walch, 33 N. Y. 43, § 379. 
 Doolittle V. Don, Mans. 34 111. 457, § 531. 
 Dorn V. Dunham, 24 Tex. 376, § 199, 205. 
 Dott V. Willson, 1 Bay, 457, § 26. 
 Dougallv. Foster, 4 Grant's Ch. 325, § 323, 
 
 325, 251. 
 Doubledayt). Newton, 9 How. Pr. 91, § 525- 
 
 526. 
 Doughaday y. Crowell, 3 Stock. 204, § 510. 
 Douglas V. Harrison, 2 Sneed, 382, § 419. 
 Douglass V. VUle, 3 Sanf. Ch. 439, § 534. 
 Dow V. Jewell, 18 N. 11. 353, § 397, 399. 
 Down V. Suelling, 2 Heisk. 484, § 428. 
 Downing v. Seymour, Cro. Eliz. 912, § 67. 
 Downer's Admr. v. Smith, 38 Vt. 461. 
 
 §158. 
 Downer i'. Smith, 38 Vt. 468, ^ 210. 
 Downin v. Sprechcr, 35 Md. 478, § 482. 
 Dowset V. Sweet, Am. Bl. 175, § 28. 
 Doyle V. Coburn, 6 Allen, 73, § 61. 
 
 «. Taylor, Ber. 201, § 280. 
 Draper v. Jackson, 16 Mass. 486, § 68, 73. 
 Drennen v. Wallter, 21 Ark. 557, § 262, 
 
 .509. 
 Dresser v. Dresser, 40 Barb. 300, § 275. 
 Drew V. Clemmons, 2 Jones' Eq. 314, 
 
 §447. 
 Drury v. Drury, 1 Ch. Rep. 20, § 423. 
 Dubo V. Smith, 1 Mo. 313, § 341. 
 Dubois V. Beaver, 25 N. Y. 124, § 97, 300. 
 DucrcHtt). Bijeau, 8 Mart. N. S. 198, § MO. 
 Dugan V. Uollins, 4 Md. Ch. 147, § 533. 
 Duhring v. DuLring, 20 Mo. 174, § 117.
 
 XXX 
 
 TABLE OF CA8EB. 
 
 Duncan i\ Forrer, 6 Binn. 197, § 14, 19. 
 V. HoweU, 32 Yes. Jr. 568, $ 517. 
 c. Sylvester, 24 Me. 485, § 199, 
 
 297. 
 V. Sylvester, 16 Me. 391, $ 397. 
 407, 508. 
 Dunham v. Chatham, 21 Tex. 247, § 136, 
 
 137. 
 Dunn V. Bryau, 38 Geo. 154, § 23. 
 V. Tozer, 10 Cal. 170, § 361. 
 Dunning v. Dunning, 47 111. 315, $ 547. 
 Dupuy v . Leavenworth, 17 Cal. 278, § 119. 
 Durham v. Durham, 34 Mo. 447, § 519. 
 Dwighty. County Commissioners, 7 Cush. 
 
 534, § 352. 
 D'Wolf V. Harris, 4 Mason, 538, § 337, 
 
 355. 
 Dyckman v. Mayor of N. Y., 7 Barb. 507; 
 S. C. 1 Selden, 434, § 188. 
 V. Valiente, 42 N. Y. 560, § 308, 
 311. 
 Dye V. Mann, 10 Mich. 291, § 58. 
 Dyer v. Clark, 5 Met. 562, § 111, 114, 117. 
 V. Lowell, 30 Me. 217, $522,541. 
 V. "Wilbur, 48 Me. 287, $ 281. 
 D. & S. Eailway Co. v. Wawn, 3 Beav. 119, 
 $ 185, 323. * 
 
 £. 
 
 Eads V. Rucker, 2 Dana, 111, $ 291, 295. 
 Eagles V. LeBreton, L. R. 15 Eq. 148, § 26. 
 Earl of Kildare v. Eustace, 1 Vern. 421, 
 $423. 
 Clarendon v. Hornby, 1 P. Wms. 
 446, § 433, 522. 
 Early v. Friend, 16 Gratt, 47, § 271, 275. 
 Eason v. Henderson, 12 Ad. & El. (N. S.) 
 
 996, § 271, 274. 
 Easum v. Appleford, 5 Myl. & Cr. 62, 
 
 $109. 
 Eaton V. Tallmadge, 24 Wis. 223, § 407. 
 Ebbert's Appeal, 70 Pa. St. 81, § 120. 
 Ebenezer v. Prentiss' Case, 7 Ohio, 473, 
 
 $ 201, 465. 
 Ebert v. Wood, 1 Binn. 218, § 398. 
 Edgar v. Donnelly, 2 Munf. 387, § 120. 
 Edson V. Munsell, 12 Allen, 600, $ 530. 
 Edwaids v. Bonnett, 10 Ired. 363, $ 426, 
 448. 
 V. Bishop, 4 N. Y. 64, $ 225, 235, 
 V. Champion, 21 E. L. & E. 230; 
 
 De G. & S. 75, $ 30. 
 V. Edwards, 39 Pa. St. 369, $ 105. 
 
 Edwards v. Fashion, Prec. Ch. 332; 1 Eq, 
 
 Cas. Abr. 292, § 16. 
 Elias V. Verdugo, 27 Cal. 418, $ 54, 404. 
 Ellison V. Ellison, 1 Lead. Cases in Eq. 
 
 241, § 116, 120. 
 Elliot V. Jekyl, 2 Ves. Sr. 681, o 16. 
 Elliott V. Brown, 3 Swanst. 489, § 19. 
 
 V. Nichols, 4 Bush, 502, § 65. 
 Elton V. Elton, 6 Jur. N. S. 136, $ 24v 
 Elwell V. Burnside, 44 Barb. 447, $ 320. 
 Emerson v. Cutler, 14 Pick. 114, $ 23, 41. 
 Eno V. DelVecchio, 4 Duer, 60; 6 ib. 17, 
 
 § 98, 267. 
 Erwin's Appeal, 39 Pa. St. 537, § 120. 
 Erwin v. Clark, 13 Mich. 19, $ 252. 
 
 V. Olmstead, 7 Cow. 230, § 300. 
 Esdale v. WUshere, 9 L. J. Rep. Ch. 71, 
 
 §23. 
 Estate of Delaney, 37 Cal. 176, § 59. 
 Silvey, 42 Cal. 212, $ 149. 
 Essex V. Essex, 20 Beav. 442, $ 118. 
 Ettricke v. Ettricke, Amb. 656, 23. 
 Eustace v. Scaweu, Cro. Jac. 696, § 190. 
 Evans v. Bagshaw, L. R. 8 Eq. 469; L.R, 
 
 5 Ch. Ap. 340, $ 440, 460. 
 
 V. Brittain, 3 Ser. & B. 135, § 23. 
 V. Dendy, 2 Speer, 10, § 547. 
 Evelyn v. Evelyn, 2 Dick. 800, $ 327. 
 Ewald V. Corbett, 32 Cal. 499, § 291, 293, 
 
 464. 
 Ewer V. Hobbs, 5 Met. 1, $ 102, 452. 
 
 V. Lovell, 9 Gray, 277, § 239. 
 Ex parte Harrison, 2 Rose, 76, § 387. 
 Hill, 1 Madd. 66, § 386. 
 Machell, 1 Rose, 447; S. C. 2 Ves. 
 
 6 B. 216, $ 385. 
 
 Young, 2 Rose, 78; S. C. 2 Ves. 
 & B. 242, $ 386. 
 
 F. 
 
 Fallowes v. Williamson, 11 Ves. 306, $ 364. 
 
 Fanning v. Chad wick, 3 Pick. 420, $ 280. 
 
 Farley v. Craig, 6 Halst. 273, § 346. 
 
 Farmers' & Mechanics' Nat. Bank v. Gre- 
 gory, 49 Barb. 155, $ 09. 
 
 Farmer v. Gregory, 19 Barb. 155, $ 73. 
 V. Simpson, 6 Tex. 310, § 55. 
 
 Farr v. Smith, 9 Wend. 338, $ 245. 
 
 Farrar v. Beswick, 1 M. & W. 687, $ 309. 
 V. Eastman, 10 Me. 195, § 167. 
 
 Faullmer v. Davis, 18 Gratt. 684, $ 482. 
 
 Faust V. Moorman, 2 Carter, 20, § 439. 
 
 Faysoux v. Prather, 1 Nott & McC. 298, 
 $375.
 
 TABLE OF CASES. 
 
 XXXI 
 
 Feather v. Strockoecker, 3 Pen. A W. 508, 
 
 $533. 
 Fennings v. Lord Grenville, 1 Taunt. 211, 
 
 $ 306, 309, 316. 
 Fereday t'. Wightwick, 1 Kuss. & M. 45, 
 
 $ 118, 327. 
 Ferris v. Smith, 17 Johns. 223, $ 489. 
 Field V. Craig, 8 Allen, 357, § 321. 
 
 V. Hanscomb, 3 Shep. 367, $ 522. 
 V. Unknown, 34 Me. 35, ^ 500. 
 Filbert v. Hoff, 42 Pa. St. 97, 6 299, 300, 
 
 301. 
 Finch V. Finch, 2 Ves. Sr. 492, ^ 482. 
 Finley ii. The Lycoming Coiinty Mutual 
 
 Ins. Co., 30 Pa. St. 312, § 218. 
 Piquet ('. Allison, 12 Mich. 328, ^ 252, 282, 
 
 319. 
 Fisher v. Gordy, 2 La. An. 763, ^ 143. 
 I'. Fisher, 2 La. An. 774, § 132. 
 V. Provin, 25 Mich. 347, § 65. 
 Fiske V. Kellogg, 3 Oregon, 503, $ 467. 
 Fitch a. Forman, 14 Johns. 174, $ 178. 
 Fitzpatrick v. Wilson, 12 Grant's Ch. 440, 
 
 9 480. 
 Flagg V. Thurston, 11 Pick. 431, ^ 530. 
 Flanders v. Clarke, 3 Atk. 509; S. C. 1 
 
 Ves. Sr. 9, $ 46. 
 Fleet V. Borland, 11 How. Pr. 490, ^ 537. 
 Fletcher v. Walker, 3 Madd. 73, $ 95. 
 Florence v. Hopkins, 46 N. Y. 186, $ 447. 
 Fobes V. Shattuck, 22 Barb. 508, ^ 252, 
 
 426. 
 Foley V. Addcubrooke, 4 Ad. & El. 197, 
 
 $336. 
 Folger V. Mitchell, 3 Pick. 396, $ 99, 405. 
 Folsom V. Carli. 5 Minn. 337, $ 52. 
 Foote V. Colvin, 3 Johns. 215, $ 100, 347. 
 Forbes i'. Dunham, 24 Tex. Oil, $ 139. 
 
 0. Moore, 32 Tex. 199, $ 148. 
 Ford V. Ford, 1 La. Kep. 206, $ 143. 
 V. Ford, 2 Mart. N. S. 574, $ 132. 
 I'. Gray, Salk. 285; 6 Mod. 45, $ 33, 
 166. 
 Forde v. Herron, 4 Munf. 316, $ 120. 
 Forder v. Davis, 38 Mo. 107, $ 447, 503, 
 
 531. 
 Forsytliet). Drake, 1 Grant's Ch. 223, § .372. 
 Forward v. Deetz, 32 Pa. St. 72, $ 221. 
 Fosgate v. Herkimer Manuf. Co. 12 N. Y. 
 
 584, $ 301. 
 FoBter y. Abbott, 8 Met. 598, $ 483, 528. 
 V. Crabb, 12 Com. B. 119; 16 Jur. 
 835; 21 L. J. C. P. 189, $ 2-17, 288. 
 0. Dugan, 8 Ohio, 106, $ 477. 
 V. Newton, 46 MisB. 663, $ 471. 
 
 
 Foust V. Moorman, 2 Ind. 17, $ 450, 501. 
 Fowler v. Bailey, 14 Wis. 125, $ 117. 
 
 V. Succession of Gordon, 24 La. 
 An. 270, $ 528. 
 Fox V. Fletcher, 8 Mass. 274, $ 65. 
 Foxcroft V. Barnes, 29 Me. 129, $483, 530. 
 Francisco v. Gates, 28 HI. 67, $ 476. 
 Frankhn v. Eobinson, 1 Johns. Ch. 164, 
 
 $260. 
 Franz v. Young, 24 Iowa, 378, $ 245, 246. 
 Frazier 0. Frazier, 2 Leigh, 642, $ 109. 
 
 V. Spear, 2 Bi1)b, 385, $ 353. 
 Frederich v. Gray, 10 Serg. & R. 188, $ 242. 
 Freeman v. Freeman, S. C. of Tenn.. 
 
 Apr. 1872, 2 South. L. E.168, $ 457, 482. 
 French v. Backliouse, 5 Burr. 2727. $ 383. 
 
 V. Mehan, 56 Pa. St. 280, $ 74. 
 Frentz v. Klotsch, 28 Wis. 317, $ 155. 
 Frewen v. Belfe, 2 Brown C. C. 224, $ 28, 
 
 31, 46. 
 Frierson v. Van Buren, 7 Yer. 006. $ 110. 
 Frink v. Branch, 16 Conn. 201, $ 116, 120. 
 Frique v. Hopkins, 4 Mart. N. S. 212, 
 
 $ 133, 138. 
 Frissell v. Eozier, 19 Mo. 448, $ 413. 
 Frohock v. Gustinc, 8 Watts, 123, $ 496. 
 Frost ('. Bevins, 3 Sandf. Ch. 188, $ 371. 
 
 I'. Disbrow, 1 Han. 73, $ 280. 
 Fulbiight V. Cannelfox, 30 Mo. 425, $ 467. 
 Fuller V. Ferguson, 26 Cal. 546, $ 133. 
 Fullerton v. Doyle, 18 Tex. 12, $ 149. 
 Fnnk v. Newcomer, 10 Md. 307, $ 152. 
 
 G. 
 
 Gadsden v. Cappedeville, 3 Ricli. 467. 
 
 $26. 
 Gage V. Mulholland. 16 Grant Ch. 140, 
 
 $ 263. 
 Gaines v. Buford, 1 Dana, 481, $ 341. 
 Galbraith v. Galbraitli, 3 S. & 11. 39?:, $ 25. 
 Gale V. Davis, 4 Mart. 645, $ 132. 
 Gallatain v. Cunningham, 8 Cow. 378. 
 
 $ 546. 
 Gallatin v. The Pilot, 2 Wall. Jr. 592, $ 388. 
 Gardner v. Dutch, 9 Mass. 426, $ 3.37. 
 Garner t'. Jone.s, 52 Mo. 68, $ 65. 
 Garrett i\ White, 3 Ircd. Eq. 135, $ 502. 
 Garvin v. Garvin, 1 S. C. (N. S.) 00, $ 479. 
 Gash I). Ledbetter, Ired. Eq. 185, $ 323, 
 
 515. 
 Gaskell v. Gaskell, 1 Sim. 0-13, $ 455, 48*2. 
 Gates I). Andrews, 37 N. Y. 659, $ 184. 
 
 I). Salmon, 35 CaJ. 588, $ 203, 428, 465:
 
 XXXll 
 
 TABLE OF CASES. 
 
 Gates V. Treat, 17 Conn. 392, § 199. 
 Gayosa D. Garcia, 1 Mart. N. S. 334, § 133. 
 Gee V. Moore, 14 Cal. 477, § 52. 
 Geer v. Winds' Ex., 4 Desaus, 85, § 525. 
 Gentry v. Gentry, 1 Sneed, 88, ^ 371. 
 George's Appeal, 12 Pcnn. St. 260, $ 534. 
 George v. Murphy, 1 Mo. 558, § 526. 
 V. Ransom, 15 Cal. 323, § 141. 
 Gerard Life Ins. Co. v.Y.&'K. Bank, 57 
 Penn. St. 394; S. C. 7 Am. Law Eeg. 
 467, § 479. 
 German v. Machin, 6 Pai. Ch. 288, § 504. 
 Gerry v. Gerry, 11 Gray, 381, § 359, 360. 
 Gibbs V. Swift, 12 Cusb. 398, § 96, 199. 
 Giblin v. Jordan, 6 Cal. 417, ^ 54. 
 Gibson v. Winslow, 46 Pa. St. 384, ^ 165. 
 V. Zimmerman, 12 Mo. 88G, § 64, 
 65. 
 Giffard v. Hort, 1 Sch. & Lef. 407, $ 482. 
 V. Williams. L. R. 5 Cb. Ap. 546; 
 S. C. 39 L. J. B. (N. S.) Ch. 
 735, ^ 447, 502. 
 Gilbert v. Richards, 7 Vt 208, ^ 18, 28. 
 Gilchrist v. Ramsay, 27 U. C. Q. B. 500, 
 
 §291. 
 Giikey v. Peeler, 22 Tex. 663, § 166. 
 Gill V. Fauutleroy's Heirs, 8 B. Monr. 168, 
 
 § 166, 224. 
 Gillan v. Dixon, 65 Pa. St. 395, § 63 69. 
 Gillam v. Sigman, 29 Cal. 639, § 360, 361. 
 Gillespie v. Jolmson, Wright, 232, § 408. 
 Gillespie /•. Osburn, 3 A. K. Marsh. 78, 
 
 §162. 
 GiUettt'. Stanley, 1 Hill. 127, § 222, 294, 
 
 342. 
 Gillis V. McKinuey, 6 Watts & S. 78, § 283. 
 Gilman v. Stetson, 18 Me. 431, § 167. 
 Gilmore v. Wilbur, 12 Pick. 124, §331, 
 
 333, 349. 
 Gilpin V. Hollingsworth, 3 Md. 195, § 23. 
 Gimniy v. Gimmy. 22 Cal. 634, § 445. 
 Girard Life Ins. Co. v. F. & M. Bank, 57 
 
 Pa. St. 392, § 528. 
 Gist V. Eobinet, 3 Bibb, 2, § 294. 
 Glaister v. Hewer, 8 Ves. 195, § 67. 
 Gleadon v. Tinkler, Holt's N. P. C. 586, 
 
 §384. 
 Glenn v. Elam, 3 La. An. 611, § 148. 
 Gloninger v. Hazard, 42 Pa. St. 401, § 321. 
 Glover v. Austin, 6 Pick. 209, § 379. 
 
 V. Hunuewell, 6 Pick. 224, § 359. 
 Gock V. Keneda, 29 Barb. 122, § 179. 
 Godfrey u. Godfrey, 17 Ind. 8, § 450, 495, 
 
 503. 
 Goewey ». Urig, 18 111. 242, § 224. 
 
 Goldman v. Clark, 1 Nev. 607, § 58. ^ 
 Conor V. Conor, 11 Rob. La. 526, § 146. 
 Good V. Coombs, 28 Tex. 51, § 199. 
 Goodburn v. Stevens, 5 Gill, 1, § 118. 
 Goode V. Crow, 51 Mo. 214, § 545, 547. 
 Goodenow v. Ewer, 16 Cal. 471, § 275, 512. 
 Goodess u. Williams, 2 Y. & C. 595, §482. 
 Goodhue v. Barnwell, Rice Eq. 198, § 397, 
 
 402. 
 Goodright v. Opie, 8 Mod. 123, § 109. 
 Goodtitle v. Bailey, Cowp. 600, § 206. 
 
 V. Tombs, 3 Wils. 121, § 303. 
 Goodwin v. Richardson, 11 Mass. 469, § 16. 
 
 V. Spray, 2 Dick, 667, § 323. 
 Gordon v. Atkinson, 1 De G. & S. 478, 
 
 §23. 
 Gordon v. Pearson, 1 Mass. 335, § 236, 
 301. 
 c. Sterling, 13 How. Pr. 408, 
 
 §476. 
 
 V. Whieldou, 18 L. J. Rep. (N. S. ( 
 
 Chanc. 5; 11 Beav. 170, § 70. 
 
 Gorham v. Gorham, 3 Barb. Ch.41, §469. 
 
 Gossam v. Donaldson, 18 B. Monr. 230, 
 
 §154. 
 Goudy c. Shank, 8 Ohio, 417, § 457, 548. 
 Gould V. Kemp. 2 Milne & K. 310, § 30, 
 
 31. 
 Goundie v. Northampton Water Co., 7 
 
 Pa. St. 238, § 529. 
 Gowen v. Shaw, 40 Me. 58, § 281, 286. 
 Graham v. Pierce, 19 Gratt. 38, § 275. 
 Grant v. Poillon, 20 How. U. S. 162, § 385. 
 Granville v. McNeile, 7 Hare, 156, § 45. 
 Graves v. Sawcer, T. Raym. 15; S. C. 1 
 Keb. 38; S. C. 1 Lev. 29. § 335, 
 390. 
 Gravier v. Ivory, 34 Mo. 523, § 447. 
 Gray v. Bates, 3 Strob. 500, § 224. 
 V. Garmon, 2 Hare, 271, § 110. 
 I). Givens, 26 Mo. 303, § 294, 341, 
 
 342, 343. 
 V. Lynch, 8 GiU, 423, § 43. 
 V. Palmer, 9 Cal. 639, § 118, 443. 
 Graydon v. Graydon, 1 McMuUan's Eq. 
 
 63, § 507. 
 Great Falls Co. v. Worster, 15 N. H. 449, 
 
 § 199, 249. 
 Green v. Briggs, 6 Hare Ch. 395; S. C. 12 
 Jur. 326; S. C. 17 L.J. Chanc. 
 323. § 386. 
 r. King, 2 Wm. Bl. 1213, § 69, 71. 
 V. Putnam, 1 Barb. 507, §474, 510, 
 Greenlaw v. Greenlaw, 13 Me. 186, § 65. 
 Greenly v. Hall's Exr., 3 Harr. Del. 9, 
 §350.
 
 TABLE OF CASES. 
 
 XXXIH 
 
 Greenup u. Sewell, 18 Dl. 54, § 515, 531. 
 Greenwood v. Maddox, 27 Aik. G60, $ 54. 
 Greer v. Blancliai-, 40 Cal. 193, § 17, 36. 
 
 V. Henderson, 37 Geo. 1, § 428. 
 Greggs V. Bostwick, 33 Cal. 225, $ 59. 
 Griggs V. Peckham, 3 Wend. 436, ^ 494. 
 Griffin v. Bixly, 12 N. H. 454, § 97. 
 I'. Clark, 33 Barb. 40, § 177. 
 V. Griffin, 10 Ind. 170, § 519 
 V. Griffin, Jr., 33 Geo. 109, $ 503. 
 Griffith V. Phillips, 3 Grant's Cas. 381, 
 
 §527. 
 Griffiths V. Hamilton, 12 Ves. 298, § 46. 
 Griswold v. Johnson, 5 Conn. 365, $ 23, 
 
 199. 
 Grogan v. Vache, 45 Cal. 610, § 96. 
 Gross' Estate, 10 Pa. St. 361, j 110. 
 Grossman v. Lauber, 29 Ind. 621, § 177. 
 Groves v. Groves, 3 Sneed, 188, $ 502. 
 Grute V. Locroft, Cro. Eliz. 287, § 73. 
 Guedici v. Boots, 42 Cal. 452, § 534. 
 Guest V. Opdyke, 31 N. J. Law, 554, $ 100. 
 Guillot V. Dossat, 4 Mart. 203, § 266. 
 Gunnison v. Twitchell, 38 N. H. 62, § 52. 
 Gunter v. Laffan, 7 Cal. 538, $ 165. 
 Guyther v. Pettijohn, 6 Ired. 388, § 313. 
 Guy ton v. Shane, 7 Dana, 498, § 528. 
 
 H. 
 
 Hagar v. Wiswall, 10 Pick. 152, § 437. 
 Haile v. Henrie, 2 Watts, 143, § 120. 
 Hair v. Avery, 28 Ala. 267, § 33. 
 Halford v. Tethdrow, 2 Jones, 393, § 291. 
 HaU V. Fisher, 20 Barb. 448, § 266. 
 V. Henrie, 2 Watts, 144, § 120. 
 V. Page, 4 Geo. 436, $ 95, 349. 
 V. Piddock, 21 N. J. Eq. 314, § 425, 
 
 510, 515. 
 V. Plummer, 6 Ind. 121, § 120. 
 Halsey v. Blood, 29 Pa. St. 322, $ 176. 
 
 V. Norton, 45 Miss. 703, $ 92. 
 Halton V. Earl of Thanet, 2 W. Bla. 1134^ 
 
 $437. 
 Ham V. Ham, 14 Q. B. (U. Canada) 497, 
 $107. 
 V. Ham, 39 Me. 218, $ 517. 
 Hamblett v. Bennett, 6 Allen, 144, $ 104, 
 Hamblin v. Warneckc, 31 Tex. 91, $ 62. 
 Hamersly v. Hamersly, 7 N. Y. Leg. Obs. 
 
 127, $ 527. 
 Hamilton v. Conine, 28 Ind. 640, $ 285. 
 0. Denny, 1 Ball & B. 199, $ 157. 
 V. Morria, 7 Pai. 39, $ 494. 
 
 C. & p.— 3 
 
 Hamm v. Meisenhelter, 9 Watts, 350, $ 69. 
 
 V. Stevens, 1 Vern. 110, § 368. 
 Hammett v. Blount, 1 Swan, 385, $ 168. 
 V. Ledsam, 9 Jur. Prob. 1, 173, 
 $110. 
 Hand v. North, 33 Law Journal Ch. 556, 
 
 $ 11, 23. 
 Handy v. Leavitt, 3 Edw. Ch. 229, $ 508. 
 Hanks v. Enloe, 33 Tex. 627, $ 182. 
 Hannan v. Osborn, 4 Paige, 343, $ 278. 
 Hanner v. Silver, 2 Oregon, 339, $ 487, 
 
 488. 
 Hannou v. Hannah, 9 Gratt. 152, $ 226. 
 Hanson v. WHlard, 12 Me. 145, $ 433, 508. 
 Hapgood y. Whitman, 13 Mass. 465, $211. 
 Hardeman v. Sims, 3 Ala. 747, $ 359, 375. 
 Harden v. Nutt, 4 La. An. 66, $ 143. 
 Harding v. Handy, 11 Wheat, 103, $ 369. 
 V. Harding, 14 Me. 407, $ 65. 
 y. Springer, 14 Me. 407, $ 65. 
 Hardy v. Sprowle, 32 Me. 323, $ 289. 
 Hare v. Fury, 3 Yeates, 13, $ 303. 
 Hargi-ave v. Hargi-ave, 9 Beav. 549, $ 327. 
 Harkins o. Pope, 10 Ala. 499, $ 536. 
 Harlan v. Langham, 69 Pa. St. 238, $ 203, 
 529, 465. 
 V. Stout, 22 Ind. 488, $ 463. 
 Harman v. Gartman, Harper, 430, $ 251, 
 299, 301. 
 V. Kelley, 14 Ohio, 506, $ 465. 
 Harmon v. James, 7 Smedes & M. 119, 
 
 $232. 
 Harris v. Ferguson, 2 Bai. 397, $ 322. 
 V. Fergusson, 16 Sim. 308, $ 20. 
 V. Nichols, Cro. Eliz. 19, $ 80. 
 V. Preston, 5 Eng. 205, $ 528. 
 Harrison v. Barnby, 5 T. E. 249, $ 177, 
 334. 
 V. Barton, 1 Johns. & H. 293, 
 
 $21. 
 V. Belscy, T. Raym. 413, $ 189. 
 V. Botts, 4 Bibb, 420, $ 23. 
 V. Taylor, 33 Mo. 211, $ 292. 
 Hart-u. Fitzgerald, 2 Mass. 509, $ 245, 
 337, 354, 355. 
 V. Marks, 4 Bradf. 161, $ 23. 
 V. Robertson, 21 Cal. 348, $ 343. 
 V. Ten Eyck, 2 Johns. Cli. 108, $ 95. 
 Hart's Devisees v. Uawldns, 3 Bibb, 510, 
 
 $509. 
 Hartford Fire Ins. Co. v. Ross, 23 Ind. 182, 
 
 $218. 
 Ilartman V. Hartman, 59 HI. 49, 103, $ 433, 
 
 457. 
 Harvin v. Hodgo, Dudley, 23, $ 296.
 
 XXXIV 
 
 TABLE OF GASES. 
 
 Harwood v. Kirby, 1 Pai. Ch. 471, § 478. 
 Haskell v. Jones, 24 Me. 223, § 349. 
 Hassani v. Day, 33 Miss. 395, $ 502, 
 Hastings v. Stark, 36 Cal. 126, ^ 361. 
 Hatch V. Hart, 40 N. H. 98, $ 100, 347. 
 Hatheway v. Persons Unlmovm, 32 Me, 
 
 137, § 523. 
 Hauberger v. Boot, 6 "Watts & S. 437, § 169. 
 Hauff V. Howard, 3 Jones Eq. 440, § 118. 
 Haughbaugh V. Honald, 3 Brev. 98, § 398. 
 Haven v. Mehlgarten, 19 111. 95, § 88, 261. 
 Havergall v. Harrison. 7 Beav. 49, § 110. 
 Hawes v. Hawes, 4 Wills, 166, ^ 12. 
 Hawkins v. Everett, 5 Jones Eq. 43, § 110. 
 
 V. Kemp, 3 East, 410, § 28, 45. 
 
 V. Taber, 47 111. 460, $ 512. 
 Hawley v. Clowes, 2 Johns. Ch. 122, i 251, 
 323. 
 V. Soper, 18 Vt. 322, $ 460. 
 Hay V. Estell, 18 N. J. Eq. 252; 19 N. J. 
 
 Eq. 135, $ 502, 525. 
 Haycock v. Haycock, 2 Ch. Ca. 124, § 370. 
 Hayden v. Merrill, 44 Vt. 336, § 271, 276. 
 Haywood v. Judson, 4 Barb. 228, § 543. 
 Hazen v. Burnett, 50 Mo. 507, 6 398, 402. 
 Heath v. Hubbard, 4 East, 110, § 317, 385. 
 Heathe v. Heathe, 2 Atk. 121, § 23. 
 Heatherby v. Weston, 2 Wils. 233, § 341. 
 Heirs of Bryant v. Stearns, 16 Ala. 306, 
 
 §469- 
 Helm V. Franklin, 5 Humph. 403, $ 537. 
 Hellings v. Bird, 11 East, 50, § 233. 
 Hemmingway v. Matthews, 10 Tex. 207, 
 §148. 
 V. Scales, 42 Miss. 1, § 64, 
 65. 
 Hemmick v. High, 2 Watts, 159, $ 414. 
 Henderson v. Allen, 23 Cal. 519, § 295. 
 
 V. Cotter, 15 Upper Canada 
 
 Q. B. 345, § 292. 
 V. Eason, 17 Ad. & El. N. S. 
 701, 718, $ 274, 269, 275. 
 Hendricks v. Stark, 37 N. Y. 110, § 98. 
 Hennecker v. Turner, 4 Barn. & C. 157, 
 
 §346. 
 Henry v. Means, 2 Hill S. C. 332, $ 375. 
 Henshaw v. Clark, 2 Root, 103, § 383. 
 Herbert v. Smith, 6 Lans. 493, § 439, 528. 
 Heron v. Marshall, 5 Humph. 443, § 376. 
 V. Walsh, 3 Grant Ch. (Upper C.) 
 606, § 23. 
 Herr v. Herr, 5 Pa. St. 430, $ 483, 528, 
 
 530. 
 Herrin v. Eaton, 13 Me. 196, $ 266. 
 Herehey v. Clark, 27 Ark. 528, $ 250, 295. 
 
 Herskell v. Bushnell, 37 Conn. 43, § 100. 
 
 Her tell v. Bogart, 9 Paige, 57, 58, § 46. 
 Hesseltme v. Haswell, 30 Me. 241, § 95. 
 
 V. Stockwell, 30 Me. 241, o 95. 
 Hester v. Hester, 2 Ired. Eq. 330, § 109. 
 Hewett V. Templeton, 48 111. 369, § 52. 
 Heydon v. Binney, 7 Gray, 416, §, 213. 
 V. Heydon, 1 Salk. 392, § 213. 
 Hibbard v. Foster, 24 Vt. 546, § 343, 356. 
 Hickenbotham v. Blacldege, 54 111. 316, 
 
 $467. 
 Hickox V. Parmlee, 21 Conn. 86, § 186. 
 Hicks V. Cochran, 4 Edw. Ch. 107, § 72. 
 
 V. Eogers, 4 Cranch, 165, § 341. 
 Higbee v. Rice, 5 Mass. 350, § 91, 225, 291. 
 Higginbottom v. Short, 25 Miss. 160, § 433. 
 Higgins V. Johnson, 20 Tex. 394, § 143, 
 144, 148. 
 V. Riddell, 12 Wis. 587, § 104. 
 V. Thomas, 8 Q. B. 908, § 309. 
 Hihn V. Peck, 18 Cal. 640, § 251. 
 HUl V. Dey, 14 Wend. 204, § 522,. 
 V. Fulbrook, 1 Jac. 574, § 512. 
 V. Gibbs, 5 Hill. 58, § 331. 
 V. Hill, 43 Pa. St. 521, § 88. 
 V. Taylor, 22 Cal. 194, § 327. 
 Hillard v. Scoville, 52 111. 449, § 441, 
 Hillhouse v. Mix, 1 Root, 247, § 341. 
 Hinds V. Terry, Walker, 80, § 287. 
 Hines v. Trantham, 27 Ala. 361, § 348. 
 Hinkley v. Greene, 52 111. 230, 233, § 224. 
 Hinman v. Leavenworth, 2 Conn. 244, 
 
 § 199, 216. 
 Hitchcock V. Skinner, 1 Hoff. Ch. 28, § 439, 
 
 510. 
 Hite V. Thompson, 18 Mo. 461, § 467. 
 Hobbs V. Hatch, 48 Me. 55, § 353. 
 
 V. Memphis Ins. Co. 1 Sneed, 444, 
 §213. 
 Hobson V. Sherwood, 4 Beav. 185, § 455, 
 508. 
 D.Todd, 4 T. R. 73, §297. 
 Hodgdon v. Shannon, 44 N. H. 577, § 226. 
 Hodges V. Grant, 36 L. J. N. S. Chan. 935; 
 
 L. R. 4 Eq. 140, § 23. 
 Hoffar V. Dement, 5 Gdl, 137, § 82. 
 Hoffman v. Beard, 22 Mich. 59, § 502. 
 
 V. Etna Ins. Co., 32 N. Y. 411, 
 
 §218. 
 V. Newhaus, 30 Tex. 633, § 60. 
 V. Ross, 25 Mich. 176, § 506. 
 V. Stigers, 28 Iowa, 307, § 66. 
 Holbrook v. Finney, 4 Mass. 568, § 39. 
 Holcomb V. Coryell, 3 Stock. (11 N. J.) 
 548, § 199, 205, 207.
 
 TABLE OF CASES. 
 
 XXXV 
 
 Holder v. Coates, 1 Moody & M. 112; 22 E. 
 
 C. L. 485, $ 97. 
 Holderneus v. Shackels, 8 Barn. & C. 612, 
 
 $ 379, 386. 
 Hole I'. Thomas. 7 Ves. 589, $ 251, 323. 
 Holland v. Fuller, 13 Ind. 195, $ 117, 118. 
 
 V. Weld, 4 Greeul. 255, $ 179. 
 HoUingworth v. Sidebottom, 3 Sim. 620; 
 
 S. C. 7L. J. (N. S.) Ch. 2, §469. 
 HoUy t'. Hawley, 3D Vt. 534, $ 229. 
 Holmes i-. Bsll, 2 Beav. 298, §. 327. 
 
 V. McGee, 27 Mo. 597, § 208. 
 V. Seeley, 17 Wend. 75, § 294, 342. 
 V. Sprowl, 31 Me. 76, § 353. 
 Holroyd v. Holroyd, 7 W. R. 426, $ 118. 
 Holt V. Robertson, 1 McMullen Eq. 475, 
 
 9 276. 
 Holton V. Banns, 40 Miss. 491, $ 289. 
 Hooke V. Hooke. 6 La. 474, § 467. 
 Hooper v. Hall, 30 Tex. 154, § 348. 
 
 V. Lusby, 4 Camp. 66, 6 383. 
 Hopkins v. Forsytli, 14 Pa. St. 34, § 379. 
 V. Hopkins, 1 Atk. 590, $ 482. 
 V. Toel's Heirs, 4 Humph, 46, 
 $453. 
 Hopper V. Fisher, 2 Head, 253, $ 428. 
 Horn V. Tufts, 39 N. H. 483, § 54. 
 Horncastle v. Charleswortli. 11 Sim. 315, 
 
 §439. 
 Home V. Howell, 46 Ga. 9, § 224. 
 Hornfager v. Hornfager, 6 How. Pr. 279 
 
 498. 
 Horsfall v. Ford, 5 Bush. 614, $ 466. 
 Horton v. Sledge, 29 Ala. 498, § 511. 
 Hosford V. Mcrwin. 5 Barb. 62, § 439, 449. 
 Houghton V. Houghton, 11 Sim. 491, § 19, 
 
 118. 
 House V. Fuller, 13 Vt. 165, § 243. 
 Hovey v. Ferguson, 18 Grant's Ch. 498, 
 
 §509. 
 Howard 1;. Duke of Sussex, Dy. 79 h, § 529. 
 V. Priest, 5 Met. 582, § 117. 
 V. Snelling, 28 Ga. 473, § 349. 
 V. York, 20,Tex. C70, § 140. 
 Howe V. Blandcn, 21 Vt. 321, § 458. 
 Howery v. Helms, 20 Gratt. 1, § 546. 
 Howey v. Goings, 13 111. 107, § 450, 512. 
 Hoxie V. Carr, 1 Siiinn. 174, § 112, 120, 512. 
 Uoxsie V. Ellis, 4 It. I. 124, § 472. 
 Uoyle V. Huson, 1 Dev. 318, § 446. 
 0. Jones, 35 Geo. 40, § 26. 
 V. Stow, 2 Dev. .321, § 341. 
 Hoyt V. Kimball, 49 N. II. 322, § M2. 
 Hubbard v. Hubbard, 15 Mo.. 198, § 320. 
 V. Wood, 1 Sncod. 280, § 242. 
 
 Huff V. McDonald, 22 Geo. 161, § 273, 373. 
 Hughes V. Devlin, 23 Cal. 507, § 435, 443. 
 Hughcy V. Barrow, 4 La. An. 249, § 133, 
 
 133. " 
 Hughson V. Cookson, 3 Youuge & C. 578, 
 
 §370. 
 Humbert v. Trinity Church, 24 Wend. 
 
 604, § 235. 
 Humplirey v. Foster, 13 Gratt. 657, § 512. 
 t). Taylour, Arab. 136; 1 Dick, 
 161, § 28. 
 Hunnewell v. Taylor, 6 Cush. 474, § 446, 
 460. 
 V. Taylor, 3 Gray, 112, §437. 
 Hunt V. Benson, 2 Humph. 459, § 114. 
 V. Chambers, 1 Zabr. 023, § 289. 
 r. Hazelton, 5 N. H. 219, §446, 497. 
 V. Eousmaniere, 2 Mason C. C.244, 
 
 §44. 
 V. Wright, 47 N. H. 399, § 442. 
 Hunter v. Brown, 7 B. Monr. 285, § 463, 
 513, 522. 
 V. Miller, 11 Ind. 356, § 519. 
 Huntress v. Tiney, 40 Me. 83, § 500. 
 Hurd V. Darling,' 14 Vt. 214, § 100, 306. 
 Husband v. Davis, 10 Com. B. 045, § 177, 
 
 178. 
 Hustler v. Tilbrook, 9 Sim, 368, § 110. 
 Huston i\ Curl, 8 Tex. 242, § 143. 
 Hutchinson v. Chase, 39 Me. 514, § 249. 
 y. Townsend, 2 Keen, 675, 
 §370. 
 Hutton V. Williams, 35 Ala. 504, § 548. 
 Hyatt V. Pugsley, 23 Barb. 303, § 491. 
 Hyde v. Stone, 9 Cow. 230, § 303. 
 Hynes v. Oldham, 3 Monr. 206, § 483. 
 
 Ihmsen y. Ormsby, 32 Pa. St. 200, § 530. 
 Ingalls V. Arnold, 14 Q. B. (Upper Can.) 
 
 269, § 23. 
 Ingersoll v. Trucbody, 40 Cal. 612, § 145. 
 Innesv. Stephenson, 1 Moody tV U. 145. 
 
 § 17S. 
 Innis V. Crawford, 4 Bibb, 241, § 341. 
 In Ilo Gadbury, 32 Law J. Rep. N. 8. 
 Ch. 780, § (;8. 
 Shaver, 31 (} IJ. Upper Canada. 
 
 605, § 65. 
 Wylde, 2 De'l M. & G. 724. § 70. 
 Ireland t». Itittlc, 1 Atk. 542, § 397. 402. 
 Irvin V. Divine, 7 Monr, 24^, § 543. 
 Irvine v. Hamlin, 10 Surg. A li. 221, 
 §271.
 
 XXXVl 
 
 TABLE OF CASES. 
 
 Irwin's Adm'r v. Brown's Ex'r, 35 Pa. 
 
 St. 3C2, § 331, 333. 
 Israel v. Israel, 30 Md. 120, $ 258. 
 Ivory V. Delore, 26 Mis. 505, § 519. 
 Izard V. Bodine, 3 Stock, 404, $ 273, 275, 
 . 303. 
 
 Jacobs' Appeal, 23 Pa. St. 477, § 479. 
 Jacobs ». Seward, L. R. 4 C. P. 329; S. 
 C.L.R.5H.L. 472,^299, 301. 
 Jackson v. Blodgett, 16 Johns. 178, §206. 
 V. Bradt, 2Cai. 173, §341. 
 V. Brownell, 1 Johns. 267, §100. 
 V. Christman,4Wend.277, §398. 
 V. Coggins, 29 Geo. 403, § 26. 
 V. Deese, 35 Geo. 88, §443. 
 V. Edwards, 7 Paige Ch. 391, 
 
 §474,547. 
 V. Edwards, 22 Weud. 512, § 411, 
 
 474. 
 V. GiTen, 16 Johns. 170, § 44. 
 V. Harder, 4 Johns. 212, § 398. 
 V. Ingraham, 4 Johns. 163, § 6. 
 V. Kelley, 2 Ves. Sr. 285, § 109. 
 V. Livingston, 7 Wend. 141, §96, 
 
 403. 
 V. McConnell, 19 "Wend. 178, § 73, 
 
 74 
 V. Meyers, 14 Johns. 355, § 465, 
 
 528. 
 V. Moore, 6 Cow. 723, § 172. 
 V. Paxson, 25 Ga. 36, § 183. 
 V. Pierce, 10 Johns. 417, § 478. 
 V. Richmond, 4 Johns. 4-3, § 359. 
 V. Richtmyer, 13 Johns. 376, 
 
 §535. 
 V. Smith, 13 Johns. 406, § lOii, 
 
 224. 
 V. Stanford, 19 Geo. 15, § 119. 
 V. Stevens, 16 Johns. 114, § 71, 
 
 211. 
 V. Streeter, 5 Cow. 530, § 152. 
 V. Vosburgh, 9 Johns. 270, §393, 
 
 400. 
 V. Waters, 12 Johns. 3.')5, § 6. 
 V. Whitbeck, 6 Cow. 633, § 242. 
 V. Woolsey, 11 Johns 446, §546. 
 Jaggers v. Binnings, 1 Stark, 04, § 169, 333. 
 James v. Portman, Owen, 102, § 190. 
 
 V. Rowan, 6 S. & M. 393, § 14, 39. 
 V. Stratton, 32 111. 202, § 213. 
 Jamison v. Graham, 57 111. 9r, § 295. 
 Jarretfci). Johnson, 11 Gratt. 327, § 105. 
 Jarvis v. Brooks, 7 Foster, 67, § 117. 
 
 Jefcoati). Knotts, 13 Rich. 50, § 234. 
 Jeffers v. Radcliff, 10 N. H. 246. § 199. 
 Jeflfereya v. Small, 1 Vern. 217, §16, 19, 21. 
 Jefferys v . Smith, 1 Jacob & W . 302, § 327. 
 Jenk V. Howland, 3 Gray, 537, §528. 
 Jenkins v. Dalton, 27 Ind. 78, § 496. 
 
 V. Van Schaack, 3 Paige Ch. 
 245, §447,485. 
 Jennings w. Jennings, 2 Abb. Pr. 6, §494, 
 
 495. 
 Jenour v. Jenour, 10 Ves. 562, § 23. 
 Jewett D. Foster, 14 Gray, 495, § 96. 
 
 V. Scott, 19 Tex. 563, §525. 
 Johnson v. Brown, 11 Foster, 410, § 372. 
 V. Goodwin, 27 Vt. 291, § 347. 
 V. Hart, OW. & S. 319, §70. 
 V. Kirkhoff, 35 Mo. 291, § 528. 
 V. Mcintosh, 8 Wheat. 543, § 5. 
 V. Richardson, 33 Miss. 4G3,§ 55. 
 V. Stevens, 7 Gush. 433, § 189, 
 
 207. 
 V. Toulmin. 18 Ala. 54, § 238. 
 V. Wilson, Willcs, 248. §395, 397. 
 Johnstone v. Baber, 39 E. L. & Eq. 189; 
 
 23 L. J. Ch. 890, § 80. 
 Jones V. Brown, 36 E. L. & E. 304, § 245, 
 
 317. 
 Jones' Devisees «. Carter, 4 Hen. & M. 
 
 190, § 412. 
 Jones V. Chandler, 40 Ind. 588, § (55. 
 V. Chiles, 8 Dana, 103. § 299. 
 V. Felch, 3 Bosw. 04, § 340. 
 V. Gundrim, 3 Watts & S. r,34, § 334. 
 V. Hall, 10 Sim. 500, § 12. 
 V. Harraden, 9 Mass. 540. § 2S0. 
 V. Henry, 3 Litt. 48, § 376. 
 V. Jones, 1 Call 469, § 25. 
 V. Lowell, 35 Me. 540, § 353. 
 V. Maffet, 5 Serg. & R. 523, § 28. 
 V. Panaud, 1 Cal. 488, § 149. 
 V. Quinnipiack Bank, 20 Conn. 45, 
 
 § 359. 
 V. Stanton, 11 Mo. 433, § 154. 
 V. Yates, 9 Barn. & C. 532, § 178. 
 Jonsonu. Noble, 24 Mo. 252, § 457. 
 Jope V. Morshead, 6 Beav. 213, § 439. 
 Jordan v. McKenzie, 30 Miss. 32, § 375, 
 V. Thornton, 7 Geo. 520, § 375. 
 
 K. 
 
 Kane v. Parker, 4 Wis. 123, § 522, 523, 525. 
 V. Bock River Canal Co. 15 Wis. 
 180, § 483.
 
 TABLE OF CASES. 
 
 XXXVll 
 
 Kaehaw c. Kashaw, 3 Col . 322, $ 132, 445. 
 Keating v. Cassells, 24 Q. B. (Upper C.) 
 
 314, $ 12. 
 Keay v. Goodwin, 16 Mass. 1, $ 240, 301. 
 Keeler v. Niagara Fire Ins. Co. 16 Wis. 
 
 536, $ 218. 
 Keeton v. Keeton, 20 Mo. 544, $ 378. 
 Kfller V. Auble, 58 Pa. St. 410, ^ 154. 
 Kellersberger v. Kopp, 6 Cal. 565, § 54. 
 Kellogg V. Kellogg, 6 Barb. 131, ^ 342. 
 Kellumw. Emerson, 2 Curtis C. C. 79, 
 
 $355. 
 Kelly V. Kelly, 41 N.H. 502, $ 454. 
 Ketcbum v- Walsworth, 5 Wis. 95, § 65, 
 
 73. 
 Kemble v . Farren , 3 Car . & P . 623, 5 1G9 . 
 Kennedy v. Kennedy, 43 Pa. St. 417, $ 402. 
 Kennedy's Heirs t). Duncan, Hardin, 365, 
 
 $375. 
 Kennedy v. Scovil, 12 Conn. 327, $ 2.51, 
 
 323. 
 Kenniston v. Leigbton, 43 N. H. 312, 
 
 §299. 
 Kenwortby v. Ward, 11 Hare, 196, $ 11. 
 Kerley v. Kerley, 13 Allen, 287, § 52. 
 Kerr v. Connell, Ber. N. B. 133, $ 94. 
 Kestor v. Stark, 19 111. 329, § 463. 
 Kew V. Bowse, 1 Vern. 353, $ 23. 
 Keyscr u. Evans, 30 Pa. St. 509. § 242. 
 Kidder v. Rixford, 16 Vt. 172, $ 2G1. 
 Kilgore v. Wood, 56 Me. 155, § 311, 316. 
 Kimball V. Boynton, 22 Me. 291, § 179. 
 V. Gearbart, 12 Cal. 47, 5 88. 
 V. Wilson, 3 N H. 9i;, $ 179. 
 Kimberly v. Patcbin, lii N.Y. 330, $252. 
 Kiugt). Howard, 27 Mo. 21, $ 451. 
 King V. Leacb, 2 Hare, 59, $ 44. 
 
 V. Manning, 1 Conn. 619, $214. 
 V. Phillips, 1 Lans. 435, $ 299. 
 V. Reed, 11 Gray, 490, $541. 
 V. Wi.o. 43Cal. 633,$ 151. 
 Kingdon v. Bridges, 2 Vern. 67, $ 68. 
 Kingsley V. Kingsley, 39 Cal. 665, $ 54. 
 Kirk V. Clark, Pre. Cb. 276. $ 36s . 
 
 V. Kirk, 3 Dana, 54, $ 337. 
 Kirkbam v. Dupont, 14 Cal. 559, $ 176. 
 Kirkpatrick v. Mathiot,4 Walts & S. 251, 
 $159. 
 V. Sim, 5 Pat. Scotch App. 
 52-,, $118. 
 Kirkscy v. Fike, 29 Ala. 208, $ 250. 
 Kistner v . Sindlingcr, 33 Ind. 117, $ 120. 
 Kitchen v. Buckley, 1 Lev 109; S. C. 1 
 
 Sid. 157, $ 333. 
 Kitchen v. Shocta, 1 Ind. 188, $ 437, 522. 
 
 Kittredge r. Locks, 17 Pick. 247, $ 224. 
 Kline v. Jacobs, 63 Pa. St. 57, $ 2?6. 
 Knight w. Burton, 6 Mod. 231, $ 395. 
 
 V. Coates, 1 Ir. L.R. 57, $ 312, 317. 
 V. Gould, 2 Mylno & K. 299, 303, 
 $46. 
 Knowlton v. Kccd, 38 Me. 246, $ 379. 
 Knox I'. Silloway, 1 Fairf. 201, $ 166. 
 Kobn V. Ashenaucr, 17 Cal. 581, $ 144. 
 Koningsberg v. Launitz, 1 E. D. Smith, 
 
 215. $ 245. 
 Kurtz V. Hibner, 55 111. 521, $ 510. 
 
 Lacy V. Overton, 2 A. K. Marsh, 442, 
 
 $397. 
 Ladd V. Billings, 15 Mass. 17, $289. 
 V. Hill, 4Vt. 171, $310. 
 V. Perley, 18 N. H. 396, $ 459. 
 Lahififee v. Smart, 1 Bailey, 192, $ 375. 
 Lair v. Hunsicker, 2S Pa. St. 123, $ 528. 
 Lake v. Croddock, 3 P. Wms. 159, $ 20. 
 V. Gibson, 1 Eq. Cas. Abr. 294, $ 19, 
 20. 
 Lake v. Jarrett, 12 Ind. 395, $ 433, 543. 
 Lambu. Burbank, ISawC. C. 2S7,$501. 
 u. Danforth, 5d Me. 324, $ 336. 
 V. Wakefield, 1 Saw C. C. 256, $ 199. 
 Lambert v. Blumentbal, 20 Mo. 471, $ 501. 
 Lambert v. Rogers, 2 Mer. 489, $ 247. 
 Lancaster V. Seay, 6Rich. Eq. Ill, $463. 
 Lane y. Dobyns, 11 Mo. 107, $ 331. 
 
 V. Tyler, 49 Me. 252, $ 182. 
 Lane v. Dcbeiiliam, 17 Jur. 1005, $44. 
 Langdon v. Rowlstoii, 2 Tannt. 445, $ 377. 
 Langendyck v. Burhans, 11 Johns. 461, 
 
 $303. 
 Lang's Heirs v. Waring, 25 Ala. 625, $ 117, 
 
 118. 
 Lansing v. Guluck, 26 How.Pr. 252, $ 457. 
 Lapeyre v. Paul, 47 Mo. 590, $ 230. 
 Larkinst). Larkins, 3 Bos. & Pul. 16, $28 
 Larkin v. Mann, 2 Paige 27, $ 494. 
 Larman v. Huey's Heirs, 13 B. Mour. 
 
 44s, $ 162. 
 Larrud »'. lienshaw, 37 Mo. 461, $ 4,')7, 
 
 459. 
 Lashbrook v. Cock, 2 Mer. 70, $ 23. 
 Last V. Dinn, 28 L. J. Ex. 94, $ 346. 
 Latriellev. Dorlequo, 35 Mo. 233, $ 528. 
 Lavioletto )) . Martin, 11 L. C. 11. 254, 
 
 $132. 
 Law V. Patterson, 1 Watts its. 191, $224, 
 
 230, 447.
 
 XXXVlll 
 
 TABLE OF CASES. 
 
 Lawi-ence V. Ballou, 37 Cal. 518, ^ 96. 
 
 V. Burnham, 4 Nov. 368, $ 216. 
 V. Hebbard, 1 Bradf. 252, $ 110. 
 V. Montgomery, 37 Cal. 1S9, 
 § 336. 
 Lawson v. Cunningham, 21 Geo. 459, 
 $ 229. 
 V. Eipley, 17 La. 251, $ 134. 
 Leach v . Beatties, 33 Vt. 193, $ 226, 321. 
 Leak v. McDowall, 32Beav. 30, $ 32. 
 Ledsome v. Hickman, 2 Vern. 611, $ 28. 
 Leggett V. Hunter, 19 N. Y. 4'j6, $ 45. 
 Lentz V. Lentz, 2 Phila. 117, 5 38. 
 Lewen v. Cox, Cro. Eliz. 695, $ 23. 
 Leavet'u. Sherman, 1 Root, 159, $ 3'j9. 
 Le Blanc V. Lo Blanc, 20 La An. 207, 
 
 $ 137. 
 Le Breton v . Nouchet, 3 Mart 60, § 132 . 
 Ledbetteru. Gash, Sired. 462, ^ 433, 
 
 517. 
 Lee t). Fox, 6 Dana, 171, ^ 151, 156, 160. 
 
 V. Lindell, 22 Mo. 202, § 411, 473. 
 Lefavour v. Homan, 3 Allen, 356, $ 225. 
 
 242. 
 Lefevrev, Laraway, 22 Barb. 173, $ 120. 
 V. Laraway, 22 Barb. 175, § 548. 
 Lefevre's Appeal, 69 Pa. St. 125, $ 120. 
 Leigh V. Shepherd, 2 Bro. & B. 465; 5 
 
 Moore, 297, § 78, 174, 334. 
 Le Jeune v. Le Jeune, 2 Keen, 701, § 110 . 
 Leonard v. Sussex, 2 Vern. 527, $ 4:2. 
 Lessee of Merritt v. Home, 5 Ohio St. 
 
 303, $54S. 
 Lloyd V. Conover, 1 Dutcher, 51, ^ 411 . 
 
 V. Lynch, 23 Pa. St. 410, § 158. 
 Loring v . Bacon 4 Mass. 576, § 261 . 
 Lessee of Foster v. Ex'r of Dugan, 8 Ohio 
 
 106, § 528. 
 Lessee of White ii. Sayre, 2 Ohio, 112, 
 
 § 201. 
 Levi V. Karrick, 13 Iowa, 350, $ 260. 
 Leverton v. Waters, 7 Cold. 23, § 439. 
 Lewis V. Christian, 40 Geo. 188, § 324. 
 V. Johns, 24 Cal. 102, ^ 141. 
 V. Knight, 3 Litt. 225, §, 359. 
 V. Lewis, 18 Cal. 0,9, §140. 
 V. McFarland, 9 Cranch, 151, § 294 
 V. Moffatt, 11 111. 392, § 2&0. 
 V. Nelson's Appeal, 67 Pa. St. 1G9, 
 
 §278. 
 V. Knight, 3 Litt. 223, §288, 339. 
 V. Bobinson, 10 Watts, 354, § 15'J. 
 Lick V. O'Donnell, 3 Cal. 59, § 93, 295. 
 Lime Rock Bank v. Phettleplace, 8 R. I. 
 59, § 117. 
 
 Linton v. Wilson, 1 Kerr, 223, § 297,305. 
 Liscomb v. Root, 8 Pick. 377, § 015. 
 Li-t V. Hornbrook, 2 West Va. 340, § 256. 
 Lister v. Lister, 3 Y. &C. Ex. 544-6. § 522, 
 
 525. 
 Litchfield I). Cudworth, 15 Pick. 23, § 74. 
 Livingston v. Clarkson, 4 Edw.Ch. 597, 
 $525. 
 V. Ketcbum, 1 Barb. 597, 
 
 § 434,408. 
 V. Lynch, 4 Johns. Ch. 593, 
 § S8. 
 Littlewood v. Green, 8 L. J. Ex. 95; 4 
 
 Mees. & W. 229, § 24. 
 Lockhart v. John, 7 Pa. St. 139, § 528. 
 V. Powers, 2 Watts, 372, § 45y. 
 Lobdell V. Stowell, 37 How. Pr.93; S.C. 
 
 51N.Y. 70, §252, 319. 
 Lodge -y. Patterson, 3 Watts, 77, §223, 
 
 230. 
 Long V. Dollarhide, 24 Cal. 222. § 404. 
 V. Long, 1 Watts, 266, § 507. 
 V. Mulford, 17 Ohio St. 434, § 463, 
 V. Stapp, 49 Mo. 508, § 224. 
 Longfellow v . Quinsby, 29 Me. 196, $ 179 
 LongwcU V. Bentley, 3 Grant's Cas. 177, 
 
 § 235, 447. 
 Loomis V . Pingree, 43 Me. 299, § 176. 
 
 V. Riley, 24 111. 307, § 478, 479, 
 483 
 Lord Brook v. Lady Hertford, 2 P. 
 
 Wms. 619, § 423, 457. 
 Lord V. Hough, 43 Cal. 5^:4, § 148. 
 V. Tyler, 14 Pick. 163, § 326. 
 V. Ward'e, 3 Biiig. N. C. 630, (4 
 Scott, 402), §247. 
 Lorimcr ('. Lorimer, 5 Madd. Ch. 363, 
 
 §512. 
 Loring J). Bacon, 4 Mass. 575, § 87. 
 Lothrop w. Arnold, 25 Me. 140, § 353. 
 Louvalle v. Menard, 1 Gilm. 39, § 509. 
 Love v. Robertson, 7 Tex. 6, §142, 143. 
 Lowv. Holmes, 17N. J. Eq. 150, §327, 
 478, 514. 
 V. Mumford, 14 Johns. 426, § 366. 
 Lowe V. Brooks, 23 Geo. 325, § 35. 
 
 V. Miller, 3 Gratt. 213, § 308, 312. 
 V. Morgan. 1 Bro. C.C.'SG], §372. 
 V. Phillips, 21 Ohio St. 657, §527. 
 Luther i;. Arnold, 8 Rich. 26, § 263. 
 Lucas V. Delacour, 1 M.& Sel. 249, § 169. 
 V. King, 2 Stock. Ch. 230, § 424, 
 
 502. 
 V. Wasson, 3 Dev. 398, § 317. 
 Lucet 1). Beekman, 2 Cai. 385, § 48j.
 
 TABLE OF CASES. 
 
 XXKIX 
 
 Lndlow V. Cooper, 4 Ohio St. $ 117. 
 Lupton V. White, 15 Ves. 442, $95. 
 Lux V. Hoff, 47 111. 427, $ G5. 
 Lynch v. Baxter, 4 Tex. 431, $404. 
 Lyman v. Hale, 11 Conn. 177, $ 97. 
 Lyster i-. Dollaud, 1 Ves. Jr. 431, $ 19, 32. 
 V. Kirkpatrick, 26 Q. B. U. C. 217, 
 $15. 
 
 M. 
 
 McA'liater v. Montgomery, 3 Hayw. 04, 
 
 $118. 
 McArthur c. Lane, 15 Me. 246, $337. 
 McCabe v. Hunter's Heirs, 7 Mo. 356, 
 $453. 
 V. Mazzuchelli, 13 Wis. 481, vS55. 
 McCallum i». Boswell, Upper Canada. 2 Q. 
 
 B. 343, $ 292. 
 McCann v. Brown, 43 Geo. 386, $543. 
 McCaul V. Kilpatrick. 4(5 Mo. 434, $ 93. 
 McClary v. Bixly, 36 Vt. 254, $ 54. 
 MeClellan v. Cox, 36 Me. 101, $ 169. 
 MeClinticf. Manns, 4 Munf. 331, $472. 
 McClung V. Ross, 5 Wheat. 116, $ 241. 
 McClure v. McClure, 14 Pa. St. 136, $ 529. 
 McClurken v. McClurken,46 111. 327, $55. 
 McConnell v. Carey, 48 Pa. St. 349, $398. 
 
 V. Kibbe, 43 111. 12, $ 43l! 
 McCormick v. Bishop, 28 Iowa, 233, $87. 
 McCourtney v. Fortune, 42 Cal. 387, $519. 
 McCurdy v. Canning, G4 Pa. St. 40, $ 73, 
 
 74, 75. 
 McDermott v. French, 15 N. J. Eq. 80, 
 
 $72. 
 McUermot v. Lawrence, 7 S. & 11. 441, 
 
 $120. 
 McDonald v. Crandall. 43 111. 236, $ 52. 
 V. Trafton, 15 Me. 225, $ 302. 
 McDougall V. McDougall, 14 Grant's Ch. 
 
 2G7, $ 478. 
 McEldery v. Flannegan, 1 H. & G. 308, 
 
 $289. 
 McFaddent). Haley, 2 Bay. 457, $ 342. 
 McFarland v. Hall, 17 Tex. 676, $ 519. 
 V. Stone, 17 Vt. 175, $ 378. 
 McGavrell v. Murpliy, 1 Hilt. 132, $ 253. 
 McGill V. Ash, 7 Pa. St. 397, $ 209, 300. 
 McGJhoray v. Evans, 27 Cal. 90, $433. 
 McGowan v. Morrow, 3 Code R. 7, $ 490. 
 McGregor v. McGregor. 1 DeG. E. & J. 
 63,$ 11. 
 V. Reynolds, 19 Iowa, 228, 
 $535. 
 
 McKee v. BaUey, 1 1 Gratt. 346, $ 205, 207. 
 V. Straub, 2 Binn, 3, $ 497. 
 V. Wilcox, 11 Mich. 360, $ 55. 
 McKenna"s Succession, 23 La. An. 369, 
 < $ 132. 
 
 I McKeon v. Bisbee, 9 Cal. 142, $ 435. 
 I McLain v. Van Winkle, 46 111. 406, $543. 
 j McLellan v. Cox, 36 Me. 95, $ 883. 
 ! V. Jenne.ss, 43 Vt. ls6, $ 297. 
 
 McLendon v. Hooks, 15 Geo. 533, $ 324. 
 McLeran v. Benton, 31 Cal. 29, $ 92. 
 McMahon v. BurchcU, 2 PhUl. 134, $274. 
 V. McMahan, 13 Pa. St. 37C, 
 $ 398, 412. 
 McMasters v. Carothers, 1 Pa. St. 325, 
 $447. 
 V. The Weschester Mutual 
 Ins. Co., 25 Wend. 37!), $ 21S. 
 McMechan u. Griffing. 9 Pick. 537, $ 213. 
 McMeekin v. Brummet. 2 Hills Ch. 643, 
 
 $512. 
 McPherson v. Snowden, 19 Md. 230, $ 11. 
 V. Seguiue, 3 Dev. 154, $ 298, 
 397. 
 McQuade v. Whaley, 31 Cal. 531, $ 50. 
 McQueen v. Farquhar, 1 Ves. 475, $ 41-7. 
 V. Fletcher, 4 Rich. Eq. 152. 
 $ 535. 
 McWhorter v. Gibson, 2 Wend. 445, $ 508. 
 Macy V. DeWolf, 3 Wood & M. 193, $37!i. 
 Magnay v. Edwards, 13 C. B. 479; S. C. 
 
 22 L. J. C. P. 170, $ 33G. 
 Magruder r. Bowie, 2 Cranch C. C. 571, 
 
 $379. 
 Magruder's Trustee v. Bowie, 2 Crancli 
 
 C. C. 577, $ 387. 
 
 Mahoney v. Middleton, 41 Cal. 52, $ 196. 
 
 V. Middleton, 41 Cal. 54, $ 293. 
 
 V. Van Winlde, 21 Cal. 582, 
 
 $172. 
 
 Mallet V. Foxcroft, 1 Stoi-y C. 475, 
 
 $529. 
 Manaton v. Squire, 2 Freeman, 2G, $ 423. 
 V. Squire, 2 Ch. Cas. 237, $ 433. 
 Manchester v. Doddiidge, 3 Ind. 360, 
 
 $ 166, 234. 
 Mauclc V. Mauck, 54 111. 281, $ 117. 
 Mandcville v. Solomon, 39 Cal. 133, $156. 
 Manly v. Pettec, 38 111. 131, $ 3JS, 415. 
 Manners v. Manners, 1 Green. Ch. 385, 
 
 $ 502. 
 Manning v. Hoir, 18 Iowa, 11, $ 534. 
 Mantlcr v. Wollington, Cro. Jac. IGG, 
 
 $ .341. 
 Marcy v. Mai'cy, 6 Mot. 371, $ 224, 301.
 
 TABLE OF CASES. 
 
 Mariner v. Saunders, 5 Gilm. 124, ^ 65. 
 Mark v. Mark, 9 Watts, 411, $ 459. 
 Marr v. Gilliam, 1 Cold. 488, § 241. 
 Marshall v. Barr, 35 111. 106, $ 53. 
 
 V. Crehore, 13 Met. 464, j 450, 
 
 515. 
 V. Crows, Adm'r, 26 Ala. 279, 
 
 $426. 
 V. Trumbull, 28 Conn. 185, 
 ^ 199. 
 Marsteller v. McClean, 7 Cranch, 158, 
 
 $375. 
 Marston v. Ward, 35 Tex. 798, $ 458. 
 Martin v. Crompe, 1 Ld. Kaym. 340. 
 $346. 
 V. Jackson, 27 Pa. St. 504, $ 69. 
 V. KnowUys, 8 T. E. 145, $ 323. 
 V. Quattlebam, 3 McCord, 205, 
 
 $326. 
 V. Smith, 5 Bin. 16, $ 23. 
 Martindale v. Alexander, 26 Ind. 105, 
 
 $ 498, 504, 510. 
 Martyn v, KnowUys, 8 T. R. 145, $ 251, 
 
 266, 297. 
 Marvin v. Titsworth, 10 Wis. 320, $ 483, 
 
 522. 
 Mason v. Clarke, 17 Beav. 126, $ 26. 
 V. Finch, 1 111. 495, $ 295. 
 V. Norris, 18 Grant's Ch. 500, 
 $ 183, 323. 
 Massey v. Mclbvain, 2 Hill's Ch. 424, 
 $402. 
 V. Massey, 4 H. & J. 144, $ 522. 
 Masters v. Dunn, 30 Miss. 268, $ 376. 
 
 V. PoUie, 2 Roll, Rep. 141, $ 97. 
 Masterson v. Finnegan, 2 R. I. 318, $418. 
 Matlock V. Bigbee, 34 Mo. 356, $ 547. 
 
 V. James, 2 Beas. Ch. 126, $ 117. 
 V. Matlock, 5 Ind. 403, $ 117. 
 Matter of Blaushard, 2 Barn. & C. 244, 
 $390. 
 Harding, 3 Ired. 322, $ 479. 
 Marsac, 15 How. Pr. 383, $ 457. 
 Shipperly, 44 Barb. 372, $ 476. 
 The Estate of Thompson, 2 
 
 Green. Ch. 637, $ 525. 
 Stevenson, 3 Paige, 420, $ 45. 
 Mathews v. Green, Law R. 1, Ch. 33,$ 89. 
 V. Bishop of Bath, 2 Dick, 652, 
 
 4 434. 
 «. Bliss, 22 Pick. 48, $155. 
 V. Matthews, 1 Edw. Ch. 567, 
 $ 472, 474. 
 Matthowson v. Johnson, Hofif. Cb. 5G0, 
 $447. 
 
 Matts V. Hawkins, 5 Taunt. 20, $ 255, 298. 
 Maule V. Rider, 51 Fa. St. 377, $158, 398. 
 Maverick v. Lewis, 3 McCord, 212, $ 100. 
 Maxwell v. Maxwell, 31 Me. 184, $ 320, 
 
 485, 502. 
 May V. Parker, 12 Pick. 39, $ 337, 347. 
 May V. Slade, 24 Tex. 208, $ 217,331, 859. 
 Maybury v. Brien, 15 Pet. 37, $ 14. 
 Mayhew v. Herrick, 7 C. B. 229; 13 Jur. 
 
 1078; 18 L. J. C. P. 179; $ 309, 385. 
 Mayni). Mayn, 5 L. R. Eq. 150, $ 27. 
 Maynard v. Maynard. 17 How. U. S. 477, 
 
 $ 385. 
 Mead v. Mitchell, 17 N. Y. 211, $ 482, 547. 
 Meader v. Place, 43 N. H. 307, $ 62. 
 Medford v. Harrell, 3 Hawks, 41, $ 519. 
 Meese v. Keefe, 10 Ohio, 362, $ 375. 
 Meily v. Wood, 71 Pa. St. 488, $ 117. 
 Mellican v. Mellican, 24 Tex. 439, $ 535. 
 Mellishu. Brooks, 3 Beav. 27, $ 369. 
 Melville v. Brown, 15 Mass. 82, $213,310. 
 Menzies v. Macdonaki, 36 E. L. & E. 24, 
 
 $253. 
 Merced Mining Co. v. Fremont, 7 Cal. 
 
 319, $ 435. 
 Merkleia v. Trapnell, 34 Pa. St. 47, $528. 
 Merrill v. Bartlett, 6 Pick. 46, $ 379. 
 
 V. Berkshire, 11 Pick. 274, $ 182. 
 
 V. Inhabitants of Berkshire, 11 
 Pick. 274, $ 352. 
 Men-itt v. Jiidd, 14 Cal. 64, $ 435. 
 
 V. Shaw, ir, Grant's Ch. 323, $ 468. 
 
 V. Walch, 32 N. Y. 685, $ 361, 379. 
 Mersereau v. Norton, 15 Johns. 179, $ 310. 
 Metcalf V. Clark, 8 La. An. 287, $146. 
 Meyer v. lunzer, 12 Cal. 253, $ 143, 144. 
 
 V. Meyer, 23 Iowa, 359, $ 62. 
 Middleton v. Perry, 2 Bay, 541, $ 342. 
 Milbank v. Revett, 2 Meriv. 405, $ 327. 
 Milburni). Guyther, 8 Gill, 92, $ 385. 
 Miles 0. Boyden, 3 Pick. 213, $ 110. 
 
 V. Fisher, 10 Ohio 1, $ 35. 
 Millenu. Pandrye, Poph. Rep. 161, $ 97. 
 Miller's Appeal, 3 Grant, 247, $ 85. 
 Miller v. Dennett, 6 N. H. 109, $ 450. 
 
 V. Eatman, 11 Ala. 614, $ 337. 
 
 V. Miller, 7 Pick. 136, $ 280, 433, 
 
 e. Miller, 16 Mass. 61, $36, 37. 
 
 V. Myers, 46 Cal. 53s $ 242. 
 
 V. Proctor, 20 Ohio St. 448, $ 112. 
 
 V. Warmington, 1 Jac. & Walk. 
 493, $ 421. 
 
 V. Webster, 2 Vern. 207, $ 28. 
 487, 508. 
 Millington t). Millington. 7 Mo. 446, $ 48&
 
 TABLE OF CASES. 
 
 xli 
 
 Millfl V. Miller, 2 Neb. 314, $ 494. 
 
 V. Richardson, 44 Me. 7'J, $ 320. 
 V. Tukey, 22 Cal. 379, $ 15S. 
 V. Witberington, 2 Dev. & Bat. 433, 
 ^ 531, 532. 
 MOner v. Davis, Litt. Select Cases, 43G, 
 
 $375. 
 Mitchell V. Hazen, 4 Conn. 495, $ 199, 210. 
 V. .Jones, 50 Mo. 438, $ 457. 
 V. Marr, 26 Tex. 331, ^ 143. 
 V. Starbuck, 10 Mass. 20, i 99, 
 
 442. 
 V. TftTbutt, 3 Durnf. & E. 651, 
 $366. 
 Moderwell v. Mullison, 21 Pa. St. 259, 
 
 $117. 
 Mole V. Mansfield. 15 Sim. 41, $ 522. 
 Monroe v. Gates, 48 Me. 467, ^ 433. 
 Montell V. The Kutan, 1 Int. E. Rec.125, 
 
 $379. 
 Montgomerie r. Bath. 3 Ves. Jr. 560, 
 
 $372. 
 Moody V. Buck, 1 Saudf. 308, $ 266, 385. 
 
 V. Moody, Amb. 619, $ 33, 72. 
 Mooers v. Bunker, 9 Foster, 427, $ 333. 
 Moore v. Ai-mstrong, 10 Ohio, 17, $ 378, 
 V. Callishaw, 10 Pa. St. 227, $ 226. 
 t). Cleghorn, 10 Beav. 425, $ 24. 
 V. Funsden, 1 Show. 342, $ 341. 
 V. Moore, 47 N. Y. 468, $ 65, 69, 
 
 72, 458. 
 V. Spruill, 13 Ired. 56, $ 101. 
 V. Thibodeaux, 4 La. An. 74, $ 132. 
 V. Williamson, 10 Rich. Eq. 328, 
 $510. 
 Moore's Settlement, 10 W. K. 315; 31 L, 
 
 J;Ch. 364, $ 23. 
 Moores v. Carter, Hempst. 64, $ 359. 
 Moran v. Palmer, 13 Mich. 367, $ 117. 
 Moreau v. Saffaran, 3 Sneed, 595, $ 117. 
 Morenhoutv. Higuera, 32 Cal. 295, $488, 
 
 499, 503, 531. 
 Morgan v. Britten, L. R. 13 Eq. 28, $ 23, 
 26. 
 V. Marquis, ilExch. 145, $ 309. 
 Morley v. Bird, 3 Ves. 630, $ 23, 28. 
 Morrice's Case, Coke, 712, b. $ 409. 
 MorrUl v. Foster, 5 Foster, 334, $ 497. 
 
 V. Morrill, 5 N. U. 134, $ 433, 
 522, 525. 
 Morris v. Barrett, 3 Y. & J. 384, $ 19. 
 
 V. Covington, 2 La. An. 2)9, $135. 
 V. Harris, 9 Gill, 20, $ 410. 
 V. Kearsky, 2 Y. & C. Ex. 139, 
 $11H. 
 
 Morris v. Richardson. 11 Hump. 389, 
 
 $419. 
 Morrison v. Mc Arthur, 43 Me. 567, $ 210. 
 Moses V. Ross, 41 Me. 3G0, $ 280. 
 Mosher v. Mosher, 32 Me. 414, $ 411. 
 Moss V. Shear, 25 Cal. 45, $ 159. 
 Motley V. Blake, 12 Mass. 2S0, $ 472. 
 Moulton V. Robinson and Ladd v. Robin- 
 son, 27 N. H. (7, Foster,) 563, $ 347. 
 Mount V. Morton, 20 Barb. 138, $ 398. 
 Mulden i'. "WhiUock, 1 Cow. 290, $ 388. • 
 Muldrow V. Fox, 2 Dana, 79, $ 44. 
 MuUer v. Boggs, 25 Cal. 175, $ 346. 
 Mumford v. Brown, Cow. 476, $ 20l, 320. 
 V. Brown, 1 Wend. 52, $ 295, 
 
 2r;9. 
 V. McKay, 8 Wend. 444, $ 308. 
 V. :Nicoll, 20 Johns.611; 4 Johns. 
 Ch. 522, $ 379, 3S6. 
 Munch V. Cockerell, 8 Sim. 231, $ 369. 
 Mundy v. Mundy, 2 Ves. Jr. 125, $ 423. 
 Munoz V. DeTastet, 1 Beav. 103, $ 369. 
 Munroe v. Luke, 19 Pick. 39, $ 213, 280, 
 47S. 
 V. Walbridge, 2 Aik. 410, $ 452. 
 Murly V. McDermot, 8 Adol. & E. 138, 
 
 $98. 
 Murray v. Hall, 7 C. B. 441; 13 Jur. 262; 
 18L. J. C. P. IGl, $300. 
 V. Mumford, 6 Cow. 44i, $ 92. 
 V. Webster, 5 N. H. 392, $ 359. 
 V. Wooden, 17 Wond. 540, $ 508. 
 Muse V. Edgenon, Dud. Eq. 179, $ 531. 
 Mussey v. Holt, 24 N. H. 254, $ 182, 286. 
 V. Sanborn, 15 Mass. 155. $ 455. 
 
 N. 
 
 Nash V. Church, 10 Wis. 311, $ 483. 
 V. Cutler, 16 Pick. 500, $ 529. 
 Nason v. Willard, 2 Mass. 478, $ 454. 
 Natchez v. Vandervelde, 31 Miss. 706, 
 
 $ 3;iH. 
 National Bank o. Spraguo, 20 N.J. Eq. 
 
 13, $117. 
 Neary v. Cahill, 20 111. 214, $ 214. 
 Neilson v. Cox, 1 Cai. 121, $ 494. 
 
 V. NeiLson, 5 I'.iirb. 573, $ 294, 371 
 0. Slade, Ala. Jan. 1873, $ 308. 
 Nelson v. Davis, 35 Ind. 483, $ 221. 
 V. Leake, 25 Miss. 199, $ 279. 
 V. Moore, 1 L-ed. Eq. 31, $ 109. 
 Nelson's Heirs v. Clay's lleirs, 7 J. J. 
 Marsh, 140, $ 275, 305, 510.
 
 xlii 
 
 TABLE OF CASES. 
 
 Newell V. NeweU, L. E. 7 CIu 253, $ 26. 
 t). Sadler, 16 Mass. 122, $ 528. 
 V. Woodruff, 30 Conn. 498, ^ 221, 
 231. 
 Newton V. Howe, 2:i Wis. 534, $ 252, 338. 
 
 13. Newton, 17 Pick. 207, § 297. 
 Newton Bank ij. Hull, 10 Allen, 145, §451. 
 Nicelar v. Barbrick, 1 Dev. & Bat. 257, 
 
 $525. 
 Nicely u. Boyles, 4 Humph. 177, §502, 
 
 529. 
 Nicholas v. Purczell, 21 Iowa, 265, § CO. 
 Nichols V. Nichols, 28 Vt. 230, $ 44G. 
 
 V. Nichols, Cited Vin. Abr. Baron 
 & Feme, § 63. 
 Nicholson v. Woodsworth, 2 Swanst. 365, 
 
 $ 28, 45. 
 Niclde V. McFarlane, 3 Watts, 167, $238. 
 Nicoll 0. Ogden, 29 111. 323, § 117. 
 NUes V. Stevens, 4 Denio, 402, $ 45. 
 Nixon V. Lindsay, 2 Jones Eq. 233, $533. 
 
 V. Potts, 1 Hawks, 470, § 341. 
 Noble V. Cromwell, 27 How. Pr. 289; 26 
 Barb. 475; Ab. Pr. 59, § 547. 
 V. McFarland, 51 111. 229, § 292. 
 Noe V. Card, 14 Cal. 595, § 133, 133. 
 Norbury v. Yarbury, Tothill, $ 423. 
 Norman v. Cunningham, 5 Gratt. 70, $ 67 
 f. Frazer, 3 Hare, 84, §109, 110. 
 Norment n. Wilson, 5 Humph. 310, §440. 
 Norris v. Baker, 3 Bulstr. 196, $ 97. 
 
 V. Hill, 1 Mich. 205, § 323, 406. 
 V. LeNeve, 3 Atk. 83, § 433. 
 Norse v. Ludlow, Tothill, 155, § 423. 
 Northcot V. Casper, 6 Ired. Eq. 303, §373. 
 Northrop v. Anderson, 8 How. Pr. 351, 
 
 §508. 
 Norton «. Glover, Noy, 149, $ 68. 
 Norway v. Eowe, 19 Ves. 159, § 327. 
 Nowlen v. Colt, G Hill, 401, § 95. 
 Noye V. Reed, 1 Man. & By. 63, § 298. 
 Noyes v. Sawyer, 3 Vt. 160, § 372. 
 Nunnally v. White's Executors, 3 Met. 
 
 Ky. 584, § 314. 
 Nussear v. Arnold, 13 Serg. & R. 323, 
 
 $169. 
 N. Y. & S. Canal Co. v, Fulton Bank, 7 
 Wend. 412, § 90. 
 
 O. 
 
 Gates V. Jackson, 2 Str. J172, $ 26. 
 Oatfield V. Waring, 14 Johns, 192, § 314, 
 Obert V. Obert, 1 Halst. Ch. 409, $ 323. 
 
 Obert V. Obert, 2 Stock. Ch. 101, 823, 
 
 $ 501, 502, 512. 
 Odiorne v. Lyford, 9 N. H. 511, $ 249, 
 
 297, 300. 
 O'Dougherty v. iVldrich, 5 Den. 383, § 447. 
 O'Hear v. DeGoesbriand, 33 Vt. 012,§ 268. 
 Ohl V. Eagle Ins. Co. 4 Mason, 172, 390, 
 
 §379. 
 Ord V. Chester, 18 Cal. 79, § 304. 
 
 V. Be La Guerra, 18 Cal. 75, § 229. 
 Ormond v. Martin, 37 Ala. GOG, § 503, 511. 
 Osborn v. Ordinary, 17 Geo. 123, § 423. 
 Osgood D. Franklin, 2 Johns. Ch.20,$44. 
 V. Taggard, 18 N. H. 319, $ 496. 
 Osmer v. Sheafe, Lutw. 1210, $ 334. 
 Otis V. Cusack, 43 Barb. 549, § 398. 
 
 V. Thompson, 2 Hill & Denio, 131, 
 §100. 
 Otley V. McAlpiae's Heirs, 2 Gratt, 343, 
 
 $ 45fi. 
 Ousten V. Hebden, 1 Wils. 101, § 391. 
 Oustou V Ogle, 13 East, 538, § 268. 
 Overholt's Appeal, 12 Pa. St. 222. § 117, 
 
 120. 
 Overton v. Lacy, 6Monr. 16, $ 28. 
 Overton's Heirs v. Woolfolk, 6 Dana, 
 
 374, § 450, 501, 502, 513. 
 Oviattti. Sage, 7 Conn. 95, § 183, 309. 
 Owen V. Morton, 24 Cal. 376, $ 238. 
 
 V. Owen, 1 Atk. 494, § 109. 
 Owsley V. Sm:th,s Heirs, 14 Mo. 153, 
 §547. 
 V. Smith, 14 Mo. 155, § 479. 
 
 Packard v. Packard, 16 Pick, 194, § 440. 
 Page V. Page, 2 P. Wms. 489, § 109. 
 V. Stedman, Carth. 364, § 174. 
 V. Webster, 8 Mich. 263, § 158. 
 V. Webster, 8 Mirh. 265, $ 508. 
 Paine v. Wagner, 12 Sim. 188, § 23, 72. 
 Painter v. Henderson, 7 Pa. St. 51, $528. 
 Palk V, Clinton, 12 Ves. 58. § 367. 
 Palmer v. Earle of Carlisle. 1 Sim. & St 
 425, § 372. 
 V. Young, 1 Vern. 27G, § 157. 
 Panaud v. Jones, 1 Cal. 488. 
 Pankey v. Howard, 47 Miss. 87, § 537, 538. 
 Parke ». Kilham, 8 Cal. 79, § 351. 
 Parker v. Gerrard, Amb. 23u, § 423, 424, 
 433, 536. 
 V. Kane, 22 How. U. S, 13, § 171, 
 503.
 
 TABLE OF CASES. 
 
 xliii 
 
 Parker v. The Proprietors, 3 Met. 101, 
 
 $ IGG, 224. 
 Partridge v. Gilbert, 15 N. Y. G05, $ 98, 
 235, 256. 
 V. Luce, 36 Me. 16, (> 470. 
 Parsons v. Eoj^d, 20 Ala. 117, $ 43, 337. 
 Pas<more v. Bonsfield, 1 Stark. 2ii7, $ 388. 
 Patricke v. Powlett, 2 Atk. 54, $ 31. 
 Patten t'. Guerney, 17 Mass. 182. $ 387. 
 Patterson v. Blako, 12 Ab. Pr. 436, § 443, 
 r. Chalmers, 7 B. Mon. 595> 
 ^ 379, 383. 
 Pattonr. The Eandolidi, 1 Gilpin, 457, 
 $ 386. 
 V. Wagner, 19 Ark. 233, $ 428. 
 Patd I'. Witman, 3 Watts & S. 408, § 33G. 
 Payne v. Parker, 1 Fairf. 178, $ 96. 
 Peabody v. Minot, 24 Pick. 333, ^ 199, 208 
 Pearcer. Savage, 45 Me. 102, $ 16. 
 Peat V. Chiipman, 1 Ves. Sr. 542, $ 109. 
 Pecot V. Armelin, 21 La. An. 667, § 116. 
 Peck V. Brummagim. 31 Cal. 441, $ 145. 
 V. Cardwell, 2 Beav. 137, §, 442. 
 V. Carpenter, 7 Gray, 283, § 258, 286. 
 V. Fisher, 7 Cush. 390, $ 112. 
 V. Vandenberg, 30 Cal. 36, $ 147. 
 V. Ward, 18 Pa. St. 508, $ 239. 
 Peers v. Needham, 19 Beav. 310, $ 522. 
 Pelan v. Do Bevard, 13 Iowa, 53, § 55. 
 Pemberton v. Barnes, 19 W. R. 709, L. R. 
 6 Ch. 6s7, 6 536. 
 V. Parke, 5 Binn. 607, § 110. 
 Pendegrastu. Gullatt, 10 Ceo. 224, ^77. 
 Pendleton v. Hoomes, Wythe's ch. 94, 
 
 $110. 
 Penn. R. R. R. Co. v. L. N. Co. 30 Pa, St. 
 
 204, $ 43. 
 Penn v. Cox, IG Ohio, 30, 6 6G. 
 Pentz V. Kuester, 41 Mo. 450, $ 548, 
 Peoria Ins. Co. v. Hall. 12 Mich. 202, 
 
 $383, 
 People V. Keyser, 28 N. Y. 235, $ 178. 
 Pearls v. Covillaud, 6 Cal. 620, § 172. 
 Perkins v. B,.ynton, 1 Bro. C. C. 118, $ 23. 
 Permintcr v. Kelly, 18 .\la. 7is, $ SOU, 308. 
 Perry v. Jackson, 4 T. R. 51G, $ 375, 
 
 V. Walker, 2 Bay, 461, $ :J42. 
 Peter v. Beverly, 10 Pet. 561, $44. 
 Peterson v. Laik, 24 Mo. 513, $ 292. 
 Pcttibone V. Phelps, 13 Conn. 449, $ 350. 
 Petty V. Styward, 1 Cli. Rep. .il, 57, $ IG. 
 Phtlan I'. Kelley, 25 Wend.3!)4, $ 1 J2, 1,53. 
 Phelps V. Green, 3 Johns. Ch. :iOG, $ 502, 
 
 ei7. 
 
 Phelps r. JepaoD, 1 Root, 48, $35 
 
 Phelps V. Palmer, 15 Gray, 501. $ 451, 460. 
 Phene's Trusts L. R. 5 Eq. 346, $ 27. 
 Phillips V. Boardman, 4 Allen, 149, $ 255 
 V. Cook, 24 Weud. o8.», $ 214. 
 V. Cummings.ll Cush. 4il9, $ :!53. 
 V. Gregg, 10 Walts, 158, $ 235. 
 1'. Mcdbury, 7 Conn. 572, $ ;!43. 
 V. Phillips', 1 M. & K. 649, $ 117, 
 
 118. 
 V. Tudor, 10 Gray. 82, $ 199. 
 Piatt V. Hubbcl, 5 Ohio, 245, $ 39,^, 535. 
 
 V. Oliver, 3 McL. 27, $ 118. 
 Picard v. Perley, 45 N. H. l!tl, $ 180. 
 PicoD. Columbet, 12 Cid. 414, $ 258, 275. 
 Picot V. Page, 26 Mo. 421, $ 15l', 154, 409. 
 Pierce v. Oliver, 13 Mass. 212, $ 529. 
 V. Trigg, 10 Leigh, 40 !, $ 118. 
 Pierson v. Hooker, 3 Johns. C8, $ 178, 179. 
 Pignolet V. Bushe, 28 How. Pr. 9, $ 327. 
 Pike V. Crough. 1 Ld. Raym. 730, $ 482. 
 Pillsbiiry v. Dugan, 9 Ohio, 120, $ 466, 
 477. 
 n. Moore, 44 Me. 154, $ 297. 
 Piper V. Smith, 1 Head, 93, $ 118. 
 Pipkin V. Allen, 29 Mo. 229, $519. 
 Pitt V. Petway, 12 Ired. 73, $ 309, 310, 312 
 Pitts V. Hall, 3 Blatch. c. c. 200, $ 8;). 
 Pleak V. Chambers, 7 B. Monr. 570, $480. 
 Polk V. Allen, 19 Mo. 467, $ 68. 
 PoUok V. Kelly, Irish L. R. (N. S.) vol. 
 
 G,p. 373, $71. 
 Poraeroy v. Taylor, Brayt. 174, $ 398. 
 Poole V. Fleeger, 11 Pet. 212, $ 341. 
 
 V. Gerrard, 6 Cal. 71, $52. 
 Pope V. Harkins, 16 Ala. 324, $ 273. 
 V. Henry, 24 Vt. 560, $ 402. 
 V. Salsman, :» Mo. 3G5. ^ 512. 
 V. Whitehead, 68 N. C. 199. $ 509. 
 Porter v. Hill, Mass. 34, $ 199, 31)7. 
 i>, Lee, 6 How. I'r. 491, $ 494. 
 V. Perkins, 5 Mass. 235, $ 397. 
 Portis V. Parker, 22 Tex. 702, $ 123. 
 Portmoro u. Buun, 3 Dowl. & R. 145, 
 
 $ 18n 
 Postley V. Cain, 4 Sandf. Ch. 50;i. $457. 
 Potter V. Waller, 2 De( : . & Sm. 4 10. $ 502. 
 
 V. Whoeler, 13 Mass. 506, $ 411. 
 Powell V. Knox, 16 Ala. 364, $ 43. 
 V. Powell, 5 Bush. G19, $ 26. 
 V. Powell, 5 Budi, Ky. 019, $ 11. 
 Power i>. Power, 7 WaKs, 205, $ 459. 
 Powis V. Smith, 5 Barn. .V Aid. 8:>1; S.C. 
 
 I Dowl. <t R. 4!i0, $ 34G. 
 Pragoffr'. Heslei) 1 Am. L. L{cg. 747. $ 380. 
 Pratt V Byaut 20 Vt. 337. $ 95.
 
 xliv 
 
 TABLE OF OASES. 
 
 Prentice v. Ladd, 12 Conn. 831, § 280. 
 Presbrey v. Presbrey, 13 Allen, 281, § 295. 
 Prescott V. Nevers, 4 Mason, C. C. 330, 
 
 $ 221, 224. 
 Presley v. Holmes, 33 Tex. 476, $ 348. 
 Preston v. Robinson, 24 Vt. 583, $ 96. 
 Price V. Pickett, 21 Ala. 741, $ 333. 
 
 V. Talley's adm'r, 18 Ala. 25, § 337. 
 Prichard's adm'r v. Culver, 2 Harr. 129, 
 
 $ 289, 337. 
 Primm v. Walker, 38 Mo. 97, § 199, 200, 
 
 207, 203. 
 Prince v. Heylin, 1 Atk. 493, § 23, 373. 
 Prinn v. Barlon, 18 Tex, 206, § 148. 
 Provost i;. Delahoussaye, 5 La. An. 610, 
 
 § 143. 
 Pugli V. Currie, 5 Ala. 446, § 117. 
 Pullen V. Palmer, 5 Mod. 73, S. C. 3 
 
 Salk. 207, § 174, 334. 
 Purcell V. Wilson, 4 Gratt. 21, $ 225> 232. 
 Purdy V. Puidy, 3 Md. Cli.Dec. 547, $35. 
 Purefoy v. Rogers, 2 Sand. 382, § G7. 
 Putnam v. Putnam, 4 Bradf. 309, § 23,41 
 V. Ritchie, 6 Paige, ch. 398, § 86. 
 V. Wise, 1 Hill, 234, 9 100, 333, 
 349. 
 Putney 1). Dresser, 2 Met. 587, § 17, 41. 
 V. Lapham, 10 Cush. 232, $ 335. 
 
 Quinnw. Kenney, 47 CaL 147,$ 176. 
 
 B. 
 
 Rabb V. Aiken, 2 McCord's, ch. 125, $ 530. 
 Rabe v. Tyler, 10 Smedes, & M. 446, $ 344. 
 Eagan's Estate, 7 Watts, 442, § 451. 
 Ragan v. McCoy, 29 Mo. 367, $ 275. 
 Railroad Co. v. Bucher,7 Watts, 33,$ 352. 
 Rains v. McNairy, 4 Humph. 358, $ 310. 
 V. McNalty, 4 Humph. 358, $308. 
 Ramsay v. Bell, 3 Ired, ch. 209, 6 488. 
 Ramsdell v. FuUer, 28 Cal. 43, $ 147. 
 Rand v. Dodge, 12 N. H. 68, $ 331. 
 Randall v. Phillips, 3 Mason, 387, § 16, 42 
 Rank v. Ilanna, 6 Ind. 20, $411. 
 Rathwell v. Rathwell, 26 Q. B. Upper 
 
 Canada, 183, $ 19, 309. 
 Rattenbury v. Fenton, 3 Mylne & K. 505, 
 
 $388. 
 Eaun V. Reynolds, 18 Cal. 283, $ 260. 
 Rawlins v. Rounds, 27 Vt. 17, $ 359. 
 
 Razing v. Ruddock, Cro. Eliz. 648, $ 179. 
 Reade v. Reade, 5 Ves. Jr. 744, $ 109. 
 Reading v. Royston, 2 Salk. 423, $167. 
 Rector v. Waugb, 17 Mo. 28, $ 180, 191. 
 Redfern v. Redfern, 38111. 509, $ 61. 
 Redington v. Chase, 44 N. H. S7, $ 316. 
 Reed v. Child, 4 How. Pr. 125, § 495. 
 V. Howard, 2 Met. 40, $ 214. 
 V. Jones, 8 Wis. 4G4, $ 279. 
 V. Kennedy, 2 Strob. 69, $ 39. 
 V. Shepardson, 2 Vt. 120, $ 214. 
 V. Spicer, 27 Cal. 57, $ 83. 
 V. Taylor, 5 Barn & Ad. 675 ,$ 224 
 V. Ward, 22 Pa. St. 149, §346. 
 V. West, 16 Gray, 284, $ 187. 
 Reese v. Holmes, 5 Rich. Eq. 510, $ 531. 
 Reeves v. Morris, 2 Jebb. & Symes, 344, 
 
 $289. 
 Regan v. McMahon, 43 Cal. 627, $ 519. 
 Reinboth v. Zerbe, R.I.Co. 29 Pa.St. 143, 
 
 145, $ 159, 161. 
 Reiniheimer v. Hemingway, 35 Pa, St. 
 
 438, $ 337, 355. 
 Reinicker v. Smith, 2 Har, & J. 421, ^ 208. 
 Relyea v. Beaver, 34 Barb. 550, $ 97. 
 Requa v. Holmes, 16 N.Y. 198; 26 id. 347, 
 
 $ 464, 496. 
 Re Russell's Patent 2 DeG. & J. 130, 
 
 $89, 
 Eespass v. Breckenridge, 2 A. K. Marsh, 
 
 584, $ 510. 
 Eevalk v. Kraemer, 8 Cal. 73, $ 52. 
 Revans v. Lewis, 2 Paine, C. C. 202, 
 
 $ 379, 384. 
 Eex V. Collector of Customs, 2 Maule & 
 
 S. 225, $ 387. 
 Eex V. Williams, Bunb. 343, $ 16. 
 Eeynolds v. Pixley, 6 Cal. 167, $ 54. 
 Ehoads v. Booth, 14 Iowa, 577, $ 359, 360. 
 Rice V. Barnard, 20 Vt. 479, $ 118. 
 
 V. Rice, 21 1-ex. 66, $ 138. 
 Rich V. Lord, 18 Pick. 327, $ 452. 
 
 V. Penfield, 1 Wend. 385, $ 335, 347. 
 V. Tubbs, 41 Cal. 36, $ 59, 02, 137. 
 Richards v. Richards, 17 Ind. 636, $ 467. 
 V. Rose, 9 Exc. 24, E. L. & E. 
 406, 17 Jur, 1036, 23 L. J. 
 Ex. 3, $ 98, 255. 
 V. Bote, 68 Pa. St. 253, $ 628. 
 Eichardson v. Cambridge, 2 Allen, 122, 
 $532. 
 V. Mfller, 48 Miss. 334, $ 199. 
 V. Monson, 23 Conn. 97, $540. 
 Richman v. Baldwin, 1 Zabr. 395, $ 397, 
 529.
 
 TABLE OF CASES. 
 
 xlv 
 
 Biden v. Frior, 3 Mnrph. 577, $ 375. 
 Eider v. Kidder, 10 Ves. 360, $ G8. 
 V. Maul, 4G, Pa. St. 378, § 398. 
 t>. Williamson, And. 42, I 459. 
 Eidgway, Budd & Co.'s Appeal, 15 Pa. 
 
 St. 181, 5 120. 
 E^gden v. Vallier, 2 Ves. Sr. 258, §20, 25. 
 Eiggs V. Dickenson, 2 111. 439, § 525. 
 
 1'. Dooley, 7 B. Monr. 240, $ 376. 
 Eight V. Cuthbell, 5 East, 491, § ISO. 
 Eiker v. Darke, 4 Edw. Ch. G68, $ 456. 
 Eipley v. Davis, 15 Mich. 78, $ 319 
 
 V. Waterworth, 7 Ves. 425, 6 118. 
 Eipple V. Gilborn, 8 How. Pr.4'j6, $ 494. 
 Rising V. Stannard, 17 Mass. 283, $ 200. 
 Riverview Cemetery Co. v. Turner, 24 
 
 N. J. Eq. 18, « 502. 
 Eivis V. Watson. 5 Mees & W. 255, §346. 
 Eobb V. Beaver, 8 Watts & S. 127, § 65. 
 Bobbins v. Fuller, 24 N. Y. 576, § 183. 
 Eoberts v. McCarthy, 9 Ind. IG, § 116, 443. 
 V. Moore, 3 Wall. ,Tr. 297, § 236. 
 V. Morgan. 30 Vt. 324, §225, 229. 
 V. Thorn, 25 Tex. 736, § 155, 163. 
 Robertson v. Baker, 11 Fla. 192, § 117. 
 
 V. Fraser, L. E. 6 Ch. 699, §23 
 V. Eobertson, 2 Swan, lno,§440 
 508. 
 Bobinett v. Preston's Heirs, 2 Rob. Va. 
 
 278, § 202. 
 Robinson v. Cushing, 11 Me. 4*^0, § 387. 
 V. Gaines, 2 Humph. 367, § 44. 
 t>. Hofman, 6 L. J. C. P. 113; 
 4 Eing. 562: 3 Car. & P. 
 234, § 174,177. 
 «. McDonald, 11 Tex. 385, §54, 
 
 510. 
 V. Preston, 4 Kay & J. 505, 
 
 § 18,21. 
 V. Roberts, 31 Conn. 145, § 343. 
 Eoebuck v. Oxley, 7 D. & R. 535, § 24. 
 Roe V. Lonsdale, 12 East, 39, §30,339, 340. 
 
 V. Trammer, 2 Wils. 75, i 190. 
 Rogers v. Arnold, 12 Wend. 30, § 2S9, 337. 
 V. Benson, 5 John. Cli. 437, § 71. 
 V. Gridcr, 1 Dana, 242, § 65. 
 V, Horn, 6 Rich. 3G2, § 547. 
 V. McLean, 10 Abb. Pr, 306 ; 31 
 How. Pr. 279; 34 N. Y. 536, 
 § .547. 
 V. Miller, 48 Mo. 371). § 488. 
 tj, Moore's Devisees, 4 B. Monr. 
 
 21, § 110. 
 V. Rogers, 3 Lower Canadii Jur. 
 64, § 132. 
 
 Eogers r. Sinshoimer, 50 N. Y. 648, § 98. 
 V. Tucker, 7 Ohio St. 427, § 483, 
 
 54^. 
 V. Turley, 4 Bibb, 355, § 341, 410. 
 Rolette V. Parker, 1 111. 275, § 353. 
 Eoody V, Cox, 29 Geo. 309, § 306. 
 Root V. Stow, 13 Met. 5, § 321, 
 Rose V. Hill, 3 Burr. 1881, § 12. 
 • Ross V. Armstrong, 25 Tex. Supp. 372, 
 § 533, 534. 
 V. Cobb, 48 111. Ill, § 461. 
 V. Heintzen, 36 Cal. 321, § 326. 
 V. McJunkiu. 14 Serg. & E. 364, § 9G. 
 V. Eamsey, 3 Head, 15, § 491, 537. 
 Rothwell V. Dewees, 2 Black U. S. 613, 
 
 § 154, 160 
 Rouquier v. Rouquier, 4 Mart. N. S. 98. 
 
 §133. 
 Routh V. Her Husband, 9 Rob. La. 224, 
 
 § 132. 
 Rowan v. Reed, 19 111. 28, § 510. 
 Rowc V. Bacigalliippi, 21 Cal. 635, § 343. 
 Royston v. Rojston, 13 Geo. 427; 21 Geo, 
 
 172, § 428, 433, 474, 537. 
 Rozier v. Griffith, 31 Mo. 173, § 321. 
 V. Johnson, 35 Mo. 331, § 447. 
 Ruckman v. Decker, 8 C. E. Green, 283; 
 
 12 Am. Law Reg. 16S, § 311. 
 Ruddock's Case, G Co. 25rt, § 179. 
 RuffuersB. Lewis, 7 Leigh, 720, § 275, 279. 
 Runnels v. Bullen, 2 N. H. 536, § 297. 
 Russell V. Allen, 13 N. Y. 173, § 245. 289. 
 Rutherford v. Jones, 14 Geo. 521, § 428, 
 
 486, 514. 
 Ryder v. Hathaway, 21 Pick. 306, § 95. 
 Ryerson v. Quackenbush, 2 Dutch. 250, 
 
 § 346. 
 Ryerss v. Wheeler, 25 Wend. § 434, 398. 
 Ryves v. Ryves, L. R. 11 Eq. 545, § 23. 
 
 S. 
 
 Sackett i'. Twining, 18 Pa. St. 202, § 479. 
 Salstrang v. Belts, 24 La. An. 295, § 143. 
 Sanborn v. Merrill, 15 Vt. 700, § 309. 
 Sands V. Nugec, 8 Sim. 130, §45. 
 Sanders v. Richards, 2 Coll. 568, § 371. 
 Sanford v. Ballard, 30 Beav. 109; 33Boav. 
 402, § 327. 
 
 V. Button, 4 Day, 312, § 3,'i9, 378. 
 
 t'. MicUles, 4 Johns. 227, § 183. 
 Sargent v. Parsons, 12 Mass. 149. § 271. 
 
 275. 
 Saul V. His CrocUtors, 7 Mart. 593. § 132.
 
 xlvi 
 
 TABLE OF CASES. 
 
 Saunders v. Saunders, 2 Litt. 315, $ 46. 
 Savage v. WMiaiiis, 15 La. An. 250, § 467. 
 Save.y v. Taylor, 102 Mass. 510, $ 469. 
 Sawyers u. Cator, 8 Humph. 256, 287, 
 
 $533. 
 Sawyer v. Trueblood"s Ex'rs. 1 Murph. 
 
 190, $ 40. 
 Sayre v. Frick, 7 Watts & S. 384, $ 183. 
 Schwartz v. Dryden, 25 Mo. 574, $ 547. 
 Schemerhoru v. Loines, 7 Johns. 311, 
 
 $388. 
 Schenk v. Evoy, 24 Gal. 104, $ 96. 
 Schooner Friendship, 2 Curt. C. C. 426. 
 
 $387. 
 Schuhman v, Garratt, 16 Cal. 100, $ 106. 
 Schuyler v. Marsh, .37 Barb. 356, $ 523, 
 
 528. 
 Scott V. Fawcett, 1 Dick. 239, $ 439. 
 
 V. Guernsey, 48 N. Y. 124, $ 511, 537. 
 V. Guern'-ey, 00 Barb. 163, $ 275, 
 
 449, 471. 
 V. McKinney, 98 Mass. 344, $ 22. 
 V. McLeod, 14 Upper Canada Q. B. 
 
 575, $ 2:i2. 
 V. "Ward, 13 Cal. 468, $ 133, 143. 
 V. State, 1 Sneed, 629, $ 185. 
 Scoville V. Kennedy, 14 Conn. 360, § 433. 
 
 V. Hilhard, 48 111. 453, $ 441. 
 Scranton v. F. & M. Bank, 33 Barb. 527, 
 
 $ 361. 
 Screven v. Joyner, 1 Hill Ch. 260, $ 322. 
 Scruggs V. Blair, 44 Miss. 406, $ 118. 
 Scurrah v. Scurrah, 14 Jur. 874, $ 327. 
 Seabrookt). Eose, 2 Hi'.I Ch. 553, $ 386. 
 Seale v. Soto, C-5 Cal. 104, $ 509. 
 Sears v. Munson, 23 Iowa, 383, $ 260. 
 
 V. Sellew, 28 Iowa, 505, $ 258. 
 Seaton v. Son, 32 Cal. 4S1, $ 54, 225. 
 Seay v. Bacon, 4 Sneed, 102, $ 376. 
 Sebring u. Mersereau, Hopk. Ch. 502; 9 
 
 Cow. 344, $ 473, 479, 547. 
 Seckel v. Engle, 2 Kawle, 68, $ 103. 
 Sedgeworth v. Overend, 7 T. B. 273, 
 
 $ 349, 353, 358. 
 Selden v. Vermilya, 2 Sandf. 577; S. C. 9 
 
 N. Y. Leg. Obs. 83, $ 439. 
 Seldon v. Hickock, 2 Cai. 107, $ 284. 
 Selkrig v. Davies, 2 Dow, 230, $ 118. 
 Senterv. DeBernal, 38 Cal. 642, $ 488. 
 Sergeant v. Steinberger, 2 Ohio, 305, 
 
 $ 35, 66. 
 Servante v. James, 10 Barn. & C. 410, 
 
 $ 336. 
 Sessions u. Peay, 19 Ark. 269, $ 16, 41. 
 Sewall V. Bidlon, 5 Greenl. 460, $487. 
 
 Sexton V. McGill, 2 La. An. 190, $ 135. 
 Sliamburg v. Moorehead, 4 Brewster, 92, 
 
 $ 308, 349. 
 Shanks V. Chambless, Walker, Miss. 249, 
 
 $ S, 12. 
 Sharon v. Davidson, 1 Nev. 419, $ 343. 
 Shai-p V. Ingraham, 4 Hill, 116, $ 222. 
 Shartz v. Uuaugst, 3 Watts & S. 45, $ 43. 
 Shaw V. Grant, Ber. 110, $ 280. 
 
 V. Gregorie, 35 Mo. 346; 41 Mo. 
 
 413, $ 467. 
 V. Hearsey, 5 Mass. 521, $ G4, 65. 
 Sheafe v. Wait, 30 Vt. 733, $ 96. 
 Shearer v. Shearer, 93 Mass. Ill, $ 118. 
 V. Winston, 23 Miss. 150, $ 502. 
 Shelby v. Guy, 11 Wheat. 365, $ 302. 
 Sheldon v. Skinner, 4 Wend. 530, $ 94, 
 
 266, 315. 
 Sheehan v. Dalrymple, 19 Mich. 241, 
 
 $379. 
 Shephard v. Richards, 2 Gray, 424, $ 258, 
 
 277,280. 
 Shepherd v.Eyers, 15 Johns. 501, $ 291. 
 Sheppardv. Shelton, 34 Ala. 652, $ 310. 
 Sherman v. Ballou, 8 Cow. 310, $177,284, 
 
 346. 
 Sherred v. Cisco, 4 Sandf. 4S7, $ 98, 2.55, 
 
 256. 
 Shields v. Stillman, 48 Mo. 86, $ 68. 
 Shielsi). Barrow, 17 How. U. S. 130, 
 $ 463. 
 V. Stark, 14 Geo. 429, $ 105, 258, 
 276, 305. 
 Shirkey v. Hanna, 3 Blackf. 403, $ 372. 
 Shoemake v. Chalfant, 47 Cal. 432, $ 61. 
 Shook V. Shook, 19 Barb. 053, $ 44. 
 Short V. Pret'yman, 1 Houston, 334, 
 
 $ 466, 531. 
 Shore v. Dow, 13 Mass. 529, $ 103. 
 Shull V. Kennon, 12 Ind. 35, $ 457, 508. 
 Shumway v. Holbrook, 1 Pick. 117, $223. 
 Shutc V. Wade, 5 Yerg. 9, $ 376. 
 Shuttleworth v. Greaves, 4 Myln & C. 35 
 
 $110. 
 Sigler V. Van Biper, 10 Wend. 419, $ 222, 
 
 234, 235, 231. 
 Sigourney v. Munn, 7 Conn. 11, $ 112. 
 Silloway v. Biown, 12 Allen, 35, $ 52, 96» 
 
 283, 300, 301. 
 Simons v. Simons, Harp. Eq. 256, $ 479.. 
 Simpson u. Ammons, IBinn. 177, $ 30. 
 V. Gutteridge, 1 Madd. Ch.609, 
 
 $46. 
 V. Pearson, 31 Ind. 1, $ 64, 75» 
 Sire V. St. Louis, 22 Mo. 206, $ 474.
 
 TABLE OF CASES. 
 
 xlvii 
 
 Size V. Size, 24 Iowa, 580, $ 62. 
 Skinner v. Wilder, 38 Vt. 117, $ 97. 
 Style's Heirs v. King's Heirs, 2 A. K. 
 
 Marsh. 387, § 359. 
 Slade I'. Barlow, L. R. 7 Eq.296; S. C. 38 
 L.J. E. (N. S.) Ch. 360, $502. 
 V. Green, Taylor, N. C. Ill, § 408. 
 SUce V. Derrick, 2 Rich. 629, $ 398. 
 Slingsby's Case, 5 Coke, 18, § 336. 
 Smales v. Dale, Hob. 120, $ 166. 
 Smalley v. Lawrence, 9 Rob. La. 214, 
 
 $ 143, 144. 
 SmaU V. Jenkins, 16 Gray, 155, $ 96. 
 Smiillman v. Onions, 3 Bro. C. C. 621, 
 
 $ 324. 
 Smiley u. Dixon, 1 Penrose & Watts, 440, 
 
 $163. 
 Smith V. Barber, 7 Ohio, 118, $ 522. 
 
 V. Benson, 9 Vt. 138, $ 199, 203, 
 
 207. 
 V. Boqnet, 27 Tex. 513, § 144, 145. 
 V. Clarke, 7 Wis. 563, $ 184. 
 V. Dunn, 27 Ala. 316, $ 426, 448. 
 V. Jackson, 2 Edw. Ch. 28, $ 115. 
 V. Knight, 20 N. H. 17, $ 216. 
 V. London & N. W. R. W. Co., 2 
 
 El. & Bl. 69, § 362. 
 V. Modus Water Power Co. 35 
 
 Conn. 400, $ 206. 
 V, Moore's Heirs, 6 Dana, 417, 
 
 $ 527, 528. 
 V. Sharp, Busb. Law, 91, $ 297. 
 V. Smith, 10 Paige, 477, § 424, 433, 
 
 507, 522, 542. 
 V. Starkweather, 5 Day, 209,$ 342. 
 V. Stokes, 1 East, 363, $ 306. 
 V. Smith, 4 Rand, 102, $ 426. 
 V. Smith, 5 Ves. 193, $ 114. 
 V, Smith, 12 Cal. 224, $ 143. 
 V. Wheeler, 1 Ycnt. 138, $ 45. 
 V. Whitmg, 9 Mass. 334, $ 46. 
 Smith's Ex'r. v. Wiley, 22 Ala. 405, $333. 
 Smyth V. Tinkersley, 20 Ala. 212, $ 310. 
 Sneed's Heirs v. Atherton, 6 Dana, 279, 
 
 $101. 
 Snelgar v. Houston, Cro. Jac. Oil, $ 164, 
 
 268. 
 Sessions v. Peay, 19 Ark. 269, $ 16, 41. 
 Snevely v. Wagner, 8 Pa. St. 3!j6, $ 528. 
 Snyder v. Sponable, 1 Hill, 5G9, $171. 
 Southard v. Hill, 44 Me. 96, $ 366, 
 Southerland v. Cox, 3 Dcv. 3;j4, $ 217. 
 Southworth V. Smith, 27 Conn. 359, $ 245. 
 Soutter V. Porter, 27 Me. 417, $ 200, 216. 
 Sparks v. Leavy, 1 Robb. 530, $ 347. 
 J) 
 
 Sparrow v Kingman, 1 N. T. 246, $ 106. 
 Spear v. Ward, 20 Cal. 674, $ 141. 
 Speer v. Speer, McCarter Ch. 251, $ 478. 
 Spencer v. Gcissman, 37 Cal. 99, $ 56. 
 SperLng v. Toll, 1 Ves. Sr. 70, $ 109. 
 Spittsv. Wells, 18 Mo. 471, $ 428. 
 Spratt V. Ahearne, 1 Jones Jr. Exe. 50, 
 
 $327. 
 Spring!'. Sandford, 7 Paige, 555, $ 458. 
 Springfield r. Miller, 12 Mass. 415, $ 405. 
 Stafford v. City of- London, 1 P.Wms, 428, 
 $368. 
 V. Nutt, 35 Ind. 93, $ 504. 
 Stancliffe v. Hardwick, 2 C. M. & R. 1, 
 
 $309. 
 Stanford v. Button, 4 Day, 311, $ 375. 
 Staniford v. Fullerton, 18 Me. 229, $ 216. 
 Starks v. Sikes, 8 Gray, G12, $ 264. 
 Stark V. Barrett, 15 Cal. 370, $ 203, 342. 
 
 205. 
 Starnes v. Quinn, 6 Geo. 86, $ 349, 358, 
 
 353. 
 Starr t'. Leavitt, 2 Conn. 246, $ 208, 216. 
 State V. Barrow, 14 Tex. 179, $ 132. 
 
 V. Jewell, 34 N. J. Law, 259, $ 100. 
 Staughan v. Wright, 4 Rand. 493, $ 424. 
 Steamboat Orleans v. Phoebus, 11 Pet. 
 
 183, $ 385, 389. 
 Stedman v. Bates, 1 Ld. Raym. 64, Salk. 
 390, $ 80, 334. 
 V. Feidler, 20 N. Y. 441, $ 3'!4. 
 V. Fortune, 5 Conn. 462, $ 108. 
 Steedman v. Weeks, 2 Strob. Eq. 146, 
 
 $ 433, 436, 543. 
 Stern v. Epstin, 14 Rich. Eq. 7, $ 479. 
 Sterricker V. Dickinson, 9 Barb. 521, $ 501 
 Stevens v. Enders, 1 Green. N. J. 273, 
 $ 440. 
 V. Thompson, 17 N. H. 110, $ 261, 
 320. 
 Stevenson v. Cofferin, 20 N H. 150, $ 85, 
 
 331. 
 Stewart's Appeal, 56 Pa. St. 242, $ 451. 
 Stewart v. Garnett, 3 Sim. 3;i8, $ 23. 
 r. Mackey, 16 Tex. 57, $52. 
 V. Pettus, 10 Mo. 755, $ 43. 
 Stickland v. Parker, 54 Mo. 203, $ 213. 
 Stimpsonv. Batterman.SCush. 155, $37. 
 Stircs V. Van Rensselaer, 2 Bradf. 172, 
 
 $ 110. 
 Stirling v. Forrester, 3 Bligh, O. 8. 591, 
 
 $322. 
 Stoeblor v. Kncrr, 5 Watts. 181, $ 74. 
 Stocks V. Bof.th, 1 T. R. 428, $ 297. 
 Stokes V. McAllister, 2 Mo. 32, $ 108.
 
 xlviii 
 
 TABLE OF CASES. 
 
 Stokes ». Middleton, 4 Dutch. 32, § 548. 
 Stone V. Aldrich, 43 N. H, 52, § 320. 
 Story ». Johnson, 1 Y. & C. Ex, 538, 
 § 164, 512, 522, 525. 
 V. Saunders, 8 Hump. 668, $ 291. 
 Stowell's Adm'r I). Drake, 3 Zabr. 310, 
 
 $ 363. 
 Stratton v. Best, 2 Bro. 240, § 11. 
 Street t). McConnell, 16 111. 426, $ 527. 
 St. Felixv. Rankin, 3 Edw. 323, § 510. 
 St. John V. Standring, 2 Johns. 4G8, § 309. 
 Street v. Anderson, 4 Bro. C. C. 414, § 327 
 Strelly v. WUson, 1 Vern. 297, § 305, 390. 
 Strickland v. Parker, 54 Me. 264, § 183, 
 
 317. 
 Strong V. Colter, 13 Minn. 82, § 167. 
 Strother, adm'r, v. Butler, 17 Ala. 733, 
 
 § 100. 
 Stryker v. Lynch, 11 N. Y. Leg^^Obs. 116, 
 
 $453,491. 
 Stuart V. Bruce, 3 Ves. 632, $ 13. 
 
 V. Baker, 17 Tex. 420, § 398. 
 Stucker v. Stucker, 3 J. J. Marsh. 301, 
 
 § 371. 
 Stuckey v. Keefe's Ex'ra, 26 Pa. St. 399, 
 
 $ 64, 71. 
 Stuptou V. Richardson, 13 Mees & W. 21, 
 
 $271. 
 Sturges V. Longworth, 1 Ohio, St. 561, 
 
 § 375. 
 Styker v. Lynch, 11 N. Y. Leg. Obs. 116, 
 
 §491. 
 Succession of Melissa Robinson, 28 La. 
 An. 174, $ 132. 
 of Wade, 21 La. An. 345, § 143, 
 144. 
 Sullivan v. McLenans,2 Clarke, 442, § 154. 
 Sumner v. Hampson, 8 Ohio, 358, § 118- 
 
 V. Tileston, 4 Pick. 308, § 366. 
 Sutter V. San Francisco, 36 Cal. 115, § 203, 
 
 465, 508. 
 Suttou V. Rolfe, 3 Lev. 84, § 107. 
 Swan V. Swan, 8 Price, 518, § 439, 510. 
 Swanton v. Crocker, 52 Me. 416, § 487. 
 Swartwout v. Evans, 37 111. 442, § 245. 
 Sweenyt). Meany, 1 MUes, 167, § 508. 
 Swett V. Bussey, 7 Mass. 504, ^ 459. 
 
 V. Patrick, 11 Me, 180, § 336, 341. 
 V. Swett, 49 N. H. 264. § 527. 
 Swift -y. Roberts, Amb. 617; S.C. 3 Burr. 
 
 1488; 1 Blacks. 476, § 14. 
 Swinton v. Legare, 2 McCord's Ch. 440. 
 
 § 110. 
 Sym's Case, Cro. Eliz. 33, 6 16. 
 Symonds V. Harris, 51 Me. 19, $ 302. 
 
 T. 
 
 Tabler v. Wiseman, 2 Ohio St. 207, $450, 
 Taggart v. Taggart, 1 Schoales, &L. 88. 
 
 §27. 
 Tanner v. Niles, 1 Barb. 562, § 476. 
 V. Hills, 44 Barb. 430, § 101. 
 Tankersley v. Childers, 23 Ala. 783, § 333. 
 Tapley v. McPike, 50 Mo. 592, § 532. 
 Tapscott V. Williams, 10 Ohio, 443, § 336. 
 Tarleton v. Goldthwaite's Heirs, 23 Ala. 
 
 358, § 373. 
 Tate V. Citizens' Mutual Fire liis. Co. 13 
 
 Gray, 81, § 345. 
 Taul V. Campbell, 7 Yerg. 333, § 64, 65. 
 Taylor v. Baldwin, 10 Barb. 590, § 262. 
 V. Bradley, 39 N. Y. 140, § 100. 
 V. Craig, 6 B. Monr. 457, § 25. 
 V. Hargous, 4 Cal. 273, § 52. 
 V. Hill, 10 Leigh, 457, § 291. 
 V. Stockdale, 3 McCord, 3CI2, § 296. 
 TeasdaleiJ. Sanderson, 33Beav. 534, § 510 
 Telfair v. Howe, 3 Rich. Eq. 242, § 16,32 
 Temple v. Temple, Cro. Eliz. 791, $ 68. 
 Terrell v. Murray, 2 Yerg. 384, ^ 285. 
 Tevis V. Hicks, 38 Cal. 240, § 248, 293. 
 Tewksbury v. O'Connell, 21 Cal. 69, §419. 
 Tewksbury v. Provizzo, 12 Cal. 23, § 395, 
 
 410. 
 Thayer v. Campbell, 9 Mo. 283, § 372. 
 
 V. Thayer, 7 Pick. 209, § 528. 
 The Apollo, 1 Hagg. 306, § 385, 390, 391. 
 Jonge Tobias, 1 Rob. Ad. R. 329, 
 
 § 3S3. 
 Larch, 2 Curt. C. C. 427, § 386. 
 Margaret, 2 Hagg. Ad. 276, § 391. 
 Marengo, 1 Low. Dec. 52 S. C. 1 Am. 
 L. R. 88, § 391. 
 The Farmers v. Respass, 5 Monr. 564, 
 
 § 428. 
 Thockmorton v. Burr, 5 Cal. 400, § 341. 
 V. Tracy, Plowd. 156, § 190- 
 Thomas v. DeBaum, 1 McCarter Ch. 40, 
 § 65, 74. 
 V. Garvan, 4 Dev. 224, § 447. 
 r. Hatch, 3 Sumn. 181, § 166. 
 V. Hearn, 2 Porter, 270, § 322. 
 V. Machir, 4 Bibb, 412, § 378. 
 V. Pickering, 13 Me. 337, § 224, 
 
 249. 
 V. Smith, 2 Mass. 479, § 496. 
 V. Thomas, 5 Exch. 32, § 285. 
 Thompson V. Barber, 12 N. H.565, § 208. 
 V. Bostick, 1 McM. Eq. 75, 
 § 258, 262, 276.
 
 TABLE OF CASES. 
 
 Thompson v. Cragg, 24 Tex. 598, $ 149. 
 V. Finden, 4 Carr. & P. 158, 
 
 $ 384, 3^8. 
 V. HakcweU, 19 C. B. (N. S.) 
 713; S. C. 35; L. J. (N. 
 S.) C. P. 18, $ 330. 
 t). Hardman, (i Johns. Cli. 436, 
 
 9543. 
 V. Hoskins, 11 Mass. 419, § 353 
 V. Mawhinney, 17 Ala. 368, 
 
 $ 101. 
 V. Renoe, 12 Mo. 157, $ 466. 
 V. Wheeler, 15 Wend. 342, 
 §489. 
 Thorn u. Thorn, 14 Iowa, 53, ^\ 54. 
 Thomdike v. Be Wolf, 6 Pick. 120, $ 379. 
 Thomhill v. Thornhill, 4 Madd. 377, § 110. 
 Thornton v. Dixon, 3 Bro.C.C. 199, $ 112, 
 116, 118. 
 V. Thornton, 3 Hand. 179, $ 65. 
 V. Thornton, 27 Mo. 307, $ 457. 
 V. York Bank, 45 Me. 162, ^ 166, 
 221, 515. 
 Thurston v. Dickinson, 2 Piich, Eq. 317, 
 $202. 
 V. Maddocks, 6 Allen, 429, $ .54. 
 1?. Minke, 32 Md. 576, 5 47s, 
 479, 480, 487, 537. 
 Tibbits V. Tibbits, 7 Paige, 204, $ 527. 
 Tibbs V. Allen, 27 111. 128, ^ 489. 
 Tiemann v. Tiemann, 34 Tex. 524, $ CI. 
 Tilton V. Palmer, 31 Me. 487, ^ 481, 517. 
 Tillinghast V. Champlin, 4 R. 1. 173, ^ 117, 
 
 118, 120. 
 Tillou V. Kingston Mutual Ins. Co. 7 
 
 Barb. 570, § 218. 
 Tinney v. Stebbins, 28 Barb. 290, § 287, 
 
 426. 
 Titsworth v. Stout, 49 111. 78, § 154, 263, 
 
 512. 
 risdalc V. Tisdale, 2 Snecd, 599, 6 151. 
 Toddo. Cannon, s Humpli. 512, $ 428. 
 
 V. Zachary, 1 Biisbee Eq. 280, $ 65. 
 Tom Davis v. Tingle, 8 B. Monr. 544, 
 
 $ 314. 
 Tomlin v. HUyard, 43 111. 300, § 55, 398, 
 
 402, 408. 
 Tompkins' Estate, 12 Cal. 125, § 52. 
 Topping r. Sadler, 5 Jones (N. C.) 357, 
 
 $ 64. 
 Tomey v. Pierce, 42 Cal. 338. j. 3'>9. 
 Torretv. Frampton, Style, 431, $2.3. 
 Torrey v. Torrey, 14 N. Y. 430, $ 73. 
 rotten V. Stuyvcsant, 3 Ed. Ch. 503, $ 411. 
 
 C. & p.— 4 
 
 Touchard v. Crow, 20 Cal. 102, »j 342. 
 To\vnsend v. Hazard, !i R. I. 442, $ 523. 
 15. Morris, Cow. 127, $ 362. 
 Townsend & Pastor's Case, 4 Leon. 32, 
 
 §224. 
 Townshend t). Deva3'nes, 1 Mont. Partn. 
 
 note 2, A. App. & H. 76, § 118. 
 Townson v. Tickell, 3 Barn. & Aid. 31, 
 
 §28. 
 Trammell v. McDade, 29 Tex. 360, § 311. 
 V. Harrell, 4 Pike, 605, § 16, 41, 
 365. 
 Trauger y. Sassaman, 14 Pa. St. 517, § 299. 
 Trayner v. Brooks, 4 llayw. 295, § 501. 
 Treat u. Reilly, 35 Cal. 131, § 343. 
 Trcon v. Emerick, Ohio, 391, § 201, 216. 
 Tripp V. RUey, 15 Barb. 334, § 420, 252. 
 
 353. 
 Tryoa v. Sutton, 13 Cal. 490, § 148. 
 Tubbs V. Richardson, 6 Vt, 442, § 309. 
 Tucker v. Campbell, 36 Me. 346, § 351. 
 V. Tucker, 19 Wend. 226, § 543. 
 Tuckfield v. Buller, Ambler, 197; 3 Atk. 
 627, § 423. 
 V. Buller, 1 Dickens, 241, 4 512. 
 TuUoch V. Worrall. 49 Pa. St. 140, § 241. 
 Tunno v. The Betsina, 5 Am.L. Reg. 406, 
 
 § 389, 392. 
 Turbevillc v. Ryan, 1 Humph. 113. §119. 
 Turner v. Burrows. 8 Wend. 144, § 383. 
 V. Lumbricli, Meigs, 11, § 344. 
 V. Morgan, 8 Ves, 143, § 433, 536. 
 Twort V. Twoit, 10 Ves. 128, § 323, 325. 
 Tyler v. Taylor, 8 Barb. 585, § 306. 
 
 V. Yreka Water Co. 14 Cal. 21«<. 
 §372. 
 Tyson v. Fairclough, 2 Sim. & Stu. 143. 
 §327. 
 
 U. 
 
 Uhler V. Pemplc, 20 N. J. Eq. 288, § 117. 
 Ulmer v. Cunningham, 2 Grconlf. 117, 
 
 § 359, 360. 
 Undeihill v. Jackson, 1 Barb. Ch. 73, § 523 
 United States v, Appleton, 1 Sumn. 500, 
 
 §98. 
 United Ins, Co. v. Scott, 1 Johns.lOO, § 388 
 Upham V. Bradley, 17 Me. 427, §452,4.j9> 
 
 508. 
 Utz'a Estate, 43 Col. 204, § 26.
 
 TABLE OF CASES. 
 
 V. 
 
 Valentine v. Northrop, 12 Wend. 495, 
 
 $235. 
 Van Arsdale v. Dixon, HUl & Denio, 358, 
 
 § 359. 
 Van Ardsdale v. Drake, 2 Barb. 601, § 451, 
 
 455, 542. 
 Van Bibber v- Frazier, 17 Md. 443, $ 222, 
 
 241. 
 Van Brunt v. Applegate, 44 N. Y. 544, 
 
 § 119. 
 Van Cortland v. Beekman, 6 Paige Ch. 
 
 495, $ 488. 
 Van Dyck v. Van Buren, 1 Caines, 84, 
 
 $ 242. 
 Van Gelder v. Post, 2 Edw. Ch. 577, $ 474. 
 Vanhorne v. Fonda, 5 Johns. Ch. 388, 
 
 $ 151, 154. 
 Van Orman v. Phelps, 9 Barb. 500, § 299, 
 
 527. 
 Van Rensselaer v. Jones, 2 Barb. 643, 
 
 $294. 
 Van Riper v. Berdan, 2 Green, 132, $ 502. 
 Van Valkenburgh v. Huff, 1 Nev. 142, 
 
 $166. 
 Vanzant v. Vanzant, 23 111. 536, $ 61. 
 Varnum v. Abbot, 12 Mass. 478, § 65. 
 Vasey v. Board of Trustees, 59 111. 191, 
 
 $408. 
 Vaughan v. Bacon, 15 Me. 457, § 167. 
 
 V. Dickens, 2 Dev. & B. Eq. 52, 
 §110. 
 Venable v, Beauchamp,3Dana, 324, § 154, 
 
 161, 532. 
 Verry v. Robinson, 25 Ind. 19, $ 475. 
 Viner v. Francis, 2 Bro. C. C. 658; 2 Cox 
 
 190, $ 110. 
 Vint V. Heirs of King, 2 Am , Law. Reg. 
 
 (O. S.) 729, § 424. 
 Voleutine v. Johnson, 1 HUl Ch. 49, 
 
 § 276, 278. 
 Vose V. Singer, 4 Allen, 228, § 89. 
 Vreeland v. Van Ryper, 17 N. J. Eq. 134, 
 
 §23. 
 Vrooman v. Weed, 2 Barb. 330, $ 294. 
 
 W. 
 
 Waddell v. Cook, 2 Hill, 48, § 214, 310. 
 Wade V. Johnson, 5 Humph. 118, $ 377. 
 WagBtaff V. Smith, 2 Dev. Eq. 264, § 373. 
 
 Wagstaff V. Smith, 4 Ired. Eq. 1, 6 Id. 
 
 306, § 373. 
 Wainwright v. Rowland, 25 Mo. 53, § 543 
 Wait U.Richardson, 33 Vt. 194, § 299, 
 
 300. 
 Waldman v. Broder, 10 Cal. 378, § 214. 
 Walker v. Bacon, 32 Mo. 159, § 378. 
 Walker v. Bernard, 1 Cam. & Norw. N. C. 
 82, § 398. 
 V. Dewing, 8 Pick. 520, § 96. 
 V. Dilworth, 2 Dallas, 257, § 456. 
 V. Durerger, 4 La. Ann. 569, 
 
 § 132. 
 V. Frazier, 2 Rich. Eq. 11, § 408. 
 V. Hall, 15 Ohio St. 362, § 466, 
 
 532, 533. 
 V. Humbert, 55 Pa. St. 408, § 303. 
 V. Kimbrough, 23 La. An. 637, 
 
 § 149. 
 V. Ferryman, 23 Geo. 314, § 168. 
 V. Williamson, 25 Geo. 554, § 110. 
 Wall V. Hinds, 4 Gray, 268, § 346. 
 Wallace v. Kelsall, 7 Mees. & W. 264, § 178 
 Walsh V. Adams, 3 Denio, 125, § 214. 
 Waltz V. Borroway, 25 Ind. 380, § 483, 528. 
 Ward V. Dewey, 16 N. Y. 519, § 326. 
 V. Huhn, 16 Minn. 161, § 54. 
 V. Thompson, 22 How. 330, § 385. 
 Ward's Heirs v. Harrison, 3 Bibb, 305, 
 
 §342. 
 Warden v. Richards, 11 Gray, 278, § 44. 
 Ware v. Owens, 42 Ala. 215, § 116. 
 Warfield v. Banks, 11 Gill. & J. 98, § 512. 
 V. Lindell, 30 Mo. 282, S. C. 38 
 Mo. 578, § 221, 230, 234, 242. 
 Waring «. Crow, 11 Cal. 336, § 167. 
 
 V. Waring, 7 Abb. Pr. 472, § 547. 
 Warner v. Baynes, Amb. 589, § 433, 536. 
 WaiTen v. Twilley, 10 Md. 39, § 474. 
 Warrington v. Warrington, 2 Hare, 56, 
 
 § 70. 
 Washburn v. Burns, 34 N. J. Law 19, § 73. 
 Wass V. Bucknam, 38 Me. 3G0, § 241 . 
 Waterhouse v. Martin, Peck, 392, 411, 
 
 § 225. 
 Waterman v. Seper, 1 L'd Raym. 737, 
 
 §97. 
 Wathen v. English. 1 Mo. 746, § 341. 
 Watkins v. Eaton, 30 Me. 534, § 176. 
 
 V. Holman, 16 Pet. 53, § 106. 
 Watson V. Duke of Northumberland, 11 
 
 Ves. 155, § 423, 523. 
 Watts V. Thomas, 2 P. Wms. 365, § 73. 
 V. White, 13 Cal. 324, §435.
 
 TABLE OF CASES. 
 
 Waiigb ». Blumenthal, 28 Mo. 4M, § 459. 
 
 t'. Land, G. Coop. 130, ^ 176. 
 Weaver r. Gregg. 6 Ohio, St. 547, § 474. 
 Webb V. Byng, 2 Kay & J. 669, § 26. 
 
 V. Danforth, 1 Day, 311, § 306, 309. 
 V. Ledsam, 19 Jur. 775, 1 Kay & J. 
 
 385,^177. 
 V. Mann, 3 Mich. 139, $ 319. 
 V. Peet, 7 La. An. 92, § l43. 
 Webber v. Merrill, 34 X. H. 20-:, § 353. 
 Webster v. Calef, 47 X. H. 294, ^ 286. 
 V. Stevens, 5 Duer, 556, § 98. 
 Weeks v. Haas, 3 Watts & L. 521, $ 406. 
 V. Weeks, 5 Ired. Eq. 118, § 426, 
 448. 
 Wehchel v. Thompson, 39 Geo. 561, § 535 
 Weir V. Humphries, 4 Ired. Eq. 277, § 40. 
 
 V. Tate, 4 Ired. Eq. 264, § 35, 39. 
 Weiser v. Weiser, 5 Watts, 280, $ 409. 
 Weisingerv. Murphy, 2 Head, 679, $ 197, 
 
 225. 
 Welch V. Anderson. 28 Mo. 293, $ 439. 
 
 V. Clark, 12 Vt. 681, ^ 214, 309, 
 
 310, 
 V. Sackett,12 Wise. 253, ij 102. 
 Weld V. Oliver, 21 Pick. 563, § 308, 311. 
 Welling V. Baine, 3 P. Wms. 113, § 28. 
 Wells V. Chapman, 4 Sandf. Ch. 341, 
 $161. 
 V. Cochrane, 13 Tex. 128, § 148. 
 V. Kagland, 1 Swan, 501, § 375, 376. 
 Welty V. Ruffner, 9 Pa. St. 224, $ 470. 
 Wendt V. Ross, 33 Cal. 656, ^ 361. 
 Wescott V. Cady, 5 Johns. Ch. 334, § 23. 
 West V. Ward. 26 Wis. 580, § 54. 
 Westevelt v. Haflf, 2 Sandf. 101, $ 479. 
 Weston V. Keighley, Finch, 82, § 368, 
 Wetherill v. Mecke, Brightley,140, $ 412. 
 Wctherell v. Spencer, 3 Mich. 123, $ 289, 
 Wheatley V. Boyd, 7 Exc. 20, $ 41. 
 White V. Williams, 3 V. & B. 72, $46. 
 Whitten v. Whitteu, 36 N. H. 332, $ 203, 
 
 428, 446, 465. 
 Wiggin V. White, Ber. N. B. 97, $ 94. 
 Wiggin V. Wiggin, 43 N. H. 568, $ 87, 
 
 201. 
 Wilber v. SisBOn, 53 Barb, 262, $ 101. 
 Wilbridge v. Case, 2 Carter, 36, $ 428. 
 Wilbur t). Wilbur, 13 Mot. 404, $ 286, 
 Wilcox V. Cannon, 1 Cold. 369, $ 522. 
 V. Wilcox, 48 Barb. 327, $ 275. 
 V. Wilcox, 13 Allen, 252, $ 118. 
 Wild r. Milne, 26 Beav. 504, $ 443. 
 Wilde V. Jenkins, 4 Paige, 491, $ 494. 
 
 Wildey ». Bonney's Lessee, 31 Miss. 652, 
 
 $398. 
 Wilhelm v. Wilhelm, 4 Md. Ch. 331, 
 
 $ 525. 
 Wilkin V. Wilkin, 1 John. Ch. 117, $ 502. 
 Wilkins v. Phillips, 3 Ohio, 51, $ 375. 
 Wilkinson v. Am. Iron Mountain Co. 20 
 Mo. 128, $ 133. 
 V. Haggartb, 12 Q. B. 855; 
 11 Jur. 104; 16 L. J. Q. 
 B. 103, $ 251, 301. 
 r.Hall, 1 Bing. N. C. 717. 
 
 $ 334, 346. 
 t>. Parish, 3 Pai. Ch. 658, $ 411, 
 
 472, 474. 
 V. Wilkinson, 20 Tex. 242, 
 $ 126, 133. 
 Wills V. Slade, 6 Ves. 498, $ 455, 482. 
 Willard v. lUce, 11 Met. 493, $ 95. 
 Williams V. Chadbourne,6Cal. 561, $308 
 V. Fii'st Pi-esbyterian Church, 1 
 
 Ohio St. 495, $ 378. 
 V. Gray, 3 Greenl. 207, $ 263. 
 V. Hensman, 1 John. & Hem. 
 
 557, $ 29, 32, 34. 
 V. Hilton, 35 Me. 547, $16. 
 V. Jenkins, 11 Geo. 598, $ 327. 
 V. Nolen, 34 Ala. 16L), $ 100,306 
 V. Sheppart, 1 Green, 73, $ 379. 
 e. Sutton, 43 Cal. 73, $ 108, 377. 
 V. Swetland, 10 Iowa, 51, $ 58. 
 t». Van Tuyl, 2 Ohio St. 336, 
 
 $531. 
 ». Wiggand, 53 lU. 233, $ 518. 
 Williams College v. Mallett, 3 Fairf. 401, 
 
 $99. 
 Williamson v. Williamson, 1 Met. Ky. 
 
 304, $ 527. 
 Willing V.Brown, 7 Serg.& R. 467, $453. 
 Willings V. Blight, 2 Peters' Ad. 288, 
 
 $391. 
 Willis V. Freeman, 35 Vt. 44, $ 117. 
 Willison V. Watkins, 3 Pet. 51, $ 238. 
 Wills t). Slade, 6 Ves. 49'^, $ 512. 
 Wilson V. Bull, 10 Ohio, 256, $ 52^. 
 
 V. Ciillishaw, 13 Pa. St. 276, $ 226. 
 V. Castro, 31 Cal. 420,$ 133. 
 V. Duncan, 44 Miss. 612, $ 537. 
 V. Fleming, 13 Ohio, 6S, $ 3... 66. 
 II. Gamble, 9 N. H. 75, $ 179. 
 V. Genesee Mutual Ins. Co. 16 
 Barb. 511; 4 Kern. 418, $ 218. 
 V. Reed, 3 Johns. R. 178. $ 308. 
 V. Smith, 22 Oratt. 502, $528, 537,
 
 lii 
 
 TABLE OF CASES. 
 
 Wiltshire v. Sedford, 1 Man. & E. 404, 
 ■ § 98. 
 Winchester v. Winchester, 1 Head, 460, 
 
 VS 457. 
 Windley v. Barrow, 2 Jones Eq. 66, § 537. 
 Winn V. Dickson, 15 La. An. 273, $ 534. 
 Winner v. Penniman, 35 Md. 165, ^ 312, 
 
 315. 
 Winters v. McGhee, 3 Sneed, 128, § 347. 
 Wiscot's Case, 2 Eep. 60, § 67. 
 Wiseley tJ.Findley, 3 Rand. 363, § 424. 
 Wiswall V. McCiOwn, Iloffm, Ch. 125, S. 
 
 C.2 Barb. 270, §171. 
 Withers v. Thompson, 4 Monr. 335, § 509. 
 Witherspoon v. Dunlap, Harper, 390, 
 
 § 447. 
 Wixom's Estate, 35 Cal. 320, § 62. 
 Wolcott V. Wigton, 7 Ind. 46, § 503. 
 Wolf V. Fleischaker, 5 Cal. 244, $ 54. 
 Wood V. Clute, 1 Sandf. Ch. 200; S. C. 2 
 N. Y. Leg. Obs. 407, § 456. 
 V. Fleet, 36 N. Y. 503, § 96, 398. 
 V. Griffin, 46 N. H. 237, \^ 397. 
 V. Le Baron, 8 Cusli. 474, § 450 
 V. Little, 35 Me. 110, § 433, 522. 
 V. Phillips, 43 N. Y. 155, $ 250. 
 V. Wood, I'OGrant'sCh. 471,^.509. 
 Woodbeck v. Wilders, 18 Cal. 136, 1 106. 
 Woodbridge v. Banning, 14 Ohio St. 330, 
 
 §532. 
 Woodford V, Higly, 1 Wins. 237, § 65. 
 Woodgate v. Unwin, 4 Sim. 129, § 11. 
 Woodruff V. Cook, 47 Barb. 309, § 441. 
 Woods V. Davis, 34 Iowa, 265, § 61. 
 
 V. Sparks, 1 Dcv. & Bat. 389, 
 
 § 44. 
 V. Whitney, 42 Cal. 361, § 145. 
 Woodward t). Wood, 19 Ala. 213, § 372. 
 Woodworth v. Campbell, 5 Paige, Ch 
 
 518, §446. 
 Woolaverv. Knapp, 18 Barb. 265, § 275, 
 
 258. 
 Wooldridge v. Wilkins, 3 How. Miss. 
 
 360, § 115. 
 Wooster v. H. L. Iron Co. 38 Conn. 256, 
 
 § 108. 
 Wotten V. Copeland, 7 Johns. Ch. 140, 
 
 § 452,478. 
 Whaley v. Dawson, 2 Sch. & Lef. 367, 
 
 § 397, 402; 427. 
 Wheeler v. Horn, Willes, 208, § 269, 271. 
 
 V. Whaler, 33 Me. 349, § 308. 
 Wheelwright v. Depeyster, 1 Johns. 471, 
 § 349, 353. 
 
 Whillock V. Hale's Heirs, 10 Hnmph.64 
 
 §502,529. 
 Whitcomb v. Whiting, 2 Doug. K. B, 
 
 652, § 169 . 
 White t) Brooks, 43 N. H. 407, § 94, 196, 
 308,331. 
 V. Clapp, sMet. 370, §535. 
 V. Curtis, 35 Me. 534, § 387. 
 V. Merton, 22 Vt. 15,§28;». 
 V. Osborn, 21 Wend. 76, § 308. 
 V. Pickering, 12 Serg. & R. 435, 
 
 §341. 
 V. White, 16 Gratt. 267, § 432. 
 Whiting V. Whiting, 15 Gray, 504, § 428. 
 Whitman v.B.&M. E. R. 3 Allen, 133, 
 
 §119. 
 Whitney w. Ladd, 10 Vt. 165, § 214. 
 Whittemore v. Shaw, 8 N . H. 397, § 531. 
 Whitten v. Whitten, 36N.H. 333, § 428, 
 
 446. 
 Whittlesey w. Fuller, 11 Conn. 340, § 35, 
 
 66. 
 Wren v. Kirten, 11 Yes. 379, § 95. 
 Wright V. Bennett, 3 Barb. 451, § 245. 
 V. Cane, 18 La. An. 579, § 397. 
 V. Chandler, 4 Bibb, 422, § 299. 
 V. Dunning, 46 111. 272, § 531. 
 V. Eldred, 2 Chip. 41, § 3(j2. 
 V. Hays, 10 Tex. 132, § 123, 148. 
 V. Hunter, 1 East, 20 ex jjarte, 
 
 Bland, 2 Rose, 93, § 384. 
 V. McCormick, 67 N. C. 27, §487. 
 V. Marsh, 2 G. Greene, 110, 
 
 § 429, 527, 528. 
 V. Marshall, 3 Daly, 331, § 379, 
 
 387. 
 V. Plumptree, 3 Mad. Ch. 481, 
 
 § 247. 
 V. Saddler, 20 N. Y. 329, §65, 
 
 224. 
 V. Sperry, 21 Wis. 331, § 155. 
 Wynne v. TunstaU, 1 Dev. Eq. 28, 
 §507. 
 V. Styan, 2 Ph. 306, § 176. 
 
 Yamhill Bridge Co . i; . Newby, 1 Oregon, 
 
 174, § 308, 315. 
 Yates V. Houston, 3 Tex. 453, § 133. 
 
 V. Plumbc, 2 Smale & G. 174, 
 
 § 247. 
 V. Windnham, Cro. Eliz, 64. § 486.
 
 TABLE OF CASES. 
 
 liii 
 
 Yea e. Field. 2 T. R. 708, $ 247, 298. 
 Yeatman v. Wood, 6 Yerg. 21, $ 118. 
 Yillard r . Robert, 1 Strob. Eq . 393, ^ 166 
 York r. Stone, 1 Salk. 158, § 13, 16, 30. 
 Yost r. Devanlt, Iowa, 60, $ 58. 
 Young P. Adams, 14B. Monr. 127, ^U60, 
 166. 
 
 V. Bilderback, 2 Green's Ch. 206, 
 $369. 
 
 tJ . Cooper, 3 Johns . Ch . 295. $ 527 . 
 
 V. De Bn;hl, 11 Rich. 641, $ 103. 
 
 Yonngt). Frost, 1 Md. 403, $627. 
 
 V. Robinson, 11 G. & J. 328, 
 $ 110. 
 
 Z. 
 
 Zabriskie v. Smith, 13 N. Y. 337, $ 357, 
 
 361. 
 Zebach i\ Smith. 3 Binn. 69, $ 44, 45. 
 Ziegler v. Grim, 6 Watts, 106, $ 440.
 
 COTENANCY.
 
 CHAPTEE L 
 
 INTRODUCTOKY. 
 
 General Classification of Property, § 1. 
 
 Co-ownership adapted to all forms of Civilizationj; $ 2, 
 
 The Subject and Scope of tliis Work, $ 3. 
 
 The Plan, §i 4. 
 
 English Tenures, § 5. 
 
 American Tenures, $ 6. 
 
 Classification of Tenancies, $ 7. 
 
 Mixed, Imperfect, and Redundant Tenancies, $ 8. 
 
 § 1. General Classification of Property. — Classified with 
 reference to tlie number of its owners, property is said to be 
 either general or particular. It is general when held bj a 
 body of men to the exclusion of all other men or bodies of 
 men; and particular when held by one individual to the ex- 
 clusion of all other individuals. Those who suppose that 
 property had its inception in a common recognition of rights 
 based upon the fact of occupancy, assert that general prop- 
 erty originated in the settlement and occupation of some 
 large area of land by a number of men united into one col- 
 lective body. By such common act of occupancy, the whole 
 tract became the joint property of its occupants. As such, 
 it was subject to the common dominion of every individual 
 of the whole collective body — a dominion which could not, 
 as to any single parcel, be rightfully exercised by any mem- 
 ber of the community to the exclusion of any other member; 
 but which could, nevertheless, as to every part of the whole 
 tract, be rightfully asserted by every member to the total ex- 
 clusion of all persons not belonging to the community.* The 
 body thus appropriating to itself some previously iminhab- 
 ited territory was no doubt more numerous than the cotouants 
 
 ' Bntherford'H Institutes, 32. 
 
 59
 
 g 2 INTEODUCTORY. 60 
 
 of single estates ordinarily are at the present day. But the 
 general property created by this appropriation bears a strong 
 resemblance to a cotenancy, in the relative rights which it 
 assured to the several occupants, and in the fact that each 
 occupant had rights in every part of the whole domain equal 
 to every other occupant, and superior to all persons not join- 
 ing with him in the original occupation. 
 
 § 2. Co-o-wnership adapted to all forms of Civiliza- 
 tion. — "There is nothing which so generally strikes the 
 imagination and engages the affections of mankind as the 
 right of property, or that sole and despotic dominion which 
 one man claims and exercises over the external things of 
 the world in total exclusion of any other individual in the 
 universe."^ No doubt, this love of "soZe dominion" has in- 
 creased as the number of occupants of the earth has been 
 augmented. At first, the inhabitants were few, their tastes 
 simple, and their desires easily gratified out of the abundant 
 products of the earth. The fruits of the earth could be 
 treated as the general property of all, and the special prop- 
 erty of none. Lands for occupation and for the sustenance 
 of flocks and herds were more than sufficient to accommodate 
 the necessities of all, and no one had any occasion to segre- 
 gate to himself a tract for his exclusive use. When this 
 state of things no longer existed, it is not probable that a 
 several or exclusive ownership at once succeeded it. A dom- 
 inion or ownership by families, or by other relatives or asso- 
 ciates, probably preceded the existence of exclusive appro- 
 priations, and answered the necessities of men long after the 
 idea of property began to develop itself. But if co-ownership 
 originated at some stage of the world's history, after a commun- 
 ity of rights ceased to be practicable, and before the love of 
 sole dominion became the strong passion described by Black- 
 stone, it was nevertheless not destined to be completely super- 
 seded by ownership in severalty. The properties and advan- 
 tages of co-ownership are such as to connect it inseparably 
 with the highest as well as with the lowest forms of civilization. 
 It commended itself to the lowest forms, as we have seen, 
 
 1 2 Bl. Gomm. 2.
 
 61 INTRODUCTORY. g 3 
 
 because it was suited to the wants of a people who considered 
 property as belonging to families or clans, rather than to in- 
 dividuals. To the highest forms it is equally welcome, be- 
 cause it admits, to a considerable extent, of that aggregation 
 of capital by which several persons, each of small means, are 
 enabled to exercise the power and obtain the influence of 
 wealth. Aside from the perpetuation of co-ownership on 
 account of the advantages offered by it to a union of capital, 
 estates in severalty are constantly turned into undivided 
 estates by the operation of laws regulating the transmission 
 of property by descent. 
 
 § 3. The Subject and Scope of this Book. — By the 
 
 Common as by the Civil Law, whenever the same thing be- 
 comes the property of two or more, there are formed between 
 them divers "engagements by the bare effect of their interest 
 in the thing that is common to them."' Aside from the en- 
 gagements thus formed between the common owners, other 
 engagements are formed between them and third persons by 
 which the respective rights and obligations of the common 
 owners and such third persons are defined and enforced. 
 The engagements here referred to are such as flow from the 
 mere relation of co-ownership; and may be limited or ex- 
 tended by contracts entered into between the co-owners. 
 The co-owners may obtain rights and assume obligations, 
 both between themselves and as to third persons, by an in- 
 finite variety of agreements removing their property partly 
 or wholly from the law of cotenancy and subjecting it to the 
 law applicable to some new and different business relation. 
 The most familiar instance of this is in the formation of a 
 copartnership. In thi« instance, the propert}' of the firm, 
 though jointly owned, is not subject to the law of joint own- 
 ership, but to that of copartnership. And where several co- 
 owners form themselves into a corporate body and turn their 
 joint property into corporate assets, this property henceforth, 
 during its continuance in the corporation, is held in severalty 
 by an artificial body, and is no longer subject to the law of 
 co-ownership. Of the various purposes to which co-owners 
 
 1 Domat'B Civil Law, Part I., Look U., Tit. 5. Sec. 1, Art. 5.
 
 gg4, 5 INTRODUCTORY. 62 
 
 may devote their property, and the various engagements 
 which in law may attach to it in consequence of such devo- 
 tion, it is not our intention to treat. This book is an attempt 
 to state the law of co-ownership existing by reason of such 
 ownership, independent of the relation of copartnership and 
 of all other relations and agreements entered into by the 
 parties for the purpose of creating rights or imposing obliga- 
 tions not otherwise attached to their cotenancy. 
 
 § 4. Plan of the Work. — In treating of the law of co- 
 ownership, we shall consider, 1st, the several kinds of co- 
 tenancy, the rules of law peculiar to each, and the tests by 
 which each may be distinguished from the others; 2d, that 
 portion of the law upon this subject having a general appli- 
 cability to the various forms of co-ownership, and embracing 
 the following subjects: conveyances and leases by cotenants; 
 ouster of one cotenant by another; the relations, rights, and 
 liabilities of cotenants between one another; the legal and 
 equitable remedies by which those rights may be secured and 
 those liabilities enforced; the rights and liabilities of co- 
 tenants as against third persons, and the legal and equitable 
 remedies which may be employed by and against cotenants ; 
 3d, the means by which a cotenancy may be changed into 
 one or more estates in severalty, including all the various 
 forms of severance and partition. 
 
 § 5. English Tenures. — All land in England, excepting 
 Crown land, not tenanted, "was supposed to be holden of 
 some superior lord, by and in consideration of certain ser- 
 vices to be rendered to the lord or possessor of this property. 
 The thing holden is therefore styled a tenement, the possessors 
 thereof tenants, and the manner of their holding a tenure"^ 
 The tenure by which the lands in England were held was " a 
 branch of the feudal system, established by the Germans in 
 many of the Boman provinces on the decline of the Empire. 
 By the theory of that system, the whole of a territory which 
 the Germans conquered, immediately became, in a qualified 
 manner, the property of their general, who was intrusted with 
 
 1 2 Bl. Comm. 59; 1 Greenl, Cruise, 23.
 
 63 INTRODUCTORY. § 6 
 
 the important prerogative to divide the land as he pleased 
 amongst himself and followers. In effect, the parting of the 
 land reached two objects: it rewarded the soldiers for their 
 past, and beforehand gave them the wages of their future 
 service; yet, in theoretical strictness, the latter alone was the 
 object of a feudal gift. The chief gave, and the soldier took, 
 the land for future service. A gift of this kind created a 
 tenancy. The soldier took the land to hold to his chief as 
 landlord, and thus became his tenant. To strengthen the 
 bond between them, and establish the relative duties of lord 
 and tenant, the tenant afterwards bound himself by an oath 
 to do the prescribed services of the feud, and to be true to 
 his lord for the land he held of him. In the same way, the 
 tenants became the lords of others, by again parting theii- 
 lands to be held of themselves by feudal services; and thus 
 a chain of subordinate and connected landed interests was 
 made to depend from the head of the community, and to ex- 
 tend to a great proportion of the subjects."' 
 
 § 6. Americaxi Tenures. — In England, the original ac- 
 quisition of title to lands was by conquest; in America, it was 
 by discovery. All the European nations that ever obtained a 
 footing upon American soil recognized the right of discovery, 
 as entitling the sovereignty by whose siibjects the discovery 
 was made to an absolute dominion and ownership over the 
 lands discovered. By virtue of this right, the Crown of 
 England was invested with the title to most of the lands 
 within the present boundaries of the United States.'"^ "It is 
 now a settled and fundamental doctrine, tliat aU valid in- 
 dividual title to land within the United States is derived from 
 the grant of our own local governments, or from that of the 
 United States, or from ihe Crown, or the royal chartered pro- 
 vincial governments. This great feudal principle, that all 
 lands are held of the sovereign, being thus acknowledged, 
 the remark of Lord Coke seems in strictness to apply as 
 justly to the United States as to England, wo having no lands 
 which are properly allodial, that is, which are not holden."' 
 
 ' Ram. on Tenure and Tenancy, 1, 2. 
 ^ Johnson v. Mcintosh, 8 Wheat., 543. 
 
 •* 1 Greenl. Cruise, notetop. 19; .3 Kent's Comm. 378; Jacksonv. Ingraham, 4John8. 
 163; DeArmas v. ]ttayor of N. Orleans, 5 La. R. 132; .Jaekson v. Waters, 12 Johns. 365.
 
 §n,8 
 
 INTRODUCTORY. 64 
 
 But in some of the United States, statutes have been enacted 
 declaring all their lands allodial. By these declarations, it is 
 probable, nothing was meant to be affirmed except that the 
 lands were to be ''free from all feudal burdens and exactions, 
 except those due to the State, and not as intended to change 
 any of the established rules of acquiring and transmitting 
 real property."^ But in none of the States is there anything 
 beyond a mere theoretical holding from a superior sove- 
 reignty. Practically, all lands are held by allodial title. 
 Eeal estate, as much as personal property, is the subject of 
 absolute ownership. It is not therefore a very accurate use 
 of language to characterize the several persons who together 
 oion a thing as "tenants," nor their estate as a "tenancy." 
 But the language of the common law has been so uniformly 
 adopted in this country, both by judges and text-book writers, 
 that we shall follow their example, and hereafter designate 
 the several kinds of co-ownership by the same terms by which 
 they are known in the common law; and shall use the term 
 cotenancy to indicate the ownership of property by two or 
 more in undivided interests. 
 
 g 7. Classification of Tenancies.^ — ^The most approved 
 writers upon the common law assert that, with respect to the 
 number and connection of their owners, lands and tenements 
 may be held in four different ways, namely, in severalty, in 
 joint tenancy, in coparcenary, and in common.^ This classi- 
 fication ignores a tenancy which is treated at length in all 
 the commentaries on the common law, and which still exists 
 in England and in nearly all the United States, namely, 
 tenancy by entireties. In the progi-ess of this work, we shall 
 have occasion to treat of still another species of co-ownership, 
 one adopted in Lower Canada and in a few of the States of 
 the American Union, namely, the Communio Bonorum, or 
 community of property between husband and wife. 
 
 § 8. Mixed, Imperfect, and Redundant Tenancies, — ^It 
 must not be inferred from what has been said, tliat every 
 
 ' Note to p. 19 vol. 1 Greenl. Cruise. 
 
 » 2 Bl. Comm., 179; 2 Greenl. Cruise, 351.
 
 65 INTRODUCTORY. § 8 
 
 tract of land not lielcl in severalty must therefore be subject 
 to but one of tlie several cotenancies already named. It 
 may be held by a mixed cotenancy, in whicli may be united 
 all the common law cotenancies. Thus, if an estate be 
 granted to A, B, and C and wife, it vests in them as joint- 
 tenants — A having one moiety, B another, and C and wife 
 the other. But as between and his wife, their moiety is by 
 them held as tenants by entireties. If, however, A should 
 convey his moiety to D, then the estate would be held as fol- 
 lows : by D as a tenant in common, by B as a joint-tenant, and 
 by C and wife as tenants by entireties. So lands conveyed 
 to a husband and wife may be the separate property of the 
 husband so far as his separate estate contributed to their 
 purchase, the separate property of the wife to the extent of 
 the funds furnished by her, and the common property of 
 both so far as they were paid for out of the community assets. 
 A cotenancy may also be either impe^'fect or redundant : im- 
 perfect when it exists without some of the incidents usually 
 connected with like tenancies, as in case of a joint-tenancy 
 without the right of survivorship;^ redundant when it pos- 
 sesses some attribute not ordinarily possessed by like tenan- 
 cies, as in case of a tenancy in common to which the right of 
 survivorship is attached.'^ 
 
 » Doe V. Abey, 1 Maule & S., •428. 
 
 - Shanks v. Chambless, Walker, Miss., 249. 
 
 C. & p.— 5
 
 CHAPTER II. 
 
 JOINT-TENANCY. 
 
 Definitions by Littleton and Blackstone, $ 9. 
 
 Definitions by Kent and Preston, ^ 10. 
 
 Properties, ^ 11. 
 
 Sui'vivorship, § 12 
 
 Survivorship in Equity, ^ 13. 
 
 Survivorship is Paramount to Dower and Curtesy, § 14. 
 
 Who may be Joint-Tenants, ^ 15. 
 
 What may be held in Joint-Tenancy, ^ 16. 
 
 Created by Joint Piu-chase, § 17. 
 
 Presumption in regard to Creation, 'i 18. 
 
 Presumption when Property is acquired in Trade, $ 19. 
 
 Presumption from Inequality in Purchase Money, § 20. 
 
 Presumption of Joint-Tenancy rebutted by Parol, $ 21. 
 
 Establishing Joint-Tenancy by Parol, ?i 22 
 
 Creating by Devise or Bequest, v> 23. 
 
 Cases where Devises have been regarded as Joint, $ 24. 
 
 Creation by Deed, 25. 
 
 Creation by Deed to Woman and her Children, $ 26* 
 
 Executory Settlements, ^ 27. 
 
 Devise or Bequest in Joint-Tenancy does not Lapse on Death of one, $ 28. 
 
 Severance, means of, $ 29. 
 
 Severance by act of either Coteuant, § 30. 
 
 Severance by Mutual Agreement, § 31. 
 
 Severance by a Course of Dealing, ^ 32. 
 
 Severance by Process against a Tenant, § 33. 
 
 Severance by one may leave the others Joint-Tenants, $ 34. 
 
 JOINT-TENANCY EST THE UNITED STATES. 
 
 Statutes Limiting or Abolishing, § 35. 
 
 Statutes Eetroactive, § 36. 
 
 Creation, notwithstanding Statutes, $ 37. 
 
 Not forbidden by Law, § 38. 
 
 Dower, where Survivorship is Abolished, § 39. 
 
 Lapsing of Legacies and Devises, § 40. 
 
 To what kinds of Property Joint-Tenancy may still apply, $ 41. 
 
 Mortgages, \3 42. 
 
 Co-Trustees under American Statutes, ^ 43. 
 
 Co-Trustees are Joint-Tenants at Common Law, § 44. 
 
 Co-Trustees, Estate of, vests in those who Accept, $ 45. 
 
 Co-Executors and Co-Administrators, 4 46. 
 
 G6
 
 67 JOINT-TEJ^ANCY. §9 
 
 8 9. Definitions by Littleton and Blackstone.— The dis- 
 tinguishing characteristics of an estate in joint-tenancy are, 
 no doubt, well understood; but, if we may judge from 
 frequent attempts resulting in failures of like frequency, 
 gi-eat difficulty has been experienced in embodying those 
 characteristics in any single definition. Both Littleton and 
 Blackstone content themselves by giving an instance or il- 
 lustration of this estate. Neither attempts any precise or 
 formal definition. The former says: "Joyntenants are, as 
 if a man be seized of certaine lands or tenements, &c., and 
 enfeofleth two, three, or four, or more, to have and to 
 hold to them for terme of there lives, or for terme of an- 
 other's life, by force of which feoffment or lease they are 
 seized, these are joyntenants."' According to Blackstone, 
 "An estate in joint tenancy is where lands or tenements 
 are granted to two or more persons to hold in fee-simple, 
 fee-tail, for life, for years, or at w-ill."- Each of these illus- 
 trations shows rather how a joint-tenancy may bo created, 
 than what its peculiar incidents are after its creation. The 
 words of Littleton may be misprinted. ^ If not, his definition 
 is more objectionable than Blackstone's, because it involves 
 the idea that joint-tenancies cannot be of estates in fee, but 
 are confined to estates for life. Both illustrations are alike 
 faulty in implying that a joint-tenancy must necessarily be 
 created by a feoffment or grant, and that it does not include 
 personal propei-ty. They are also liable to the further ob- 
 jection of assuming that a grant to two or more is the chief 
 feature of joint-tenancy, whereas a tenancy by entirety was 
 also created by a grant to two (they being husband and 'wife) ; 
 and a tenancy in common arose from a grant to two or more, 
 Avhen the grjintor inserted words indicating an intent to create 
 a several instead of a joint estate. Mr. Cruise, in treating 
 of joint -tenancy, avoids this last objection when he states 
 that ''where lands are gratiied to two or more persons, to 
 hold to them and their heirs, or for term of their lives, or 
 for term of another's life, luithout cmij restrictive, rxcJaslve, or 
 explanatory ivords, all the persons named in such instrument 
 
 ' Litt. sec. 277. - '^ Bl. Comm. 180. 
 
 =*St'enote Co. Litt. 130 n.
 
 g 10 JOINT-TENANCY. 68 
 
 to whom the lands are so given, take a joint estate^ and are 
 called joint-tenants."' 
 
 § 10. Definitions by Kent and Preston. — ' ' Joint-tenants, " 
 according to the definition of Chancellor Kent, " are persons 
 who own lands by a joint title, created expressly by one and 
 the same deed or will. They hold uniformly by purchase."^ 
 This definition has the vice of implying that joint-tenancy 
 does not apply to chattels, and that it could not exist in title 
 by prescription. A better definition than either of those 
 heretofore alluded to is that of Mr. Preston, vi^:., "Joint- 
 tenancy is when several persons have any subject of property 
 jointly between them, in equal shares, by purchase."* This 
 definition, as well as that of Chancellor Kent, is too broad, 
 in this, that it embraces tenancy by entireties, as well as 
 joint -tenancy.* It is doubtful, too, whether joint-tenants 
 necessarily hold in equal shares. Thus, if A, B and C be 
 joint-tenants, and C alienate one-half of his moiety to D, 
 A, B and C remain joint-tenants, though the interest of C is 
 no longer equal to that of A or B. Perhaps, however, after 
 such alienation, the estate would be held as follows : one-half 
 by A, B and C as joint-tenants; one-third by A and B as joint- 
 tenants; and one-sixth by D as a tenant in common. Viewed 
 in this light, the alienation would create two joint-tenancies, 
 in one of which the interests of the cotenants A and B would 
 be equal, and in the other the interests of the cotenants A, 
 B and C would also be equal; and thus the correctness of this 
 feature of Mr. Preston's definition would be estabKshed. If 
 this definition were modified so as to exclude tenancies by 
 entireties, and by inserting two or more in the place of 
 "several," we should feel inclined to accept it as correct. 
 It would then stand as follows: "Joint-tenancy is when two 
 or more persons, not being husband and wife at the date of 
 its acquisition, have any subject of property jointly between 
 them in equal shares by purchase." 
 
 ' 2 Greenl. Cruise, 364. 
 ■^ 4 Kent's Comm. 357. 
 ^ 1 Preston on Estates, 136. 
 
 ■* For discussion of difference between joint tenancy and tenancy by entireties, see 
 66 64 and 71.
 
 69 JOINT-TENANCY. § 11 
 
 § 11. Properties of a Joint-Tenancy.— "The properties 
 of a joint estate are derived from its unity, which is fourfold: 
 the unity of interest, the unity of title, the unity of time, and 
 the unity of possession; or, in other words, joint-tenants have 
 one and the same interest, accruing by one and the same con- 
 veyance, commencing at one and the same time, and held by 
 one and the same undivided possession."^ All these prop- 
 erties usually belong to a joint-tenancy, but it must not be 
 inferred that all are indispensable. Joint-tenants may have 
 different estates. Thus, two persons may have an estate in 
 joint-tenancy for their lives, and yet have several inheritances; 
 and a fee may be limited by the same conveyance to two per- 
 sons and to the heirs of one of them.^ Lord Coke says: "If 
 a rent-charge be gi'anted to A and B, to have and to hold to 
 them two, viz., to A untill he be married, and to B untill he 
 be advanced to a benefice, they be joyntenants in the mean- 
 time, notwithstanding the severall limitations."^ So there 
 are exceptions to the rule that joint-tenants must acquire 
 their estates at one and the same time. This rule "does not 
 apply to the learning of uses and executory devises." Thus, 
 a man may make a feoffment in fee to the use of himself and 
 such wife as he shall afterwards marry, for their joint lives. 
 In case of his subsequent marriage, he and his wife, though 
 they come to their estates at different times, will hold as 
 joint-tenants. So a devise or limitation to the use of the 
 children of A, will give each child an estate as soon as bom, 
 and yet all will hold as joint-tenants." And, according to the 
 opinion of Lord Thurlow, whether a settlement be considered 
 as a conveyance of a legal estate, or as a deed to uses, the 
 vesting at different times would not necessarily prevent the 
 estate from being held in joint-tenancy.'^ This opinion must 
 
 ' 2 Bl. Comm. 180; 4 Dane's Ab. 758. 
 
 « For instances of joint-tenants having different eaUtes, see 4 Kent Comm. 357; 
 note to 2 Bl. Comm. 181; Co. Litt. 184 a; Crary ,-. Willis, 2 P. Wms. 530; Cook v. 
 Cook, 2 Vcm. 545. 
 
 ^ Co. Litt. 180 h. 
 
 * On this subject generally, consult 4 Kent Comm. 358; Schouler on Personal Prop- 
 erty, 192. ^ , , 
 
 i Stratton v. Best, 2 Bro. 240. A testator devised a tract of land to his brother a 
 two eldest sons, "in case of their coming to Canada and claiming the same." The 
 Court held that each devisee had his entire lifetime in which to come and claim his 
 estate- that if thev came separately, their estates must vest in them at differciit dates,
 
 g 12 JOINT-TENANCY. 70 
 
 not be received as undoubted law.^ But there seems to be 
 no exception to the rule that the title of joint-tenants must 
 arise from one act, deed, or devise. 
 
 ^12. Survivorship. — But the grand incident of joint 
 estates is the doctrine of survivorship, " by which, when two 
 or more persons are seized of a joint estate, for their own 
 lives, or pur aider vie, or are jointly possessed of any chattel 
 interest, the entire tenancy upon the decease of any of them 
 remains to the survivors, and at length to the last survivor; 
 and he shall be entitled to the whole estate, whatever it may 
 be.'"- This right of survivorship arises when one of the 
 tenants suffers a civil, as well as when he undergoes a physi- 
 cal death. ^ But two may be joint-tenants without both having 
 equal benefit of survivorship : ' 'As if a man letteth lands to 
 A and B during the life of A; if B dyeth, A shall have all by 
 the survivor, but if A dyeth, B shall have nothing."'* So 
 there may be tenancies with the incident of survivorship ; but, 
 in other respects, possessing none of the characteristics of a 
 joint-tenancy. Thus, where property was devised by a testa- 
 tor to his three sisters "for and during their joint natural 
 lives, and the natural life of the survivor, to take as tenants 
 in common, and not as joint-tenants," these words were con- 
 strued so as to create a tenancy in common, with the incident 
 of survivorship.* The word ' ' survivor" and the words ' ' to the 
 survivor" have often been used in devises, in connection, how- 
 ever, with other words indicating an intention that the de- 
 visees should not take a joint estate. In such cases, the 
 Courts have uniformly interpreted the intention of the testa- 
 tor to be that the estate devised should vest in all the de- 
 
 but that, nevertheless, "they might still be joint- tenants; for it is allowed that the 
 estates of joint-tenants may have a dififerent commencement." (Doe, on dem. of 
 McGillis V. McGUlivi-ay, 9 Q. B., Upper Canada, 9.) Deed to O. K. and her children 
 vests title in her children sla joint-tenants as they are horn. (Powell v. Powell, 5 
 Bush, Ky., 619.) In case of devises, there can be no doubt that the vesting of the 
 estate in the several devisees at different times does not prevent them from holding 
 as joint-tenants. (McGregor v. McGregor, 1 De G. P. <& J. 63; Kenworthy v. Ward, 
 11 Hare, 196; Hand v. North, 33 Law J. Eep., N. B., Ch. 556. 
 
 1 Woodgate v. Unwin, 4 Sim. 129; McPherson v. Snowden, 19 Md. 230. 
 
 - 2 Bl. Comm. 184. 
 
 3 Co. Litt. 181 h. 
 
 * Doe V. Abev, 1 Maule k S. 428,
 
 71 JOINT-TENANCY. § 13 
 
 visees surviving lohen the devise took effect, to be by them there- 
 after held as tenants in common.^ 
 
 I 13. Survivorship in Equity. — Expressions may be 
 found in the reports indicating that survivorship is abhorred 
 in equity.'^ However this may be, it is quite certain that few, 
 if any, instances can be discovered where this abhorrence 
 has led to any withholding of the rights of the suiwivor. 
 Equity in this respect, as in others, follows the law. If there 
 be a doubt whether an estate was, at its creation, a joint- 
 tenancy or a tenancy in common; or if, conceding the estate 
 to have been a joint tenancy at its creation, there be a doubt 
 whether there has not been a subsequent severance of the 
 jointure — in all such cases, equity will resolve the doubt in 
 favor of tenancy in common." But if, on the other hand, the 
 facts shown in a court of equity, are such as would clearly 
 induce the presumption of a joint-tenancy, if shown in a 
 court of law, and there is nothing to indicate that such 
 tenancy has been severed by the parties thereto, then, in 
 equity as in law, the right of survivorship, as well as all 
 other rights arising out of the joint-tenancy, will be recog- 
 nized and protected.* It is unnatural that a man should 
 desire to hold his propei^y by such a tenure that, in the 
 event of his death, his heirs should have no interest in his 
 estate; but still, if any man give evidence of such a desire by 
 accepting and retaining a joint estate, there is no reason why 
 a court of equity should, after his decease, refuse to recog- 
 nize the rights growing out of the relation which he had thus 
 voluntarily assumed and retained. It should also be remem- 
 bered that each joint-tenant has, by the operation of the law 
 of survivorship, an equal chance with his cotenant of suc- 
 ceeding to the entire estate. Survivorship has, perhaps, 
 never been more ably defended than by the Master of the 
 
 ' EoBe V. Hill, 3 Burr. 1881; Hawes v. Hawes, 1 Wils. ICG; Shanks v. CliambleHS, 
 "Walker, 249; Keating v. Cassells, 24 Q. B. (Upper Canada) 314; Jones v. Hall, 16 Sim. 
 500. 
 
 •■' York V. Stone, 1 Salk. 158. 
 
 ^ Barclay v. Hendrick's Heirs, .3 Dana, .380; Barker v. Giles, 2 P. Wins. 281. 
 
 * Aveling i'. Knipc, 19 Ves. 441; Stuart v. Bruce, .3 Ves. 632; Acton r. Smallman, 2 
 Yem. 556; Barclay v. Hendrick's Heirw, 3 Dana, 378; Bone y. Polliinl, 24 lieav. 283.
 
 g 14 JOINT-TENANCY. 72 
 
 Bolls when, in the case of Cray v. Williams/ he said : 
 ''Neither is there anything unreasonable or unequal in the 
 law of joint-tenancy, each having an equal chance to survive; 
 and the duration of all lives being uncertain, if either party 
 has an ill opinion of his own life, he may sever the joint- 
 tenancy by a deed granting over a moiety in trust for himself; 
 so that survivorship can be no hardship where either side 
 may, at pleasure, prevent it." 
 
 § 14. Survivorship is Paramount to Dower and Cur- 
 tesy and to Rights of Devisees. — At the death of a joint- 
 tenant, his cotenants are instantly seized of the whole estate. 
 Neither the heirs, nor any other persons claiming imder the 
 deceased cotenant, have any claim to his former interest in the 
 estate, unless there has been some act of severance sufficient 
 to change the nature of the tenancy and to subvert the whole 
 right of survivorship. "The mere possibility of the estate 
 being defeated by survivorship prevents the wife from having 
 any dower. "^ The reason for this is, "for that the jointenant, 
 which surviveth, claimeth the land by feoffment, and by sur- 
 vivorshippe, which is above the title of dower. "^ Dower in 
 the lands of joint-tenants is, in Mississippi, allowed by stat- 
 ute.^ The same reasons which exclude the wife of a joint- 
 tenant from' her right to dower, prevent the husband of a 
 joint-tenant from taking any interest in the lands of his de- 
 ceased wife as tenant by curtesy,^ though during theii- cover- 
 ture he has the right to use and occupy such lands as tenant 
 by marital right.^ So a devise made by a joint-tenant, as 
 there is no estate after his death to operate upon, has no 
 effect.^ But it seems that the decisions go further, and 
 declare such a devise void, though the testator before his 
 decease, but subsequent to the devise, acquired a devisable 
 interest, as where the lands, when devised, are held in joint- 
 tenancy, and are thereafter set off to the testator in severalty. 
 
 I 2 p. Wms. 529. 
 
 '^ Mayburry v. Brien, 15 Pet. 37; 5 Bac. Ab. 240. 
 
 3 Co. Litt. 37 h; Litt. sec. 45. 
 
 * James v. Eowan, G S. & M. 393. 
 
 5 Chitty on Descents, 323; Bell on Husband and Wife, 157. 
 
 6 Bishop V. Blair, 3G Ala. 80. 
 
 ' Dimcan v. Forrer, 6 Biuu. 197; Powell on Devises, 116; Litt. sec. 287.
 
 73 JOINT-TENANCY. §§ 15, 16 
 
 The reasons given for holding the devise inoperative, even in 
 such a case, were that it could only take effect as a severance, 
 which it was not; that the estate to pass by devise must be of 
 the same character as it was when de-s-ised; and that the 
 changing of the estate from joint to several, so far from as- 
 sisting the devisee, was a revocation of the devise.' 
 
 § 15. Who may be Joint-Tenants. — In a preceding sec- 
 tion, a quotation was made from Lord Coke's comments upon 
 Littleton, in which his Lordship asserts that there may be a 
 joint-tenancy without equal benefit of sui-vivorship, or with 
 such benefit exclusively in favor of one of the tenants.' Not- 
 withstanding this general principle, inequality iu sui-vivorship 
 has been suggested as the reason for the rule that there can 
 be no joint-tenancy between a coi"poration and a natural per- 
 son; and the impossibility of survivorship has also been 
 urged as a conclusive ground for denying the right of two 
 corporate bodies to hold between them a joint estate. In the 
 case of corporations, it is further asserted that they cannot 
 hold jointly because they are seized by different rights and 
 in different capacities. But upon whatever reasons founded, 
 the rule is established, beyond doubt, that " bodies jjolitic or 
 corporate cannot be joint -tenants wdtli each other; nor can the 
 king, or a corporation, ichether sole or aggre<jate, be joint- 
 tenant with a natural person;"^ but "all natural persons may 
 be joint-tenants."^ 
 
 § 16. What may be held in Joint-Tenancy. — No species 
 of property is incapable of being held by ji joint title. 
 Whatever may be subject to indi\'idual dominion by virtue 
 of the law of solo ownership, is likcAvise susceptible of being 
 made subject to such joint dominion as results from the law 
 of ^oinl o^Tiership. Thus, considered in regard to the quan- 
 tity of interest which the joint-tenants have, their estate may 
 
 ' Swift u. Boberts, Amb. 017; S. C. 3 Burr, 1488; 1 Blackat. 176. 
 •^ See $ 12. 
 
 » Co. Litt. 190 a; 2 Greenl. Cruise, 372; Telfair v. Howe, 3 Bich. Eq. 342; De Witt 
 V. San Francisco, 2 Cal. 297; Lyster r. Kirkpatrick, 20 Q. B. (Upper Canada) 217. 
 ■•2Grefnl. Cruisf. 372.
 
 7. 16 JOINT-TENANCY. 
 
 74 
 
 be in fee-simple, fee-tail, for life,i for years, ^ or at will. It 
 may be for life, or for the life of another.^ The estate may 
 be equitable as well as legal." It may be undivided as well 
 as in severalty. Hence, if there be three persons holding as 
 joint-tenants, and one convey his interest to a third person, 
 the other two will remain joint-tenants between each other, 
 though their title is for only two-thirds of the estate. So 
 joint-tenants may hold every species of personal estate, in- 
 cluding funds in which they have jointly invested,^ and also 
 all kinds of chattels, debts, duties, contracts, and choses in 
 action." In regard to mortgages, the rule seems to be, that 
 whenever the mortgage is made to two or more to secure a 
 joint debt, they will be treated as joint-tenants during the 
 existence of the mortgage, and will be compelled to pursue 
 their remedy of foreclosure by ioint action. ' But if, on the 
 other hand, the debts secured are the several debts of the 
 mortgagees, this fact rebuts the presumption of joint owner- 
 ship in the mortgage, and leaves each at liberty to pursue his 
 several remedy for the collection of the amount due to him 
 individually.^ In fact, the decisions holding joint-mortgagees 
 to be joint-tenants, do not seem to carry the rule beyond al- 
 lowing, or perhaps requiring, the survivor, in case of the 
 death of either party, to prosecute the proceedings for fore- 
 closure. The loan of the money for which a mortgage is 
 given is not regarded as a transaction which would ordinarily 
 raise the presumption that the parties thereby intended to 
 create a joint ownership in the thing lent, with the benefit of 
 survivorship. The surviving mortgagee is therefore, at least 
 in equity, treated as trustee of the representatives of his de- 
 ceased co-mortgagee.^ If the loan of the money does not 
 
 1 2 Bl. Comm. 180. 
 
 '^ 1 Piatt on Leases, 537; Sym's Case, Cro. Eliz. 33; Brundel's Case, 5 Co. 9 a; Jef- 
 fereys v. Small, 1 Vern. 217. 
 
 s Elliot V. Jekyl, 2 Ves. Sr. 681. 
 
 *Tork V. Stone, 1 Salk. 158; Rex v. Williams, Bunb. 343; Jicklingon the Analogy 
 between Legal and Equitable Estates, 233. 
 
 a Crossfield v. Such, 22 Eng. L. & E. 555; 8 Exch. 825; 22 Law J. Rep. Exch. 325. 
 
 « Trammell v. Harrell, i Ark. 602; Sessions v. Peay, 19 Ark. 269; Litt. sees. 281 
 and 282. 
 
 ^ Appleton v. Boyd, 7 Mass. 131; Williams v. Hilton, 35 Me. 547. 
 
 8 Brown v. Bates, 55 Me. 522; Burnett v. Pratt, 22 Pick. 558. 
 
 « Story Eq. Jur. sec. 1206; Randall v. Phillips, 3 Mason C. C. 387; Petty U. Styward, 
 1 Ch. Rep. 31, 57.
 
 75 JOINT-TENANCY. §§ 17, 18 
 
 imply an intention on the part of the mortgagees to give 
 each other the benefit of sui-vivorship, then no such in- 
 tention should be inferred from any means which they 
 may jointly pursue to render their security productive. 
 Hence, if they jointly prosecute their remedy by foreclos- 
 ure, and become joint purchasers at the sale, still will the 
 interest acquired by such sale be held by tenancy in com- 
 mon.^ And a like result follows when, independent of any 
 foreclosure, they purchase the mortgagor's equity of redemp- 
 tion.- 
 
 § 17. A joint-tenanoy may be created by any joint 
 purchase, but not otherwise. " Purchase includes every 
 mode of coming to an estate except inheritance."^ If two or 
 more disseize another of ' ' any lands or tenements to their 
 own use, then the disseizors are joyntenants."^ " Now, as 
 there be joyntenants by disseizin, so are there joyntenants 
 by abatement, intrusion, and usui"pation, all of which are in- 
 cluded in the latter."^ 
 
 g 18. Presumption in regard to Creation of. — As joint- 
 tenancy was a favorite of the common law,* no special words 
 or limitations were necessary to call it into being. On the 
 other hand, words or circumstances of negation were indis- 
 pensable to avoid it. Whenever it was shown that property 
 had vested in two or more persons, by the same joint pur- 
 chase, there arose at once, both at law and in equity, the pre- 
 sumption that it vested as an estate in joint-tenancy.^ This 
 presumption is liable to be overthrown in equity by proof of 
 circumstances from which the Court may infer that the parties 
 intended a several rather than a joint estate. 
 
 ' Pearce v. Savage, 45 Me. 102; Goodwin v. Richardson, U Maas. 469; 2 Powell's 
 Mort. 672. 
 - Edwarda v. FaBhion, Pre. Ch. 332; S. C. 1 Eq. Ca. Abr. 292. 
 » Greer v. Blanchar, 40 Cal. 197. 
 
 * Litt. sec. 278; Putney v. Dresser, 2 Met. 586. 
 
 * Co. Litt. 181 a. 
 
 '• Co. Litt, 182 a; Jickling on tlio Analogy between Legal and Equitable Estates, 
 234; Gilbert v. Richards, 7 Vt. 208. 
 
 ' Aveling v. Knipe, 19 Vcs. 441; Dart on Vendors and Purchasers, 432; Robinson v, 
 Preston, 4 Kay & J. 505.
 
 §§ 19, 20 JOINT-TENANCY. 76 
 
 § 19. Presumption -where Property -was acquired for 
 Trade. — Where lands are conveyed to partners, or others, for 
 the purposes of trade or joint speculation, the presiunption 
 arises that the pui'chase is "only the substratum for an ad- 
 venture, in the profits of which it was intended they should 
 be concerned;" and therefore no survivorship will be allowed 
 in equity.^ The same is true where, though originally joint- 
 tenants, the parties contract to deal with their property as if 
 in trade. ^ 
 
 § 20. The presumption where one tenant advances 
 more than his share of purchase money is frequently and 
 distinctly spoken of in the test-books. Thus, Mr. Dart feels 
 warranted in asserting that, " if two purchase and one advance 
 more of the purchase money than the other, there will, in 
 equity, be no survivorship, although there are no words in- 
 dicating a tenancy in common.^ The assertion thus made is, 
 however, qualified by Sir Edward Sugden, and restrained to 
 cases where this inequality appears from the deed itself.^ It 
 is worthy of remark that the rule as laid down by Mr. Dart, 
 without the qualification, is founded upon a dictum, and this 
 dictum is in turn based upon a prior one. Mr. Dart relies 
 upon the language of Lord Chancellor Hardwicke, when his 
 Lordship asserts that "it has been determined that if two 
 purchase, and one advances more of the purchase money than 
 the othier, there shall be no survivorship."^ The case decided 
 by Lord Hardwicke did not require any investigation or de- 
 cision in regard to the rights of co-purchasers making un- 
 equal advances. In the case referred to by him as determin- 
 ing the question, the parties had been jointly interested in an 
 undertaking, and, the better to advance their common in- 
 
 ' Lyster v. Dolland, 1 Ves. Jr. 431; Dale t). Hamilton, 5 Hare, 369; EUiott i'. Brown, 
 3 Swanst. 489; Houghton v. Houghton, 11 Sim. 491; Morris v. Barrett, 3 Y. & J. 384; 
 Eathwell v. Eathwell, 26 Q. B. (Upper Canada) 184; Lake v. Gibson, 1 Eq. Ca. Ab, 
 294; Duncan v. Forrer, 6 Binn. 196. 
 
 - JefFereys v. Small, 1 Vem. 217. 
 
 ^ Dart on Vendors and Purchasers, 432 of Am. ed. 
 
 * Sugd. on Vendors, 901 of 7th Am. ed. This Limitation is based on and supported 
 by Lake v. Gibson, 1 Eq. Ca. Abr. 291; and'seems to be approved by C&ines v. Grant, 
 5 Binn. 122. 
 
 '■> Kigden v. VaUier, 2 Ves. Sr. 258.
 
 77 JOINT-TENANCY. §§21,22. 
 
 terest, had purchased certain lands, to which purchase some 
 of them had not contributed their proportion of funds. Here 
 was a case, then, where the presumption of joint-tenancj was 
 rebutted by the conceded fact that the subject-matter of the 
 controversy had been acquired in the prosecution of a joint 
 adventure, undertaken for the puipose of speculation or of 
 common profit. Hence the Master of the Kolls " decreed that 
 survivorship should not take place; for that payment of 
 money created a trust for the parties advancing the same; 
 and an undertaking upon the hazard of profit or loss was in 
 the natui-e of merchandising, where the jus accrescendi is 
 never allowed."^ A decision made at a more recent date 
 than any of those referred to, seems to have necessaril}- in- 
 volved this question. Two persons had certain stocks, part 
 of which were acquired by equal and part by unequal ad- 
 vances. According to the very meagre and unsatisfactory 
 report of the case, the Court determined that the stock paid 
 for equally was held in joint-tenancy, and that there was no 
 reason to infer that the other stock was held in any different 
 manner.^ 
 
 § 21. Parol Evidence to Rebut Presumption of Joint- 
 Tenancy. — Notwithstanding the Statute of Frauds, parol 
 evidence is admissible to rebut the presumption of joint- 
 tenancy, by showing that the parties, though originally hold- 
 ing jointly, liad contracted to deal with their property as if 
 in trade." But whenever it is sought to show that the parties 
 have turned their joint estate into a tenancy in common, it 
 has been held that the j)arol evidence admissible for that 
 purpose must be confined to the acts of the parties, showing 
 the manner in which the property was treated and the pur- 
 poses in which it was embarked, and can in no case include 
 evidence of mere declarations of intention.* 
 
 § 22. Parol Evidence to establish Cotenancy. — Whore, 
 upon joint purchase of an estate, the conveyance is made to 
 
 ' Lake v. Craddock, 3 P. Wms. 159. 
 
 ^ Harris v. Fergusson, IC Sim. 308. 
 
 '•' Jeffereys v. Small, 1 Vein. 217; Robinson v. Preston, 4 Kay and J. 505. 
 
 * Harrison v. Barton, 1 Johnson & Hemming, 293.
 
 g 23 JOINT-TENANCY. 78 
 
 but one of tlie purchasers, the trust in favor of the co- 
 purchaser may be proved by any evidence in writing made at 
 or after the purchase.^ But if the parties have advanced their 
 money in pursuance of an agreement to make a joint pur- 
 chase, a resulting trust arises which may be established by 
 parol, and enforced against him in whose sole name the deed 
 has been taken. - 
 
 g 23. Creation of Joint-Tenancy by Bequest or De- 
 vise. — At an early day, it was sometimes questioned whether 
 a legacy could be held in joint-tenancy. The rule, however, 
 was soon established that bequests, as well as devises and 
 conveyances, should be deemed to pass estates in joint-tenancy 
 unless a contrary intent appeared.^ This contrary intent must 
 be apparent from the will itself. No doubt the Courts always 
 lean towards tenancy in common when the parties claim under 
 a will, and are ever ready to give full effect to any language of 
 the testator showing a design to create several interests. 
 "It may be stated generally, that all expressions importing 
 division by equal or unequal shares, or referring to the de- 
 visees as owners of respective or distinct interests and even 
 words simply denoting equality, will have this effect."^ In 
 wills, the Courts construe survivorship into some other word, 
 if possible.'^ Whenever a bequest or devise is to two or more 
 " equally, '""^ or "to be equally divided,"' or "in equal shares,"^ 
 
 ' 2 Sugd. on Vendors, 678 (7th Am. ed. 388.) 
 
 - Dart on Vendors and Purchasers (4th Eng. ed.) 850; Sugden on Vendors (7th Am. 
 ed.) 388; Scott c. McKinney, 98 Mass. 3M. 
 
 ^ Campbell v. Campbell, 4 Bro. 15; Armstrong v. Armstrong L. E. 7 Eq. 518; Mar- 
 tin r. Smith, 5 Binn. 16; Crooke v. Be Vandes, 9 Ves. 204; Morgan v. Britten L. K. 
 13 Eq. 28. 
 
 ■* 2 Powell on Dev. ch. 18, p. 370; quoted and approved in Gilpin v. HoUingsworth, 3 
 Md. 195. See also Ettneke v. Ettricke, Amb. 656; Gordon v. Atkinson, 1 DeG. <t S. 
 478; Griswold v. .Johnson, 5 Conn. 365; Dunn v. Bryan, 38 Geo. 154; Allison v. Kurtz, 
 2 Watts, 185; Wescott v. Cady, 5 Johns. Ch. 334; Vreeland v. Van Eyper, 17 N. J. Eq. 
 134; Eyves v. Eyves, L. E. 11 Eq. 541; Atfy Gen'l v. Fletcher, L. E. 13 Eq. 128. 
 
 ■'' 4 Dane's Ab. 760. 
 
 •' Heron r. Walsh, 3 Grant's Ch. (Upper Canada) 606; Heathe v, Heathe, 2 Atk. 121; 
 Torretr. Frampton, Style, 434; Bagley v. Cook, 3 Drew, 662. 
 
 ■ Stewart i\ Garnett, 3 Sim. 398; Briscoe v. McGee, 2 J. J. M. 370; Jensur «. Jenour, 
 10 Ves. 569; Esdale v. Wilshere, 9 Law J. Eep. Ch. 71; Hodges v. Grant, 36 Law J. 
 Eep. (N. S.) Chanc. 395; Law E. Ex. 140. 
 
 ■* Emerson r. Cutler. 14 Pick. 114: Hart r. Marks. 4 Bradf. 161.
 
 79 JOINT-TENANCY. ^ 23 
 
 or "equally among,"' or "to and amongst them,"'* or to them 
 "respectively,"^ or according to quantity and quality, each to 
 take his part when he comes of age,* the devisees or legatees, 
 as the case may be, will acquire the property as tenants in 
 common. ' ' It hardly seems, " says Mr. Jiclding, ' ' desirable 
 to accumulate authorities on this head : it may be sufficient 
 to observe, that any words of severance, whether ' share and 
 share alike,'* 'between,'" 'among,' 'equally to be divided,' 
 'videlicet,''' 'by and between,'* 'severally,'" and similar expres- 
 sions, would probably at law, and certainly in equity, have 
 that effect."^" So a devise to two persons to the longest liver 
 of them, to be equally divided between them, creates a ten- 
 ancy in common;'' and a like result follows a devise "equally 
 to my brother A's eldest son, and his heirs, and to my 
 brother B's eldest son and his heirs jointly to be enjojed by 
 them, their heirs and assigns forever."'^ A tenancy in com- 
 mon also arises from a devise to A and B, to be held and 
 divided by them as they shall deem most equal. '^ A devise 
 was made to the children of J. B. equally, share and share 
 alike, for and during the term of their joint natural lives, or 
 the life of the survivor, or longer liver of them. It was held 
 that the children took as tenants in common, without benefit 
 of survivorship.'* A testator bequeathed to his grandchildren 
 a, legacy of one thousand pounds, payable to each of them on 
 their attaining twenty-one years of age. The words, payable 
 to each of them, were considered as equivalent to "to be 
 divided between them," and the in-andchildren were therefore 
 
 ' Demi V. Gaskiu. Cowp. 057; Morley c. Biid, 3 Vis. 630. 
 
 - Campbell v. Campbell, 4 Bro. 15. 
 
 ■' Leweii V. Cox, Cro. Eli/. G95; Moore's Settlement, 10 W. E. 315; 31 Law J, Eep. 
 (N. S.) Ch. 364; Gordou v. Atkinson, 1 De G. .t S. 478. 
 
 * HarriHon r. Botts, 4 Bibb. 420. 
 
 ^ Jacques v. Collins, Cro. Car. 75. 
 
 '• rerkins f. Baynton. 1 Bro. C. C. 118; Lashbrook v. (Jock, -2 Mer. 70. 
 
 ' Kew V. Rowse, 1 Vern. .353. 
 
 « Prince v. Heylyn. 1 Atk. 493. 
 
 »Soo2Atk. 441.' 
 
 '" Jickling on Legal and Eipiitable Estates, 237. See also Blewitt v, Roberts, 10 L, 
 J. Rep. (N. S.) .342; 1 Cr. A P. 274; Paine v. Wagner, 12 Sim. 184. 
 " Blissettt). Crauwell, 2 Lev. 373; Salk. 22G. 
 '- Evans r. Brittain, 3 K. & R. 135. 
 '■•' lugalls r. Anmld, 14 Q. B. (Upper Canada) 296. 
 '< Brya'i r. Twi--. 37 l.:\\\ J. Hep. (N. S.) 249: S. C. Law Rep. 3 Clianc. 183.
 
 p 24 JOINT-TENANCY. 80 
 
 treated as tenants in common.' But in New York, where a 
 testator bequeathed a share of his estate to W. S. and F. S., 
 " to be paid them when they come of age," the Court thought 
 it ' ' clear that the legacy in question was given to the donees 
 as joint-tenants," because "the terms of the clause directing 
 payment are joint in their effect, and not several: the share 
 is to be paid to them when they come of age."^ A testator 
 having made a will giving his residuary estate to A and B, 
 subsequently, by a codicil, provided that such residuary in- 
 terest should go to A, B, and C, "so that C should partici- 
 pate in such bequest free from legacy duty'with A and B." 
 In determining what estate the legatees were entitled to under 
 this will, the Lord Chancellor stated that he had no doubt 
 that such words as "amongst," "alike," "respectively," 
 "equally," and "anything which in the slightest degree indi- 
 cates an intention to divide the property, must be held to 
 abrogate the idea of a joint-tenancy, and to create a tenancy 
 in common;" that "amongst" and "respectively" are not 
 stronger words than "participate;" and he "had no doubt 
 that the word ' participate' is sufficient to indicate an inten- 
 tion to divide, and to create a tenancy in common."^ 
 
 § 24. Cases where Devises have been regarded as 
 Joint. — Where a devise was to trustees ' ' to pay certain rents, 
 profits, etc., to three boys, or to the survivor or survivors of 
 them, share and share alike," the Master of the Rolls said: 
 "There is some difficulty in the construction, but, on the 
 whole, I think the boys take equitable estates in fee, as 
 joint-tenants."* Eeal estate having been devised to A, B, 
 and C, to be sold, and the money to be equally divided be- 
 tween them, this devise was construed as creating a joint- 
 tenancy in the land, but a tenancy in common of the produce 
 of the land, when sold.^ A testator gave the residue of his 
 estate to trustees, to pay the interest to his four grand- 
 
 » Stewart v. Garnett, 3 Sim. 398. See also Hand v, North, 33 Law J. Bep. (N. S.) 
 
 Chanc. 556. 
 ^ Putnam v. Putnam, 4 Bradf. 308. 
 ■' Eobertson v. Fraser, L. E. G Ch. App. 699. 
 ■* Moore v. Cleghom, 10 Beav. 425. 
 * Goodtith on dem. of Roebuck v. Oxley. 7 D. & R. 535.
 
 81 JOINT-TENANCY. g 25 
 
 daughters "equally between them, share and share alike, for 
 and diu-rng their several and respective lives, and from and 
 after the decease of the sui-vivor of them," to divide the 
 principal among their children. Two of these four persons 
 having died, the question arose whether the two still living 
 were entitled to an interest as survivors. Lord Chancellor 
 Thurlow said, that " though the words 'equally to be divided,' 
 and 'share and share alike,' were in general construed in a 
 will to create a tenancy in common, yet, where the context 
 shows a joint-tenancy to be intended, the words shall be con- 
 strued accordingly; and that, in this case, it was evident, 
 that the interest was to be divided among four while four 
 were alive ; among three while three were alive ; and nothing- 
 was to go to the children while any one of their mothers were 
 living; and declared the whole interest to belong to the two 
 living granddaughters, by survivorship."^ A devise was 
 made to the testator's two nieces ' ' equally between them, to 
 take as joint-tenants, and to their several and respective heirs 
 and assigns forever :" Held, ' ' that due effect may be given to 
 all the words in this devise, by deciding that the devisees, the 
 nieces, took an estate for their joint lives and the life of the 
 survivor; that is, as joint-tenants, with remainder to each of 
 them as tenants in common in fee after the death of the sur- 
 viving life : in other words, that they took as tenants in com- 
 mon in fee, subject to an estate for their joint lives and the 
 life of the survivor."- A testator directed that a sum of 
 money be settled to the use of his two nephews, "and the 
 survivors and sur\dvor of them, and their heirs and assigns 
 forever, equally to be divided between them, share and share 
 alike." In order to give every word of the Avill effect, the 
 Lord Chancellor construed it as making the two nephews 
 joint-tenants for life, with several inheritances to them in 
 common.^ 
 
 § 25. Creation of Joint-Tenancy by Deed. — In a pre- 
 ceding section, it has been sho^vn that all joint acquisitions of 
 
 * Armstrong & Eldridge, 3 Bro. C. C. 215. 
 
 •^ Doe on dem. of Littlewood v. Green, 8 Law J. Itc-p. (N. S.) Exe. 95; S. C. 4 Meee. 
 & W. 229. 
 '■' Barker v. Giles, 2 P. Wms. 281. 
 
 C. & p.— 6
 
 g 25 JOINT-TENANGY. 82 
 
 property by a common purchase, are, at common law, pre- 
 sumed to be acquired in joint-tenancy. This rule was applied 
 to a patent from the State of Virginia to a father and his two 
 sons, where part of the land had been held by the parties 
 under separate patents, and they had surrendered these pa- 
 tents and taken another in their joint names, including a large 
 tract of land not embraced in the surrendered patents.^ No 
 doubt, any conveyance apportioning the property conveyed 
 and designating the interests of each grantee, creates a ten- 
 ancy in common. One instance of this apportionment is 
 where "lands be given to two to have and to hold the one 
 moity to the one and to his heires, and the other moity to 
 the other and to his heires."^ "And the reason is, because 
 they have severall freeholds and an occupation pro indovisos. 
 Here it is to be observed, that the habendum doth sever 
 the premises that ^jrima facie seemed to be joint : for an ex- 
 press estate controlls an implyed estate."" A deed to two of 
 a tract of land without locating the share of each, but giving 
 one about three-fifths and the other about two-fifths, makes 
 them tenants in common.* The efi'ect of such words as 
 "equally," "share and share alike," etc., in creating a ten- 
 ancy in common, when used in wills, was, as long ago as the 
 decision of Heathe v. Heathe,^ said to have been established 
 for at least two hundred years. However this may be, it is 
 certain that a similar effect was denied to such words at a 
 much later date, and by very high authority. When the 
 question arose in the case of Fisher v. Wigg,^ two of the 
 Judges argued that all parts of a deed should be given effect, 
 if possible, that the grantor's intent should be permitted to 
 prevail, and that as no particular words were essential to the 
 creation of a tenancy in common, any language indicating 
 that the grantor intended to convey a several, rather than a 
 joint estate, should be permitted to accomplish the purpose 
 for which it was so manifestly desigTied. Against the opinion 
 of these two Judges was that of Lord Holt; and such were 
 
 ' Jones V. Jones, 1 Call. 469. 
 
 ^ Litt. sec. 298. 
 
 » Co. Litt. 190 h. 
 
 * Taylor v. Craig. 6 B. Monr. 457. 
 
 5 2 Atk. 122. 
 
 « 1 Ld. Ravm. 622.
 
 83 JOINT-TENANCY. §26 
 
 the force of his gi'eat name and the deference felt for his 
 judgment, that the conclusion thus disputed by him could 
 scarcely be regarded as established by even a preponderance 
 of authority, until about a half a century later, when Lord 
 Hardwicke declared that, with all his respect for so eminent 
 a man, still he felt compelled, on this question, to dissent 
 from the opinion of Lord Holt, and assent to that of the two 
 Judges.^ The words in the premises of a deed, " to them or 
 any of them, their or any of their heirs," are equivalent to 
 "to each of them, and each of their heirs," and vest an estate 
 in the gi-antees as tenants in common, notwithstanding the 
 habendum is " io them and their heirs and assigns forever.'"^ 
 And though the premises of a deed be "to A and B and to 
 their heirs and assigns," still these words may be controlled 
 and a tenancy in common created by a habendum ' ' to the said 
 A and B, their and each of their heirs and assigns, to the only 
 proper use and behoof of the said A and B, and their and 
 each of their heir's and assigns forever."^ 
 
 § 26. Deed to Woman and her Children. — A deed, de- 
 vise, or bequest, to a man and his children, or to a woman 
 and her children, without any additional words, must be re- 
 garded in the same manner as though made to any other class 
 or number of persons. The grantees, therefore, take as joint- 
 tenants.^ A conveyance or gift to a woman and her heirs 
 vests in her an estate in fee. But the other words in the 
 deed may be such as to show that the children take a present 
 interest. If so, the whole deed will be rendered eflfectual, 
 by giving the children an estate as joint-tenants or as tenants 
 in common wrih their mother, according to the intention of 
 the grantor, as manifested by his deed.'' A bequest was made 
 to A, and at her death "to the heirs of her body and their heirs 
 
 ' Rigden v. Vallier, 2 Ves. Sr. 252. 
 
 - Galbraith v. Galbraith, 3 S. & R. 392. 
 
 ^ Bambaugh v. Bambaugli, 11 Serg. & R. 191. 
 
 * Mason v. Clarke, 17 Beav. 12C; Newell v. Newell, L. R. 7 Cb. 253; Jackson v. Cop- 
 gins, 20 Geo. 403; Hoyle i'. Jones, 35 Geo. 40; Powell v. Powell, 5 Busb, G19; Bustard 
 V. Saunders, 7 Beav. 92; Crockett v. Crockett, 2 Phill. 553; Webb v. Byng, 2 Kay & J. 
 669; De Witto v. De Witte, 11 Sim. 41; Morgan i'. Britten, L. R. 13 Eq. 28; Eagles v. 
 Le Breton, L. R. 15 Eq. 148; Utz's Estate, 43 Cal. 204; Gates v. Jackson. 2 Btr. 1172. 
 
 * Gadsden v. Cappedevillc, 3 Rich Law, 467.
 
 g§ 27, 28 JOINT-TENANCY. 84 
 
 and assigns forever;'' and "if she should leave no issue, then 
 to be disposed of as she should think proper." It was held 
 to be clear that the testator intended to give the children an 
 interest in the bequest beyond the control of their mother, 
 otherwise he would not have mentioned that in case of her 
 death without issue, she should have a disposing power.' 
 
 g 27. Executory Settlements, — In some instances, power 
 has been given to a person, or to a number of persons, to 
 settle or dispose of funds or other property for the benefit of 
 children or others; and the power not having been executed 
 by tlie original trustees, the proper manner of carrying it into 
 effect has been considered and determined by the Courts. In 
 the case of marriage settlements designed for the benefit of 
 the issue of the marriage, the Courts direct such a disposi- 
 tion of the property as will entitle the children thereto as 
 tenants in common. " Joint-tenancy, " said Lord Eedesdale, 
 "as a provision for the children of a marriage, is an incon- 
 venient mode of settlement, because, during their minority, 
 no use can be made of their portions for their advancement, 
 as the joint-tenancy cannot be severed."^ And so when a 
 trustee, directed to use funds for the benefit of children as 
 he thinks best, dies, the Court will execute the trust by dis- 
 posing of the fvmds between the children as tenants in com- 
 mon.^ 
 
 § 28. If a devise or bequest be made to several, 
 
 and one or more die before the testator, then the surviving 
 legatees or devisees will take the entire property so be- 
 queathed or devised, unless the will contained words indi- 
 cating that the testator intended a several rather than a joint 
 estate ;* and this is true even where the will contains a clause 
 providing for the disposal of lapsed legacies.^ The rule goes 
 
 I Dott V. Willson, 1 Bay, 457. 
 
 ■^ Taggart v. Taggart, 1 Sclioales & L. 88. 
 
 3 Phene's Trusts, L. R. 5 Eq. 3iG; Mayn v. Mayn, 5 L. K. 5 Eq. 150. 
 
 1 Morley v. Bird, 3 Ves, 628; Cowclin v. Perry, 11 Pick. 503; Ball v. Deas, 2 Strob. 
 Eq. 24; Larkins v. Larkins, 3 Bos. & Pul. 16; Buffar v. Bradford, 2 Atk. 220; Frewen 
 V. Relfe, 2 Bro. C. (> 220; Welling v. Baiiie. 3 P. Wms. 113; Miller v. Webster, 2 Vern. 
 207; Ledsome v. Hickman, 2 Vern. Oil. 
 
 a Gilbert v. Richards, 7 Yt. 203.
 
 85 JOINT-TENANCY. g 28 
 
 still further; and where, from any cause, some of the persons 
 named cannot or will not take the thing granted or devised, 
 gives the whole to those who have the desire and capacity to 
 receive it.' Thus, in Kentucky, when a patent had issued to 
 tT\'o for certain lands, as it appeared that one of them died 
 before the patent issued, the Court held that ' ' the intention 
 of the grantor and the object of the gi-ant will be better at- 
 tained br admitting the title of the whole to pass to the living 
 gi-antee. " ' A devise having been made to the son and daughter 
 of W. W., and being uncertain, because W. W. had four sons, 
 the whole was given to the daughter.' A bequest was made 
 to A. W. and J. W. Subsequently, the testator, by a codicil, 
 annulled and revoked every legacy of A. W. The effect of 
 this revocation coming up before Lord Hardwicke for de- 
 cision, he said: "Two points arise. 1st, Whether the codicil 
 is a revocation of the whole gift; 2d, If not of the whole, 
 whether of a moiet;5^ 1st. It was necessary for the plaintiff 
 to insist on its being a revocation of the whole, othenvise it 
 could not be so of a moiety. In support of it, it is said, as 
 it is a gift of the whole to both, with survivorship, each has 
 a benefit by the gift to the other, from the chance he has in 
 the other's share, from whence a revocation of the interest of 
 one revokes such benefit accruing to the other, which is in 
 the whole, and the substance, of the gift. But this point is 
 determined in Davis v. Kemp, Carth. 2, for the intent was 
 that the defendant should take a moiety, and he must have it; 
 and though he fails in the circumstances, yet he shall take it 
 by devise." His Lordshij^ then disposes of the second point 
 as follows: "It is objected the estate is given to them jointly; 
 that survivorship is essential to joint-tenancy, and by that 
 only one can take the whole; that here is no survivorship. 
 If an estate is limited to two jointly, the one capable of tak- 
 ing and the other not, he who is capable shall take the whole. 
 Where a joint-tenancy to two is created in a devise, and the 
 
 ' Davy I'. Kemp, Orl. Bridgni. 387; Alexander v. Alexander, 2 Ves. Sr. G45; Hawkins 
 r. Kemp, 3 East, 410; Nicholson i'. Woodsworth, 2 Swanst. 305; Townson v. Tickell, 
 3 Barn. & Aid. 31; Begnie v. Crook, 2 Bing. N. C. 70; S. C. 2 Scott, 128; Jones r. 
 Maffet, 5 Serg. & R. 523. 
 
 ■^ Overton v. Lacy, G Monr. 10. The rule also applies to conveyances: see Wythe's 
 Reports, 373, Appendix. 
 
 ^ Dowset ('. Sweet, Ambl. 175.
 
 g§ 29, 30, 31 JOINT-TENANCY. 86 
 
 estate vests by tlie death of one, the survivor takes by the 
 gift, from the nature of the estate, and after the release or 
 death of one, it is pleadable by the other as a devise to him 
 alone, which could not be the case unless he took the whole 
 by bequest; and suppose the testator revokes the interest of 
 the one, the law and consequence must be the same."^ 
 
 § 29. Severance. — A joint -tenancy may be severed in 
 three ways : 1st, by an act of one of the tenants operating on 
 his own share, and creating a severance as to that share; 2d, 
 by mutual agreement; and 3d, by such a course of dealing 
 as intimates ' ' tliat the interests of all were mutually treated 
 as constituting a tenancy in common. " "- To this may be added, 
 as a fourth means of severance, proceedings against the joint- 
 tenant producing an involuntary alienation of his title. 
 
 § 30. Severance by Act of a Tenant. — A demise by one 
 of the joint-tenants severs the joint-tenancy and turns it into 
 a tenancy in common,^ although the lease is not to commence 
 until after the lessor's death.* A mortgage executed by any 
 of the joint-tenants also operates as a severance.' "A con- 
 tract for sale by a joint-tenant seems to be, in equity, a sev- 
 erance of the joint-tenancy." A surrender by joint-tenant of 
 a' copyhold estate, to enable the lord to regrant, is a sever- 
 ance."^ 
 
 § 31. Severance by Mutual Agreement. — A joint-tenancy 
 may be severed by any contract entered into by the cotenants 
 for that purpose.^ A mere declaration that a joint-tenancy 
 shall be severed will not effect a severance, but an express 
 agreement to that effect will.^ 
 
 ' Humphrey v. Tayleur, Amb. 136; 1 Dick, 161. 
 
 ^ Williams v. Hensmau, 1 Johns. & H. 557. 
 
 ^ Doe V. Eead, 12 East, 57; Eoe v. Lonsdale, 12 East, 39. 
 
 * Clerk 1-. Clerk, 2 Vern. 323; Gould v. Kemp, 2 Mylne & K. 310. 
 
 '= Simpson v. Ammons, 1 Binn. 177; York v. Stone, 1 Salk. 158; S. C. 1 Eq. Cas. Ab. 
 293. 
 
 " Dart on Vendors and Purchasers, 4 Eng. ed. 253; Brown v. Eaidle, 3 Ves. 256. 
 For severance by marriage settlements, see Caldwell v. Fellowes, L. E. 9 Eq. 410. 
 
 ' Edwards i-. Champion, 21 E. L. & E. 230; S. C. 1 De G. & S. 75. 
 
 s Frewen v. Eelfe, 2 Brown's C. C. 224. 
 
 9 Gould V. Kemp, 2 Mylne & K. 310; Patricke i>. Powlett, 2 Atk. 154.
 
 87 JOINT-TENANCY. §§32,33,34 
 
 § 32. Severance by a Course of Dealing. — Severance 
 may always be inferred from the fact that the subject-matter 
 of the joint ownership has been embarked in commercial or 
 speculative enterprises. It may also be inferred from any- 
 other course of dealing between the tenants manifesting an 
 intent to change the joint holding. Thus, where eight per- 
 sons were interested in certain funds, and five of them 
 directed the trustee to invest the funds in a mortgage, this 
 investment destroyed the joint-tenancy between the five and 
 the three others, but the five remained joint -tenants between 
 themselves.^ If money is laid out jointly upon an estate held 
 in joint-tenancy with a view to its improvement, this, in this 
 Coui-t, is a severance."^ "A separate dealing by joint-tenants 
 of the property may sever the joint-tenancy and create a ten- 
 ancy in common. But I do not think this inference is to be 
 drawn merely from the circumstance that a trustee, having 
 realized part of the estate, has paid the money received, in 
 certain proportions, to the parties in severalt}^ As to the 
 money not received, they still remain joint-tenants."^ "Until 
 some act is done to sever, the interest remains as it previously 
 was, an interest in joint-tenancy. The burthen of proof lies 
 on those who contend that a joint-tenancy has been severed."^ 
 
 § 33. Severance by Process against a Tenant. — The is- 
 suing of execution on a judgment operates as a legal sever- 
 ance, if, without any further proceedings, a venditioni exponas 
 may be taken out and the lands sold.* "A fine or recovery 
 by one joint-tenant only, severs the joint-tenancy."^ 
 
 § 34. On a severance by one only -where there are 
 
 three tenants, or by tAvo where there are four or more tenants, 
 the remaining shares will be held in joint-tenancy. So where 
 one joint-tenant aliens a moiety of his moiety, the severance 
 will affect only the share so alienated, and an equal share of 
 the other joint-tenants. ** And where there are eight joint- 
 
 - Williams o. Hensman, 1 John. & Him. 557. 
 
 ■■^ Telfair v. Howe, 3 Iticli. Eq. 239; Lyster v. Dollaud, 1 Yes. Jr. 431. 
 
 3 Leak v. McDowall, 32 Beav. 30. 
 
 * DavidBon v. Heydon, 2 Yeatcs, 4G3; Hair v. Avery, 28 Ala. 2G7. 
 
 ' Moody V. Moody, ^Vmbl. G49; Ford v. Grey, 6 Mod. 45. 
 
 « Preston on Abstracts of Title, CO.
 
 g 35 JOINT-TENANCY. 88 
 
 tenants, and five effect a severance, the otlier three remain 
 joint-tenants with one another, and the five become joint- 
 tenants of the portions severed and appropriated by them.' 
 
 JOINT-TENANCY IN THE UNITED STATES. 
 
 § 35. Statutes Abolishing or Limiting. — The importance 
 of the law of joint-tenancj has been very greatly diminished 
 in the United States. This has been accomplished in three 
 ways : 1st, By the entire abolition of this species of tenancy, 
 as in Georgia, 2 Ohio," Oregon,^ and Tennessee.^ 2d, By the 
 enactment of laws providing, in eff'ect, that at the decease of 
 any joint-tenant his moiety should be distributed to his heirs, 
 or devisees, in the same manner as if he were a tenant in 
 common. This last course has been pursued by the Legis- 
 latures of Alabama,^ Arkansas,' Florida,^ North Carolina,^ 
 Pennsylvania (Purdon's Dig. 815,) South Carolina,'" Texas,'' 
 Virginia,'^ West Virginia,'^ and Kentucky;'^ while in Connec- 
 ticut the judiciary, at a very early day, and apparently with- 
 out any legislative authority, entirely ignored what they quite 
 appropriately styled ' ' the odious and unjust doctrine of sur- 
 vivorship. " '^ The third and principal way by which the num- 
 ber of joint-tenancies has been greatly diminished is by the 
 enactment of statutes changing the rules of the common law 
 so far as to require a grantor or devisor, wishing to create a 
 joint-tenancy, to insert words in his deed or devise clearly 
 
 ' Williams v. Hensman, 1 Johns. & H. 557. 
 
 '^ Code, Geo. sec. 2300; Lowe v. Brooks, 23 Geo. 325. 
 
 '^ Sergeant v. Steinberger, 2 Ohio, 305; Miles v, Fisher, 10 Ohio, 1; Wilson v. Flem- 
 ing, 13 Ohio, 68. 
 
 * Deady's Comp. 719, see. 38. « 
 
 * Code of Tenu., sec. 2010. 
 B Code of Ala., sec. 1582. 
 
 "> "All survivorships of real and jjersonal estate are forever abolished." - (Ark. Dig. 
 by Gould, 628.) 
 
 » Thompson's Digest, 191; Bush's Dig. 286. 
 
 » Weir V. Tate, 4 Ired. Eq. 264. 
 >o Comp. Laws, ed. of 1873, MO. 
 
 " Oldham v. White's Dig. 245; Paschal's Dig. Art. 3429. 
 '^ 3 Rob. Pr. 162-3. 
 IS Code West Va. 462, sees. 18 and 19. 
 '* 1 Washb. on E. P. 424; Genl. St. of Ky., ed. 1873, 586. 
 
 '5 Whittlesey v. Fuller, 11 Conn. 340, approving Phelps i'. Jepson, 1 Boot, 48, de- 
 cided in 1769.
 
 89 JOIXT-TEXANCY. § 35 
 
 showing sncli intent.^ The absence of such enactments in 
 England caused expressions of regret to escape from Vice- 
 Chancellor W. Page Wood, in pronouncing judgment in the 
 case of Williams v. Hensman. He said: "In these questions 
 
 ' The following note exhibits the provisions of most of the statutes in the United 
 States by which the common law presumption in favor of joint-tenancy has been dis- 
 placed in favor of tenancy in common. 
 
 In Califoexia, "a joint interest is one owned by several persons in equal shares, 
 by a title created by a single will or transfer, when expressly declared in the will or 
 transfer to bo a joiat-tenancy, or when granted or devised to executors or trustees as 
 joint- ten ants." (Sec. 683 Civil Code.) Sec. 686 same Code further declares that 
 "every interest created in favor of several persons in their own right is an interest 
 in common," unless acquired by a partnership, or declared at its creation to be a joint 
 interest, or acquired as community property. 
 
 In Delawahe, "no estate in joint-tenancy in lands, tenements, or hereditaments, 
 shall be held or claimed by or imder any grant, devise, or conveyance made to any 
 persons other than to executors or trustees, unless the premises therein mentioned 
 shaU be expressly granted, devised, or conveyed to such persons to be held as joint- 
 tenants and not as tenants in common." (Sec. 1720 Rev. St. Del. ed. of 1852.) 
 
 In Illzs'Ois, sec. 5 of Chapter on Conveyances (see Comp. Laws, ed. of 1868, 101) 
 enacts that "no estate in joint-tenancy in any lands, tenements, or hereditaments, 
 shall be held or claimed under any grant, devise, or conveyance whatsoever, hereto- 
 fore or hereafter made, other than to executors or trustees, unless the premises therein 
 mentioned shall expressly be thereby declared to pass, not in tenancy in common, but 
 in joint- tenancy; and every such estate, other than to executors or trustees, (unless 
 otherwise expressly declared as aforesaid,) shall be deemed to be a tenancy in common." 
 
 Sec. 7 of Act concerning Conveyances in Indiana, provides that "all conveyances 
 and devises of lands, or of any interest therein, made to two or more persons, except 
 as pro-sided in the next following section, shall be construed to create estates in com- 
 mon and not in joint- tenancy; tinless it shall be expressed therein that the grantees 
 or devisees shall hold the same in joint-tenaney and to the surAivor of them, or it 
 shall manifestly appear, from the tenor of the instrument, that it was intended to 
 create an estate in-joint-tenancy." Sec. 8 provides that section 7 sliall not apply to 
 mortgages, nor to conveyances in trust, nor to conveyances to husband and wife. 
 
 By sec. 1939 Code of Iowa, "conveyances to two or more in their own right create 
 a tenancy in common, unless a conh-ary intent is expressed." 
 
 In Kentucky, "when a joint-tenant dies, his part of the joint estate, real or per- 
 sonal, shall descend to his heirs, or jdsss by devise, or go to his personal representa- 
 tives, subject to debts, curtesy, dower, or distribution." (Genl. St. ed. of 1873, p. .586, 
 sec. 13.) But this section does not apply to the estates of executors or trustees, nor 
 to other States, when it appears that it was intended that the part of one dying should 
 belong to the others. (lb. sec. 14.) 
 
 In Maine, "conveyances not in mortgage, and devises of land to two or more per- 
 sons, create estates in common, unless otherwise expressed. Estates vested in sur- 
 vivors upon the principle of joint-tenancy are to be so held." (Rev. St. Maine, cd. of 
 1871, 559.) 
 
 In Mabylanx), the Act of 1822, ch. 162, declares that "no deed, devise, or other in- 
 strument of writing which may hereafter be executed, shall be construed to create an 
 estate in joint-tenaney, unless in such deed, devise, or other instrument of writing, it 
 is expressly provided that the property conveyed by such deed, devise, etc., is to be 
 held in joint-tenancy." (See Craft v. Wilcox, 4 Gill. 506; Purdy i'. Purdy, 3 Md. Ch. 
 Dec. 547; Maryland Code, sec. 850, p. 12, where the words "which may hereafter lio 
 executed" are omitted.)
 
 g 35 JOINT-TENANCY. 90 
 
 of joint-tenancy, the -Court has frequently been driven to rely 
 on minute grounds for holding a severance to have taken 
 place, by the unfortunate circumstance that the Legislature 
 has not thought fit to interpose by introducing the rule, that 
 
 In Massachusetts, sees. 13 and 14 of the Chapter on Conveyances are similar to 
 sees. 7 and 8 of the Indiana Act, already quoted. (Rev. of 1860, 466-7.) 
 
 In Michigan, "all grants and devises of lands, made to two or more persons, except 
 as provided in the following section, shall he construed to create estates in common, 
 and not in joint-tenancy, unless expressly declared to he in joint-tenancy." (Sec. M, 
 1329, Comp. Laws of Mich. 1871.) Sec. 45 provides that the preceding section shall 
 not apply to mortgages, nor to devises or grants made in trust, or made to executors, 
 or to hushand and wife. 
 
 MiNMESOTA.— Sec. 44 of the Act of this State in regard to Estates in Eeal Property, 
 is a copy of sec. 41 of same act of Michigan, quoted ahove. The exception from the 
 operation of the section does not name conveyances to hushand and wife. (Genl. St. 
 of Minn. ed. of 1873, 617.) 
 
 MissoTJKi.—" Every interest in real estate granted or devised to two or more per- 
 sons, other than to executors and trustees, or to husband and wife, shall be a tenancy 
 in common, unless expressly declared in such grant or devise to be in joint-tenancy." 
 (Comp. Law, ed. of 1865, 443.) 
 
 In Nevada, " every interest in real estate granted or devised to two or more per- 
 sons, other than executors or trustees, as such, shall be a tenancy in common, unless 
 expressly declared in the grant or devise to be a joint-tenancy." (Sec. 269 Comp. 
 Laws of Nev.) 
 
 New Hampshiee. — " Every conveyance or devise of real estate to two or more per- 
 sons shall be construed to create an estate in common and not in joint-tenancy, unless 
 it shall be expressed therein that such an estate is to be holden by the grantees or de- 
 visees as joint-tenants, or to them and the survivor of them, or other words are used 
 clearly expressing an intention to create a joint-tenancy." (Genl. St. ed. of 1867, 253, 
 being sec. 14 of act concerning conveyances.) 
 
 New Jeesey.— The act of Feb. 4, 1812, declares: "No estate, after the passing of 
 this act, shall in this State be considered and adjudged to be an estate in joint-tenancy 
 except it be expressly set forth in the grant or devise creating such estate, that it is 
 the intention of the parties to create an estate in joint-tenancy and not an estate in 
 common, any law, usage, or decision heretofore made to the contrary notwithstand- 
 ing." (Nixon's Digest, 4th ed. 150.) 
 
 New Yoek.—" Every estate gi-anted or devised to two or more persons, in then- own 
 right, shall be a tenancy in common, imless expressly declared to be in joint-tenancy; 
 but every estate vested in executors or trustees, as such, shall be held by them in 
 joint- tenancy. This section shall apply as well to estates already created or vested, as 
 to estates hereafter to be granted or devised. (Rev. St. of N. Y, vol. 3, p. 14, ed. of 
 1859.) 
 
 In Rhode Island, all grants, devises, etc., made to two or more persons, whether 
 husband and wife or not, shall be construed as creating a tenancy in common, unless 
 a contrary intent appears. (Comp. Laws, ed. of 1872, 348.) 
 
 Tennessee.—" In all estates, real and personal, held in joint-tenancy, the part or 
 share of any tenant dying shall not descend or go to the surviving tenant or tenants, 
 but shall descend or be vested in the heirs, executors, or administi-ators respectively 
 of the tenant so dying, in the same manner as estates held by tenancy in common." 
 (Genl. St. ed. of 1873, sec. 2010.) 
 
 The law in Veemont is similar to that of Rhode Island, but it excepts devises and 
 conveyances in trust, or to husband and wife. (Genl. St. of Vt. App. 1870, 446.)
 
 91 JOINT-TENANCY. §36 
 
 express words shall be required to create a joint-tenancy, in 
 place of the contrary rule which is established, that words 
 pointing to severalty of interest are necessary to constitute a 
 tenancy in common. Under certain circumstances, as in the 
 case of mortgages of trust money, a joint-tenancy is a con- 
 siderable convenience ; but it would be very desirable that, in 
 general, in the absence of any express direction, a tenancy in 
 common should be the construction adopted."^ 
 
 § 36. The Retroactive Effect of the Statutes abolishing 
 the right of survivorship, or enacting that no estate shall be 
 held in joint-tenancy unless so provided in the deed creating 
 it, has been sustained in some of the States, but denied in 
 others. Thus, in Pennsylvania, a statute enacted that the 
 part of the joint-tenant who should die first "shall not accrue 
 to the survivor, but shall descend, or pass by devise." In 
 construing this statute, the Court said : ' ' Something was said 
 in the argument of this cause against the constitutional power 
 of the Legislature to pass an act affecting estates then in exist- 
 ence. But, on this point, we have no doubt : the act deprived 
 no man of his property. Where title had already accrued by 
 survivorship, it remained untouched. The only effect of the 
 law was, to place the parties on an equal and sure footing, 
 leaving nothing to chance; without depriving them, however, 
 of the right of making any agreement between themselves 
 which they may think proper. In such a law, there is nothing 
 like an invasion of the rights of property, nor anything which 
 is forbidden by the constitution of the Commonwealth. "^ By 
 statute passed as early as 1785, Massachusetts declared that 
 all gifts or grants which have been or shall bo made to two or 
 more persons, shall be deemed to be estates in common. 
 "The statute," said Chief Justice Parker, in delivering the 
 opinion of the Supreme Court, ' ' in its terms, applies to 
 estates created before as well as after its enactment. The 
 principle is nevertheless correct, that the Legislature cannot 
 imj^air the title to estates, without the consent of the pro- 
 prietors, unless for public objects, when an adequate cou- 
 
 ^ Johns. & H. 557. 
 
 « Bambaugh v. Bambaugb, 11 S. &, K. 193.
 
 § 37 JOINT-TENANCY. 92 
 
 sideration shall be provided. But there can be no objection 
 to the operation of any legislative act retrospectively, which 
 shall enlarge or otherwise make more valuable the title to any 
 estate, for the consent of the holder may always be presumed 
 to such acts. Now, it was clearly for the interest of both 
 the grantees in the deed under consideration, that they should 
 hold as tenants in common rather than as joint-tenants, inas- 
 much as a certain inheritance in a moiety is more valuable 
 than an uncertain right of succession to the wdiole; and in 
 this view, the objection to the operation of the statute, we 
 think, is avoided."^ On the other hand, the highest Courts 
 of some of the other States, without going into any discus- 
 sion of principles, or giving any insight into the reasons 
 which led them to do so, have declared that "the Legisla- 
 ture had not competent authority to give such an effect to the 
 statute as would deprive joint-tenants of one of the essential 
 elements of their tenure — the right of survivorship."^ 
 
 § 37. Creation not-withstanding Statutes. — No doubt, 
 but few attempts have been made, either by deed or devise, 
 to create joint-tenancies by express words to that effect, in 
 opposition to those statutes which have created presumptions 
 in favor of tenancy in common. The fact that these attempts 
 have been so unfrequent shows that, with the American 
 people, joint-tenancy, if not a subject of aversion, is rarely a 
 matter of preference. The words "jointly and severally'" in a 
 deed, though not inconsistent with the granting of a joint 
 estate, are not sufficient to create a joint-tenancy in Massa- 
 chusetts.^ The statute in Delaware, provides that the estate 
 shall be a tenancy in common, unless the deed or devise shows 
 that it is "to be held as joint-tenancy, and not as a tenancy 
 in common." The words to A and B, "jointly their heirs 
 and assigns forever," were not deemed sufficient to create a 
 joint estate, because the term "jointly" does not necessarily 
 
 ' Miller v. Miller, 16 Mass. Gl. See also similar views expressed by Wilde, J. in 
 Anable v. Patcli, 3 Pick. 363. 
 
 '■= Greer v. Blanchar, 40 Cal. 198; Dewey v. Lambier, 7 Cal. 348; The Boston Frank- 
 linite Co. v. Condit, 19 N. J. Eq. 399; Den ex dem. Berdau y. Van Riper, 1 Harr. 
 N. J. 10. 
 
 « Miller v. Miller, 16 Mass. 60; Bugliardt v. Turner, 12 Pick. 538. In this last case, 
 the words were "jointly to be equally divided."
 
 93 JOINT-TENANCY. §§38-40 
 
 mean a joint-tenancy, but may be applied to tenants in com- 
 mon who held jointly until severance.' A devise made by a 
 father to his "children and the survivor and survivors of 
 them/' contain apt words to create a joint estate. The child- 
 ren will consequently hold as joint-tenants even under the 
 statute in force in Massachusetts.^ 
 
 § 38. Not forbidden by Law. — The statutes enacting 
 that at the decease of a joint-tenant his moiety shall descend 
 to his heirs at law, or be subject to his devise, do not, it 
 seems, place it beyond the power of a testator to create a 
 sui-vivorship. Thus, where a devise was made to three per- 
 sons "as joint-tenants, and to the survivors and survivor of 
 them," the intent to create a joint-tenancy and a survivorship 
 was so clearly manifested, that the Court could only refuse to 
 carry it into effect upon the ground that it was an unlaAvful 
 intent. But the Court did not consider that the statute had 
 made such an intent illegal, and therefore recognized and en- 
 forced the claim of the surviving devisee to the whole prop- 
 erty.'' 
 
 § 39. Dower under Statutes abolishing Survivorship. — 
 
 It has already been shown that the right of the surviving 
 joint-tenant to the whole estate was, at common law, para- 
 mount to the claim of the wife of the deceased cotenant for 
 dower. By the several American statutes abolishing surviv- 
 orship, the only obstacle to the wife's obtaining dower has 
 been removed; and in the States where those statutes exist, 
 her claim has been as fidly recognized as though her hus- 
 band's estate had been that of a tenant in common.^ 
 
 § 40. Lapsing of Legacies and Devises. — We have seen 
 that in at least ten of the States of the American Union, the 
 only interference with joint-tenancy has been by abolishing 
 the right of survivorship.* A very important question neces- 
 
 I Daviri V. Smith, 4 Harr. 08. 
 - StimpHon v. Batterman, 5 Cunh. 155. 
 
 •'■ Arnold v. Jack's Exocutorn, 21 Penn. St. 57; Lentz v. Lentz, 2 Phila. 117. 
 < Holbrook v. Finney, 4 MasH. 5G8; Heed i> Kennedy, 2 Strob. G9; Weir v. Tiito, i 
 Ired. Eq. 277; Davis v. Lo'^au, '.) Dana, 185; James v. IJowan, G S. & M. 393. 
 * See sec. 35.
 
 3 40 JOINT-TENANCY. 94 
 
 sarily arising in these States, is whether, when a deed, devise, 
 or bequest, is made to two or more, without any words of 
 severance, and one of them, from death or from any other 
 cause, cannot receive the estate granted or bequeathed, shall 
 his moiety vest in those who are competent to receive the 
 estate, or shall it lapse, as in case of a grant or devise, to two 
 or more as tenants in common. In the Appendix to Wythe's 
 Eeports^ can be found the most thorough discussion of the 
 common law doctrines and incidents of joint-tenancy which 
 it has ever been our good fortune to discover. After showing 
 that at common law the rule that the grantees or devisees who 
 are competent to take the thing granted, take the whole as 
 though they only had been named in the grant or devise, and 
 that this rule was of universal appKcation unless the estate 
 was limited to them separaiely, and that it seemed to be in 
 nowise dependent upon the jus accrescendi, the author pro- 
 ceeds to speak as follows of the statute of Virginia taking 
 away the right of survivorship: " It does not annihilate the 
 legal entity called a joint estate, so as to i3revent any such 
 estate from vesting, nor does it destroy the joint estate forth- 
 with after it has vested. On the contrary, it permits the 
 estate to subsist as joint, with all its former incidents, during 
 the joint lives of all its owners; and if, in that time, parti- 
 tion be made, or a severance effected without partition, it is 
 quiescent as a dead letter. It begins to operate at all only 
 when one of the joint-tenants has died before partition or 
 severance. And on the happening of that event, and from 
 thenceforth, it directs that the part of the deceased shall be 
 considered as if he had been a tenant in common, not from 
 the beginning, but only when the event to which it refers 
 happened. Where it applies, and to the extent of its appli- 
 cation, it operates, in artlculo mortis, a statutory severance; 
 and that is all. It does not extirpate the quality of a joint 
 estate, which made it produce, among other fruits, the jm 
 accrescendi, but only destroys in the moment of production, 
 or blights by anticipation in the bloom, that particular fruit. 
 In this manner, it modifies the nature of a joint-tenancy by 
 the common law, so far as to take away one of the incidents 
 
 1 See Wythe's Kep. 361.
 
 95 JOINT-TENANCY. §41 
 
 which the law has annexed to it, but leaves it in all other 
 respects as it was. "^ "^ "^ In short, since the statute, joint- 
 tenants seem to have an estate that is to all purposes joint, 
 both in its inception and also in its continuance, until a de- 
 struction or severance thereof takes place; which latter, 
 where an interest has become vested, is effectuated by the 
 statute at the moment any of them dies, to the extent of his 
 part; and henceforth that part is to be regarded as it would 
 have been (though the statute had never been enacted) if the 
 joint estate had been to the same extent dissevered by any of 
 the means which theretofore existed. And, if this be the sum 
 of its efficacy, the consequence seems to be, that in regard 
 to the lapsing of devises and legacies, and also in regard to 
 the vesting of estates created or transferred by conveyances 
 inter vivos, it has been productive of no change whatever."^ 
 
 § 41. Property still held in Joint-Tenancy. — The stat- 
 utes of the several States in regard to joint-tenancy (most of 
 which have already been cited) do not, as a rule, include 
 all kinds of property. So far as there are any decisions upon 
 this subject, they establish the general proposition that joint- 
 tenancy is only abolished as to the species of property neces- 
 sarily included in the words of the statute. Thus, in Massa- 
 chusetts, all conveyances and devises, made to two or more, 
 were, except in certain cases, to be deemed tenancies in 
 common. This statute, it was held, did not affect an estate 
 acquired by disseisin, for the disseisors held neither by deed 
 nor by devise.- For a like reason, the statutes of Massachu- 
 setts, New York, and Vermont, did not affect personal estate. 
 These statutes spoke of gi-ants and devises; terms which apply 
 to real estate, and to real estate only.'^ The statute of 
 Arkansas enacted that ' ' all survivorships of real and personal 
 estates are forever abolished." The Courts of that State con- 
 
 ' Wythe's Reports, 379, 380. The position here taken is no doubt inconsistent with 
 Sawyer v. Trneblood's Exrs. 1 Murph. 190; but that case is apparently a misstatement 
 rather than an intei-prctation of the statute under which it was made, and does not 
 accord with the later case of Weir v. Humphries, 4 Ired. Eq. 277. 
 
 " Putney i'. Dresser, 2 Met. 58G. 
 
 ■' Putnan v. Pntnan, 4 Bradf. 300; Decamp v. Hall, 42 Vt. 485; Emerson v. Cutler, 
 M Pick. 110.
 
 g 42 JOINT-TENANCY. 96 
 
 siderecl that the sole object of this act was to avoid the inci- 
 dent of survivorshixD whereby the longest liver became sole 
 owner of the entire estate ; that the act was not intended to 
 interfere with the legal right of the surviving owner of a joint 
 chose in action to prosecute a suit thereon in his own name ; 
 and therefore such a construction was given to the act as al- 
 lowed one of the payees of a promissory note to maintain an 
 action thereon after the decease of the other payee. ^ 
 
 § 42. Mortgagees.^The statute of Massachusetts, passed 
 in 1785, provided that all conveyances to two or more grantees 
 shall be adjudged to convey estates in common, unless an 
 intent to pass a joint estate apj)ear from the conveyance. 
 The question arose, at quite an early day, whether this statute 
 abolished joint-tenancy in mortgages. Chief Justice Parsons 
 delivered the opinion, holding that the mortgagees were 
 joint-tenants, saying: "As upon the death of either mort- 
 gagee, the remedy to recover the debt would survive, we are 
 of the ©x^iniou that it was the intent of the parties that the 
 mortgage or collateral security should comport with that 
 remedy ; and, for this purpose, the mortgaged estate should 
 survive. Uj)on any other construction, but one moiety of 
 the mortgaged tenements would remain a collateral security 
 for the joint debt; which would be clearly repugnant to the 
 intention of the parties to the mortgage."^ Judge Story in 
 deciding the same question, under a statute similar to the 
 Massachusetts statute of 1785, dissented from the conclusion 
 reached by Chief Justice Parsons, and denied the premises on 
 which it was based. He said: "But with great deference to 
 the learned Judge, the doctrine, that a conveyance in mort- 
 gage to two persons, as tenants in common, becomes by the 
 death of either no security, except for a moiety, cannot, in 
 my judgment, be maintained in point of law. No authority 
 is cited for it, and it seems to me irreconcilable with estab- 
 lished j)rinciples. It cannot be deduced from the fact, that 
 the debt vests by survivorship in one party, while the estate 
 
 ' Trammell v. Harrell, 4 Ark. 602; Sessions v. Peay, 19 lb. 269. 
 
 - Appleton V. Boyd, 7 Mass. 134; Burnett v. Pratt, 22 Pick. 556. In Massachusetts, 
 mortgages are now excepted from the operation of the statute. Blake v. Sanborn, 8 
 Gray, 154.
 
 97 JOINT-TENANCY. § 43 
 
 would pass to another. For at the common law, upon the 
 death of the mortgagee, the estate in the land vests in the 
 heir, while the debt vests in the administrator. Upon the 
 like argument, it ought to follow in such case, that by the 
 death of the mortgagee, the whole security in the land should 
 be gone ; and yet it is well established that the heir takes the 
 land by descent, subject to redemption, and that the debt 
 belongs to the administrator." After proceeding, by addi- 
 tional illustrations, to show that by holding the mortgagees 
 to be tenants in common of the mortgaged estate, no incon- 
 venience would result in enforcing their remedy, and that no 
 diminution or division of the security would ensue, Judge 
 Story rejected the Massachusetts decision, and declared that 
 the mortgagees did not hold as joint-tenants.' 
 
 § 43. Co-Trustees. — Some of the statutes enacted in the 
 various States for the purpose of abolishing or discouraging 
 joint-tenancy, or of robbing it of its grand incident of sur- 
 vivorship, except from their operation estates granted or de- 
 vised to two or more as trustees. But, independent of any 
 express exception, it has been generally, but not universally, 
 decided that these statutes do not apply to estates held in 
 trust. The object of the statutes was to prevent the vesting 
 of the whole estate in one of the cotenants to the exclusion 
 of the heirs of the other. It was thought best to change the 
 rule of the common law so that the cotenant's heirs, who were 
 supposed to be dear as well as near to him, and who had the 
 strongest claims to his protection and to such advancement 
 as might be obtained from his estate, should not be, in effect, 
 disinherited, in the absence of some express stipulation in 
 the deed by which the estate was created, clearly indicating 
 that it was taken subject to the hazard of survivorshij). But 
 when lands are granted to two or more persons to be by them 
 held in trust, they have no beneficial interest in the grant. 
 If either die, the vesting of the entire legal estate in the other 
 as survivor has no tendency to operate to the prejudice of 
 those interested as beneficiaries. No children are, in effect, 
 disinlieritcd for the advantage of a stranger. The party 
 
 ' IJaudall V. PlullipH, 3 Mason (J. C. 38G. 
 
 C. k p.— 7
 
 § 43 JOINT-TENANCY. 98 
 
 creating the trust estate can hardly be supposed to have de- 
 signed it to be held as a tenancy in common; for if so held, 
 the death of either trustee, and the consequent descent of 
 his legal estate to his heirs, would necessarily devolve, in 
 part, the management of the trust upon persons who were 
 strangers to the trustor, and upon whom he never thought of 
 calling for its execution. The trustor, it may well be pre- 
 sumed, intended that all the trustees should join in effectu- 
 ating the trust; but when, from death, one of them can no 
 longer act, the trustor's designs will probably be better ac- 
 complished by regarding the remaining trustees as being ex- 
 clusively charged with the administration of the trust, than 
 by introducing the heirs of the deceased or an appointee of 
 some Court to represent the late trustee and to participate in 
 the management of the trust estate. Because the mischiefs 
 which these statutes were intended to avoid never worked as 
 mischiefs but rather as advantages in connection with estates 
 held by trustees, these estates are regarded as beyond the 
 scope and intent, and therefore beyond the operation of the 
 statutes, and are liable to descend to the survivor or sur- 
 vivors, and in other respects to be treated as at common law.^ 
 On the other hand, it has been contended that a person 
 choosing two trustees does so because he wants more than 
 one, and that on conveying to two and their heirs, he naturally 
 supposes that the heir of the one who first dies will act with 
 the survivor ; that while the evil consequences of survivorship 
 are less in connection with trust estates than with others, still 
 this does not justify Courts in exempting them from the ope- 
 ration of those statutes which on their face fail to express 
 any such exemption, and that "it is much better for Courts 
 to be governed by the plain words of a statute than to aim at 
 evading their effect, even for good ends; and in no case 
 should they be overridden, except one of evident necessity 
 to affect an intent plainly shown. "^ 
 
 1 Parsons v. Boyd, 20 Ala. 118; Powell v. Knox, 16 Ala. 364; Gray v. Lynch, 8 Gill. 
 423; P. E. R. R. Co. v. L. N. Co. 36 Pa. S. 204; Shartz v. Unangst, 3 Watts & S. 45^ 
 Stewart v. Pettus, 10 Mo. 755. 
 
 ^ The Boston Franklinite Co. v. Condit, 19 N- J, Eq. 398.
 
 99 JOINT-TENANCY. §44 
 
 § 44. Joint-Tenancy of Trust Estates. — Havingshown that 
 trust estates, notAvitlistauding the various American statutes 
 relating to joint-tenancy, are hekl as at common law, we may 
 now, without departing from the general plan of this work, 
 briefly consider when and how far a trust estate held by two 
 or more was necessarily a joint-tenancy at common law. 
 "Where more ti-ustees than one are appointed, the tinist 
 property is almost invariably limited to them as joint-tenants; 
 and even if the terms of the gift rendered this at all doubtful, 
 the Coiu't, for the sake of convenience, would doubtless en- 
 deavor, if possible, to affix this construction to it. Therefore, 
 upon the death of one of the original trustees, the whole 
 estate, whether real or personal, devolves upon the survivors, 
 and so on continually to the last surviovor."^ "As co-tinistees 
 have an authority coupled with an interest, their office also 
 must be impressed with the quality of survivorship : as if an 
 estate be vested in two trustees upon trust to sell and one of 
 them die, the other may sell ; and if an advowson be conveyed 
 to tiaistees upon trust to present a proper clerk, the survivor 
 may present."'^ That an estate vested in two or more as trus- 
 tees sui'^ives in case of the death of one, is nowhere denied. 
 The chief difficulty is to determine whether the instrument 
 creating the alleged trust vests an estate in the trustees, or 
 merely gives them a naked power to sell. "The general 
 principle of the common law, as laid do^oi by Lord Coke, 
 (Co. Litt. 112 b,) and sanctioned by many judicial decisions, 
 is, that when the power given to several persons is a mere 
 naked power to sell, not coupled with an interest, it must be 
 executed by all, and does not survive. But when the power 
 is coupled with an interest, it may be executed by the sur- 
 vivor. But the difficulty arises in the application of the rule 
 to particular cases. It may, perhaps, be considered as the 
 better conclusion to be drawn from the English cases on this 
 question, that a mere direction in a will to the executors to 
 sell land, without any words vesting in them an interest in 
 the land, or creating a trust, will only be a naked power 
 
 ' Hill on Tnistees, 303. 
 
 ^ Lcwin on TriiHts, 300; Lane v. Debenham, 17 Jur. 1005; Shook u. Shook, 19 Barb. 
 653; Wheatley v. Boyd, 7 Exc. 20; King v. Leach, 2 Hare, 59.
 
 a 44 JOINT-TENANCY. 100 
 
 which does not survive. In such case, there is no one who 
 has a right to enforce an execution of the power. But when 
 anything is directed to be done, in which third persons are 
 interested, and who have a right to call on the executors to 
 execute the power, such power sui^vives. This becomes 
 necessary for the purpose of effecting the object of the power. 
 It is not a power coupled with an interest in the executors, 
 because they may derive a personal benefit from the devise. 
 For a trust will survive though no way beneficial to the trus- 
 tee. It is the possession of the legal estate, or a right in the 
 subject over which the power is to be exercised, that makes 
 the interest in question. And when an executor, guardian, 
 or other tnistee, is invested with the rents and profits of land, 
 for the sale or use of another, it is still an authority coupled 
 with an interest, and survives."^ "It is not necessary that 
 the interest coupled with the power should be a legal interest. 
 An equitable interest is sufficient, and is regarded in this 
 Court as the real interest. A trustee invested only vnih the 
 use and profits of the land for the benefit of another, has an 
 interest connected with his power. This was so understood 
 in Bergen v. Bennett, (1 Caines Cas. in Error, 16) ; and in 
 Eyi-e V. Countess of Shaftsbury, (2 P. Wms. 102,) a testa- 
 mentary guardian, with authority to lease, was held to pos- 
 sess a power coupled with an interest, and capable of sur- 
 vivorship."^ It is not within the province of this work to 
 enter into a close examination of the subject of 'poivers, nor 
 to lay down minutely the tests by which to distinguish mere 
 naked powers from those coupled with an interest. So far as 
 trustees are concerned, we have no reason to consider any- 
 thing beyond the nature of the tenure by which they hold 
 their estates. And considering their estate, in reference to 
 the character of their cotenancy, the rule seems to admit of 
 no exception at common law, that, in the absence of a limita- 
 tion to them as tenants in common, whatever estate or title 
 vests in them, vests in joint-tenancy, and that where title is 
 vested in them at all, subject to specified trusts, a power is 
 
 - Peter v. Beverly, 10 Pet. 564. 
 
 '■^ Osgood V. Franklin, 2 Johns. Ch. 20.
 
 101 JOINT-TENANCY. §§45,46 
 
 thereby created coupled with, an interest, and liable to sur- 
 \i\e to one trustee upon the decease of the others.^ 
 
 § 45. Trust Estates vest in those -who Accept. — The 
 
 rule that a grant or devise of an estate to two or more as 
 joint-tenants vests the entire estate in those who may be 
 qualified to receive the grant or devise at the time it becomes 
 operative, applies to a cotenancy in a tnist estate. If one 
 or more of the trustees renounce or disclaim the ti'ust, the 
 whole of the estate vests in the trustee or trustees who are 
 willing to accej)t it. The person or persons thus renouncing, 
 thereafter stand in the same relation to the estate as though 
 they had never been named as trustees; while those accept- 
 ing are entitled to the estate in the same manner, and to the 
 same extent, as though they only had been named in the 
 grant or devise.^ 
 
 § 46. Co-Executors and Co- Administrators, "as such, 
 are regarded in law as one person; and therefore if one of 
 them sell the goods or the securities of the testator to a bo7ia 
 fide pui'chaser, who has no reason to suspect that such execu- 
 tor is committing a breach of trust, such puchaser will have 
 a right to hold the same not only against the executors but 
 also as against creditors and legatees."^ "Joint executors 
 and administrators are possessed of the estate, each as of 
 the entirety, and consequently the act of each is the act of 
 all."* But where by the will of the testator the executors re- 
 ceive the legal title to an estate, then they hold it "in the 
 
 * Zebach v. Smith, 3 Binn. 60; Davouc v. Fanning, 2 Johns. Ch. 254; Miildrow v. 
 Fox, 2 Dana, 79; Hunt v. Kousmaniere, 2 Mason C. C. 244; Wood v. Sparks, 1 Dev. & 
 Bat. 389; Jackson v. Given, 16 Johns. 170; Burr v. Sim, 1 Whart. 266; Coykendall v. 
 Rutherford, 1 Green. Ch. 360; Robinson c. Gaines, 2 Humpli. 367; Warden t). Richards, 
 11 Gray, 278; Belmont v. O'Brien, 12 N. Y. 400. 
 
 '^ Crewe v. Dicken. 4 Ves. 97; Granville v. McNcile, 7 Hare, 156; Smith v. Wheeler, 
 1 Vent. 138; Hawkins v. Kemp, 3 East, 410; Cooko v. Crawford, 13 Sim. 96; Nicholson 
 V. Wordsworth, 2 Swanst. 369; Adams v. Taunton, 5 Mad. 435; Sands v. Nugec, 8 Sim. 
 130; Bonifant v. Greenfield, Cro. Eliz. 80; S. C. 1 Leon, 60; Bayloy ?'. Cnmming, 10 
 Irish Eq. 410; Zebach's Lessee v. Smith, 3 Binn. 69; In tho Matter of Stevenson, 3 
 Paige, 420; Cbanet v. Villeponteaux, 3 McCord, 29; Nilos v. St<^'vens, 4 Denio, 402; 
 Leggettr. Hunter, 19 N. Y. 456. 
 
 ^ Hertell v. Bogart, 9 Paige, 57; Simpson v. Gutteridge, 1 Madd. Ch. 009; Saunders 
 V. Saunders, 2 Litt. 315. 
 
 * 2 Rcdfield on Wills, 200; Bryan's Ex. v. Thompson's Adni. J. J. Marsli. 586.
 
 §46 JOINT-TENANCY. 102 
 
 same manner as if it had been given to them as trustees under 
 an ordinary trust; and the concurrence of all the trustees is 
 necessary to transfer the legal title. "^ Where executors are 
 charged with the execution of a power coupled with an in- 
 terest, the tenure of their holding is like that of ordinary 
 trustees having a similar power. They take and hold as joint- 
 tenants.^ If some renounce, those who accept take the whole 
 as if they only had been named; and if one of those accept- 
 ing die, the survivor succeeds to the interest and executes 
 the power with which it is coupled. If co-executors take a 
 residue in that character, they become joint-tenants with the 
 right of survivorship.^ 
 
 ' Hertell v. Bogart, 9 Paige, 58; Smith v. Whiting. 9 Mass. 334. 
 
 •^ Perry on Trusts, sec. 414. 
 
 3 Frewen v. Eelfe, 2 Bro. C. C. 220; Baldwin v. Johnson, 3 Bro. C. C. 455; Griffiths 
 v. Hamilton, 12 Ves. 298; White v. Williams, 3 V. & B. 72; Knight u. Gould, 2 Mylne 
 & K. 299, 303; Flanders?;. Clarke, 3 Atk. 509; S. C. 1 Ves. Sr. 9.
 
 CHAPTER III. 
 
 THE HOMESTEAD AS A JOINT-TENANCY. 
 
 Kevival of Joint-Tenancy bj' Homestead Laws, ^ 47. 
 
 In California, Nevada, and Idaho, t^S 48. 
 
 Resembles Tenancy by Entireties, § 49. 
 
 General Nature of Homestead Estates, $ 50. 
 
 Homestead not ordinarily a Cotenancy, $ 51. 
 
 Interest of Wife when Homestead is not a Cotenancy, $ 52. 
 
 Interest of Wife how regarded in Iowa, § 53. 
 
 Homestead in Lands of a Cotenancy, § 54. 
 
 Homestead may be acquired in any title or interest in Severalty, $ 55. 
 
 Homestead embraces Title subsequently acquired, $ 56. 
 
 Homestead embraces Title subsequently acquired, $ 57. 
 
 Conveyance or Incumbrance of, § 58. 
 
 Limit of, 6 59. 
 
 Partition of, § 60. 
 
 After Divorce, ^ 6L * ■ 
 
 Surdvorsliip in, § 62. 
 
 g 47. Joint-Tenancy revived by Homestead La-ws. — 
 
 lu most of the States, laws have been enacted exempting 
 from execution and forced sale a certain quantity of land, 
 with the improvements thereon, used and occupied by the 
 judgment debtor as a home for himself and family. Usually, 
 the property so exempted is further secured as a home for the 
 family by provisions requiring the joint concurrence of the 
 husband and wife in its encumbrance or alienation. At the 
 death of the husband, the property retains its homestead 
 character for the benefit of his widow and children. In the 
 States Avhere these enactments have been made, the property 
 by them protected from seizure and forced sale, and conse- 
 crated as a home, is spoken of as a homestead, and the new 
 interest created by law in this property is known as the 
 homestead estate. While joint-tenancy, as it existed under 
 
 103
 
 §§ 48, 49 HOMESTEAD. 104 
 
 the common law, has, by operation of statutes in most of 
 the States, fallen into general desuetude, it has, in some 
 others, been annexed as an incident to every estate held 
 by husband and wife as a homestead. In those States, 
 the importance of the law of joint-tenancy has been partially 
 revived. For as a very large proportion of property is dedi- 
 cated as homesteads, it therefore happens that joint estates 
 are of frequent occurrence — ^more frequent perhaps than when 
 joint-tenancy was most favored at common law. We shall 
 therefore proceed to consider the homestead as a cotenancy; 
 but only so far as to show in what States it is treated as a new 
 and joint estate, and what, where it is so treated, are the 
 peculiar relations and powers of the cotenants thereof. 
 
 § 48. In California, the tenure by vrhieh husband and 
 
 wife hold their homestead is clearly defined. Section one of 
 the Homestead Act of that State, as amended in 1860, pro- 
 vided that, from and after the filing and recording of the 
 declaration, "the husband and wife shall be deemed to hold 
 said homestead as joint-tenants; and all homesteads hereto- 
 fore appropriated and acquired by husband and wife under 
 the act to which this is amendatory, shall be deemed to be 
 held by such husband and wife in joint-tenancy."* The pro- 
 visions of this section were adopted as part of the homestead 
 law of the State of Nevada,^ and of the Territory of Idaho. ^ 
 The Civil Code of CaUfornia reenacted the substance of the 
 former statute, leaving the present law of that State, upon 
 this subject, in the following form : "From and after the time 
 the declaration is filed for record, the land therein described 
 is a homestead; and if the declaration was made by a mamed 
 person, the land is thereafter by the spouses held in joint- 
 tenancy, and on the death of either of the spouses, and sub- 
 ject to no other liability than such as exists or has been 
 created under the provisions of this title, at once vests in the 
 survivor."* 
 
 § 49. Resembles Tenancy by Entirety. — In the Terri- 
 tory and States named in the preceding section, the homestead 
 
 ' Hittell Gen. Laws, sec. 3541; St. 1860, 311. - Comp. Laws, Nev., 60-61; St. 1865, 225. 
 3 Gen. Laws Idaho, 1863-4, 575. « Sec. 1265 Civil Code.
 
 105 HOMESTEAD. § 50 
 
 is not only inseparably connected with survivorship — the most 
 important characteristic of joint-tenancy — but it is also given 
 a name, and is by statute expressly denominated a joint- 
 tenancy. As a conveyance or incumbrance cannot be made 
 to affect the homestead without the assent of both husband 
 and wife, manifested in form and manner as provided in the 
 act, and as neither can prejudice the estate of the other, nor 
 change the form of the tenancy, nor, during the continuance 
 of the marital relations, turn the cotenancy into an estate in 
 severalty by a suit for partition, it appears to us that these 
 legislators have not given the most appropriate name to the 
 tenancy created; and that, instead of a joint-tenancy, it 
 should be termed a tenancy by entirety. 
 
 § 50. In considering the Nature of the Homestead 
 fjstate, Chief Justice Sawyer, of California, said: "There 
 is no occasion to discuss at large the question whether the 
 estate of the husband and wife is exactly the same in all 
 respects, and vrith all the incidents of a joint-tenancy, in the 
 technical sense of the term, as used in the common law, or, 
 whether the term 'joint-tenancy' is the best that could be 
 chosen to express the intention of the legislators. But we do 
 not see why the character of the right, as defined, does not 
 suhstantiaUy approach very near a joint-tenancy, although not 
 created in precisely the same way, even if not a technical 
 joint -tenancy at common law. In the homestead estate, most 
 of the unities of a joint-tenancy are found, for it is created 
 by the same instrument and at the same time. So far as the 
 homestead right is concerned, ' they have one and the same 
 interest, accruing by one and the same conveyance, (or act,) 
 commencing at one and the same time, and held by one and 
 the same undivided possession.' If the husband controls the 
 property during coverture, it is not because he has a greater, 
 more valuable, or different interest in the homestead from 
 that of the wife, but because the law has made him the liead 
 of the household and devolved upon him the duty of manage- 
 ment, not for his own interest merely but for the joint benefit 
 of both. And since the amendment of 1862, the right of 
 survivorship, the grand incident of joint-tenancy, is added. 
 The main substantial difference now, seems to be the want of
 
 §§ 51, 52 HOMESTEAD. 106 
 
 power in one of the parties to sever the tenancy, or convey at 
 all, without the concurrence of the other in the mode pre- 
 scribed. But however this may be, there is a joint interest 
 in the homestead — a joint holding, if not a technical joint- 
 tenancy. The Legislature did not adopt the provision, that 
 the husband and wife shall be deemed to hold the homestead 
 as 'joint-tenants,' without some object, and the term 'joint- 
 tenants' was used as best adapted to express that object. 
 They did not intend to use a meaningless phrase, to be at- 
 tended by no consequences."^ 
 
 § 51. Homestead not ordinarily a Cotenancy. — In a vast 
 majority of the States in which homestead property is recog- 
 nized and protected from forced sale, no joint-tenancy is, in 
 express terms, created. Still a kind of joint interest is gen- 
 erally brought into being; alienation is usually restricted to 
 some form of conveyance manifesting the joint assent of the 
 spouses; and upon the death of either spouse, the estate 
 remains exempt from execution, and generally vests in the 
 survivor alone, or in the survivor and the children, if any, of 
 the deceased. Practically, the interest of the wife in the 
 premises dedicated as a homestead, under such laws, is as 
 great as that of the husband. Her power of disposition, 
 during the continuance of the homestead, is coextensive with 
 his. But while her interest in, and disposing power over, 
 the property is thus in fact at least equal to his, the authorities 
 generally concede that she has no estate in the homestead, in 
 addition to what she may have independent of the fact of 
 homestead. In other words, the title continues in the hus- 
 band, subject to certain restraints and privileges, and liable 
 to a certain disposition after his death. 
 
 § 52. The interest or title of the -wife in the homestead, 
 
 even where, under the law, no cotenancy was created, has, 
 however, been in some instances treated as a title in and to 
 the lands included in the homestead. This was the case 
 under the decisions made at an early day in California,^ de- 
 claring that the operation of the homestead law was to ' ' create 
 
 1 Barber v. Babel, 36 Cal. 16; McQuade v. Whaley, 31 Cal. 531, 
 '■^ Taylor v. Hargous, 4 Cal. 2T3; Poole v. Gerrard, 6 Cal. 71; Buchanan's Estate, 8 
 Cal. 509; Kevalk v. Kraemer, 8 Cal. 73; Tompkins' Estate, 12 Cal. 125.
 
 107 HOMESTEAD. § 52 
 
 a sort of joint-tenancy." These decisions, it must be re- 
 membered, were made before the adoption of the amendment 
 by which homesteads were converted into joint- tenancies. 
 They were subsequently overruled. Field, then Chief Justice, 
 delivering the opinion of the Court, in the course of which 
 he said, after referring to the doctrine of the earlier cases : 
 ' ' This doctrine has never met with the approbation of the 
 profession, and is not warranted by any language in the con- 
 stitution or the statute. There is nothing in the nature of 
 the homestead right or privilege which justifies its designation 
 as such an estate. The right or privilege has no single fea- 
 ture resembling a joint-tenancy. The estate rests where it 
 existed before the premises were appropriated as a home- 
 stead. The appropriation of them confers a right upon the 
 wife to insist that their character as a homestead shall continue 
 until she consents to the alienation, or another homestead is 
 provided, or they are otherwise abandoned. The wife, if sur- 
 viving her husband, takes the homestead, not by virtue of any 
 right of survivorship arising from the alleged joint-tenancy, 
 but as property set apart by law from her husband's estate, 
 for her benefit and that of her children, if any. In the same 
 way, other property exempt from forced sale is set apart to 
 her."^ The view of the law thus taken by Judge Field is 
 consistent with decisions in other States. Thus, in Illinois 
 the Supreme Court has held that the homestead act has not 
 created any new estate, separate and distinct from the fee or 
 other estate. And that, as a consequence, the conveyance of 
 the husband operates upon and transfers the fee, subject to 
 the homestead rights of the wife; and that as soon as the 
 homestead rights terminate, the grantee of the husband is 
 entitled to possession of the property as owner thereof.^ 
 
 ' Geev. Moore, 14 Cal. 472; Bowman v. Norton, 16 Cal. 217; Brcnnan v. Wallace, 
 25 Cal. 114. 
 
 '^ McDonald v. Crandall, 43 111. 236; Hewett v. Templeton, 48 111. 3G9; Stewart r. 
 Mackey, 16 Tex. 57; Davis v. Andrews, 30 Vt. 681; Gunnison v. Twitchell, 33 N. H. 
 62; Folsom v. Carli, 5 Minn. 337. But in Kerley v. Kerley, 13 Allen, 287, it is said 
 that "the right of homestead is a new species of estate, created by statute, and not 
 known to the common law. But it seems to have all the incidents of a freehold 
 estate, and to come within the definition given by elementary writers. It is an estate 
 indeterminate in its duration, and which may continue for the joint lives of the pos- 
 sessor and his wife. That it is defeaHiblc, does not chang(! the quantity of the estate 
 while it continues." See also Sillowav c. Brown, 12 Allen, 30.
 
 §^ 53, 54 HOMESTEAD. 108 
 
 2 53. In Iowa, the inclination seems to be to regard the 
 homestead as in the nature of a joint-tenancy. A statute of 
 that State authorizes the real property of a married woman 
 to be redeemed from tax sale at any time within one year 
 after the removal of the disability of coverture. Under this 
 statute, a wife claimed the right to redeem the homestead; 
 and was resisted on the ground that the homestead was not 
 her real property. But the Court allowed her claim, upon 
 the following grounds: "The right of the wife to the home- 
 stead of the husband, and her interest in it, are present, 
 fixed, and substantial : they are not merely possible, remote, 
 or contingent. Her rights and interests are in possession and 
 enjoyment, and not merely in expectancy or dependent. The 
 husband and wife are, as to the homestead, practically, joint- 
 tenants, subject to certain limitations for the benefit of chil- 
 dren, etc. The husband cannot alienate the homestead, nor 
 even his own interest in it, except the wife concur in signing 
 the conveyance. Can it be said that she has no 'interest in' 
 that, the present possession of which she enjoys, the title to 
 which cannot be imparted without her consent, and the alien- 
 ation of which can only be done by her joining in the con- 
 veyance?"' 
 
 § 54. Whether Homestead Rights can attach to an 
 
 undivided interest in lands, in the absence of an express pro- 
 vision of the statute to that efi'ect, is a question on which the 
 Judges have not agreed. On the one hand, it has been 
 thought that the provisions of the homestead law contem- 
 plated that the interest to which they should be applied 
 should be susceptible of an enjoyment in severalty. When 
 the value of the land claimed exceeds in amount the limit of 
 the homestead right, the statute jDrovides means by which the 
 homestead may be segTegated; and that, as segregated, it may 
 be set off to the judgment debtor. No such segregation could 
 take place when the interest of the claimant was in a moietj' 
 only, for, in that case, there is no place which he can lawfully 
 take into his exclusive possession. For these reasons, the 
 claim of a cotenant to a homestead has been denied in many 
 
 ' Adams v. Beale, 19 Iowa, 67; Chase v. Abbott, 20 Iowa, 151.
 
 109 HOMESTEAD. g 54 
 
 of the cases in which it has been questioned.^ In California, 
 the doctrine that a homestead could not be acquired in un- 
 divided property was frequently enforced, and was applied in 
 some extreme cases. In one instance, the lands attempted 
 to be dedicated as a homestead belonged to the husband and 
 wife and their child as tenants in common. The Court could 
 see no distinction between this case and one in which the co- 
 tenants Avere entire sti'angers to each other. ^ In another in- 
 stance, the homestead had been acquired under a conveyance 
 pui^porting to convey the same in severalty, and was acquired 
 and held under the claim and belief, on the part of the occu- 
 pant, that he was the sole owner. The Court could not 
 understand that these facts authorized any exception to the 
 general rule.^ And where, when acquired, the homestead was 
 held in severalty, the conveyance of an imdivided interest, 
 because it turned the homestead into a cotenancy, was deemed 
 an abandonment of the homestead.^ On the other hand, in 
 several of the States, a homestead claim upon an undivided 
 interest has been sustained, and all distinction, in this re- 
 spect, between estates in severalty and estates in cotenancy 
 denied.' In California, the State in which the claim of a co- 
 tenant to exemption was first denied, the Legislature so 
 changed the statute that a part OAvner could hold as a home- 
 stead lands of which he was in the exclusive possession.^ But 
 we see no sufficient reason, even in the absence of statutes 
 directly bearing upon the subject, for holding that a general 
 homestead act does not apply to lands held in cotenancy. 
 The fact that a homestead claim might savor of such an as- 
 sumption of an exclusive right as is inconsistent with the 
 rights of the other cotenant, and that the maintenance of 
 such claim might interfere with proceediags for partition, 
 
 ' We«t V. Ward, 2G Wis. 580; Wolf v. Fleischackor, 5 Cal. 244; Elias i-. Verdugo, 27 
 Cal. 418; Reynolds r. Pixley. G Cal. 1G7; Kellorsbcrgor v. Copp, G Cal. 565; Bishop r. 
 Hubbard, 23 Cal. 517; Ward v. Hahn, IG Minn. 161; Thurston v. Maddocks, 6 Allen, 
 429; Kiugsley v. Kingsley, 39 Cal. 665. 
 
 ■^ Giblin v. Jordan, 6 Cal. 417. 
 
 » Beaton v. Son, 32 Cal. 483. 
 
 * Kellersberger v. Kopp, 6 Cal. 565. 
 
 5 Horn V. Tufts, 39 N. H. 483; Thorn v. Thorn, 14 Iowa, 53; McClary v. Bixly,56 
 Vt. 254; Greenwood r. Maddox, 27 Ark. 660; RobiiiHon v. McDonald, 11 Tex. 385. 
 
 i" St. of 1868, IIG.
 
 § 55 HOMESTEAD. 110 
 
 form no very satisfactory reason for denying the exemption. 
 If the rights of the other cotenant are threatened or en- 
 dangered, he alone shoukl be permitted to call for protection 
 and redress. The law will not sanction any use of the home- 
 stead in prejudice of his rights. But as long as his interests 
 are respected, or so nearly respected that he feels no inclina- 
 tion to complain, why should some person having no interest 
 in the cotenancy be allowed to avail himself of the law of co- 
 tenancy for his own, and not for a cotenant's gain? The 
 homestead laws have an object perfectly well understood, and 
 in the promotion of which Courts may well employ the most 
 liberal and humane rules of interpretation. This object is 
 to assure to the unfortunate debtor, and his equally unfortu- 
 nate but more helpless family, the shelter and the influence 
 of HOME. A cotenant may lawfully occupy every parcel of 
 the lands of the cotenancy. He may employ them not merely 
 for cultivation or for other means of making profits, but may 
 also build houses and barns, plant shrubs and flowers, and 
 surround himself with all the comforts of home. His wife 
 and children may, of right, occupy and enjoy the premises 
 with him. Upon the land of which he is but a part owner, 
 he may, and in fact he frequently does, obtain all the advan- 
 tages of a home. These advantages are none the less worthy 
 of being secured to him and his family in adversity, because 
 the other cotenants are^ entitled to equal advantages in the 
 same home. That he has not the whole, is a very unsatis- 
 factory and a very inhumane reason for depriving him of that 
 which he has. 
 
 § 55. Holds -whatever Title Claimant has. — The legisla- 
 tors who enact homestead laws are, no doubt, chiefly intent 
 upon protecting the debtor and his family, regardless of the 
 title by which the homestead is held. Such as it is, the 
 family is entitled to retain it. Whether it be an estate in fee- 
 simple, free from incumbrances, or an estate of less dignity 
 and value, or a mere possessory interest,^ as long as the 
 debtor can occupy it as a home, the creditor should not be 
 allowed to take it under his execution. The object of the 
 
 ' Brooks V. Hyde, 37 Cal. 373.
 
 Ill HOMESTEAD. § 56 
 
 homestead law is to protect the possession. It applies as well 
 to possession held under an equitable as imder a legal title. • 
 ' ' ^Tiether the debtor held in fee-simple absolute, for life or 
 for a term of years, the reason for applying the exemption 
 exists with equal force."" The possession of land held under 
 a contract to purchase may be subjected to a homestead 
 claim. If so claimed, the husband cannot dispose of it with- 
 out the assent of the wife, and if he refuse to complete his 
 purchase, she should be permitted to do so for the protection 
 of her interest.^ 
 
 ^ 56. Title acquired after filing a declaration of home- 
 stead is also protected from forced sale, and seems to become 
 an inseparable part of the homestead estate. In California, 
 a declaration of homestead Avas filed by one in possession, 
 the fee being then in a stranger. Afterwards, prior to the 
 sale under execution, but subsequently to the docketing of a 
 judgment against him, the claimant became the OAvner of the 
 fee. The purchaser at the sheriff's sale brought an action to 
 recover possession. In determining that this action could 
 not be sustained, the Court justified its decision by the fol- 
 lowing train of reasoning: "At the time the judgment was 
 docketed and became a lien, the premises constituted the 
 homestead of the defendant, as against everybody but the 
 owner of the land. There is no question made as to its be- 
 ing a homestead, if a party having a naked possession only, 
 the title being in a stranger, can acquire a homestead right 
 in the land so possessed. The statute does not specify the 
 kind of title a j)arty shall have to enable him to secure a 
 homestead. It says nothing about title. The homestead 
 right given by the statute is impressed on the lands to the 
 extent of the interest of the claimant in it — not on the title 
 merely. The actual homestead, as against eveiybody who 
 has not a better title, becomes impressed with the legal home- 
 stead right by taking the proceedings prescribed by statute. 
 
 ' Tomlin v. Hilyard, 43 111. 300; McCabe v. Mazzuchelli, 13 Wis. 481. 
 
 - Blue V. Blue, 38 111. 18; JohiiHOn «. Richardson, 33 Miss. 4G3; Polan v. DoBovard, 
 13 Iowa, 53; McClurkin v. McClurkin, 40 111. 327; Conkliii v. Foster, 57 111. 104; Col- 
 well V. Carper, 15 01ii<j, 270. 
 
 ' McKee v. Wilcox, 11 Mich. 3C0; but see Farmer v. Simpson, C Tex. 310.
 
 g 57 HOMESTEAD. 112 
 
 The estate or interest of the occupant, be it more or less, 
 thereby becomes exempt from forced sales on execution, and 
 can only be affected by voluntary conveyances or relinquish- 
 ment in the mode prescribed. The land in this instance, as 
 to everybody having no superior title, became the homestead 
 of the defendant, for all the purposes of protection against 
 forced sale and voluntary conveyance in any other manner < 
 than the statutory mode, as effectually as if the defendant 
 had held the title in fee-simple. There was nothing which 
 the sheriff was authorized to sell under execution. The fact 
 that the defendant, after the attaching of the homestead right, 
 acquired the true title from a stranger, does not affect the 
 question. This did not vitiate the homestead right which 
 had attached to the land, and given an independent estate not 
 subject to execution. The title so acquired cannot be con- 
 sidered as a thing separate and apart from the land subject 
 to sale and conveyance, in the hands of the homestead claim- 
 ant, so as thereby to affect the homestead right. By filing 
 the declaration, the party indicates his intention to make the 
 land his homestead, and if he afterwards acquire an out- 
 standing title, it attaches itself to the homestead already 
 acquired and perfects the homestead right. If it were other- 
 wise, a homestead could not be secured which would be safe 
 against forced sales, unless there was at the time a perfect 
 title in fee-simple in the party who seeks the homestead 
 right. In case of a title in any respect imperfect, the claim- 
 ant could not perfect his title to his homestead, except at the 
 risk of losing it altogether, through the interv^ention of a 
 creditor, and by the very means adopted to render it more 
 secure ; and under such a construction of the statute, it would 
 not be available to the greater portion of the class in this 
 State who need it most."' 
 
 § 57. After-acquired Title. — In the case referred to in 
 the preceding section, the contest was between the claimant 
 on one hand seeking to retain the benefit of the new acquisi- 
 tion by attaching it to the homestead estate, and the creditor, 
 on the other hand, seeking to obtain and assert the new title 
 
 '■ Spencer v. Geissman, 37 Cal. 99.
 
 113 HOMESTEAD. 
 
 58 
 
 by treating it as independent of the homestead. This feature 
 of the case seems to have strongly impressed the Coiu't, and 
 to have contributed materially to the success of the defend- 
 ant. But suppose that the question had arisen between the 
 heirs of the claimant upon the one hand and his widow on the 
 other. Could she maintain that the title acquired subse- 
 quently to the declaration of homestead was also held in 
 joint-tenancy, and that she, as sm-vivor, had succeeded to the 
 newly-acquired as well as to the original title? We think this 
 question must be answered in the afi&rmative. The joint- 
 tenancy created by the dedication of the premises as a home- 
 stead is a tenancy in the homestead itself, and not in any speci- 
 fied title thereto; and this dedication, like a conveyance in 
 fee with covenants of general warranty, seems to carry to the 
 beneficiaries all interests thereafter acquired, and to conse- 
 crate those interests to the further perfection of the home- 
 stead right. The moment that the new acquisition becomes 
 so attached to the homestead as to be safe from the creditors 
 of the claimant, it must be deemed a part of the joint-tenancy; 
 for the statute does not contemplate that any homestead in- 
 terest should be free from the right of survivorship. 
 
 § 58. The conveyance, incumbrance, or other act of 
 
 the husband alone, cannot, while the premises continue to 
 be a homestead in fact, destroy or diminish the wife's right 
 of homestead.' When the fee of the premises remains in 
 the husband subject only to the homestead rights of the wife, 
 no doubt his conveyance passes the fee, but leaves it as be- 
 fore subject to the same right. The joint-tenancy held by 
 the husband and wife, and created by the dedication of the 
 premises as a homestead, is incapable of being destroyed, 
 severed, alienated, or incumbered during the continuance of 
 the marital relations. Nor can either keep alive or renew an 
 incumbrance. After the filing of the declaration of home- 
 stead, the husband cannot prolong an existing mortgage or 
 other charge upon the premises by giving a now note for the 
 
 ' Clark I'. Shannon, 1 Nev. 568; Goldman i'. Clark, 1 Nev. 607; Marshall v. Barr, 
 35 111. IOC; Dye v. Mann, 10 Mich. 291: Williams v. Swetland, 10 Iowa, 51; Alloy v. 
 Bay, 9 Iowa, 509; Yost r. Devault, 9 Iowa, 60. 
 
 C. <fe p.— 8
 
 g 59 HOMESTEAD. 114 
 
 same indebtedness for the security of which such mortgage 
 was given or such charge established.^ 
 
 g 59. The limit of the homestead is sometimes fixed 
 
 at a certain quantity of land, and sometimes at a certain 
 value. In California, the homestead character cannot be at 
 any one time impressed upon property of greater value than 
 five thousand dollars. The joint-tenancy created by law in 
 the homestead is liable to fluctuate in quantity to correspond 
 with the fluctuation in value of the land, whereby it may 
 sometimes exceed the statute limit, and at other times be ex- 
 ceeded by it. If at the time of filing the declaration the 
 premises are of less value than five thousand dollars, they 
 become a homestead, and so remain until their increasing 
 value passes the statutory limit. The excess beyond this 
 limit is free from the homestead character. ^ But if the in- 
 creased value should not be permanent, no doubt the whole 
 premises would again become homestead as soon as their 
 value shrank to the statutory limit. "The homestead and 
 the tests by which it is ascertained are the same, whether the 
 question arises between those claiming the homestead, or one 
 of them and a vendee, a mortgagee, a creditor, or the heirs 
 of the deceased husband or wife. There is not one home- 
 stead as against a creditor, and a different one when the sur- 
 vivor asserts his or her claims as against the heirs of the 
 deceased. At its inception, it is limited to five thousand 
 dollars in value, and when the property is enhanced in value 
 so that it exceeds the statutory limit, the excess does not con- 
 stitute a part of the statutory homestead. After the premises 
 are worth five thousand dollars, every increase of value works 
 a reduction in the area of the homestead, until a point is 
 reached when it cannot be further cut down and leave a 
 homestead of the value of five thousand dollars without ma- 
 terial injury, and, after that point is reached, no part of the 
 premises constitute a statutory homestead, but the value or 
 proceeds of the premises, to the extent of five thousand dol- 
 lars, has the benefit of the exemption from forced sale." It 
 follows, from the views expressed in the preceding quotation, 
 
 I Barber v. Babel, 36 Gal. 17. 
 '■' Gresig V. Bostwick, 33 Cal. 225.
 
 115 HOMESTEAD. §§ 60, 01 
 
 that the right of survivorship caunot exceed the statutory 
 limit of vahie, and that, after the death of either daimant, 
 the sul■^dvor succeeds only to so much of the homestead as, 
 immediately preceding the death of the other cotenant, did 
 not exceed live thousand dollars in value.' 
 
 ^ CA). The homestead right cannot he partitioned 
 against the objection of the surviving wife, on the applica- 
 tion of the other heu-s, and after the decease, of the husband. 
 She has the right, at least as long as she resides on the prem- 
 ises w-ith her family, or with any minor children t)f the family, 
 to occupy and enjoy the whole homestead. The heirs cannot 
 curtail this right by compelling her to submit to a partition 
 of the premises, and to confine her subsequent enjoyment to 
 the portion assigned to her.^ But where it is claimed that 
 the premises embraced in the homestead declaration, at the 
 death of the husband, exceeded in value the limit provided 
 by statute, the widow must submit to such proceedings as 
 may be necessary to segregate her homestead tract or interest 
 from the more valuable tract embraced in the declaration. 
 
 § 61. After a divorce of the spouses, a variety of 
 questions may arise in reference to the effect of this dissolu- 
 tion of the marital relations upon the homestead right. Does 
 the homestead still retain its character, and if so, for whose 
 benefit? So far as creditors are concerned, a decided majority 
 of the authorities affirm that the creditors have no right to 
 seize upon the homestead, even after a divorce, as long as 
 the o-\vner is the head of a family and continues with his family 
 to use it as his home." Where the Avife obtains a divorce, and 
 the children are awarded to her, she, in Illinois, is regarded 
 as the head of the family, and as such is entitled to the benefit 
 of the homestead.^ But it seems that the husband, if con- 
 tinuing in possession of the- homestead, is still entitled to all 
 
 I Eritate of Delaney, 37 Cal. 17G; llicli r. Tiibbs, 41 Cal. ;iG. 
 
 -DoddH r. Dodds, 2G Iowa. .'511 ; Hortiuuii r. Ncwlians. .W Tex. 033: Nifliola.s v. 
 rurczell, 21 Iowa, 265. 
 
 ■■ Bliu- r. Blue, .38 Til. lit: Rcdloiii r. Kc-dlcrn. 38 111. .'jOO: P.vits v. Byers, 21 Iowa. 
 268. 
 
 ■• Vanzaiit r. Vaiizaiit, 23 111. 1330; IJoum 11 c. Siuitli. ')•.) 111. 383. See also Titinaiiii 
 r. Tiemaiin, 34 Tex. 524.
 
 ^ 61 HOMESTEAD. 116 
 
 the protection of the homestead act. In discussing this 
 question, the Supreme Court of Iowa, quite recently, said: 
 " It is true his divorced wife was awarded the custody of the 
 only child, and the Court decreed that she should maintain it 
 without charge to the defendant. But this decree does not 
 exonerate him from liability to support the child, in the event 
 of the inability of the mother to do so. It seems fully to 
 accord with the provisions of the homestead law that the ex- 
 emption should last as long as his liability to support exists, 
 provided he continue in actual occupation of the property. 
 Besides, the provisions of the homestead law are intended for 
 the benefit of the children as well as of the parents. It does 
 not accord with the spirit of the humane provisions of the 
 statute, that the divorcing of the wife and awarding to her of 
 the children, should deprive them of all interest in the home- 
 stead property."' In the States where by law the dedication 
 of the premises as a homestead changes the tenure by which 
 the land is held, the question must, it would seem, frequently 
 arise as to the effect of a divorce upon the joint-tenancy by 
 which the homestead had been held. Do the premises revert 
 to Uieir former condition as to title? If before the separate 
 property of one of the spouses, do they return to that state? 
 or do they continue as joint property and become liable to 
 partition between the former consorts? If the premises were 
 community property, and no disposition is made of them in 
 the decree, are they still a homestead? and if so, whose? 
 The Supreme Court of the State of California has very re- 
 cently considered the effect of a decree of divorce, and has 
 determined that when accompanied by a partition of the 
 property, it destroys the homestead character as effectually 
 as a declaration of abandonment could do, if duly executed 
 by both parties. This decision seems to be in direct conflict 
 Avith the adjudications made in other States, and already cited 
 and referred to in this section, in so far as it declares that the 
 divorce renders the property at once liable to be seized upon 
 execution. But, so far as it determines the effect of the 
 divorce upon the joint-tenancy, this decision is, as far as we 
 can ascertain, the only authority bearing upon the subject. 
 
 ' Woods y. DaTis, 34 Iowa, 265. See to same effect Doyle v. Coburn, 6 Allen, 73.
 
 117 HOMESTEAD. § 61 
 
 We therefore regard it as sufficiently novel and important to 
 justify its insertion in full in this place. It is as follows: 
 • ' Block No. 127, in the town of Santa Barbara, which in- 
 cludes the premises in controversy, became in 1871 the home- 
 stead of the plaintiff and his wife, and so continued up to the 
 time when they were divorced, by a decree of the District 
 Coiu't, in July, 1873. The decree directed the homestead 
 property to be equally divided between the husband and wife, 
 and the Commissioners having made and reported a partition, 
 the Coui"t confirmed the same, and adjudged that the respec- 
 tive portions allotted to each be held by them respectively, 
 free and clear of all claims by or on the part of the other, 
 the property in controversy being allotted to the plaintiff. 
 Prior to the divorce, ChaKant, one of the defendants, re- 
 covered a judgment against the plaintiff in this action, and, 
 after the decree of divorce was rendered, caused the premises 
 in controversy to be le\ded upon under an execution issued 
 on his judgment. The question presented is whether the 
 premises in controversy remained the homestead of the plain- 
 tiff after they were allotted to him by the decree of divorce. 
 The decree severed the sort of joint-tenancy of the parties in 
 the homestead premises, which had been created by the liome- 
 .stead declaration, the residence of the parties, etc., under the 
 provisions of the homestead act. It also destroyed the right 
 of suiA^vorship. The joint deed of both parties is no longer 
 essential for the alienation or abandonment of any portion of 
 the premises. The family, for whose benefit the provisions 
 of the homestead act were mainly designed, was severed by 
 the decree, and neither the husband nor the wife is entitled 
 to reside on that portion of the homestead premises which 
 was allotted to the other. All the principal qualities of the 
 homestead estate, except that of liability for debts, etc., 
 having been destroyed by the decree, the latter, in our 
 opinion, was also destroyed. The decree was as efl'ectual in 
 its results as would have been a declaration of abandonment. 
 It results from these views that the portion of the property 
 which was allotted to the plaintiff was liable to execution for 
 the payment of his debts.."' But it is evident that in this 
 
 1 Shoemake v. Chullant, filed March 18, 137-1.
 
 g 62 HOMESTEAD. 118 
 
 decision much stress is laid vipon tlie fact that the decree had 
 directed a partition of the property, and that tliis direction 
 had been fully executed by allotting a specified part of the 
 homestead to each of the late spouses. Had no such parti- 
 tion been made, both husband and wife would still have been 
 entitled to occupy every part of the homestead premises, their 
 joint deed would still have been requisite to transfer the title 
 thereto in severalty ; and it is possible that with these cir- 
 cumstances in view, the Court would have reached a different 
 conclusion as to the liability of the lands to seizure under ex- 
 ecution. This opinion contains the general statement that 
 the decree severed the joint-tenancy. But whether this sev- 
 erance was produced by that portion of the decree destroying 
 the marital relations of the parties, or by the portion allotting 
 to each a parcel of the land to be held in severalty, does not 
 clearly appear in the opinion. However, as this latter part 
 of the decree, especially when carried into effect by an actual 
 partition, was sufficient to transform the cotenancy into two 
 estates in severalty, it is most probable that the general lan- 
 guage employed by the Court was not designed as an expres- 
 sion of its opinion upon the effect of a divorce upon the 
 joint-tenancy formerly existing between the spouses, unless 
 the decree of divorce was followed by a partition of the 
 homestead property. 
 
 g 62, Survivorship is the grand incident of joint-tenancy. 
 In most of the States, as we have seen, the homestead is not 
 a new estate. It does not change the title, but merely sub- 
 ordinates it to the interests of the family. In these States, 
 as the title during the life of the claimant was not altered by 
 the homestead law, so, after his death, it descends to his 
 heirs as it would have done independent of its homestead 
 character. But though thus descending to the heirs, it is 
 held by them, as it was held by their ancestor, subject to the 
 homestead right of the wife and minor children.^ In some 
 of the States, the wife, or the wife and children, upon the 
 decease of the claimant, become the absolute owners of the 
 
 1 Size V. Siae, 24 Iowa, 580; Header '•. Place. 43 N. H. 307; Meyer v. Meyer, 23 Iowa, 
 359; Bassett v. Messner, 30 Tex. 604: Cottou u. Wood, 25 Iowa, 43; Hamblin r. War- 
 necke. 31 Tex. 91: Burns v. Keas, 21 Iowa, 257.
 
 119 HOMESTEAD. § 62 
 
 homestead.' But this is not the result of the right of sur- 
 vivorship, but of provisions regulating the descent of the 
 claimant's estate. But where, as in California, Idaho, and 
 Nevada, a homestead is a joint-tenancy, of which husband 
 and wdfe are the cotenants, the doctrine of survivorship is 
 given its full effect, and the homestead vests fully and abso- 
 lutely in the siu'vivor. As in the case of joint-tenancy at 
 common law, the title of the survivor is paramount to the 
 claims of the children and other heirs of the deceased.^ 
 This feature of the homestead law seems well calculated to 
 thwart a portion of the design of every claimant in filing his 
 or her declaration of homestead. This design is as much to 
 secure a home for the children as for the parents. But when 
 either parent dies, and the children are, more than ever before, 
 in need of the advantages of home, the principle of survivor- 
 ship leaves them no interest in the homestead, and makes 
 them mere tenants by sufferance where they ought to be 
 claimants by right. 
 
 * See Comp. Lavrs Kansas, p. 392, sec. 2. 
 
 ^ Wixom's Estate, 35 Cal. 320; Rich v. Tubbs, 41 Cal. 34.
 
 CHAPTER IV. 
 
 TENANCY BY ENTIRETIES. 
 
 Definitions, § 63. 
 
 Difference from Joint-Tenancy, § 64. 
 
 States in which it prevails, § 65. 
 
 States in which it»does not prevail, $ 66. 
 
 Of what Estates it may be, $ 67. 
 
 Of Personal Property, ^ 68. 
 
 How Created, ^ 69. 
 
 Husband and Wife take as (me person, $ 70. 
 
 Cases holding they cannot take by Moieties, § 71. 
 
 Cases holding they can take by Moieties, $ 72. 
 
 Power of Husband over, § 73. 
 
 Sale under Execution, $ 74. 
 
 Power of Husband lander Statutes, $ 75. 
 
 Dissolution by Death or Divorce, § 76. 
 
 § 63. Definitions. — "An estate by entireties arises on a 
 gift to two persons being, at the time tlie gift takes effect, hus- 
 band and wife."' "A tenancy by entireties is peculiar," says 
 Mr. Preston, " to a gift to two persons being, at the tiroe the 
 gift takes effect, husband and wife."^ Why the two celebrated 
 and very accurate writers from whose works the preceding 
 quotations have been made ever spoke of an estate by en- 
 
 ' Jickling on Anal. L. & Eq. Estates, 252. 
 
 ^ 2 Preston on Abstracts of Title, 39. The same author, in his work on estates, gives 
 a more complete definition. "Tenancy hy entireties is when husband and wife take 
 an estate to themselves jointly, by grant or devise, or limitation of use, made to them 
 during coverture, or by grant, etc., to them, which is in fieri at the time of their mar- 
 riage, and completed, by livery of seisin or attornment, during the coverture." 
 " The husband and wife have not either a joint estate, a sole or several estate, nor 
 even an estate in common. From the unity of their persons by marriage, they have 
 the estate entirely as one individual, and on the death of one of them, the entire tene- 
 ment will, for all the estate of which they are seized in this manner, belong to the 
 survivor, without the power of alienation or forfeitiu:e of either alone, to prejudice 
 the right of the other." (1 Preston on Estates, 131.) 
 
 120
 
 121 TENANCY BY ENTIRETIES. § 64 
 
 tii-eties as thougli its oaly origin was by gift, is altogether un- 
 accountable. Mr. Jickling, on the very next page after giving 
 the definition first quoted, speaks of estates acquired by hus- 
 band and wife o)i a purchase hy them hotli, evidently using the 
 word purchase in a sense which did not include the idea of a 
 gift. And certainly of the many cases upon this subject to 
 be found in the reports, not one implies that this estate is 
 necessarily founded upon a gift. A tenancy by entireties 
 arises whenever an estate vests in two persons, they being, 
 when it so vests, husband and wife.' It is not essential that 
 they should be married when the grant or gift is made, if 
 thereafter, when the gift vests, they are husband and wife. 
 Hence, if a devise be made to a man and woman, and before 
 the death of the testator they marry, or if a feofiment be 
 made to them while they are single, of which livery is made 
 after maniage; or if they recover on a voucher to warranty 
 annexed to an estate of which they were joint-tenants — in all 
 these cases, they take by entireties. - 
 
 § 64. Difference bet-ween Joint-Tenancy and an Estate 
 by Entirety. — A joint-tenancy is distinguished by four unities ; 
 a tenancy by entirety by five.^ The former may be vested in 
 any number of natural persons more than two; the latter can 
 be vested in but two natural persons, and these two are re- 
 garded as but one in law. Joint-tenants take by moieties — 
 each is seized of an undivided moiety of the whole : husband 
 and wife take each an entirety, and are seized j^er tout but 
 not per my. Joint-tenants may each alien his interest in 
 the estate: husband and wife must alienate jointly. The 
 former may sever their estates at pleasure : the latter hold an 
 estate which, while it remains theirs, is inseverable. The 
 former can have partition; but the latter cannot, unless in- 
 deed in a divorce proceeding severing their matrimonial rela- 
 
 ' In this deHcription of tenancy l)y cntirefy, wo have excluded the idea that the 
 tenancy must he created Ijy gift or purchasi-. Though not ordinarily acijuircd by 
 descent, this i.s so only because Imsband and wife rarely succeed tu property as heirs 
 of the same person. But, on so acquiring it, they are tenants by entireties. (Gillan 
 V. Dixon, 65 Pa. S. 395.) 
 
 ■^ Jickling Anal. L. & Eq. Estates, 252; Co. Litt. 187; Nicholls v. Nicholls, cited Viu. 
 Abr. Bakon & Feme; Plowd. Comm. 483. 
 
 •' Topping V. Sadler, 5 Jones, 357.
 
 *^ 64 TENANCY BY ENTIRETIES. 122 
 
 tions. The former may succeed to his cotenant's moiety by 
 right of survivorship, while upon the decease of either of the 
 spouses, the other continues holding the entire estate.^ "A 
 conveyance to husband and wife creates neither a tenancy in 
 common nor a joint-tenancy. The estate of joint-tenants is 
 a unit made up of divisible parts: that of husband and wife 
 is also a unit, but it is made up of indivisible parts. In the 
 first case, there are several holders of different moieties or 
 portions, and upon the death of either, the survivor takes a 
 new estate. He acquires b}' survivorship the moiety of his 
 deceased cotenant. In the last case, though there are two 
 natural persons, they are but one person in law, and upon the 
 death of either, the survivor takes no new estate. It is a 
 mere change in the legal properties of the person holding, 
 and not an alteration in the estate holden. The loss of an 
 adjunct merely reduces the legal personage holding the estate 
 to an individuality identical with the imiural person. The 
 whole estate continues in the survivor the same as it would 
 continue in a corporation after the death of one of the cor- 
 porators. This has been the settled law for centuries."' As 
 tenancy by entirety is not noticed as a distinct tenancy in 
 many standard works upon the common law, it may be in- 
 sisted that it is but a species of joint-tenancy. The differ- 
 ences between the two already pointed out in this section, it 
 seems to us, conclusively establish that they must be classi- 
 fied as independent cotenancies. But if our theory needs 
 any further support, this support is found in the fact that all 
 the English adjudications upon this subject, as well as all the 
 earlier writers upon the common law, assert that husband 
 and wife cannot, by any words of limitation, however well 
 chosen for that purpose, receive an estate us joint-tenants.^ 
 
 ' Doe V. Garrison, 1 Dana, 35; Shaw v. Hearsey, 5 Mass. 521; Hemingway v. Scales, 
 42 Miss. 1; Taul v. Campbell, 7 Yerg. 333. 
 
 - Stuckey v. Keefe's Esi-s. 26 Pa. S. 399; Gibson v. Zimmerman, 12 Mo. 385; Simp- 
 son V. Pearson, 31 Ind. 1. 
 
 ■* See authorities considered and cited in ^> 71. 
 
 Mr. Piam, in his OutUne of the Law of Tenancy and Tenure, treats of tenancy by 
 entireties as a separate species of tenancy, but undertakes to prove that husband and 
 wife are not tenants by entireties, but joint-tenants. "The position has been 
 hazarded, that husband and wife, tenants by entireties, are joint- tenants. It should 
 be observed, however, that this appears contrary to a received notion of tenancy by 
 entireties, and this idea is sanctioned by the concurrence of opinion of writers of the
 
 123 TENANCY BY ENTIRETIES. ^ 6o 
 
 ^ 65. Tenancy by Entirety in the United States. — The 
 common law in regard to estates by entirety is at this day in 
 force in the majority of the States of the American Union. 
 It has not been abolished nor encroached npon by any of the 
 statutes in reference to joint estates. From an inspection of 
 those statutes, it will be discovered that quite a number of 
 them contain exceptions showing that they do not apply to 
 
 lirst eminence. But that tenants by entireties are joint-tenants may be thought to 
 follow from a consideration of the following points, in which the common joint- 
 tenancy and a tenancy by entireties have a perfect agreement. If A griuits to B and 
 C 100 acres in joint- tenancy, he conveys to B and C to hold jointly. If A gi-ants to 
 D and E his wife 100 acres, (not to hold in common,) he conveys to D and E his wife 
 jointly. B is a tenant, and C is a tenant. So, it is apprehended, D is a tenant, and 
 E tenant. B with C, and C with B, are seized of the whole 100 acres; are seized i:ier 
 tout. B and C are jointly tenants to the prcecipe. D and E are jointly tenants to the 
 pra'cipe. Survivorship takes place between B and C. Survivorship takes place be- 
 tween D and E. 
 
 • • In these points, there appears not a shade of difference between the tenancy of B 
 and C, and the tenancy of D, and E his wife. B and C are joint-tenants; then why 
 are not D and E? That which distinguishes a tenancy by entireties from a common 
 joint-tenancy is this: that tenancies by entireties are not seized per my. They are 
 seized pei- tout only. But because they are not seized per my, does it follow they are 
 not joint- tenants? The common joiut-tenants are seized per my; but would they bo 
 less joint-tenants if not aeizedper my? What is it that constitutes a joint- tenancy? 
 A joint seisin j5e)- tout. It is not a seisin j^er my which makes a joint-tenancy. With- 
 out that, the common joint-tenants would still be joint-tenants. Because tenants by 
 entireties are not seized per my, is surely no reason to make them not joint-tenants. 
 A learned writer says, tenants by entireties have not either a joint estate, a yole or 
 several estate, nor even an estate in common. With great siibmission, it may bo con- 
 tended that the joi)i<-estate is precisely the estate which they have. The estate of 
 tenants by entireties is more a joint-estatt; than the estate of common joint-tenants; 
 for whereas the common joint-tenants are seized per my etper tout, tenants by entire- 
 ties arc seized pe?' tout only. If tenants per my etper tout have a joint estate, a fortiori 
 tenants per iow< have." After thus reasoning to demonstrate that husband and wife 
 are joint-tenants, Mr. Ram argues that tliey are not tenants 1)y entireties, because if 
 they are to be regarded as one person in law, the act of one is tho act of both; the 
 mind of one the mind of both; and the conveyance of one the conveyance of both; 
 whereas, the estate acquired during coverture by husband and wife cannot be trans- 
 ferred or prejudiced wthout the assent of both; and he concludes his descrijition of 
 this tenancy as follows: '• If tho persons of these tenants are one, there seems to bo 
 an inconsistency in calling them tenants by entireties. One person can have but one 
 seisin, one entirety. The vi(!W taken of a tenancy by entireties is sliortly this: 
 
 "That tho husband and wife are joint-tenants. 
 
 ••That their tenancy is a species of jonit-tenancy. 
 
 "That like other joint-tenants, they are seized per tout. 
 
 •' But unlike other joint-tenants, tliey are not seized pw my. 
 
 "As seized pr-c tout, that tiieir persons are several. 
 
 "As not seized pT my, but one only. 
 
 "That they are joint-tenants and tenants by entireties, because each is seized per <ou<. 
 
 "That they are called tenants by entireties U) distinguisli them from tlie joint- 
 tenants seized per my etper tout." (Ram's Tennie and Tenancy, 170-4.)
 
 g 65 TENANCY BY ENTIKETIES. " 124 
 
 estates granted or devised to husband and wife. But, inde- 
 pendent of any express exceptions, tliey have been almost 
 uniformly confined in their operations to joint -tenancies. 
 The reasons advanced for holding that estates by entirety are 
 not included in these statutes are : 1st, the statutes apply to 
 joint-tenancies only; 2d, they apply only to estates held by 
 two or more, whereas estates by entirety are, in the eyes of 
 the law, vested in one person; 3d, they apply to estates of 
 which a severance can be made, while this estate of husband 
 and wife is inseverable; and 4th, because the wrongs in- 
 tended to be avoided by the statute arise from joint-tenancy 
 alone; and 5th, because, while a joint-tenancy "is prejudicial 
 to the Commonwealth and repugnant to the genius of Eepub- 
 lics," tenancies by entirety are not. On account of the lan- 
 guage of the statutes, in a few instances, but more frequently 
 without any aid from the statutes, and because of the reasons 
 already suggested, tenancy by entirety has been recognized 
 in the States of Illinois,^ Indiana, ^ Kentucky^ Maine,* Mas- 
 sachusetts,^ Michigan,*^ Mississippi,' Missouri,** North Caro- 
 lina,'' New York,'" New Jersey,'' Pennsylvania,'^ Tennessee,'" 
 Yermont,'* Virginia,'' and Wisconsin.'*' In Upper Canada, a 
 statute of 1834 enacted that all land granted to two or more 
 
 ' Mariner v. Saunders, 5 Gilm. 124; Lux v. Hoflf, 47 111. 427. 
 
 - Davis V. Clark, 26 Ind. 424; Arnold v. Arnold, 30 Ind. 305: Jones v. Chandler, 40 
 Ind. 588. 
 
 ■* Doe V. Garrison, 1 Dana, 35; Eogers v. Grider, lb. 242; Moore v. Moore, 12 B. 
 Monr. 664; Babbitt «. Scroggin, 1 Duval, 274. By statute of this State, in force since 
 1850, husband and wife take as tenants in common, unless a right by survivorship is 
 expressly provided for. (Genl. St. ed. of 1873, p. 531, sec. 13.) This statute does not 
 affect estates acquired prior to its passage. (Elliott v. Nichols, 4 Bush, 502.) 
 
 ^ Greenlaw v. Greenlaw, 13 Me. 186; Harding v. Springer, 14 Me. 407. 
 
 a Shaw V. Hearsey, 5 Mass. 521; Fox i\ Fletcher, 8 Mass. 274; Varnum v. Abbot, 12 
 Mass. 478. 
 
 •' Fisher v. Provin, 25 Mich. 347. 
 
 ' Hemingway v. Scales, 42 Miss. 1; 2 American Reports, 586. 
 
 » Gibson v. Zimmerman, 12 Mo. 386; Garners. Jones, 52 Mo. 68. 
 
 « Woodford v. Higly, 1 Wins. 237; Todd v. Zachaiy, 1 Busbee Eq. 286. 
 
 '0 Wright V. Sadler, 20 N. Y. 320. 
 
 '- Den V. Hardenberg, 5 Halst. 44; Thomas v. De Baum, 1 McCarter Ch. 40. 
 
 '- Robb V. Beaver, 8 Watts & S. 127; Auman «. Auman, 21 Pa. St. 347: Bates r. Seely, 
 46 Pa. St. 249. 
 
 '^ Taul V. Campbell, 7 Yerg. 319; Ames v. Norman, 4 Sneed, 692. 
 
 1* Brownson v. Hull, 16 Vt. 309. 
 
 '^ Thornton v. Thornton, 3 Band, 179. 
 
 'B Ketchum v. Walsworth, 5 Wis. 95; Bennett v. Child, 19 Wis. 364.
 
 125 TENANCY BY ENTIRETIKS. § 66 
 
 persons other than executors, should be held as a tenancy in 
 common, unless an intention sufficiently appeared from the 
 conveyance that a joint-tenancy was intended. The Court of 
 Queen's Bench had no doubt that this statute applied only to 
 such conveyances as, but for the statute, would create a 
 joint-tenancy; and that it therefore could not operate on a 
 conveyance to a husband and wife.' 
 
 § 66. States -where Tenancy by Entireties does not 
 Exist. — In Connecticut, estates by entireties have never been 
 recognized. Deeds and devises to husband and wife are con- 
 sidered as vesting the estate conveyed or devised, in the same 
 manner as to other persons. This rule in Connecticut is not 
 based upon any statutory abolition of the common law, but 
 upon the fact that, up to the time the question seems to have 
 been first decided, (1836,) there had been a common under- 
 standing so long acquiesced in that the Court Avas unwilling to 
 distui'b it.^ So in Ohio the decisions have always been averse 
 to this estate. The main specification against it was that 
 "The Jus ace rescendiis not founded in principles of natural 
 justice, nor in any reasons of public policy applicable to our 
 society or institutions. But, on the contrary, it is adverse to 
 the understandings, habits, and feelings of the people. "•' In 
 Iowa, tenancy by entireties can be created only by express 
 words for that purpose, the Courts of that State having de- 
 cided that the statute declaring that conveyances to two or 
 more in their OAvn right create a tenanc}^ in common, imless a 
 contrary intent is expressed, is applicable to conveyances to 
 "husband and A\dfe. In so deciding, the Court, after alluding 
 to the tendency of legislation and of jjublic sentiment against 
 joint-tenancies, said: "But is it still true that the destruction, 
 partial or entire, of joint-tenancies does not apply to or affect 
 conveyances to husband and Avife? In other Avords, is it true 
 that in this State such conveyances are to one person, and that 
 the sui-vivor takes the Avhole? If the legal unity or oneness 
 continues as fully as at common laAv, then there Avould seem 
 
 ' In re Shaver, 31 Q. B. (Upi>< r Canada) 605. 
 - Whittlebcy v. Fuller, 11 Coun. 3i0. 
 
 ' Sergeant r. Steinberger, 2 Ohio, SO."); Wilson i-. Fleming, 13 lb. 68; Penn r. Cox, 
 16 lb. 30
 
 g 67 TENANCY BY ENTIRETIES. 126 
 
 to be no escape from the conclusion. But this is just what 
 is denied; and in the same connection it is also denied that 
 the ' estate in entirety' exists in this State, or is known to our 
 law. 
 
 "It is by no means asserted or claimed that husband and 
 wife are two persons for all i)urposes, nor that the common- 
 law idea of unity is by any means entirely abolished or abro- 
 gated. But what is asserted is, that as the wife may hold and 
 convey real estate in the same manner as other persons, so 
 she may take by the same tenure and subject to the same in- 
 cidents, neither greater nor less, as though a feme sole. If no 
 contrary intent is expressed in the conveyance to them, or the 
 instrument under which they hold, the husband and wife take 
 as tenants in common, and not in entirety. At common law, 
 they were so far so completely, so essentially one, that they 
 could not take by moieties. And why? Because of this ab- 
 solute oneness. But does this reason longer exist, or, at 
 least, with us?" After adverting to legislation in Iowa in- 
 novating upon the common law in regard to the powers of a 
 married woman, the Court concluded that ' ' her ability now, 
 as compared with the rule of the common law, to take a 
 separate estate, her ability to stand seized in her own right 
 jointly with the husband, and to now hold by moieties, just 
 as joint-tenants could — we say these considerations seem con- 
 clusively to show that the rule of the common law as to estates 
 in entirety cannot obtain here. The doctrine always stood 
 upon what was little more than the merest fiction, and as this, 
 by our legislation, has measurably given way to theories and 
 doctrines more in accord with the true and actual relations of 
 husband and wife, the rule itself must be abandoned."' 
 
 g 67. A tenancy by entireties may exist in an estate 
 
 " in fee, in tail, for life, or for years, or other chattel real." ^ 
 It may be of an estate in possession, reversion, or remainder.^ 
 It may also be of customary estates." A tenancy by entire- 
 ties of the legal estate may exist between husband and wife 
 
 ' Hoffman v. Stigers, 28 Iowa, 307. 
 
 - 2 Preston on Abstracts of Title, 39; Wiscot's Case, 2 Eep. 60; 5 Bac. Ab. 244; 
 Downing v. Seymour, Cro. Eliz. 912. 
 ^ Purefoy v. Rogers. 2Saund 3H2. 
 ■* Glaister r. Hewer. 8 Ves. 193.
 
 127 TENANCY BY ENTIRETIES. ^ GS 
 
 under such circumstances that in equity they will be regarded 
 as tenants in common. Thus, if a man and wife hold the 
 equitable title to a tract of land as tenants in common, and a 
 patent based upon such equitable title issue to them, thev 
 will thereafter hold the legal title as tenants by entireties, 
 with the right of suryiyorship ; yet her equitable estate will 
 not be thereby defeated, but will descend to her heirs at her 
 death.' 
 
 ^68. In Personal Property. — Mr. Bishop, in his recent 
 work on the Law of Married Women, says ' ' if real estate is 
 conyeyed by deed to a husband and wife, this creates in them 
 a peculiar kind of tenancy, known as tenancy by the entirety; 
 the consequence of which is, that, during the coyerture, 
 neither can alien the land to the prejudice of the rights of the 
 other, and on the dissolution of the coyerture by the death 
 of one of them, the suryiyor takes the whole. Nothing of 
 this sort is known in respect of personal property. Since 
 the wife cannot own personal property in her possession in 
 her own right, but whateyer title she has to such property 
 vests in the husband, if a chattel is giyen or sold to husband 
 and wife jointly, the title passes wholly to him,"^ The dec- 
 laration that nothing in the nature of tenancy by entirety is 
 known in respect to personal property is supported by a single 
 citation." That it is so feebly supported is not attributable 
 to omission to take advantage of whateyer may have been 
 available on that side of the question, but to the fact that 
 there are certainly few cases, and in all probability no case, 
 in accord Avith the one on which Mr. Bishop's assertion is 
 based. On the cither hand, the reports, English and Ameri- 
 can, new and old, abound in cases recognizing tenancy by en- 
 tirety in all kinds of personal estate, and enforcing the right 
 of the surviving husband or wife to the entire propert}'."' 
 Thus, a legacy to a husband and wife of XlOO per annum vests 
 
 Norman v. Cunningham, 5 Gratt. 70. 
 
 -■ Bishop on the; Law of Married Women, aec. 211. 
 
 •'• Polk V. Allen. 11) Mo. 407. But in a later case in the same State, (Shiikl.s v. Still- 
 man. 48 Mo. 80.) a huHbaiid and wife were regarded as tenants hy entirety of a 
 pi'omissory note. 
 
 ■• Bricker v. Whately, 1 Veni. 230; ('o\>i)er r. Seott. .'i i'. Wnis. 121: Atty. Oenl. r. 
 Baeelins, Pi'ic<-, .30.
 
 g 69 TENANCY BY ENTIRETIES. 128 
 
 in them as tenants by the entirety, and the survivor is entitled 
 to the whole. ^ The same is true of a joint judgment in favor 
 of husband and wife;- and of all choses in action taken by 
 them in their joint names.'^ And whenever a husband i3ro- 
 cures stocks in the name of himself and wife, or takes notes, 
 mortgages, or other securities in his and her names, a tenancy 
 by entirety is created in such stocks, notes, mortgages, or 
 other securities. The husband is presumed to have meant 
 something by the use of his wife's name, and that something 
 is also presumed to have been intended for her advantage. 
 Had he desired to be sole owner, he would have used no name 
 other than his own. But having had her name inserted with 
 his own, she, in the event of his death, becomes sole o^vner 
 of all which the two at the moment of his decease possessed 
 as tenants by the entirety."* So, when a husband purchased 
 a Walk in a Chase, and took the patent to himself and Avife 
 and B, and her right to the share of the patent was afterrv-ards 
 questioned, the Court said, "It shall be presumed to be in- 
 tended as an advancement and provision for the wife;" and 
 decreed that she should have the benefit of the patent during 
 her life.^ 
 
 ^ 69. Creation. — "The same words of conveyance Avhich 
 would make two other persons joint-tenants will make a hus- 
 band and wife tenants of the entirety, so that neither can 
 sever the jointure, but the whole must accrue to the sur- 
 vivor."^ Hence, a bequest to my daughter Catherine M., 
 married to Samuel M., the one-eighth part to them, as it mani- 
 fests by the use of the Avords "to them" an intent to give 
 property to a husband and wife, gives rise to tenancy by en- 
 tireties.' But it seems to be essential that the spouses be 
 
 ' Cowper V. Scott, 3 P. Wms. 120. 
 
 ■^ Bond V Simmons, 3 Atk. 21; Anon. 3 Atk. 726; Coppin v. , 2 P. Wms. 496. 
 
 a Jickling's Analogy L. & Eq. Estates, 257, citing Temple v. Temple, Cro. Eliz. 791; 
 Norton v Glover, Noy, 149. As to promissoiynote, see Shields v. Stillman, 48 Mo. 86. 
 " * In re Gadbury, 32 Law J. Rep. (N. S.) Cli. 780; Craig v. Craig, 3 Barb. Ch. 104; 
 Draper v. Jackson, 16 Mass. 486; Christ's Hospital v. Rugdin, 2 Vern. 683; Rider v. 
 Kidder, 10 Ves. 360. 
 
 5Kingdon v. Bridges, 2 Vern. 67. „, r. o^ 
 
 De Gray C J., in Green v. King, 2 Wm. Bl. 1213; Martin v. Jackson, 27 Pa. St. 
 504; Doe v. Parratt, 5 Term Rep. 652; Farmer's Bank v. Gregory, 49 Barb. 155; Ben 
 V. Hardenbergh, 5 Halst. 45. 
 
 ' Hamm v. Meisenhelter, 9 Watts, 350.
 
 129 TENANCY BY ENTIRETIES. § 70 
 
 jointly entitled, as well as jointly named, in the deed. Hence, 
 if the wife alone be entitled to a couvejauoe, and it is made 
 to her and her husband jointly, the latter will not be allowed 
 to retain the whole by survivorship. This is equally true 
 where the conveyance is so made at her request, because, 
 being a married woman, she is presumed by the common law 
 to have acted under the power and by the coercion of her 
 husband. • Tenancy by entirety is not always created by pur- 
 chase. In Pennsylvania, it has been determined that a hus- 
 band and wife inheriting property as heirs of one of their 
 children, acquire thereby an estate by entii-eties.- 
 
 ^ 70. Husband and Wife take as one Person. — The hus- 
 band and Avife not only take an entire estate as one person when 
 it is gi-anted to them, but thej' are also regarded as one person 
 in any conveyance made to them and others, and therefore 
 take but one moiety. Thus, if a deed be made to A and wife 
 and B, here A and Avife together take but one half.^ This is 
 true whether the conveyance be intended to create a joint- 
 tenancy or a tenancy in common.^ A legacy Avas given to 
 Captain E. G., his wife, and children. The Master of the 
 Kolls, in construing the bequest, said: "The testatrix has 
 used no words from which it can be discovered what, if any, 
 intention she had with respect to the proportions in which 
 the legatees were to take and enjoy the legacy thus given to 
 them jointly. Under such circumstances, the proportion 
 must be determined by the ordinary rule applicable to such 
 cases; and there being nothing to distinguish the present 
 case from those in which the rule stated in Littleton, and 
 applied in several cases cited at the bar, Avas acted upon, I 
 am of the opinion that the legatees must take in thirds : viz. , 
 the husband and Avife one, and the two children each of them 
 one."'^ 
 
 ' Mooro r. Moore, 12 15. Monr. 664; Babbit o. Scroggin, 1 Duval. 27:5. 
 
 - Gillan v. Dixon, C5 Tii. St. 895. 
 
 •* Doo V. WilHon, -i Barn. A Ala. 3 03; Barlx-r r. Harris, lo Wend. 615; Back r. An- 
 drew, 2 Vorn. 120; Brickcr i\ Whatk-y, 1 Vcni. 2.33; Lift. see. 2'Jl; In re Wyldc, 2 D. 
 M. <t G. 721. Contra, set: AVarrington r. AVarrington. 2 Hiirc, 56. 
 
 ^ Jolinson r. Hart, G AVatts & S. 31'.», 
 
 ••Gordon v. AVliieldon, 18 L. J. iJup. (N. S.) Chan. ."»; 11 Bcav. 170; .\.tclu'Hi>n v. 
 Atcheson, 18 L. J. Rep. (N. S.) Chane. 230; II B.av. 485. 
 
 C. k p.— 9
 
 ^ 71 TENANCY BY ENTIRETIES. 130 
 
 g 71. That Husband and Wife cannot take by Moieties. — 
 
 We have seen that the peculiar grouud on which the tenancy 
 by entireties rests is the legal identity of husband and wife. 
 "Husband and wife being one person in law, they cannot, 
 during the coverture, take separate estates; and therefore, 
 upon a purchase by both, they cannot be seized by moieties, 
 but both and each has the entirety.'" The language just 
 quoted was used in support of the proposition that husband 
 and wife take by entireties in all cases when there is no ex- 
 press limitation. But, going beyond the necessities of the 
 case out of which it arose, it assiimes, beyond mistake, that 
 the inevitable consequence of the legal identity of husband 
 and wife is, that they can receive, during coverture, no estate 
 which does not vest in them by entireties. No doubt, there 
 are a number of cases, both English and Ai^erican, containing 
 dicta which, like that quoted above, seem inconsistent ^\dth 
 the possibility of husband and wife receiving an estate by 
 moieties.- But in addition to the dicta alluded to, there are 
 cases directly in point affirming that the spouses cannot take 
 estates as tenants in common, nor as joint-tenants. Thus, in 
 New York, a deed was made to J. C. and his wife "as tenants 
 in common, and in equality of estate, and not as joint-tenants." 
 The Assistant Vice-Chancellor, after some discussion of the 
 authorities, determined that this conveyance necessarily 
 passed an estate by entireties, because there was "a legal 
 incapacity to take in severalty, arising from a legal identity; 
 and a grantor cannot remove that incapacity' without the in- 
 tervention of a trustee. ■'•' In Pennsylvania, a deed to Wm. B. 
 and his wife Kebecca, purported to convey to them ' ' as ten- 
 ants in common, and not as joint-tenants." After citing and 
 approving the decision made by the Assistant Vice-Chancellor 
 in New York, the Supreme Court of Pennsylvania, in an 
 opinion in reference to the legal effect of this last deed, said : 
 ' ' If the doctrine to which we refer is not a mere ride for as- 
 certaining the meaning of words, but a rule of law founded 
 on the rights and incapacities of the matrimonial union, it 
 
 ' Green v. Kiug, 2 W. Bl. 121. 
 
 - Rogers v. Benson, 5 John. f'U. 437; .Jackson r. Stevens, 16 Jolins. 115; Barber r. 
 Harris, 15 Wend. 617. 
 3 Dias r. Glover, 1 Hoftm. Cli. 7(;.
 
 131 TENANCY BY ENTIRETIES. g 72 
 
 must be obvious that the {ntention of the parties to the con- 
 veyance is entirely immaterial. If the husband and wife 
 cannot take a conveyance by moieties, if they are absolutely 
 incapable of receiving such a grant, it is clear that no words in 
 the conveyance to them, however clearly expressed, can give 
 them that capacity. How stands the argument on this ques- 
 tion? Tenants in common may sell their respective shares. 
 They are compellable to make parfifhii. They are liable to 
 i-eciprocal actions of loaste and account; and if one turns the 
 other out of possession, an action of ejectment will lie against 
 him. These incidents cannot exist in an estate held by hus- 
 band and wife. No action of partition or waste, or account or 
 ejectment, can be maintained by one against the other. The 
 husband could not sell his moiety free from the dower of his 
 wife. The wife could not sell hers at all without the consent 
 of her husband. It is evident, therefore, that the estate, 
 during the lives of the gi-antees, or during the continuance 
 of the man-iage bond, would have none of the chief incidents 
 of a tenancy in common. The existence of a tenancy in com- 
 mon, which cannot be so held or enjoyed during the lives of 
 the holders, and which has none of the incidents of such an 
 estate, is a legal impossibility. If they cannot hold in com- 
 mon during their lives, of course they cannot so hold after 
 one of the parties is dead.'" So, in Ireland, when a convey- 
 ance was made to husband and wife, the Court was "of 
 opinion that the operation of that conveyance was to grant 
 an estate by entireties; for to speak of a grant to a husband 
 and mfe as an estate of joint-tenancy is, properly speaking, 
 a solecism."^ 
 
 ^ 72. That Husband and Wife may take by Moieties.— 
 
 The decisions, as we have seen in the preceding section, de- 
 nying that husband and wife may take an estate other than 
 by entireties, rest upon two grovmds. The first and chief of 
 these grounds is that the spouses cannot take any other estate ; 
 the second, as appears from the reasoning quoted from the 
 opinion of the Supreme Court of Peimsylvania, is that the 
 spouses cannot, during coverture, enjoy any other estate. 
 
 > Stuckey r. Keefo'« Ex. 2G Pa. St. 400. 
 « PoUokv. Kelly, G Ir. L. R. (N. B.) 373.
 
 g 72 TENANCY BY ENTIRETIES. 132 
 
 The second gronnd can, we think, be readily disposed of, by 
 the authorities. For though the rights and remedies of a 
 married woman, who is cotenant with her husband, may be 
 limited during coverture, she is nevertheless as much a co- 
 tenant with him as she was before their marriage. There can 
 be no doubt that if a man and woman, holding an estate as 
 cotenants, marry, they will continue to be joint-tenants, or 
 tenants in common, as before their marriage.^ So there is 
 no reason for asseiiing that husband and wife cannot hold but 
 by entireties. But the second ground cannot be so easily 
 answered. Husband and wife may take an estate as tenants 
 in common, or as joint-tenants, as between themselves and 
 others. Thus, if a bequest were made to A and wife and B, 
 with words of severance, it would vest as a tenancy in com- 
 mon — A and wife having one moiety, and B the other ;^ but 
 the moiety of A and wife would nevertheless vest in them as 
 an entirety." But it is doubtful whether any reported case, 
 prior to the publication of Mr. Preston's ' ' Treatise on 
 Estates," ever supported the doctrine that, as between them- 
 selves, husband and wife can take an estate other than by 
 entireties. In that treatise, the assertion was made, that " in 
 point of fact, and agreeable to natural reason, free from arti- 
 ficial deductions, the husband and wife are distinct and in- 
 dividual persons; and accordingly, when lands are granted to 
 them as tenants in common, thereby treating them without 
 any respect to their social union, they will hold by moieties, 
 as other distinct and individual persons would do."^ Clear 
 as this language is, and logical as it seems to be, it has the 
 peculiarity of being the cause rather than the result of the 
 reported decisions in harmony with it. It finds no support 
 in the early reports or text-books; and Mr. Preston was so 
 fully aware of the doubtful character of his assertion that, in 
 his work on Abstracts of Title,^ he repeated it in this modified 
 
 ' Moody V. Moody, Amb. 649; McDermott v. French, 15 N. J. Eq. 80; Dew v. Har- 
 denbergh, 5 Halst. 46; Co. Litt. 187 h. So a wife may become tenant in common 
 with her husband, by a conveyance to her from her husband's cotenant. (Moore v. 
 Moore, 47 N. Y. 467.) 
 
 ■^ Paine v. Wagner. 12 Sim. 188. 
 
 •* Barber y. Harris, 15 Wend. 617. 
 
 -1 1 Prest. on Estates, 132. 
 
 ^ Vol. 2, p. 41.
 
 133 TENANCY BY ENTIRETIES. § 72 
 
 form : ' 'And even a liusbancl and v>He may, by express words, 
 <xt least so the laiv is loidtrsfood, be made tenants in« common 
 by a gift to them during coverture." In America, the doc- 
 ti-ine of Mr. Preston has met with some approval. In New 
 York, the decisions are variant. That of the Assistant Vice- 
 chancellor, made in 1839, has already been alluded to in the 
 preceding section. Subsequently, a case came before the 
 Yice-Chancellor, where a deed had been made to husband 
 and wife, " the one equal half part to each." The decision 
 made upon this deed was based upon a citation from one of 
 Mr. Preston's works. The Yice-Chancellor stated the sub- 
 stance of the rule as laid down by Mr. Preston, and added : 
 ' ' I have no hesitation about adopting and following this rule, 
 especially in a covirt of equity where the intention of the 
 parties in any deed or instrument, not contrary to law, should 
 be allowed to prevail."' In New Jersey, a bill for partition 
 alleged that on the 1st of September, 1858, a husband and 
 wife were seized in fee of the premises, as tenants in common, 
 by virtue of a certain conveyance made to them; that there- 
 after the husband had sold his interest to the complainant. 
 The bill was against the wife to compel partition. A de- 
 murrer was interposed, on the ground that the estate con- 
 veyed to the husband and wife must necessarily have been an 
 entirety, and was therefore not subject to partition. This 
 portion of the demurrer was overruled, on the authority of 
 Mr. Preston, reference being made to his work on Estates. 
 The Chancellor said : " So it seems that a husband and wife 
 may, by express words, be made tenants in common by gift 
 to them during coverture. The bill alleges that the husband 
 and wife were seized as tenants in common by virtue of a 
 conveyance made to them. Even, therefore, if it appears by 
 the bill that the conveyance was made during covei-ture, that 
 fact is not absolutely inconsistent with the creation of a ten- 
 ancy in common. As there is a direct averment that the con- 
 veyance created a tenancy in common, it must be assumed 
 that apt words were used in the deed for that purpose. This 
 <>l)iectiou cannot prevail ui)on demurrer. "- 
 
 ' Hicks V. Cochran, 4 Edw. Cli. 110. 
 - Mc-Dt>rmott r. French. 15 N. J. Eq. 80.
 
 ^ 73 TENANCY BY ENTIRETIES. 134 
 
 g 73. Power of Husband over Estate by Entireties.— 
 
 The title and rights of the wife in an estate held by herself 
 and husband by entireties, are not liable to be conveyed, en- 
 cumbered, or otherwise prejudiced or disposed of, by her 
 husband to any greater extent than though such estate was 
 vested in her exclusively in her own right. Many cases con- 
 tain the general statement that no conveyance or encumbrance 
 made by the husband is valid against the wife.^ Upon exam- 
 ination of these cases, it will be found that the general lan- 
 guage employed in them is applicable only to the rights of 
 the wife as the survivor of such species of property as would 
 not have been subject to the control and disposal of the hus- 
 band had she owned it in severalty. As to such property, 
 not even the conviction of a husband for high treason can 
 defeat the right of his wife to the whole as survivor.^ It 
 must be remembered that a husband by marriage acquires, 
 " during coverture, the usufruct of all the real estate which 
 his wife has, in fee-simple, fee-tail, or for life;" that he has 
 the further right to reduce her personal estate to his posses- 
 sion, to sue for her chattels and upon her choses in action in 
 his own name, and to dispose of her personal property as he 
 may think fit. The same power which enables a husband to 
 obtain possession and control of the wife's estate when held 
 by her in severalty, entitles him to a similar power over her 
 interest in like property held by herself and husliand in en- ' 
 tireties. There is therefore little or no doubt that, by the 
 common law, the husband could dispose of the possession of 
 real estate held by entireties, and that he could mortgage and 
 otherwise encumber such real estate, and that his grantee or 
 mortgagee thereby acquii-ed rights which were paramount to 
 the rights of the wife during the life of the husband, and 
 subordinate only to her claim as survivor. So in regard to 
 personal estate held by entireties, the husband could reduce 
 it to his sole possession, and claim and hold it as his sole 
 property. When he so reduced it, it became his, and he 
 could sell or encumber it at his pleasure. =^ 
 
 ' Doe V. Parratt, 5 T. R. 655; Bennett v. Child, 19 Wis. 365; Bomar v. MuUins, 4 
 Rich. Eq. 80; Ketchum v. Walsworth, 5 Wis. 95. 
 
 - Washburn v. Burns, 34 N. J. Law, 19; Co. Litt. 147 a: Beaiimont's Case, 9 Sep. 
 140 h. 
 
 ■' Draper r. Jackson, 16 Mass. 486; Grute y.-Loeroft, Cro. Eliz. 287: Watts v. Thomas^
 
 13;) TENANCY KY ENTIRETIES. ^ 74 
 
 g 74. Sale under Execution. — lu a recent work on Judi- 
 cial Sales, the statement is made that ' ' no separate proceeding 
 against one of them during their joint lives will, by sale, 
 affect the title to the property as against the other one as 
 survivor, or as against the tv\'o diiring their joint lives."' The 
 rule as thiTS laid down, ignores the interest whieli the hus- 
 band, by his marital rights, has in the property of his wife. 
 As the husband could, by the common law, dispose of all 
 chattels and chattel interests of the wife, and of the posses- 
 sion of her real estate during their joint lives, he had such 
 an interest in her estate as might be subjected to inv(jluntarv 
 alienation by sale under execution. Hence, there seems hnt 
 little doubt that where the marital rights of the husband in 
 the wife's property remain as at common law, they are subject 
 to seizure and forced sale under execution; and that the pur- 
 chaser at such sale will acquire an interest in the estate sold, 
 by ^drtue of which he will succeed to all the rights and privi- 
 leges which the husband had, by law, in the property sold.' 
 It is true that a few American cases are inconsistent with this 
 rule. Most of them seem to have been decided, so far as 
 this point is concerned, without any consideration of the 
 authorities, and without any necessity of determining this 
 question.^ But in Indiana, this point was recently considered 
 at gi-eat length, and most of the authorities bearing on the 
 subject were commented upon by the Court. The result Avas 
 a denial of the husband's marital powers over an estate held 
 in entireties, including a denial of his right to dispose of the 
 possession of real estate, or in any way to transfer to a tliird 
 person, by voluntary or involuntary alienation, any interest 
 which could be asserted against the wife, even during her 
 husband's lifetime. The Court said: "As between husband 
 and wife, there is but one owner, and that is neither the one 
 
 2 P. Wms. 364; Bates v. Dandy, 2 Atk. 207; McCmdv v. Canning, G4 I'a. St. 40: 
 Bennett r. Cliild, 10 Wis. 365; Tarrey r. Torrcy, 14 N. Y. 430; Jackson «. McConndl, 
 19 Wend. 175; BaibiT v. Uarris, 15 Wend. (!17; Ames i\ Norman, 4 Sneed, 692; Fairnor 
 c . Gregory, 49 Barb. 155. 
 
 ' Rorer on Judicial Sales, sec. 540. 
 
 - Ames I'. Norman, 4 Snccd, 692; Stoeblci- n. Kikit, 5 Watts. 181; Frencli v. Mehan, 
 .56 Pa. St. 289; McCurdy v. Canning, CA Pa. St. 41; Bennett i). Child, 19 Wis. 362; 
 Litchfield v. Cudworth, 15 Pick. 23; Brown v. Gale, 5 N. If. 416. 
 
 ' Jackson r. McConnell, 10 Wend. 178; Tlionins /•. I)e Baum, 1 McCarter Ch. 40.
 
 § 75 TENANCY BY ENTIRETIES. 136 
 
 nor the other, but both together. The estate belongs as well 
 to the wife as to the husband. Then, how can the husband 
 possess any interest separate from his wife, or how can he 
 alienate or encumber the estate, when all the authorities agree 
 that the wife can neither convey nor encumber such estate ? 
 We are of the opinion that, from the peculiar nature of this 
 estate, and from the legal relations of the parties, tliei'e must 
 be unit)' of estate, unity of possession, unity of control, and 
 unity in conveying or encumbering it; and it necessarily and 
 logicall}- results that it cannot be sold upon execution for the 
 separate debts of either the husband or of the wife. The 
 estate is placed beyond the exclusive control of either of the 
 parties, or the reach of creditors, unless it can be successfully 
 attached and set aside for fraud. "^ 
 
 § 75. Husband's Po-wers affected by Statutes. — In many 
 of the States, the common law in regard to the marital rights 
 of a husband in the property of his wife, has been materially 
 modified by statute. These statutes influence the law in re- 
 gard to estates held in entireties as well as in regard to those 
 held by the wife in severalty. Thus, in Pennsylvania, the act 
 of April 11, 1848, declared that "every species of property 
 of whatever name or kind, which may accrue to any married 
 woman during coverture, shall be owned, used, and enjoyed 
 by such married woman as her own separate property, and 
 shall not be subject to levy and execution for the debts of 
 her husband, nor shall such property be sold, conveyed, 
 mortgaged, or transferred, or in any manner encumbered, by 
 her husband, without her written consent first had and ob- 
 tained." Under this act, it has been determined that a pur- 
 chaser of the husband's interest in property held in entireties, 
 either at a voluntary or an involuntary sale, can never assert 
 it against the wife, because if the claims of such purchaser 
 were recognized, the rights of the wife would be disregarded : 
 1st, by destroying her estate by entireties, and creating out 
 of it a tenancy in common; 2d, by depriving her of her pos- 
 session with her husband, and obliging her to hold possession 
 with a stranger; 3d, by taking away her property without her 
 
 1 Chandler v. Cheney, 37 Ind. 403.
 
 137 TENANCY 15Y ENTIRETIES. ' ^ 70 
 
 assent.' The principle thus asserted in Pennsylvania, has, 
 under a very similar statute, been affirmed l3y a number of 
 decisions in Indiana. - 
 
 ^ 70. Dissolution of the Tenancy by Death or Divorce. — 
 
 In the event of the death of either spouse during tlio con- 
 tinuance of an estate held by entireties, the survivor continues 
 seized of the T\-liole. During the continuance of the marital 
 relations, neither husband nor wife can change the character 
 of the tenancy so as to become a tenant in common, m)r a 
 joint-tenant, nor an owner in severalty. But by a decree of 
 divorce, the legal unity of person, on which the estate de- 
 pended, is destroyed; "one legal person has been resolved by 
 judgment of law into two distinct, individual j)ersons, having 
 in future no relations to each other; and with this change in 
 their relations, must necessarily follow a corresponding change 
 of the tenancy dependent upon the previous relation. As 
 they cannot longer hold in joint seisin, they must hold by 
 moieties." ' But it is claimed that if a husband alienate prop- 
 erty held by entireties, the alienee takes a title not dependent 
 on a continuance of the marital relations ; and that the wife is 
 not, by virtue of the annulment of the marriage, entitled to the 
 possession of her moiety from her husband's gi-antee. The 
 purchase, "not made in view of the contingency of the wife's 
 divorce, cannot be affected by it.""* But in the event of the 
 death of a husband, the rights of the alienee of property of 
 Avhich the husband could make no absolute disposition, cease ; 
 and the surviving wife may recover possession by an action of 
 ejectment.* 
 
 ' McCurdy v. Canning. C4 Pa. St. 41. 
 
 - Davis I'. Clark, 26 Ind. 424; .\rnold r. Arnold, 30 Ind. 305; Simpson v. Pearson, 31 
 Ind. 1; Chandler v. Cheney, 37 Ind. 413. 
 •• Ames r. Norman, 4 Sneed, C9C: 2 Bright on Husband and Wife, 305. 
 ■* Ames ('. Norman, 4 Sneed, G9G. 
 '■> BrowTisou i\ Hull, IC Vt. 309.
 
 CHAPTEE V. 
 
 OF PARCENERS. 
 
 Definitions, ^ 77. 
 
 Classification, § 78. 
 
 Parceners by the Common Law, ^ 79. 
 
 Of what Estates, ^ 80. 
 
 General Properties, § 81. 
 
 All make but one Hen-, v> 82. 
 
 Continuance of, § 83. 
 
 Destniction, ^ 84. 
 
 Generally Abolished in United States and in Canada, ^ 85. 
 
 § 77. Definitions. — "Parcenary is a title by descent, and 
 arises on the cleatli of a person seized of an estate of inherit- 
 ance, leaving two or more females lieneal or collateral, liis 
 next heir."' "Coparceners are several persons taking lands, 
 or any undivided share of lands, held for an estate of in- 
 heritance by descent."^ This estate arises "where lands of 
 inheritance descend from the ancestor to two or more persons, 
 as his daughters, sisters, aunts, cousins, or their representa- 
 tives, or the males in gavelkind."^ "This tenancie in the 
 ancient books of law is called adcequatio, and sometim.e familia 
 herciscimda, an inheritance to be divided; and many times 
 parceners are called coparceners. " ^ The definition first quoted 
 indicates that parceners are always females. In this it is er- 
 roneous, for parceners may be males as well as females. Males 
 are in some instances made parceners by direct descent from 
 their common ancestor, and in other instances they become 
 parceners by being heirs to a female parcener.' 
 
 ' Jickling on Anal. L. tt Equitable Estates, 222. 
 
 ■•■ Preston on Abstracts of Title, 68. See also 2 Bl. Comm. 187. 
 
 3 4 Dane's Ab.-758. 
 
 ■» Co. Litt. 164 b. 
 
 * The most concise and perfect definition of coparcenary which we have seen is that 
 in Bm-rill's Law Dictionary, (title Estates,) namely: "An estate acquired by two or 
 more persons (usuallv females) bv descent from the same ancestor."' 
 
 138
 
 139 COPARCENERS. {J g 78-71) 
 
 § 78. "Parceners are of t-wo sorts, to wit: parceners 
 according to the course of the common law, and parceners 
 according to custome. Parceners after the course of the 
 common law, are, where a man, or woman, seized of certain 
 lands or tenements in fee-simple or in taile, hath no issue but 
 daughters and dieth, and the tenements descend to the issue, 
 and the daughters enter into the lands or tenements so de- 
 scended to them, then they are called parceners, because by 
 the Avrit which is called breve de particApatione facieiida, the law 
 will constrain them that partition shall be made among them.'' ' 
 Parceners according to the course of the common law, in- 
 clude aunts, cousins, and sisters, to whom lands descend from 
 the same person. But if there be but one daughter, she is not 
 called a parcener, but "daughter and heire."- "Parceners 
 by custome are, where a man seized in fee-simple, or in fee- 
 taile, of lands or tenements which are of the tenure called 
 gavelkind within the countie of Kent, and hath issue divers 
 sons and die, such lands or tenements shall descend to all 
 the sons by custome, and they shall equally inherit and make 
 partition by the custome as females shall do."'' There seems 
 to be no diflference between the rights of parceners by custom 
 and parceners by the course of the common law.^ 
 
 ^ 79. Parceners by the common law must be either 
 females or the heirs of females.'' All the daughters of a man 
 are equally his heirs, whether born of the same or of difl'er- 
 ent mothers. They are therefore all equally parceners.'' Co- 
 parceners can acquire their estate by descent only. If two 
 sisters acquire lands by purchase, they are not parceners, but 
 joint-tenants, or tenants in common.^ If a coparcener die 
 leaving a male heir, he will succeed to her estate, and will 
 hold the same as a coparcener. By this means, men become 
 parceners even by the course of the common law. A man 
 may be parcener with iiimself. This happens when one-half 
 of an estate descends to him from his father, and one-half 
 from his mother. If he die in sucli case, Avithout lineal de- 
 
 ' Litt. HOC. 241; Chitty on Desceuts, 70. . - Litt. sec. 242. 
 
 " Litt. sec. 265; Chitty on DoHCentrt, 182. ' Leigh i\ Shcplierd, 2 Bro. A U. 4C5. 
 
 ^ Chitty on DcHconts, 76. '• Chit*y on DoKcents, 78. 
 
 " Chitty on DesccntH, 7(i; Litt. sec. 254.
 
 |§ 80, 81 COPARCENERS. 140 
 
 scendants, the half which came to him from his father de- 
 scends to his father's heirs, while the other half descends to 
 the heirs of his mother.' 
 
 § 80. What Estates confined to. — As coparceners acquire 
 by descent, thej cannot hold any other than an estate of in- 
 heritance.^ An estate in parcenary may be of "land,^ rents, ^ 
 advowsons,"" reversions," indeed in nearly all property, cor- 
 poreal or incorporeal, which is in its nature descendible."' 
 As to advowsons, the eldest of the coparceners seems to be 
 entitled the privilege of making the first presentation. This 
 pri^alege descends to her issue, or it may pass to her assignee, 
 or to her husband as tenant by the curtesy.^ And in general 
 when the property is not susceptible of partition, as, for in- 
 stance, ' ' the mansion house, common of estovers, common of 
 piscary uncertain, or any other common without" stint, shall 
 not be divided, but the eldest sister or other eldest parcener 
 shall take it and make satisfaction therefor to the coparceners 
 out of other parts of the inheritance; but if this satisfaction 
 cannot be made, then the parceners may enjoy such indivisible 
 property by turns." 
 
 § 81. The general properties of an estate held in 
 
 coparcenary are, in most respects, very like the properties of 
 a joint-tenancy. The former has three unities, viz., unity of 
 title, unity of interest, and unity of possession; while the 
 latter has the same three unities, and usually, but not neces- 
 sarily, a fourth, unity of time. The latter estate is invariably 
 acquired by purchase, and the former by descent. Copar- 
 ceners have a unity but not an entirety of interest; and, be- 
 tween themselves, are, for many purposes, regarded as having 
 several freeholds. Joint -tenants have equal interests: the 
 
 ' 1 Washb. on Real Estate, 561. 
 ■■^ Chitty on Descents, 76, 77. 
 » Co. Litt. 163 b. 
 
 * Co. Litt. 164 h. 
 
 * Harris v. Nichols, Cro. Eliz. 19; Buller t>. Bishop of Exeter, 1 Ves. 340. 
 « Anon, 3 Leon, 6; Stedman v. Bates, Saek 390. . 
 
 ■J Jickling Anal. L. & Eq. Estates, 229. 
 
 « Chitty on Descents, 196-7; Johnstone v. Baber, 39 E. L. & Eq. 189; S. C. 25 L. J. 
 Rep. Ch.899; DeGex, M. & G. 439; 22 Beav. 562; 2 Bl. Comni. 189. 
 « 2 Bi. Comni. 190; 2 Cruise Dig. 397.
 
 141 rorARCENEr.8. §§ 8*2-84' 
 
 interests of parceners may be eqiial or unequal. The num- 
 ber of the parceners may be augmented by the decease of 
 one of them, leaving several heirs; but the number of joint- 
 tenants necessarily diminishes with each succeeding death, 
 until the whole estate ultimately vests in the last suiTivor. 
 But the most important distinction between these two ten- 
 ancies arises from the fact that between coparceners "there 
 is no Jus accrescendi, or survivorship, for each part descends 
 severally to their respective heirs, though the unity of pos- 
 session continues."' 
 
 ^82. " Coparceners make but one heir, wherefore it fol- 
 lows that although, where there are two parceners, they have 
 moieties in the lands descended to them, yet are they both 
 but one heir; and one of them is not the moiety of an heir, 
 but both of them are but units Jiccres."'^ 
 
 ^ 83. Continuance of Coparcenary. — As long as an estate 
 is held by two or more persons by descent, they are parceners. 
 Thus, if one of two daughters, to whom an estate passed by 
 descent from their ancestor, die, her heir becomes parcener 
 with the survivor. If both of the daughters die, their heirs 
 become parceners. "And as long as the lands continue in a 
 course of descent, and united in possession, so long are the 
 tenants therein, whether male or female, called parceners.'* 
 Hence, in the case of coparceners, the descent may be either 
 in stirpes, or in capita. Thus if a man die, leaving as his 
 heirs two daughters, the descent to them is in capita. But if, 
 prior to the death of the father, the daughters had died, the 
 elder of them leaving three daughters, and the younger leav- 
 ing one daughter, the descent must be in stirpes, and the 
 daughter of the younger must receive the same share as the 
 three daughters of the elder.'* 
 
 i^ 84. Destruction. — Though an estate in coparcenary can- 
 not be destroyed, as long as it remains in two or more |)(;rsons 
 
 ' 2 Ci-uise by Greonl. .391, .■i!)2: 4 Diuk; AIj. 758; 2 151. Coimn. ISS; Cliitiyoii Dt- 
 seents, 77. 
 
 -CWttyoii DcsccntH, 75; 2 (,'niisc, .•('.)1; Co. Litt. !(;:{/-,• )lolV;ir /•. D<ni<iil. :> (Jill, 
 137. 
 
 •' Cliitty on DoHcents, 78; 1 Daii< Ali. 7J8. 
 
 * Cliitty on Dewcentx. 77, 8.').
 
 g 85 COPARCENERS. 142 
 
 by descent, it may be terminated by partition, by alienation, 
 or by a union of tlie interests of all the coparceners in one 
 parcener as heir of the others. An alienation by any of the 
 parceners, disunites her title and interest from that of the 
 others, and the coparcenary is thereby destroyed if there were 
 but two parceners, but if there were more than two, those 
 who did not convey remain coparceners as between one an- 
 other, but are tenants in common with the alienee of the part 
 so conveyed.' 
 
 ^ 85. Generally Abolished. — As persons to whom estates 
 jointly descend are, in the United States, generally treated as 
 tenants in common, ' ' the distinction of estates in coparcenary 
 is of comparatively little ]3ractical importance, and properly 
 gives place to the familiar form of joint estates in universal 
 use, tenancy in common.'"^ The same remark is equally ap- 
 plicable to the province of Upper Canada, coparcenary having 
 there been changed into tenancy in common, by sec. 38 Ch. 
 82 of Cons. Statutes." 
 
 1 Chitty on Descents, 78; 2B1. Oomni. 191; 2 Cruise, 394. 
 
 - 1 Washb. on Real Est. 415; Sec. 1909 Code of Ala.; Laws of R. I. ed. of 1872, 348; 
 Miller's Appeal, 3 Grant, 247; Stevenson r.'Cofferin, 20 N. H. 150. 
 ■ Leith's Real Property' Statutes, 55. 195.
 
 CHAP T E R V T . 
 
 TENANCY IX COMMON. 
 
 Definition, §i 86. 
 
 Equal Eight to Possession essential to, vS 87. 
 "\rMiat may be held by, ^ 88. 
 Whether Letters Patent are held by, vS 89. 
 Who may hold by, § 90. 
 Legislative Grantees, § 91. 
 
 Created by Creating Unity of Eight of Possession, ^ 92. 
 " * Transfer of a Part, ^S 93. 
 
 Contract to Work on Shares, ^ 94. 
 
 Confusion of Goods, <5 95. 
 
 Grant of Unsegregated Part. ^ 9(;. 
 
 Trees Growing on Line, \\ 97. 
 
 Party Wall, §98. 
 " Grants to Proprietaries, § 99. 
 
 " Crops raised on Shares, vS 100. 
 
 '• Agi-eement to Divide Profits, ^ 101. 
 
 Simultaneous Mortgages from same Mortgagor, v> 102. 
 
 Simultaneous Deeds or De\'ises for same Person, vn 103. 
 
 Voluntarj' Association, § 104. 
 Presumption of Eelative Interests, § 105. 
 Presumption arising from Deed to two or more, \S IOC. 
 Interest of Tenant suV/ject to Dower, $ 107. 
 Widow before Dower assign(>d is not a Cotenant, vS 108. 
 Lapse of De^^se or Bequest to several as Tenants in Common, v^ 109. 
 No Lapse where it is to them as a class, (\ 110. 
 
 EFFECT OF PARTNERSHIP UPON REAL ESTATi: HELD IN NAME 01' 
 PARTNERS AS TENANTS IN COMMON. 
 
 Dirt'erence between Partners and < 'otenants, vn 111. 
 
 Effect, at law, of Partnership on Cotenancy of Eealty. v^ 112. 
 
 Effect, in equity, of Partnership on Cotenancy of Eealty, vS 113. 
 
 Mere Purchase by Partners does not convert Eealty into Personalty, vS 114. 
 
 Presumption arising from Purchase with Firm Assets, ij\ 1 15. 
 
 Realty acquired outside of Partnership, § IRi. 
 
 Realty when treated as Personalty, ij 117. 
 
 Realty for what purposes treated as Personalty, v> 1 IK. 
 
 Conveyance by a Partner of whole of the Eealty, 4 119. 
 
 Conveyance by a Partner to Purchaser with notice, ^ 120. 
 
 141)
 
 §§ 86, 87 TENANTS IN COMMON. 144 
 
 g 86. Definitions. — "Tenants in common are they Avhicli 
 have lands or tenements in fee-simple, fee-taile, or for terme 
 of life, &c., and they have such lands or tenements by severall 
 titles, and not by a joynt title, and none of them know of this 
 his severall, but they ought by law to occupie these lands or 
 tenements in common."^ The several tenancies are best dis- 
 tinguished from one another by considering the unities of 
 each. Beginning with tenancy by entireties, we find five 
 unities, viz., a unity of possession, of title, of estate, of time, 
 and of person. Next comes joint-tenancy with the same 
 unities as tenancy by entirety, except that of person. Then, 
 next below joint-tenancy, is coparcenary, with its three unities, 
 viz., of title, of possession, and of estate. And lastly, we 
 have tenancy in common, which is different from the other 
 tenancies in this, that it requires but one unity — that of pos- 
 session. It is therefore a sufficient description of tenants in 
 common to say that they ' ' are persons who hold by unity of 
 possession."^ "It is not necessary that there should be either 
 unity of tenure in the different portions of the land, or unity 
 of estate in the several owners thereof, to constitute a tenancy 
 in common. Unity of right of possession merely is all that 
 is required."^ But tenants in common may also have a unity 
 of interest, title, and time.'' 
 
 § 87. Equal Right to Possession essential to. — To con- 
 stitute a tenancy in common, there must be an equal right to 
 the possession of every part and parcel of the subject-matter 
 of the tenancy. Several persons may together own an en- 
 tire thing without being cotenants. This is always the case 
 where one of them has the exclusive right of possession in 
 one part of the thing, and the others have such exclusive 
 right in the other parts. Thus, A may own the basement of 
 a house, and B the first story above; or C and D may own 
 contiguous rooms on the same floor; and E may have the 
 right to enter and reenter for specified purposes. Here, 
 though no one person fully owns the entire house, yet each 
 as to his part has an estate in severalty. As between each 
 
 ' Litt. sec. 292; 2 Cruise Dig. 399. - 4 Kent Comm. 367. 
 ^ Putnam v. Eitchie, 6 Paige Ch. 398. ^ Smith onEeal and Pers. Prop. 246 (4th ed.)
 
 145 TENANTS IN COMMON. gg 88, 89 
 
 other, they have neither the rights, remedies, nor relations of 
 tenants in common. Each has a separate dwelling in law.^ 
 
 § 88. What may be held by. — A tenancy in common 
 may exist in every species of property, real, personal, or 
 mixed. Two or more persons may, therefore, be tenants in 
 common of a lixture,- or of the right to use or convey water 
 in a ditch. " It is true that the mere right to water is a sort 
 of incorporeal thing; but the water itseK is substantial and 
 tangible, and as the right gives the party control and posses- 
 sion of this commodity, and entitles the party to damages for 
 its diversion by another, we do not see Avhy this right may 
 not be acquired by two or more acting together, or why, when 
 they do acquire it, they do not hold it as other propei-ty."^ 
 And if a number of persons adopt a trade-mark for their 
 united interest, or had inherited such mark, it is said that 
 they are tenants in common thereof.^ So, too, a franchise 
 may be held by two or more persons as tenants in common.^ 
 
 § 89. Co-Patentees. — No doubt, the rights and privileges 
 created by virtue of the issuing of letters patent for an in- 
 vention may be held by two or more persons. But whether, 
 when so held, the parties are tenants in common, is a question 
 not fully determined in this country. The parties may, be- 
 yond all question, enter into such an agreement in regard to 
 their patent as will make them tenants in common. But, in 
 the absence of any stipulation, what are the relations of co- 
 patentees by mere oi>ei-ation of their patent? In one instance, 
 the answer given is that they "are simply joint-owners, or 
 tenants in common, of the rights and property secured by the 
 patent; and their rights, powers, and duties as respects each 
 other, must be substantially those of the joint-owners of a 
 chattel."^ In the first opinion by an American Judge, in 
 
 ' Wiggin V. Wiggin, 43 N. H. 561; Abbott v. Wood, 13 Me. 115; McCormack v. 
 Bisliop, 28 Iowa. 233; Loring v. Bacon, 4 Mass. 575; Cheescborough v. Green, 10 
 Conn. 320. 
 
 ■' HOI V. HUl, 43 Ponn. St. 521. 
 
 ^ Kimball v. Oearhart, 12 Cal. 47; DnicUcy c. llarkness, 2G Cal. C9; Reed v. Spicer, 
 27 Cal. 57. 
 
 * Browne on Trade Marks, sec. G04. 
 
 ■' Han'eiir.Melilgarten. 19 111. 95; Liviugaton o. Lynch, 4 Johns. Ch. 573. 
 
 « Pitt8 V. Hall. 3 Blatchf. C. C. 20C. 
 
 C. «fe p.— 10
 
 § 89 TENANTS IN COMMON. 146 
 
 which this subject seems to have been much considered, the 
 conclusions were announced as being subject to further dis- 
 cussion of the question, and as being put forth ' ' in the hope 
 that the attention of the parties interested may be attracted 
 to the subject, and that the question may be brought before 
 the Supreme Court of the United States for adjudication." 
 The conclusions, so announced, were that joint-patentees were 
 substantially tenants in common, and having between each 
 other the rights and remedies accorded hj law to such ten- 
 ants; and that if either "appropriates any portion of the 
 exclusive right or common property to his separate use or 
 benefit, by either the use or sale of the patented machine, 
 he does what is in principle the same as a conversion, by de- 
 struction or sale, of the jointpropertj^by a tenant in common, 
 which authorizes his cotenant to maintain trover."' The 
 Court, therefore, considered that no objection existed to the 
 maintaining, by one joint-owner of a patent, of an action 
 against his co-owner for infringement. But other American 
 authorities at least doubt the correctness of the conclusion 
 that one joint-patentee is responsible to his co-owTier for an 
 infringement of their patent.^ In Massachusetts, an action 
 was brought to compel the defendants to account with plain- 
 tiffs, and to pay over to them such sums as might be found 
 due. The facts on which tlie plaintiff relied were as follows : 
 The owners of an invention, and letters patent issued there- 
 for, transferred to three other persons the exclusive right, 
 within specified parts of the county of Middlesex, to use and 
 to vend to others to use (but not to build or make) the 
 machines constructed according to the patent. The right so 
 transferred subsequently became vested in two persons . These 
 two both sold machines within the allotted territory. It ap- 
 peared that one of them had sold seventeen more machines 
 than the other, and realized large profits therefrom. The 
 question before the Court was whether he should be required 
 to account for the profits made from the sale of these ma- 
 chines. After considering the analogies between patent rights 
 and other species of property, the Court determined that they 
 
 I Pitts V. Hall, 3 Blatchf. C. C. 208. 
 
 •■' Curtis on Patents, sec. 188-190; Clum r. Brewer, 2 Curtis C. C. 524.
 
 147 TENANTS IN COMMON. ^ 89 
 
 ■were "compelled to reject all arguments from analogy, and 
 look at the question upon its o\\'n apparent merits." Looking 
 at the question in this light, they said : ' ' There is nothing to 
 restrict the part}' owning each moiety of the right from selling 
 and assigning that moiety, or any fractional part of it, or as 
 many fractional parts as he pleases. Each may purchase as 
 many machines as he pleases; and having purchased them, 
 he may sell them to others, with the right to iise and sell 
 them; or may refuse to sell them, and may rent them, or 
 establish manufactories, either alone or in company with 
 others, in which the machines sliall be used. Or either 
 party may neglect or refuse to puix-hase, use or sell, any 
 machines or any rights, or to make his moiety profitable in 
 any way. The right is thus subject to transfers and sub- 
 divisions, and may be used in a gi-eat variety of ways. None 
 of the parties interested has any right to control the action of 
 the other parties, or to exercise any supervasion over them. 
 It is difficult to see how an equitable right to contribution 
 can exist among any of them, unless it includes all the parties 
 interested, and extends through the whole term of the patent 
 right. And if there be a claim for contribution of profits, 
 there should also be a correlative claim for losses, and an ob- 
 ligation upon each party to use diligence in making his in- 
 terest profitable. '" * ^^ In the absence of any contract, we 
 think each party was at liberty to use his moiety as he might 
 think fit, within tlie teiTitory described. If the defendants 
 have i-ealized any profits in the manner alleged, it has been 
 by investing capital in the purchase of machines, and the use 
 of skill and labor in selling them ; and they have taken the 
 risk of losses. Apparently there is no more reason why the 
 plaintiffs should claim a part of the advanced price for which 
 they may have sold their machines, than there Avould have 
 been for claiming a part of the price if they had sold the 
 right itself for an advance. It ma}' possibly be that the sale 
 of seventeen machines so far supplies the market that the 
 plaintiffs' moiety of the right is greatly reduced in value ; but 
 if it be so, the consequence is very remote, and dependent 
 upon a great variety of causes. There liave been patented 
 articles in respect to whicli such a sale would have greatly 
 enhanced the value of the other moiety of the right, by its
 
 g 90 TENANTS IN COMMON. 148 
 
 tendency to create a demand. Such a consequence would 
 also be remote. These parties must be regarded as having 
 interests which are distinct and separate in their nature, 
 though they are derived from the same contract; and having 
 such interests, with the right to use them separately, they 
 cannot, for any legal use of them, incur any obligation to 
 each other." ^ 
 
 In England, co-patentees seem to be rather owners in sev- 
 eralty than cotenants. Each may use the patent without sub- 
 jecting himself to liability to the other. ' ' The right conferred 
 is a right to exclude all the world other than the grajrfcees from 
 using the invention. But there is no exclusion in the letters 
 patent of any one of the patentees. The inability of any one 
 of the patentees to use the invention, if any such liability 
 exists, must be sought elsewhere than in the letters patent. 
 But there is no princij)le, in the absence of contract, which 
 can prevent any persons not prohibited by statute from using 
 any invention whatever. Is there any implied contract where 
 two or more persons jointly obtain letters patent that no 
 one of them shall use the invention without the consent of 
 the others, or if he does, that he shall use it for their joint 
 benefit? I can discover no principle for such a doctrine. It 
 would enable one of two patentees either to prevent the 
 use of the invention altogether, or else to compel the other 
 patentee to use his skill and capital in the use of an invention 
 on the terms of being accountable for half the profit, if profit 
 should be made, without being able to call on his co-patentee 
 for contribution if there should be loss. This wovdd be to 
 place the parties in a relation to each other which I think no 
 Court can assume to have been intended in the absence of 
 express contract to that efiect.'"^ 
 
 § 90. Who may be. — All persons, natural and artificial, 
 capable of acquiring property, real or personal, may become 
 tenants in common with one another. In a preceding chapter, 
 it has been shown that corporations, whether sole or aggregate, 
 cannot be joint-tenants with one another nor with a natural 
 
 - Vose V. Singer, 4 Allen, 228. 
 
 - Lord Chancellor Cranwortla, in Mathews v. Green, Law K. 1 Ch. 33. See also Re 
 Eussell's Patent, 2 De G. & J. 130.
 
 149 TENANTS IN COMMON. g§ 91, 92 
 
 person, because the incident of survivorship — one of the chief 
 and most important attached to joint-tenancies — could not be 
 applied to either of two ai-tificial persons endowed with per- 
 petual life, and ought not to attach where, from one tenant 
 being natural and j^erishable, and the other artificial and per- 
 petual, there could be " no reciprocity of sundvorship between 
 them." The reasons preventing corporations from holding 
 an estate as joint-tenants, do not exist in regard to tenancies 
 in common. Therefore, "the books and cases do not afford 
 any instance in which this right of holding lands as tenants 
 in common, either ^-ith each other or with natural persons, is 
 denied to coi-porations."^ 
 
 § 91. Legislative Grantees. — It is said that a grant by 
 the Legislature is not always subject to the same rules that 
 govern grants to private persons, and that it is a statute con- 
 veyance, to be intei*preted and controlled by the intent of the 
 Legislature in making it. Hence, where land was frequently 
 gTanted in large tracts to a number of persons, on condition 
 of settlement, it was held that the grantees took as tenants in 
 common, because the Court were sure that such, beyond 
 reasonable doubt, was the intent of the Legislature.^ 
 
 ^92. A tenancy in common may be created by any 
 
 of the various means by which two or more persons can ac- 
 quire a unity of the right to possess any species of property. 
 It may arise out of what was before an estate in severalty, 
 by either a grant or devise of such estate to two or more per- 
 sons, or by a grant of an undivided part thereof to one }>erson, 
 by virtue of which the grantor and the grantee would become 
 cotenants with each other. It may result from a divorce by 
 which lands before held by entireties, or as community prop- 
 erty, become the property of the former spouses, in separate 
 but undivided moieties.'' It is also called into being by such 
 a destruction of a "joint-tenancy or coparcenary as does not 
 sever the unity of the right to possession. And so, upon the 
 
 ' De Witt r. San Francisco, 2 Cul. 298; N. Y. .t b. Canal Co. t. Fulton Bank, 7 
 Wend. 412. 
 '^ Iligbco V. Rice, 5 Mass. 350. 
 a McLeran v, Benton, 31 Cal. 29.
 
 gg 93, 94 TENANTS IN COMMON. 150 
 
 dissolution of a copartnership, the assets of the firm, though 
 subject to the discharge of the partnership liabilities, are 
 held by tenancy in common.' Upon the bankruptcy of one, 
 his assignee becomes a tenant in common with the other 
 partners.^ 
 
 g 93. Creation by Transfer of Part. — A conveyance by 
 a grantor, in which the premises conveyed are described as 
 ' ' one-half of my lot, " is sufficient to pass the title to the un- 
 divided one-half of the lot, and therefore to create a tenancy 
 in common.^ Tenancy in common may also be created in 
 personal estate by the transfer, by an owner in severalty, of 
 an undivided interest therein. So, while a promissory note 
 cannot be parcelled out, so as to make the payer liable to dis- 
 tinct actions by different assignees, the holder may sell un- 
 divided interests in the note to different persons, who thus 
 become co-o-v\Tiers, whose rights among one another, and as 
 against third persons, are governed by the law applicable to 
 tenancy in common.^ 
 
 g 94. Created by Contract for Shares. — If a contract be 
 entered into whereby one of the contracting parties, in con- 
 sideration of some service to be performed, is to become the 
 o^nier of some share in any kind of property, the contractors 
 thereby are made tenants in common with each other. ^ Thus, 
 where A undertook to save certain iron from a wreck, and B, 
 the owner of the iron, agreed to give A, as compensation for 
 his services, a certain per cent, of the property saved, it was 
 held that A became tenant in common of all iron taken by 
 kim from the wreck." And so where money was advanced to 
 the builder of certain carding-machines, upon an agreement 
 that the person so advancing should have an interest in the 
 machines equal to the amount furnished by him, he was ad- 
 judged to be a part owner, as tenant in common with the 
 builder, from the time the advance was made.' A delivery of 
 
 ' Murray v. Mumford, 6 Cow. Ml. 
 
 '^ Halsey v. Norton, 45 Miss. 703. 
 
 3 Lick V. O'Donnell, 3 Cal. 59; McCaul v. Kilpatrick, -16 Mo. 434. 
 
 * Conover v. Earl, 26 Iowa, 169. 
 
 5 White V. Brooks, 43 N. H. 402. 
 
 « Boylston Ins. Co. v. Davis, 68 N. C. 20. 
 
 '' Beaumont v. Crane, 14 Mass. 400.
 
 151 TENANTS IN COMMON. § 95 
 
 Stock to be fattened on the shares, creates a tenancy in com- 
 mon, so that neither of the parties can lawfully appropriate 
 any of such stock to his own use;' and a like result follows 
 where two or more persons jointly manufacture timber which 
 is thereafter to be divided between them.^ 
 
 ^ 95. Tenancy in Common from Confusion of Goods. — 
 
 Whenever the personal jji'operty of two or more persons has 
 become so intermingled that neither can designate his por- 
 tion, they are tenants in common, unless one of them has, by 
 his participation in the production of the mixture, entirely 
 forfeited his rights to the portion which was his. Where a 
 number of bushels of grain is sold out of a larger amount, 
 but no severance is made of the sold from the unsold portion, 
 the vendor and the vendee become tenants in common of the 
 whole grain, in proportion to their respective interests.^ A con- 
 fusion of goods is such an intermixture of the goods of differ- 
 ent persons that neither can afterwards distinguish bis o^vn. 
 It may therefore occur with every kind of personal property, 
 not so peculiarly marked as to render it distinguishable from 
 other property of the same class. Hence, when the logs of 
 different mill-owners become so mixed that neither can tell 
 which is his, they become tenants in common of the property 
 so intermingled.* The authorities in regard to the circum- 
 stances under which an owner forfeits his goods by mixing 
 them Avith the goods of others, are not entirely consistent 
 with one another. Where the mixture is by mutual assent, 
 there is no doubt that neither forfeits anything, and that both 
 become tenants in common.'' If the party occasioning the 
 confusion is an agent whose duty it is to keep his goods dis- 
 tinct from those of his principal, he is liable for all resulting 
 loss, and probably forfeits his title to the confused articles.*^ 
 But when the party causing or making the mixture does so by 
 some accident or mistake, and not intending any wrong, he 
 
 ' Sheldon v. Skinner, 4 Wend. 530. 
 
 -' Wiggins V. White, Ber. (New Brunswick) 97: Kerr . . Connell, lb. 133. 
 
 ^ Gushing v. Breed, 14 Allen, 380. 
 
 * Hesseltine v. Stockwell, 30 Me. 241. 
 
 i Nowlen v. Colt, C Uill, 4G1. 
 
 •• story on Agency, nee. 205; Hall v. Pago, 4 Geo. 43C; Wren tt. Kirten, 11 Ves. 379; 
 Lupton V. White, 15 Vch. 442; Fletcher v. Walker, 3 Madd. 40; Hart t'. Ten Eyck, 2 
 Johns. Ch. 108; Willard r. Kico, 11 Met. 493.
 
 g 96 TENANTS IN COMMON. 152 
 
 does not forfeit his right to his share, unless, perhaps, in a 
 case where the new mixture or compound is of different value 
 from the original parts. If the articles mixed together are 
 of equal value, and when mingled, remain of the same con- 
 dition as before, each party may obtain his own by taking 
 such proportion as he had furnished to the mixture. There- 
 fore, neither party is injured, and there is no sufficient reason 
 for the forfeiture of the interest of the person in fault. ' ' But, 
 if articles of different values are mixed, producing a third 
 value, the aggregate of both, and, through the fault of the 
 person mixing them, the other party cannot tell what was the 
 original value of his property, he must have tTie whole. "^ 
 Judge Story, from a considemtion of the various decisions 
 on this subject says : "The conclusion to be drawn from these 
 decisions and other authorities seems to be, that, in cases of 
 negligent and inadvertent mixtures, (perhaps even of wilful 
 mixtures,) if the goods can be easily distinguished and sep- 
 arated, then no change of property takes j)lace, and each 
 party may lay claim to his own. If the goods are of the 
 same nature and value, although not capable of actual sepa- 
 ration by identifying each particular, yet, if a division can be 
 made of equal value, (as in case of a mixture of corn, or 
 coffee, or tea, or wine, of the same kind and quality,) then 
 each may claim his aliquot part. But if the mixture is un- 
 distinguishable, and a new ingredient is formed, not capable 
 of just appreciation and division according to the original 
 rights of each, then the party who occasions the wrongfid 
 mixture must bear the whole loss."^ 
 
 § 96. Arises where the part of each Owner is not 
 Located. — As tenancy in common may arise from such a con- 
 fusion of goods that neither owner can designate and reclaim 
 his own, so it may exist whenever the title of real estate is 
 such that neither of the owners can locate his part. If the 
 owner of a tract convey a number of acres, less than the w-hole, 
 without any designation of their locality, the grantee thereby 
 acquires an interest in the whole tract, as a tenant in common 
 
 ' Luptont). White, 15 Ves. 442; Ryder v. Hathaway, 21 Pick. 306; Hesseltiue v. 
 Haswell, 30 Me. 241; Pratt v. Bryant, 20 Vt. 337. 
 ♦ Story on Bailments, sec. 405.
 
 153 TENANTS IN «,()MMt)N. § 96 
 
 with the gi-antor.' The interest of the grantee in the whole 
 tract is in the proportion which the number of acres conveyed 
 to him bears to the whole number; and entitles him to all the 
 rights and remedies incident to a tenancy in common.' It is 
 immaterial by what means the interest is created, so long as 
 it remains imsegregated. Hence, where a defendant was 
 entitled to a homestead of a specified value out of a tract 
 of land which had been sold under execution, it was 
 held that as the purchaser owned all in excess of the home- 
 stead limit of value, and the defendant owned all within that 
 limit, and as neither had a claim to any specific portion, 
 they were tenants in common in proportion to the value of 
 their respective interests. =* A parcel of land having been 
 assessed, as in severalty, one of its owners paid upon a num- 
 ber of acres equivalent to his interest, leaving a residue of 
 thirty-six acres delinquent. Subsequently, a tax deed issued 
 in pursuance of a sale for such dehnquency, and purporting 
 to convey thirty-six acres of the whole tract. This deed was 
 claimed to be void, on the ground that it conveyed a tract in 
 severalty, by so indefinite a description that it could not be 
 located. But the Court took a different view, concluding 
 that as no specific part of the larger tract was designated, and 
 that as no metes or bounds were named, the deed was not an 
 attempted conveyance in severalty but a valid transfer of an 
 undivided interest.^ An early case in Vermont seems to be 
 inconsistent with the general current of the authorities on this 
 subject; and can only be reconciled with later cases in the 
 same State, on the supposition that the Court may have 
 deemed the description sufficiently exact to pass the title to 
 a parcel in severalty.'^ Deeds of an unsegi-egated number of 
 
 ' Gibbs V. Swift, 12 Cush. 398; Jowott v. Foster, 14 Gray, 495; Battel v. Smith, 11 
 Gray, 497; Jackson v. Livingston, 7 Wend. 141; Payne v. Parker, 1 Faii-f. 178; Small 
 V. Jenkins, IG Gray, 155. But if a deed purports to convey a small tract within a 
 larger one, and purports to describes the smaller tract, and tho description is so imper- 
 fect that land intended cannot b(! located, the grantee does not acquire an interest iu 
 the larger tract as a tf;nant in common thereof. (Grogan v. Vache, 45 Cal. 610.) 
 
 - Lawrence v. Ballon, 37 Cal. 518; Schenck r. Evoy, 24 Cal. 104. 
 
 ' Silloway v. Brown, 12 Allen, 35. 
 
 * Bheafe v. Wait, 30 Vt. 730. 
 
 '•> Clapp V. Beardsley, 1 Vt. 102. This case, in so far as it may imply that a grant of 
 an unsegregated part does not make the grantc-c a tenant in common, is overruled by 
 Preston v. Robinson, 24 Vt. 583.
 
 g 97 TENANTS IN COMMON. 164 
 
 acres, in a larger tract, are sometimes made, containing a 
 provision or stipulation that the part granted shall be there- 
 after located. In such case, though it is evident that the 
 parties do not intend a permanent cotenancy, they become 
 tenants in common upon the execution of the conveyance, 
 and so continue until the location is made, or the joint right 
 of possession is otherwise destroyed.^ Where land was de- 
 vised to A and B, A to have the southern and B the northern 
 part, but there was nothing by which the division line be- 
 tween their portions could be fixed, they were held to be 
 tenants in common.^ But in Pennsylvania, the decisions in 
 regard to the interests of persons holding under a survey, 
 are irreconcilable with the general rule that those persons 
 must be regarded as tenants in common whose titles are such 
 that neither can point out his portion. In that State, it 
 seems that two or more persons intending to procure title 
 from the State, and having adjoining claims, could have a 
 survey made of the exterior boundaries, so as to include all 
 their claims, without desig-nating what part of this lai^e sur- 
 vey either claimant should have. The survey so made gave 
 the claimants a right to the possession as against third per- 
 sons; but it did not furnish any means of determining the 
 rights of the claimants as between themselves. Upon com- 
 mon law principles, we should suppose them to be tenants in 
 common, because, in the aggregate, they were entitled to the 
 whole, and each seemed to be equally entitled to every part. 
 They were, however, held not to be cotenants, but owners in 
 severalty, with their rights suspended, and liable to remain 
 so, imtil proceedings were consummated establishing the 
 boundaries of each claimant's land.^ 
 
 g 97. Trees on or near the Line.— "A tree standing upon 
 the division line between adjoining proprietors so that the 
 line passes through the trunk or body of the tree above the 
 surface of the soil, is the common property of both pro- 
 prietors, as tenants in common. This is an instance where 
 
 ' Anderson v. Donelson, 1 Yerg. 198; Lawrence v. BaUou, 37 Cal. 518; Jackson v. 
 Livingston, 7 Wend. Ul; Corbin v. Jackson, 14 Wend. 621; Wood v. Fleet, 36 N. Y. 503. 
 - Walker v. Dewing, 8 Pick. 520. 
 3 lioss V. McJunkin, 14 Serg. & E. 364.
 
 155 TENANTS IN COMMON. ? 97 
 
 the maxim that he who owns the land, owns to the sky above 
 it, is qualified and made to give way to a rule of convenience 
 more just and equitable, and more beneficial to both parties. 
 To hold in such case that each is the absolute owner of that 
 pai-t of the tree standing on or over his own land, would lead 
 to a mode of diA'ision of the tree when cut, that would be im- 
 practicable, and give the right to one to hew down his part of 
 the tree to the line, and thereby destroy the part belonging 
 to the other. The nile is therefore settled that in such case 
 the parties are tenants in common."' The law in regard to 
 trees whose trunks stand across the division line seems to be 
 free from doubt; but the same cannot be said of the law de- 
 fining the ownership of those trees which stand at one side 
 of the line, having their roots on both sides, and dra^ving 
 their nourishment from the soil of both proprietors. "It 
 was ruled by Holt, Chief Justice, upon a trial at Nisi Prius, 
 1697-8, that if A plant a tree upon the extremest limits of 
 his land, and the tree gi'owing extend its root into the land 
 of B next adjoining, A and B are tenants in common of this 
 tree. But if all the root grows into the land of A, though 
 the boughs overshadow the land of B, yet the branches follow 
 the root, and the property of the whole is in A."- The por- 
 tion of this opinion affirming that the joint nourishment of a 
 tree by the lands of adjoining proprietors makes it the prop- 
 ei*ty of both, was supported by at least another early case,* 
 and was approved and adopted by some of the An'iters of ele- 
 mentary treatises.* But the rule as laid down by Chief Justice 
 
 ' Skinuer c. Wnder, 38 Vt, 117; Holder r. Coates, 22 Eng. C. L. 485; 1 Moody & 
 Malkin, 112. But Hogeboom, J., in Eelyea v. Beaver, 34 Barb. 550, dissents from the 
 ■ urrent of authorities, and expresses bis views as follows: "Ordinarily, tho estab- 
 lished boundary line between adjoining owners of land is tho true and only test to 
 determine the title to the land on either side and of all below and above it, from the 
 center of tho earth to the heavens. I do not know that there is any exception to the 
 rule in regard to the earth or its natural productions. The growth from tho soil, 
 whether it be the grass and herbage, the plants and bushes, or the more lordly trees, 
 must, I think, nhaiv the same fate, and belong to tho person on whose soil they grow. 
 If they grow partly on the soil of one, and partly on the soil of another, I do not see 
 that the rule is altered. The portion that grows on the land of each must belong 
 separately to him, and not pai'tly to him and partly to his neighbor." This case must 
 be regarded as ovenuled by a later decision in a higher coint. (Sec Dubois i\ Beaver, 
 25N. Y. 124.) 
 
 - Waterman v. Seper, 1 Ld. Kaym. 737. 
 
 ^ Anonymous Case, 2 Roll. 255. 
 
 * Bui. N. P. 84; 3 Starkic Ev. 1457 n.
 
 § 98 TENANTS IN COMMON. 156 
 
 Holt is opposed by both earlier and later English adjudica- 
 tions/ and finds little or no support on this side of the 
 Atlantic. In fact, the American decisions seem to be unan- 
 imous in awarding the sole ownership of the tree, including 
 its overhanging branches, to him on whose land its trunk 
 stands.^ This position is supported by the general rule that 
 the owner of the land is entitled to all above it, and also by 
 general considerations of expedience and certainty. If eveiy 
 man who has trees standing near the boundaries of his land 
 be compelled to ascertain in what direction their roots run, 
 and from what source their nourishment comes, how can he 
 know or ascertain what he owns solely and what in common, 
 and in what proportion, especially as the rights of the parties 
 are constantly changing by the gro-^i;h and consequent exten- 
 sion of roots across the division line? 
 
 § 98. A party -wall, in being situated on the lands of 
 two adjoining proprietors, resembles in this respect a tree 
 growing upon and across a boundary line. From this close 
 analogy existing between the two, we should naturally expect 
 an analogy between the adjudications determining the tenancy 
 by which each is held. If the general principle of law that 
 the owner of real estate is also the owner of everything upon 
 and above it, paii;aking of the character of realty, is to be 
 enforced or rejected in one case, it ought to be so enforced or 
 rejected in the other. A consultation of the authorities dis- 
 appoints our reasonable expectations on this subject. If it 
 appear that a party wall exists, and no showing be made as 
 to the character or extent of the interests of the owners there- 
 of, the Court will, on account of the common user of the wall, 
 presume, until the contrary be proved, that both the wall and 
 the ground beneath it, are held by the parties as tenants in 
 common.^ But whenever a several ownership of the soil be- 
 neath the wall is established, this presumption ceases, and 
 the wall is conceded to belong in severalty to the adjoining 
 proprietors, the ownership of each extending to the di\-iding 
 
 ' Masters v. Pollie, 2 Koll. Eep. 141; Holder v. Coates; 1 Moody & Malkin, 112; 
 22 E C. L. 485; Norris v. Baker, 3 Bulstr. 178; MOlen v. Fandrye, Pop. Eep. 161. 
 
 - Lvman v. Hale. 11 Conn. 177; Dubois v. Beaver, 25 N. Y. 126; Skinner v. Wilder, 
 38 Vt 117; Griffin r. Bixly, 12 N. H. 454. 
 
 ^ Wiltshire v. Sedford, 1 Man. & R. 404: Cubitt v. Porter, 8 Barn. & C. 257.
 
 lo7 TENANTS IN COMMON. g 9S 
 
 line of their respective lands. But the title to that part of 
 the wall thus conceded to each proprietor, is subject to and 
 qualified by an easement existing in favor of the other, and 
 securing to him the right to use the whole of the wall for the 
 support of the building iipon his land.' Where a person 
 owning two houses, which have a division wall between them 
 necessary to the support of both, conveys the lot on which 
 one of the houses is situated, including in his conveyance the 
 land up to a line beneath the wall, he thereby makes a party 
 wall charged with an easement in favor of both grantor and 
 gi-antee.'- "The general rule of law is, that when a house or 
 store is conveyed by the owner thereof, everything then be- 
 longing to and in use for the house or store, as an incident 
 or appurtenant, passes by the gi-ant. It is implied from the 
 nature of the gi-ant, unless it contains some restricfio)i, that the 
 grantee shall possess the house in the manner, and with the 
 same beneficial rights, as were then in use and belonged ti) 
 it."^ "If the owner of two adjoining lots erect buildings on 
 them, with a wall partly on each, to be used as a support of 
 both buildings, and which is necessary to furnish such sup- 
 port, and wliich is used for that purpose from the time of its 
 erection, a conveyance of either house and lot, vnth. its ap- 
 purtenances, grants an easement for the support of the house 
 so conveyed, in so much of the wall as stands on the other 
 lot."^ The owner of a lot on which he had erected two build- 
 ings, with a common or party wall between them, conveyed, 
 by deeds executed and recorded on the same day, the easterly 
 part of the lot to one person and the westerly part to another. 
 The description contained in these deeds so located the di- 
 vision line between these two grantees, that the whole of the 
 land on which the wall stood, and two inches beyond it, fell 
 within the boundaries of tlie grantee of the easterly part. 
 An action of ejectment was subsequently brought against the 
 grantee of the westerly part to recover possession of the land 
 
 ' Eno V. Del Vecchio, 4 Duer, 60; Murly v. McDermit, 8 Adol. & E. 138; Shorredv. 
 Cisco, 4 Sanrlf. iSTr, Brooks v. Curtis, 50 N. Y. 642; Hendricks v. Stark, 37 N. Y. 110; 
 Brown i'. Pent/,, 11 N. Y. Leg. ObH. 24. 
 
 ■^ Partridge v. Gilbert, 15 N. Y. 605; Webster v. Stevens, 5 Duer, 556; Eichards v^ 
 Rose, 24 E. L. & E. 400; 9 Exc. 218; 17 Jur. 1036; 23 L. J. R. (N. S.) Exc. 3. 
 
 ' United States v. Appleton, 1 Sumn. 500. 
 
 ■• Eno V. Del Vecchio, 4 Duer, 65; Duer, 17.
 
 § 99 TENANTS IN COMMON. 158 
 
 on wliich the wall rested, together with the two inches beyond 
 it. In determining this action, the Court held that: "As- 
 suming that the plaintiff is right in his construction of the 
 description, yet the wall being a party wall, and, at the time 
 of the conveyance, serving as a support for the beams of the 
 house erected on the lot now of the defendant, the premises 
 now owned by the plaintiff were charged with the servitude 
 of having the beams of that house supported by the wall in 
 question, and of having the wall stand and serve as an ex- 
 terior wall for the defendant's house, so long, at least, as the 
 buildings should endure. 
 
 ' ' Tliis servitude was both continuous and apparent, being 
 one which would be discovered on an inspection of the prem- 
 ises by one reasonably familiar with the subject. A mere 
 measurement of the house would have disclosed it. Conse- 
 quently, on the severance of the two properties, the grantee 
 of the westerly lot acquired an easement corresponding with 
 the servitude to which the easterly lot was subject. The 
 right to use the wall as a party wall necessarily carried witli 
 it the right to occupy the space of two inches intervening 
 between the wall and the easterly boundary of the defendant's 
 lot, with the timbers which were to find support in the wall, 
 and to have tiie building and wall remain as they were at the 
 time of the conveyance, at least so long as the building and 
 wall should endure."' 
 
 § 99. Proprietaries. — A very considerable portion of the 
 New England States was originally held under titles acquired 
 by grants made by the colonial legislatures of a township or 
 other large tract of land, to a immher of proprietors. The 
 estate thereby created was no doubt a tenancy in common. - 
 But these grantees or settlers managed their common prop- 
 erty by assembling and passing votes and orders in regard 
 thereto. In that manner, they admitted new members, upon 
 payment of certain sums, and divided the lands as they 
 thought right among those entitled. By force of custom and 
 of general regulations for their government, these proprie- 
 taries seem to have acquired and exercised in regard to their 
 
 » Eogers v. Sinsheimer, 50 N. Y. 64S. - 2 Dane's Ab. 69S.
 
 159 TENANTS IN COMMON. ^ 100 
 
 property the general powers of corporate bodies. But the 
 members, us between themselves, retained some of the rights 
 of tenants in common. Each could compel a partition b}- 
 legal process, tmless the proprietary, before the entry of the 
 decree, had made a voluntary partition. Such voluntary par- 
 tition was valid, though made pending an action instituted 
 by a member for the same purpose. Each member could 
 convey or devise his interest, or any part thereof ; and his 
 grantee, heir, or devisee, became entitled to all the rights of 
 an original member of the proprietary.' 
 
 ^ 100. Tenancy in Common in Crops. — Every form of 
 agreement by which land is let to one who is to cultivate the 
 same and give the owner as compensation therefor a share of 
 the produce, creates a tenancy in common in the crops.- An 
 arrangement to cultivate land on the shares is not a lease. 
 Landlords, therefore, favor this mode of letting their lands, 
 because they thereby acquire an interest in the produce of 
 the land, whereas if such an agreement constituted a com- 
 plete lease, the title to the crop produced would vest in the 
 occupier, and the landlord would have no claim upon it 
 until a division was made, and then his share would come to 
 him as rent.' "Where the reservation is of an imdivided 
 share, the property of that share is always in the lessor by 
 \'irtue of his reservation, while the property of the residue 
 is always in the tenant by the implied grant of profits, and 
 they are therefore tenants in common of the crop until divi- 
 sion."^ " The true test seems to lie in the question, whether 
 there be any provision, in whatever form, for dividing the 
 specific products of the premises. If there be, a tenancy in 
 common arises, at least in such products as are to be di- 
 vided.'"' 
 
 ' 2 Duue'rt AIj. C'j8; .Viigc-11 & Ames on Cori*. hccd. 205 and 214: Cliambcrlain r , Bussey, 
 5 Greenl. 170; Mitchell v. Stail)nck, 10 Mass. 20; F()lf?(,-r c. Mitcliel], :! Pick. 39fi; Wil- 
 liam.-< CoUf.'ge v. Mallett, :t Fairf. 401. 
 
 -■ Slato V. Jewell, 34 N. J. Law. 259; Hurd c Darling', 11 Vt. 220; Williams v. Nolon. 
 •M Ala. 167; OtiH i-. Thompson, Hill A Denio, 131; Maverick v. L(!wis, 3 McCord, 212; 
 Strother V. Butler, 17 Ala. 733; Jackson r.Brownell, 1 .Johns. 2(i7; Dincharti'. Wilson. 
 15 Barb. .595; Herskell r. BnshneU, .37 Conn. 43. 
 
 •'• Guest V. Opdyke, 31 N. J. Law, 554; Foote i'. Colvin, 3 Johns. 215. 
 
 ^ Hatch V. Hart, 40 N. TI. 98; Carr r. Dodge, 40 N. H. 407; Taylor r. Bradley, 39 
 K. Y. 140. 
 
 ' Putnam i'. Wise, 1 Hill, 217; Brown v. liincohi. 17 N. II. 403.
 
 g 101 TENANTS IN COMMON. 160 
 
 § 101. Where the Agreement is to Divide the Profits. — 
 
 In the cases where the agreement provides for a division of 
 the produce itself, it is quite obvious that all the materials 
 necessary to create a tenancy in common are present as soon 
 as any crop is grown. But there may be agi-eements contem- 
 plating a sale of the crops and a division of the moneys aris- 
 ing therefrom. Thus A was to cultivate B's plantation, and 
 to furnish means so far as he was able. What means A could 
 not provide were to be furnished by B. At the end of the 
 year, B was to sell the crop, and have one-third, and then 
 deduct all expenses and pay the residue to A. This agree- 
 ment was held to be neither a leasing of land nor a hiring of 
 labor, but a joint cultivation on account of both parties, 
 ' ' with a particular provision for disposing of the crop in a 
 convenient time and manner, in order to close the transaction, 
 by paying the expenses out of the proceeds, and dividing the 
 residue in the proportions agreed on."' Very similar to this 
 agreement was one made in New York, by which T, a land- 
 owner, was to account to and pay one H, the value of one-half 
 of all grain, butter, and net proceeds that might be produced 
 on the land. The Supreme Court of that State, in determin- 
 ing the effect of this agreement, said: "The circumstance 
 that the contract provided that T was to pay the value instead 
 of dividing the crops, does not alter the case. The principle 
 is the same, whether H furnished or delivered one-half the 
 products, or T took them and sold them, and paid one -half 
 of their value. The point is that there was to be a division, 
 and that the occupier or cultivator was not to pay a certain 
 number of bushels of grain, or a certain number of tons of 
 hay, as rent of the premises, so as to make him a tenant. 
 This provision as to a division was but a mode of ascertain- 
 ing the value and dividing the proceeds."^ In another case, 
 cotton was to be raised and sold, and after the sale, the ex- 
 penses were first to be paid, before any division of the pro- 
 ceeds. The Court before which this case was brought, thought 
 that the test by which to determine whether such an agreement 
 resulted in a tenancy in common, was to inquire whether, by 
 
 1 Moore v. Spruill, 13 Ired. 56. 
 
 ^ Tanner v. Hills, 44 Barb. 430; Wilber v. Sisson, 53 Barb. 262.
 
 161 TENANTS IN COMMON. g 102 
 
 the terms of the contract, both parties were entitled to bfe in 
 possession of the crop before the sale or di^'ision was made. 
 That if the contract did not by its terms necessarily exclude 
 one of the parties from the right to the possession; or, if 
 though giving one the right to make the sale, it did not con- 
 fer on him tlie exclusive possession, then, as in other cases 
 where a joint right to possession existed, the parties were 
 tenants in common.^ B and other farmers delivered milk to 
 a cheese factory : each was credited with the amount of his 
 milk : the milk was mixed and manufactured into cheese : the 
 factory company was to sell the cheese and to divide the pro- 
 ceeds among the farmers in proportion to the milk furnished 
 by each, first deducting a certain amount, to pay for the 
 manufacturing. It was held that, imder this agreement, B 
 was not a tenant in common of the cheese, and that the trans- 
 action constituted "a sale of the milk to the factoiy, for which 
 thev were to pay at a certain time and in a certain manner," 
 and converted B's interest "into a mere demand for the price 
 of the product as agreed upon."'^ 
 
 § 102. Simultaneous Mortgages. — Two tenants in com- 
 mon, Y and D, agreed to sell their property to R. Part of 
 the purchase money was to be paid upon the execution of the 
 deed, and the balance was to be secured by separate mort- 
 gages in favor of each of the cotenants for his share of the 
 unpaid purchase money. The mortgage in favor of V was 
 executed and recorded before the mortgage to D was exe- 
 cuted. The sale of the premises, together with the terms 
 and mode of payment, were the result of a prior wiitten con- 
 tract between V and D. This contract was considered as 
 "the embrj'o life of the mortgages subsequently executed." 
 And as each mortgage had a common inception, and each 
 mortgagee had, during all the time, full knowledge of the 
 rights of the other, they were held to stand ' ' upon an exact 
 equality, " and to be entitled to equally share the proceeds of 
 the mortgaged premises.^ In this case, while the execution 
 of the mortgages was not in fact simultaneous, yet it was so 
 
 ' Thompson v. Mawhinney, 17 Ala. 368. 
 - Buttorficld V. Lathrop, 71 Pa. St. 225. 
 ^ Daggett c. Rankin, 31 Cal. 322. 
 
 C. & p.— 11
 
 § 103 TENANTS IN COMMON. 162 
 
 regarded because it liad its origin in a common contract. If 
 the mortgages took effect by relation, at the time of the exe- 
 cution of the contract, so as to be placed on an equal footing 
 as to time, then there can be no doubt that neither had any 
 precedence over the other. Simultaneous mortgages, whether 
 real or chattel, of which both the mortgagees have notice, can 
 have no rank over each other. The two separate mortgagees 
 are therefore treated as though they were tenants in common 
 of one mortgage, and are allowed equal benefit of their se- 
 curity.^ But they have not, as mortgagees in common, such 
 an estate that they can maintain an action for partition." 
 
 § 103. Simultaneous Conveyances. — The same principles 
 which impel Courts to treat simultaneous mortgages with 
 equal favor, operate with like effect upon simultaneous con- 
 veyances, and upon all cases where two or more parties have 
 acquired an equally good title to the same property. Where 
 neither has the superior title, but each has a title which, but 
 for the other's, would be perfect, they are tenants in common. 
 A testator having separate patents, supposed himself to be 
 owner of two distinct parcels of land. The larger parcel he 
 devised to one daughter, and the smaller parcel to another 
 daughter. The smaller parcel was afterwards found to be 
 included within the larger. It was therefore within the de- 
 vise to each daughter, and was adjudged to belong to them 
 equally as tenants in common." Where land is levied upon 
 under writs of execution or of attachment, and it cannot be 
 ascertained that either levy preceded the other, subsequent 
 sales under the different levies will make the purchasers there- 
 imder tenants in common.^ So, if two patents be made of even 
 date, on surveys recorded the same day and purporting to be 
 by virtue of warrants issued on the same day, both including 
 the same ground, the patentees are tenants in common.'^ 
 
 § 104. Where a voluntary, unincorporated association 
 
 ' Welch V. Sackett, 12 Wis. 253; Beer.s v. Hawley, 2 Conn. 469; Ewer v. Hobbs, 5 
 Met. 1. 
 '■' Ewer V. Hobbs, 5 Met 1. 
 - Seckel v. Engle, 2 Kawle, 68. 
 ^ Shore v Dow, 13 Mass. 529. 
 & Yoiing r. Do BrnhL 11 Rich. Law, 6ii.
 
 163 TENANTS IN COMMON. §§ 105-6 
 
 is formed, and acquires property, the members thereof are 
 tenants in common of such property, each having an equal 
 interest therein.^ But, in Massachusetts, a religious society, 
 acting in a parochial capacity, may, though unincoi-porated, 
 receive a gi-ant of real estate, and use and manage it for the 
 ordinary purposes of such society. Therefore, a grant to 
 such a society vests the title in it as a body, instead of creat- 
 ing a tenancy in common between the several members. - 
 
 § 105. Presumption of Relative Interests. — If a tenancy 
 in common be established, but no proof is made in regard 
 to the relative interests of the several cotenants, the pre- 
 sumption of law arises that their shares are equal. ^ If it be 
 shown that title has been acquired by a deed executed by 
 two or more, as grantors, a like presumption arises that these 
 several gi-antors were tenants in common of equal interests.'' 
 A levy was made by an officer upon process issued against A. 
 It was shown that A and B were cotenants of a tract of land. 
 The retui-n of the ofl&cer certified that he had levied upon the 
 undivided one-half of this tract. This return was objected 
 to, on the ground that it did not properly describe A's in- 
 terest. But the Court held that because of the deed to A and 
 B, the officer had, in the absence of other information, a 
 right to presimie that the interest of each was an undivided 
 one-half, and that the levy must be sustained, at least mitil 
 an affirmative showing was made that A's interest was differ- 
 ent from what it had been presumed to be.'" 
 
 >^ 100. Presumption of, does not necessarily arise from 
 Joint Deed. — The introduction of deeds from a common 
 grantor to a plaintiff and defendant respectively, purporting 
 to convey an undivided interest in the subject-matter of a suit, 
 does not create the presumption that the parties are tenants 
 in common. ' ' The mere production of a deed from a stranger 
 
 ' Higginn r. Hiddell, 12 Wis. r>87; Beiijaniiu <■. Strcmplc. 13 111. 4GG. 
 ■-• Hamblett v. Bennett, 6 Allen, 144. 
 
 ■• Jarrett r. .TohnHon, 11 Gratt. 327: Edwaida v. Edwards, 39 Pa. St. 3Gt); Shields v. 
 Stark, 14 Geo. 429. 
 < DaHhiel c CoUif-r, 4 J. J. Mar^h. C02. 
 ■■ Baker v. Shepherd, 37 Geo. 15.
 
 g§ 107-8 TENANTS IN COMMON. 164 
 
 is not sufficient to show either that he had title, or that the 
 grantee entered under or holds in subordination to his deed. 
 The deed may have been taken merely to quiet a better title 
 or to fortify a possession already taken under a precedent and 
 better claim. "^ A person in possession of land may protect 
 himself from litigation by purchasing any outstanding claim 
 against his property. By so purchasing, he does not neces- 
 sarily admit the superiority of the title bought, nor change 
 his possession, which was before adverse, into a possession 
 subordinate to the newly acquired title. ^ Therefore, one who 
 is in possession of real estate, does not become a tenant in 
 common thereof, by merely accepting a deed therefor from 
 the owner of an undivided interest therein." 
 
 g 107. " Lands held in eommon are subject to Dower." * — 
 
 The right of the wife to dower is subject to the right of the 
 cotenants of her husband to compel partition of the land. 
 Upon such partition, her claim for dower is confined to the 
 part which has been assigned to him in severalty. Under 
 what circumstances and to what extent her rights may be 
 afi'ected by a partition, whether voluntary or involuntary, to 
 which she is not a party, will be considered in another part 
 of this work. 
 
 g 108. Widow entitled to Dower is not a Tenant in 
 Common. — A widow entitled to dower did not, at common 
 law, have any estate in the lands until assignment.^ She was 
 not entitled to joint possession with the heirs; therefore, she 
 was not a tenant in common. But wherever the common law 
 has been succeeded by statutory enactment, or by judicial 
 construction, under which the widow, at the death of her 
 husband, has the right to the possession of one-third of his 
 real estate, there she is a tenant in common with the heirs. 
 In such case, ' ' her right of entry does not depend upon the 
 
 1 Woodbeck v. Wilders, 18 Cal. 136. 
 
 - Cannon v. Stockmon, 36 Cal. 539; Schuhman v. Gan-att, 16 Cal. 100; Sparrow r. 
 Kingman, 1 N. Y. 246; Watkins v. Holman, 16 Pet. 53. 
 
 •* Jackson v. Smith, 13 Johns. 406. 
 
 * Scribner on Dower, 326; Ham v. Ham, 1-1 Q. B. (Upper Canada) 497; Sutton v. 
 Eolfe, 3 Lev. 84; Davis v. Bartholomew, 3 Ind. 485; Brown i'. Adams, 2 Whart. 188. 
 
 '•> 4 Kent Comm. 62.
 
 165 TENANTS IN COMMON. § 109 
 
 assignment of dower, wliicli is a mere severance of the com- 
 mon estate."^ 
 
 § 109. Lapse of Devise or Bequest to. — A bequest or 
 devise to two or more j)ersons, under which, if both survived 
 the testator, they would become tenants in common, will lapse 
 as to the share of the one dying before the testator. The 
 survivor can take only the moiety devised or bequeathed to 
 him, and can gain nothing by the decease of him who, had 
 he outlived the testator, would have taken the other moiety.'' 
 The same principle is applicable to a conveyance to two or 
 more as tenants in common, when one of them is dead. In 
 Kentucky, a patent for certain lands was made by the State 
 to Y and T, the latter having died prior to the issuing of the 
 patent. Of the effect of this patent, the Court of Appeals 
 said: "Whatever may have been the case, if Y had been a 
 joint-tenant, to whom the land Avould have went by operation 
 of law as survivor, (a point we need not now consider,) we 
 conceive that the whole title did not pass to Y by the emana- 
 tion of this grant. It is clear that no title could pass to a 
 person not in existence ; and it is equally clear that the inten- 
 tion of the State by this grant was to pass one undivided 
 moiety to Y and the other- to T in common ; and to say that 
 the State, although a grant of title was intended, passed it to 
 a person not intended or named as taking, is construing the 
 gi'ant beyond its letter or spirit. If the whole was intended 
 in moieties to each of two different persons, as was supposed, 
 when there was but one in fact, there can still be no reason 
 why that one should take either less or more than was in- 
 tended or expressed."'' If a bequest be made to two or more 
 as tenants in common, and the testator thereafter revoke the 
 
 ' Stedman v. Fortune, 5 Conn. 462; Stokes v. McAllister, 2 Mo. 163; C. & A. Turn- 
 pike Co. V. Jarrett, 4 Ind. 215; Wooster v. H. L. Iron Co. 38 Conn. 256; Crocker v. 
 Fox, 1 Hoot, 323. 
 
 - Bagwell V. Drjs 1 P. Wms. 700; Pago v. Page, 2 lb. 489; Peat v. Chapman, 1 Ves. 
 Sr. 542; Bain v. Leacher, 11 Sim, 397; Brmlloy v. Wilson, 13 Grant's Cli. (Upper 
 Canada) 042; Frazier v. Frazicr, 2 Leigh, G42; Nelson v. Moore, 1 Ired. Eq. 31; Com- 
 monwealth V. Nase, 1 Ashmead, 212; Goodright v. Opio, 8 Mod. 123; Barker v. Giles, 
 
 9 Mod. 157; Sperling u. Toll, 1 V( s. Sr. 70; IJeade v. Keade, 5 Vts. 744; Owen v. Owen, 
 1 Atk. 494; Jackson v. Kelley, 2 V»s. Hr. 285; Easum v. Appkford, 5 Myl. .V Cr. 62; 
 Norman v. Franer, 3 Hare, 84; Hester c. Hester, 2 Ired. Eq. 330; Craighciid r. (livrn, 
 
 10 Scrg. & H. 351. 
 
 •' Currie c. Tibh's Heirs, 5 Moiir. 443.
 
 § 110 TENANTS IN COMMON. 166 
 
 share of one of them, such share does not go to the other 
 legatees, but to the testator's next of kin. Thus, a testator 
 gave the residue of his estate to his three children, a daughter 
 and two sons, ' ' share and share alike, as tenants in common, 
 and not as joint-tenants." He afterwards, by a codicil, re- 
 voked his ' ' daughter from being one of his residuary lega- 
 tees," and gave her in lieu thereof £500 in New South Sea 
 annuities;" "and in all other things he confirmed his will." 
 It was argued that this revocation made the will the same as 
 though she had never been named as a residuary legatee, and 
 that it was clear that the testator meant to dispose of his 
 whole estate. But the Court of Chancery adopted the con- 
 struction that the sons were residuary legatees ' ' of onlj two 
 parts in three;" and this construction was affirmed on appeal 
 to the High Court of Parliament.^ 
 
 ^ 110. Gift to a Class. — The rules stated in the preceding 
 section prevail, because where the testator has designated 
 that each of the co-legatees shall receive a moiety, the Courts 
 presume that he intended to confine his bounty to such 
 moiety. But if, from the will, a difi'erent intent appears, the 
 Courts will carry it into effect. Thus, if a gift be made to a 
 class, as to the children of A, without naming any of them, 
 here there can be no doubt that the testator desires to benefit 
 all the children which A may have at the time of the vesting 
 of the legacy. In such case, no part of the legacy lapses, on 
 account of the death of some of A's children prior to that of 
 the testator. Although the terms of the bequest are such as 
 to create a tenancy in common, still the children of A, living 
 at the vesting of the bequest, take the entire legacy.^ But in 
 order to accomplish this result, the devise or bequest must be 
 to a class and not to specified persons who may together happen 
 
 - Cheslyn v. CressweU, 3 Bro. C. P. 246; 2 Eden. 123, S. C. 
 
 2 Pemberton v. Parke, 5 Binn. 607; Gross's Estate, 10 Pa. St. 361; Hawkins v. Ev- 
 erett, 5 Jones Eq. 43; Walker v. Williamson, 25 Geo. 554; Stires v. Van Eensselaer, 2 
 Bradf. 172; Lawrence v. Hebbard, 1 Bradf. 252; Viner v. Francis, 2 Bro. C. C. 658; 
 S. C. 2 Cox, 190; Doe v. Sheffield, 13 East, 526; Pendleton v. Hoomes, Wythe. 94; 
 Rogers v. Moore's Devisees, 4 B. Monr. 24; Thornhill v. ThornhiU, 4 Madd. 377; Col- 
 lins V. Johnson, 8 Sim. 356; Le Jeune v. Le Jeune, 2 Keen, 701; Gray v. Garman, 2 
 Hare, 271; Shuttleworth v. Greaves, 4 Myl. & Cr. 35; Castle v. Eate, 7 Beav. 296; 
 Frierson i'. Van Buren, 7 Yer. 606; Miles v. Boyden, 3 Pick. 213; Vaughan v. Dickens, 
 2 Dev. & Bat. Eq. 52; Young u Eobinson, 11 G. & .7. 328; Swinton v. Legare, 2 Mc- 
 Cord's Ch. 440.
 
 167 TENANTS IN COMMON. § 111 
 
 to form a class. "A gift to a class implies an intention to 
 benefit those who constitute the class, and to exclnde all 
 others; but a gift to individuals described by their several 
 names and descriptions, though tliev may together constitute 
 a class, implies an intention to benefit the individuals named. 
 In a gift to a class, you look to the description and inquire 
 what individuals answer to it; and those who do answer to it 
 are the legatees described. But if the parties to whom the 
 legacy is given be not described as a class, but by their in- 
 dividual names and additions, though together constituting a 
 class, those who may constitute the class at any particular 
 time may not, in any respect, correspond with the description 
 of the persons named as legatees. If a testator give a legacy 
 to be divided amongst the children of A at a particular time, 
 those who constitute the class at the time will take; but if 
 the legacy be given to B, C, and T>, children of A, as tenants 
 in common, and one die before the testator, the survivors will 
 not take the share of the deceased child. The question must 
 be, was the intention to bequeath to those who might, at the 
 time, constitute the class, or to certain individuals who, it was 
 supposed, would constitute it?"^ 
 
 EFFECT OF PAllTNEESHIP UPON REAL ESTATE HELD IN NAME OF 
 PARTNERS AS TENANTS IN COMMON. 
 
 g 111. Difference between Partners and Cotenants. — 
 
 A partnership resembles a joint-tenancy in some respects. 
 The partners have a joint interest in the assets of the part- 
 nership, and are required to sue and to be sued jointly in 
 reference thereto. Upon the death of one, the others have 
 a right of survivorship, entitling them to continue in the sole 
 possession of the personal assets. This right is, however, 
 but temporary, and practically amounts to nothing more than 
 a power to wind up the concerns of the late firm. That 
 power being executed, the representatives of the deceased 
 copartner are entitled to his share of the remaining assets.'^ 
 Partnership property is not held by those unities which, next 
 
 1 Barber v. Barber, 3 Myl. & Cr. G'J7. See alwo to name effect, Bain r. Lesclier, 11 
 Sim. 397; Norman v. Frazer, 3 Hai-e, 84; Havergall v. Harrison, 7 Bcav. 49; Ilam- 
 mattr. Ledsam, 9 Jur. 173: Hustler c. Tilbrook, 9 Sim. 3C8. 
 
 - Dver c. Clark. ', M( t. .'5C2.
 
 § 111 TENANTS IN COMMON. 168 
 
 to tte jus accrescendi, are the chief characteristics of a joint - 
 tenancy. In this latter respect, a partnership resembles a 
 tenancy in common. But the two differ from each other iu 
 this, that the former creates a Joint, and the latter a several 
 interest. Partnership is distinguished from both species of 
 cotenancy by the means and by the result of its creation. 
 The means of its creation is necessarily an agreement be- 
 tween the parties; whereas neither joint-tenancy nor tenancy 
 in common need rest upon any such agreement. The result 
 of its creation is a relation between the parties, whereby each 
 is the agent of the other, with authority to manage and dis- 
 pose of the firm property, and to make all contracts within 
 the scope of the business in which the firm was designed to 
 engage. No such result arises from a joint-tenancy, nor from 
 a tenancy in common. Partnership and tenancy in common 
 also differ from each other in other important particulars. 
 Each cotenant ' ' buys in, or sells out, or encumbers his in- 
 terest at pleasure, regardless of the knowledge, or consent, 
 or wishes of his co-proprietors, and without affecting the legal 
 relation between them, beyond the going out of one and the 
 coming in of another. This cannot be done where a copart- 
 nership exists. One cannot buy iu or sell out of a partner- 
 ship at pleasure. Such an act would of itself w^ork a disso- 
 lution of the partnership, and necessitate its final settlement 
 and closing out. A tenancy in common results from a rule 
 of law by which it is also controlled and governed. A part- 
 nership, on the contrary, is the result of an agreement be- 
 tween parties, which also supplies the rule for its government. 
 The former relation is undisturbed by a change of tenants, 
 but the latter admits of no change in its members; and 
 where a change takes place by the consent and agreement of 
 all the parties concerned, the old firm is thereby dissolved 
 and a new one created. Thus the incidents annexed to each 
 have a different origin and are diverse. Also, the proceed- 
 ings for a dissolution of these relations are grounded upon 
 entirely different facts. As to the first, the mere desire of 
 one of the tenants is sufficient to set the Court in motion; 
 but as to the latter, cause must be shown."' 
 
 ' Bradley v. Harkness, 26 Cal. 77.
 
 169 TEXANTtS IN COMMON. §§ 112-13 
 
 g 112. Effect at law^ of Partnership on Cotenancy of 
 Realty. — We have seen that copartnershij) and cotenancy 
 differ from each other in the means of their creation and in 
 the relations which they respectively produce between the 
 parties in interest. A statement of even the general prin- 
 ciples regidating the rights and duties of copartners, and 
 controlling the final disposition of their assets, is not within 
 the scope of this work. But it is well known that these 
 principles are essentially different from the principles em- 
 bodied in the law of cotenancy; and Avhile this work does not 
 involve any inquiry into the general law of copartnership, 
 still it would be incomplete if it did not attempt to show under 
 what circumstances, and for what purposes, property may be 
 withdrawn from its subjection to the law of cotenancy, and 
 placed within the dominion of the law of copartnership. Both 
 at law and in equity, the personal assets of a firm are entirely 
 subject to the 'law of partnership. This is too well settled to 
 require any citation of authorities. Beyond this, these two 
 systems of jurisprudence do not agree. The law does not 
 admit that realty owned by two or more persons can be held 
 other than in cotenancy. ' ' The principles and rules of law 
 applicable to partnerships, and which govern and regulate 
 the disposition of the partnership property, do not apply to 
 real estate. One partner can convey no more than his own 
 interest in houses or other real estate, even where they are 
 hold for the pui'poses of the partnership. There may be 
 special covenants and agreements entered into between part- 
 ners relative to the use and enjoyment of real estate held by 
 them jointly, and the land would be considered as held sub- 
 ject to such covenants; and in the absence of all special 
 covenants, the real estate owned by the partners must be 
 considered and treated as such, without any reference to the 
 partnership."' 
 
 g 113. Realty held by Partners, how treated in Equity. — 
 
 That real estate, though held as a joint-tenancy, or as a ten- 
 
 ' Coles r. Coles, lii JohiiH. 159; Tljonitou v. Dixon, 3 Brown's Cli. 100; Bulmain v. 
 Shore, 9 Ves. Jr. .500; Iloxiet). Carr, 1 Sumn. 170; Sigourney i'. Miinn, 7 Conn. 11; 
 Peck V. Fisher. 7 Cush. 300; Audrew.s' Heirs v. Brown's Adnir. 21 Ala. 4.37; (!ollumb 
 1'. Kead, 21 N. Y. 505; Buclian v. Sumner, 2 Barb. Ch. 1G5; Miller r. Proctor, 20 Ohio 
 St. 448; Peek r. Fisher, 7 Cush. 330.
 
 §g 114-15 TENANTS IN COMMON. , 170 
 
 ancy in common, so far as the mere legal title is concerned, 
 may, in equity, be treated as personalty, is well established 
 by numerous authorities. But precisely what circumstances 
 in regard to its use or acquisition will authorize such treat- 
 ment, and whether, when authorized, the treatment shall con- 
 tinue for all purposes, or for some only, are matters upon 
 which the decisions are not in full harmony. We shall first 
 consider what realty, of which the legal title is held by two 
 or more in undivided interests, may, in equity, be regarded 
 as, for any purpose, withdrawn from the law of cotenancy; 
 and, next, for what purposes, and to what extent this with- 
 drawal may affect the control, enjojrment, and final disposition 
 of the property. 
 
 § 114. Mere Purchase by Partners does not convert 
 Realty into Personalty. — The fact that the tenants in com- 
 mon of the legal title are also copartners does not of itself 
 invest the realty wdth any of the characteristics of personalty. 
 Nor is the fact that payment for such real estate was made 
 out of the partnership funds, decisive of the question. The 
 partners may have intended to draw that amount out of their 
 firm business, and to invest and hold it as cotenants. Part- 
 ners may, like o^her persons, Join in a jDurchase of realty 
 independent of their partnership, intending to hold their 
 interests severally. Wlienever such an intention exists, the 
 property, though paid for out of the moneys or effects of the 
 firm, retains in equity as well as at law the character of real 
 estate.^ " When the price of land conveyed to the partners 
 is paid by copartnership money or effects, or it is taken in 
 satisfaction of a debt due the concern, the real estate becomes 
 partnership property, or is individual property according to 
 the legal effect of the conveyance, as the intention of the 
 purchasers shall appear to have been. It may be either the 
 one or the other. "^ 
 
 I 115. Presumption arising from Purchase w^ith Firm 
 Assets. — Though the intention of the partners, rather than 
 
 ! Hunt V. Benson, 2 Humph. 459; Dyer v. Clark, 5 Met. 562; Smith v. Smith, 5 Ves. 
 193; Coder v. Huling, 27 Pa. St. 88. 
 ' Collumb i\ Bead, 24 N. Y. 513.
 
 171 TENANTS IN COMMON. § 116 
 
 the means of payment, is the criterion by which to determine 
 -whether the realty acquired by them has been converted into 
 the personal estate of the finn, still the fact that payment was 
 made out of the fii-m assets, has been regarded as raising a 
 presumption that it was intended to form a part of the part- 
 nership property. Such seems to be the conclusion of Judge 
 Denio, as will be seen by the following quotation from an 
 opinion written by him and approved by the other Judges of 
 the New York Court of Appeals: "Prima facie, I should say 
 that, where the land was taken in payment of a debt, it might 
 be considered, in equity, as property of the same class as 
 that which was parted with in making the purchase. So 
 much of the imdisputed property of the partnership has been 
 exchanged for the land; it may possibly have been thus in- 
 vested in order to pay a dividend to the several partners, to 
 whom the land is conveyed; but the stronger probability 
 would always be, in such a case, that it was taken as an ex- 
 Ijedient for collecting a debt. A conclusion which is to be 
 adopted in the place of precise proof should always be in 
 favor of the theory which is the most probable; and it is upon 
 this rule that the burden of proof is most usually adjusted. "^ 
 But the weight of the authorities sustains the proposition 
 that the mere fact that payment is made out of the partner- 
 ship funds is not even j^irima facie proof of the conversion of 
 real into personal estate. It must be shown, in addition to 
 this fact, that the purchase was connected with the firm busi- 
 ness, or was in pursuance of some agi'eement, express or im- 
 plied, that it should be held for the benefit of the concern.^ 
 
 ^ 116. Realty acquired outside of Partnership Business. — 
 Realty acquired by the partners as cotenants, prior to the 
 fonnation of the partnership, as well as that acquired by them 
 in common during the partnership, but independent of their 
 partnership relations, and Avithout the use of their partner- 
 ship funds, may afterwards be appropriated to the use of the 
 firm. The question then arises whether this appropriation 
 impresses this real estate with the cliaracter of firm property. 
 
 ' Collumb V. Read, 24 N. Y. 513. 
 
 ■Smith V. .Jiwjksoii, 2 Edw. Ch. 28; Cox c. McBiirney, 2 Sandf. 5C1; Wooldridge v. 
 Wilkins, .'} How. Miss. :W0.
 
 I 117 TENANTS IN COMMON. 172 
 
 In one case, the answer has been made that it does not, be- 
 cause the resulting trust cannot arise in favor of the firm, 
 wdthout any writing, where the partnership has not contributed 
 any portion of the purchase money.' But the question is, no 
 doubt, one of intention merely. If the parties intended to 
 bring this realty into their business, and thereby to ina^ease 
 their partnership assets, and their intent was consummated 
 by an appropriation of the property to partnership purposes, 
 then it should be regarded as a contribution to the stock in 
 trade, and, as such, subjected to the law of copartnership. 
 But this intention is not to be infen'ed from the mere fact 
 that the property, even in pursuance of an agreement so to 
 do, has been used by the firm, or for the firm purposes. 
 There must be evidence sufficient to raise the presumption 
 that they intended not only to use the property but also to 
 contribute it^ to their joint capital in trade. ^ "There can be 
 little doubt that the purchase of land by the partners, for the 
 pui-poses of the partnership, and subject to an express or im- 
 plied agreement that it shall be held for the benefit of the 
 firm, will render it partnership property, even when the whole 
 of the consideration is furnished by the partners individually, 
 and no part of it comes from the assets of the partner- 
 ship."^ 
 
 § 117. When Lands ^vill be treated as Personalty. — 
 
 "If land, in addition to being paid for out of partnership 
 funds, is brought into the partnership and used for partner- 
 ship purposes, there is no doubt that it Avill, in equity, be 
 treated as partnership stock, unless there is some agreement 
 to the contrary or 'the price is charged to the partners re- 
 spectively in their several accounts with the firm.' "^ "If in 
 
 1 Deloney v. Hutcheson, 2 Eand. 183. 
 
 ^ Frink v. Branch, 16 Conn. 261; Brooke v. Washington, 8 Gratt. 256; Thornton v. 
 Dixon, 3 Bro. C. C. 199; Balmain v. Shore, 9 Ves. 500; Cookson v. Cookson, 8 Sim. 
 529; Ware v. Owens, 42 Ala. 215; Pecot v. Armelin, 21 La. An. 667. 
 
 » 1 White & Tudor's Lead. Cas. 2il: Eoberts v. McCarthy, 9 Ind. 16. 
 
 ■• Howard v. Priest, 5 Met. 582; Burnside v. Merrick, 4 Met. 537; Jarvis v. Brooks, 
 7 Foster, 67; Overholt's Appeal. 12 Pa. St. 222; Moderwell v. Mullison, 21 Pa. St. 259; 
 Chaplin v. Tillinghast, 4E. 1. 173; Ludlow v. Cooper, 4 Ohio St. 1; Moreau v. Saffa- 
 ran, 3 Sneed, 595; Lime Rock Bank v. Phettleplace, 8 E. I. 59; Eobertson v. Baker, 
 
 II Pla. 192; Buffum v. Buffum, 49 Me. 108; Mauck v. Mauck, 54 111. 281; Matlock r. 
 James. 2 Beas. Ch. 126: Bryant v. Hunter. 6 Bush, 75: National Bank v. Sprague, 20
 
 173 TENANTS IN COMMON. g 117 
 
 the conveyance the grantees should be described as tenants 
 in common, it would be a circumstance bearing on the ques- 
 tion of intent, though perhaps it might be considered a slight 
 £>ne; because those words would merely make them tenants 
 in c<^mmon of the legal estate, which, by operation of law, 
 they Avould be without them."^ "If the tenants in common 
 are at the same time copartners, and the land was purchased 
 with partnership funds, and for partnership purposes, it is 
 deemed in equity converted into personal property, and is 
 liable to be administered as such in winding up the affairs of 
 the fii-m."^ " "Where real estate is purchased with partnership 
 funds, for the use of the firm, and without an}^ intention of 
 withdrawing the funds from the firm for the use of all or any 
 of the members thereof as individuals, I believe it has never 
 been doubted in England that such real estate was, in equity, 
 to be considered and treated as the property of the members 
 of the firm collectively, and as liable to all the equitable 
 rights of the partners as between themselves. And for this 
 purpose the holders of the legal title are considered, in 
 equity, as the mere trustees of those beneficially interested 
 in the fund, not only during the existence of the copartner- 
 ship, but also upon the dissolution thereof by the death of 
 some of the copartners or otherwise."^ The same principles 
 of equity which direct the administration of real estate, the 
 legal title of which is held by the members of the firm as 
 tenants in common, operate with like force and effect when 
 this legal title is held by one partner only, or even by a third 
 person, if it be held for the use and benefit of the firm 
 jomtly.^ 
 
 N. J. Eq. 13; Willis v. Freeman, 35 Vt. 44; Lang v. Waring, 25 Ala. 625; Duhring v. 
 Duhring, 20 Mo. 174; Davis u. Christian, 15 Gratt. 11; Holland r. Fuller, 1.3 Ind. 195; 
 Phillipu I'. Phil-J-Ips, 1 Mylne & K. C19;- Broom v. Broom, 3 Mylne & K. 443; Moran v. 
 Palmer, 13 Mich. 367; Fowler c. Bailey, 14 Wis. 125; Ci.ley v. Huse, 40 N. H. 358; 
 Arnold v. Wainwi-ight, Minn. .358. 
 
 ■ Dyer v. Clark, 5 Met. 562; Matlock i>. Matlock, 5 Ind. 403; Abbott's Appeal, 50 Pa. 
 St. 238. 
 
 -• Collumb V. Read, 24 N. Y. 509; Meily r. Wood, 71 Pa. St. 488. 
 
 ^ Chancellor Walworth, in Bucban c. Sumner, 2 Barb. Ch. 199. 
 
 ' NicoU I'. Ogden, 29 111. 323; Uhler v. Semple, 20 N. J. Eq, 288; Jarvis »>. Brooks, 
 7 Fo8t. 37; Pugh v. Currie, 5 Ala. 44G; Deveney i'. Mahoncy, 8 C. E. Green, 247; 12 
 Am. L. Reg. 63.
 
 § 118 TENANTS IN COMMON. 174 
 
 § 118. Forwhat purposes Realty treated as Personalty. — 
 Whether the conversion of partnership realty into personalty 
 prevails for all purposes or for some only is a question which 
 Judge Story " considered as open to many distressing doubts." ^ 
 The doubts are no less distressing now than when they first 
 perplexed the learned Judge, but, by considering the number 
 of the adjudications, in the two countries, it Avill be readily 
 ascertained where the weight of the authorities in both Eng- 
 land and America rests; and the results thus ascertained in 
 regard to the two countries, will be found to be in irrecon- 
 cilable conflict with each other. The earlier English decisions 
 were in favor of the proposition that the conversion of realty 
 into personalty extended no further than was necessary to an 
 equitable adjustment of the claims of the firm creditors, and 
 of the rights of the members of the firm between themselves. 
 Subject only to those claims and rights, the real property 
 continued to be distinguished by its ordinary legal incidents, 
 and liable to disposition according to the rules of law. It 
 therefore passed to the heirs or devisees.^ But this con- 
 struction of the law of copartnership is now certainly over- 
 thrown in England." After fully considering the decisions 
 then existing, the Vice-Chancellor, in a leading case on this 
 subject, thus summed up his own reasons and the result to 
 which those reasons, as well as the prior adjudications, led 
 him : " I should, therefore, feel no hesitation in coming to this 
 conclusion, that the mere contract of partnership, without 
 any express stipulation, involves in it an impiied contract, 
 quite as stringent as if it were expressed, that, at the disso- 
 lution of the pai-tnership, all the property then belonging to 
 the partnership, whether it be ordinary stock in trade, or a 
 leasehold interest, or a fee-simple estate in land, shall be 
 sold, and the net proceeds, after satisfying all partnership 
 
 1 story on Partnership, sec. 93. 
 
 - Thornton i'. Dixon, 3 Bro. Ch. K. 199; Bell v. Pbyn, 7 Ves. 453: Balmain v. Shore, 
 9 Ves. 501; Cookson i'. Cooksou, 8 Sim. 529. 
 
 » Essex V. Essex, 20 Beav. 442; Eipley v. Waterworth, 7 Ves. 425; Houghton i-. 
 Houghton, 11 Sim. 491; Broom r. Broom, 3 Mylne & K. 443; Philips i'. Phiiilps, 1 
 Mylne & K. 649; Fereday v. Wigbt-nick, 1 Euss. & M. 45; Crawshay v. Maule, 1 Swanst. 
 495; Kirkpatriek v. Sim. 5 Pat. Scotch App. 525; Selkrig v. Davies. 2 Dow, 230; 
 Townshend v. Devaynes, 1 Mont. Partn. note 2 A, Appx. 96; Morris r. Kearsley, 2 
 Yonii? & C. Ex. 139;'Holrovd v. Holroyd. 7 W. E. 426.
 
 175 TENANTS IN COMMON. § 118 
 
 debts and liabilities, be divided among the partners; and 
 that each pai-tner, and the representatives of any deceased 
 partner, have a right to insist on this being done." 
 
 "Now, if it be established that, by the contract of part- 
 nership, all the partnership property is to be sold at the dis- 
 solution of the pai-tnership, then any real property which has 
 become the property of the partnership, becomes, by force 
 of the partnership contract, converted into personalty; and 
 that, not merely as between the partners to the extent of dis- 
 charging the pai-tnership debts, but as between the real and 
 personal representatives of any deceased paiiner."' There 
 are some American cases in full accord with the rule as stated 
 in the latest English cases. Thus, the Chief Justice of the 
 Court of Appeals of the State of Kentucky, in a vei^ recent 
 decision, in which his associates concurred, asserted that 
 ' ' upon a review of the authorities, the analogies, and reasons 
 of the law, we conclude that a safe and reliable rule may be 
 deduced as to that class of property to which this evidently 
 belongs; that is, when property is bought with paiinership 
 funds, to he used in can-ying on and facilitating the partner- 
 ship business, and operations and profits, it is then partner- 
 ship property, impressed with the characteristic of personalty 
 for any and all purposes, not only as between the partners 
 Intel- se and the firm and its creditors, but also as to distribu- 
 tion between the administrator, distributees, and heirs."- 
 But the American decisions, by a preponderance that ap- 
 proaches unanimity, are in direct conflict ■\\'ith the rule tlius 
 announced by the Court of Appeals of Kentucky. The Am- 
 erican theory is that the legal title of the partnership realty 
 is lield by the copartners as tenants in common, subject in 
 equity to be applied to the payment of the debts of the firm ; 
 that when such debts are paid, all ' ' the incidents and quali- 
 ties of real estate revive;" that the trust in favor of the part- 
 nership existed only in behalf of partnership objects and 
 liabilities, and these being fully discharged, the legal title is 
 
 ' Darby r. Darby, 3 Drewry, 505. 
 
 - CoiTiwall r. Cornwall, C Bush, .372; approved in Ban); of Louisville v. Hall, 8 
 Bush, 078. These two cases, and Pierce c. Trigg. 10 Leigli, 400, are probably the 
 only American cases in favor of the theory of the absolute conversion of realty into 
 personalty for all purposes.
 
 § 118 TENANTS IN COMMON. 176 
 
 released from all trusts, and will descend to the heir as in 
 the case of any other tenancy in common.^ In a very recent 
 decision denying the application of an administrator, made to 
 a court of equity, asking that certain realty might be . con- 
 verted into personalty, the American rule, and the reasons 
 on which it rests, were stated by the Court as follows : 
 
 "Neither the ground of interposition nor the mode of its 
 exercise is changed by the decease of the party in whose be- 
 half it is required. His representatives are substituted in 
 his place. Their rights are derivative merely. Equities be- 
 tween them, if any there be, are subordinate and posterior 
 to those which spring from the relation of copartnership. 
 The conversion of real estate into personalty is worked, if at 
 all, for the pm'pose of adjusting the affairs of the partnership » 
 It would seem, therefore, that the conversion should be made 
 only when and so far as required for that purpose ; and that 
 the effect upon the descent or distribution of the share of a 
 deceased partner among his representatives should be re- 
 garded as incidental merely, and not an end for which the 
 interference of a court of equity is to be sought. 
 
 "In view of the grounds and purposes of such equitable 
 conversion, even regarding all the partnership real estate, how- 
 ever the legal title may be held, as held in trust for the part- 
 nership, this Court are disposed to hold, notwithstanding the 
 gi-eat weight of authority to the contrary elsewhere, that such 
 real estate is to be converted into personalty only when such 
 conversion is required for the payment of claims against the 
 partnership which are in the nature of debt. Balances due 
 to individual partners, for advances to the firm, or for pay- 
 ments made in its behalf, come within this definition.- So 
 also may capital furnished by one partner, when by the terms 
 upon which it was furnished, or from the natiu'e and necessity 
 of the case, it is to be repaid in specific amounts, in order to 
 reach the net result, or the body of the partnership interests, 
 
 ' Piper V. Smith, 1 Head, 93; McAllister v. Montgomery, 3 Hayw. 94; Teatman v. 
 Wood, 6 Yerg. 21; Scruggs v. Blaii-, 44 Miss. 406; Goodburn v. Stevens, 5 Gill, 1; Eice 
 V. Barnard, 20 Vt. 479; Holland v. Fuller, 13 Ind. 195; Tillinghast v. Chaplin, 4 E. I. 
 173; Sumner v. Hampson, 8 Ohio, 358; Hanff v. Howard, 3 Jones Eq. 440; Collins v. 
 Warren, 29 Miss. 236; Lang's Heirs v. Waring, 25 Ala. 625; Piatt v. Oliver, 3 McL> 
 27; Wilcox v. Wilcox, 13 Allen, 252. 
 
 ^ See also Gray v. Palmer, 9 Cal. 639,
 
 177 TENANTS IN COMMON. ^ 119 
 
 to which the proportional rights or shares of the-several part- 
 ners attach. lu shoi-t, whatever is required to be paid or 
 measured in precise sums must be so adjusted; and real 
 estate, converted for that pm-pose, undoubtedly becomes per- 
 sonalty, and is entitled to be distributed as such when paid 
 over to the party entitled. But the shares in the body of the 
 partnership, those interests which are not measured by pre- 
 cise amounts, but consist in a common proprietorship after 
 all special claims are satisfied, stand on a diiferent footing. 
 These interests are determined by the proportions fixed by the 
 articles or organic law of the partnership. ^Tien the bene- 
 ficial interests and the legal title correspond, it has already 
 been decided that the rights of the partners in real estate so 
 held will be left to adjust themselves by descent of the legal 
 title with its incidents, as real estate of the several partners, 
 held in common. When the legal title is otherwise held, it 
 is held in trust; and the equitable title descends in like man- 
 ner and with like incidents, except as to dower. The office 
 of equity is merely to declare trusts, and compel the legal 
 title to sei-ve the equitable interests. This is accomplished 
 by directing such conveyances as mil make the legal title of 
 the several parties conform to their respective beneficial in- 
 terests. 
 
 "By the rule above indicated, all partnership rights and 
 obligations are secured, and all equities growing out of that 
 relation are met and answered. To require equitable inter- 
 ference to go further, and convert all real estate into person- 
 alty, for the mere purpose of a division, seems to us to be an 
 unnecessary invasion of the rights of the copartners, and, 
 when undertaken in the interest of one class of the repre- 
 sentatives of a deceased partner, against another class of 
 representatives of the same partner, it seems to be a departure 
 from the legitimate sphere of equitable jurisdiction. It is 
 not the province of equity to seek to counteract or modify 
 the operation of the laws of descent and distribution."' 
 
 ^ 119. Conveyance by Partner. — At law, as we have seen, 
 the partners are tenants in common of their realty. Each 
 
 ' Shearer V. Shearer, U8 Mass. 111. 
 
 0. & p.— 12
 
 § 120 TENANTS IN COMMON. 178 
 
 can therefore convey liis undivided interest, and neither can 
 convey any part of the interest of his copartners.' And 
 during the continuance of the copartnership, the rule is, in 
 equity, the same as at law. No matter how absolute the con- 
 version of the realty into personalty may be, ' ' each partner 
 is required, both at law and in equity, to join in every con- 
 veyance of real estate in order to pass the entirety thereof 
 to the grantee ; and if one partner only executes it, whether 
 it be in his own name or in that of the firm, the deed will 
 not ordinarily convey any more than his own share or in- 
 terest therein.'"- But upon the decease of any of the mem- 
 bers of a firm, the survivors are invested with a power which 
 they did not before possess. The realty of the late firm is 
 so far converted into personalty, in equity, as to be subject, 
 like choses in action or any other personal assets, to be sold 
 by the survivors, if such sale is necessary to pay the partner- 
 ship debts. A deed executed by the survivors, in j)ursuance 
 of such sale, does not convey the legal title of the deceased 
 copartner, for that is vested in his heir by operation of the 
 law of descents ; but it does convey the entire equitable title, 
 and the purchaser ' ' may call on the heir for the legal title, and 
 compel him to convey."^ 
 
 § 120. The conveyance of his undivided interest which 
 either partner may make during the continuance of the part- 
 nership is, if made to a purchaser with actual or constructive 
 notice, subject to the trusts then existing against the realty 
 conveyed and in favor of the pai^tners and the creditors of the 
 firm. In this, as in all other cases, a vendee, with notice, 
 obtains no rights superior to those held by the vendor.* And, 
 on the other hand, there seems to be no doubt that a vendee 
 or mortgagee of a partner "will obtain both the legal and the 
 
 '■ Jackson v. Stanford. 19 Geo. 15; Anderson v. Tompkins, 1 Brock. 463; Whitman 
 V. B. & M. R. R., 3 Allen, 133; Turbevffle v. Ryan, 1 Humph. 113. 
 
 '-■ Story on Partnership, sec. 94; Davis v. Chi-istiau, 15 Gratt. 36. The deed by one 
 partner of firm realty, in discharge of a firm debt, transfers both the legal and the 
 equitable title to such partner's moiety. Van Brunt v. Applegate, 44 N. Y. 544. 
 
 •' Andrew's Heirs v. Brown's Admrs. 21 Ala. 443; Delmonico v. Guillaume, 2 Sandf. 
 Ch. 366; Broom i'. Broom, 3 Mylne A- K. 443; Dupuy v. Leavenworth, 17 Cal. 268. 
 
 •* Kistner v. Sindliuger. 33 Ind. 117; Edgar v. Donnelly. 2 Munf. 387; Hoxie i'. Carr, 
 1 Snmu. 174.
 
 1/9 TENANTS IN COMMON. ^. 120 
 
 equitable title to the moiety purchased by him, and will hold 
 the same free from all trusts of which he had no notice, 
 actual or constructive, at the date of his purchase ; and 
 further, that the fact of which he must have notice, is not 
 merely that his vendor was a partner as well as a cotenant, 
 but that, on account of such partnership, the realty was in 
 equity liable to certain liabilities then existing.^ But notice 
 will be ' ' implied whenever the circumstances are such as to 
 justify the presumption that the purchaser either knew or re- 
 mained wiKully ignorant."- As between the partners and 
 creditors of one of the partners, it cannot be shown, accord- 
 ing to the decisions in Pennsylvania, that a deed which is 
 apparently made to the partners as tenants in common, was 
 in fact a conveyance to them to hold as partnership assets. 
 "Partners who take a deed in their individual right as ten- 
 ants in common, stand in a different relation to the public" 
 from that in which they stand towards each other. " Theii' 
 acts tend to mislead both purchasers and creditors trusting 
 to the apparent state of the title. Partners being the owners 
 of the money which pays for the title, have the power of 
 directing its application to suit their own purposes, and can, 
 if they choose, always secure the identity of its character in 
 the kind of title they take for it. If, therefore, they take 
 title to themselves as tenants in common, instead of as part- 
 ners, they, by their own election, stamp the character of the 
 title taken as to those who afterwards deal with them. ''^ ^ "^ 
 It is contended by the appellant that a creditor is not within 
 the recording acts, and not entitled to notice of the true 
 character of the title. It is true that the recording acts ex- 
 tend only to purchasers and moiigagees, and their effect is 
 to defeat an unrecorded deed as to subsequent purchasers 
 and mortgagees without notice of it, while a creditor is not 
 protected against the unrecorded deed, but must stand on the 
 title as it was in fact when his lien attached. This is very 
 different, however, from the use of parol evidence to alter 
 the effect of a deed which itself displays the title. To alter a 
 
 ' Buchan v. Sumner, 2 13arb. Ch. 198; Fiiiik r. Branch, IG Conn. 270; Forde v. Her- 
 Yon, 'J Munf. ;51G; McDermot r. Lawreuco, 7 Scarg. <t E. 441; lluile v. Henrio, 2 
 Watts, 14;i; Hale v. Plummer, C Intl. 121; Abbott'H Appeal, 50 Pa. St. 238. 
 
 - 1 Lead. Can. in Eq. 241; Tilliughuiit r. Cliamplin, 4 11. I. 173.
 
 ^ 120 TENANTS IN COMMON. 18G 
 
 deed so as to make it of different import, offends against the 
 spirit of all those laws made to protect the public against fraud 
 and secret titles, and prevent a change of right to the prejudice 
 of those who deal upon the apparent legal operation of the in- 
 strument. "^ "^ * It is very clear that honest creditors who are 
 led to give credit to the individual partners on the apparent 
 state of the title in them individually, ought not to be met 
 afterwards by a change of the face in the deed by which it 
 takes a partnership aspect contrary to its terms. "^ In this 
 case, the contest was between a creditor of one of the part- 
 ners and another partner, the latter claiming that the real 
 estate should be held as partnership assets, and its proceeds 
 applied to the payment of a sum found to be due to him from 
 the firm. If, however, the contest had arisen between the 
 creditors of one partner and the creditors of the firm, the 
 decision would have been the same, for the Courts of this 
 State seem to have uniformly decided that parol evidence is 
 not admissible to show that lands apparently held by a ten- 
 ancy in common are in fact held in partnership, and therefore 
 pledged to partnership creditors;^ but for the purpose of 
 establishing the rights of the partners in a litigation between 
 them, such evidence is admissible.^ 
 
 But in a very recent English decision, it has been deter- 
 mined that the possession of lands for partnership purposes 
 by the cotenants thereof, is such a notice to third persons that 
 it may be partnership assets, as to place them upon inquiry 
 in reference to the true nature of the title, and that either 
 partner may insist upon the partnership character of the 
 realty as against all persons dealing with his copartner and 
 having notice of the use made of the lands for partnership 
 purposes.^ 
 
 <■ Ebbert's Appeal, 70 Pa. St. 81; Abbott's Appeal, 50 Pa. St. 238. 
 
 ' Lefevre's Appeal, 69 Pa. St. 125; Hale v. Henrie, 2 Watts, IM; Ridgway, Budd & 
 Co.'s Appeal, 15 Pa. St. 181; Erwin's Appeal, 39 Pa. St. 537; Overholt's Appeal, 12 Pa. 
 St. 222; Cumming's Appeal, 25 Pa. St. 269. 
 
 a Abbott's Appeal, 50 Pa. St. 238. 
 
 * Cavander v. Bultul, 29 L. T. R. (N. S.) 710.
 
 CHAPTER YII. 
 
 COMMUNITY PROPERTY. 
 
 "No Community at Common Law, ^ 121. 
 Nor, ordinarily, in the Ci^■il Law, § 122. 
 Community, in America, i^S 123. 
 
 is legal or conventional, § 124. 
 
 modification of, $ 125. 
 
 extent of, in Holland and Spain, 9 126. 
 
 " in France and Lower Canada, ^ 127. 
 
 in California, § 128. 
 " in Arizona, Idaho, and Nevada, 'J 129. 
 " in Louisiana, $ 130. 
 in Texas, § 131. 
 as affected by domicil, § 132. 
 
 ■WHAT PROPERTY IS COMMON BETWEEN HUSBAND AND WIFE. 
 
 Lands given by Sovereign are not, § 133. 
 
 Purchases before marriage, but conveyance afterwards, $ 134. 
 
 Pmrchases during marriage, but conveyance afterwards, ^ 135. 
 
 Gifts to Husband and Wife, $ 13B. 
 
 Purchases with funds of the Wife, * 137. 
 
 Improvements, $ 138. 
 
 Crops, $ 139. 
 
 Increase of Animals, § 140. 
 
 Rents, increase and profits in CaUfomia, $ 141. 
 
 Mixed Title, § 142. 
 
 PRESUMPTION THAT PROPERTY IS COMMUNITY. 
 
 All Property in name of either presumed to be Community, ^ 143. 
 Property conveyed to Wife subject to same rule, $ 144. 
 Conveyance to Wife, rebutting presumption as to, in Texas, $ 145. 
 Conveyance to Wife, rebutting presumption as to, in Louisiana, $ 146. 
 Conveyance to Wife, rebutting presumption as to, in CaHfornia, $ 147. 
 Authority of Husband and Wife, respectively, ■^ 148. 
 Dissolution of the Commuuitv, $ 149. 
 
 181
 
 § 121 COMMUNITY PROPERTY. 182 
 
 § 121. By the common law, no co-ownership resulted 
 from the marriage relation. It is true that the wife, after the 
 decease of her husband, was "endowed of a third part of 
 such lands and tenements as were her husband's at any time 
 during the coverture ; to have and to hold to the same wife in 
 severalty, hy metes and hounds, for term of her life."' But 
 this right of dower never created any undivided interest in 
 the lands of the husband. He held the freehold in severalty. 
 ' ' Upon the death of the husband, the right to dower, which 
 the wife acquired by marriage, becomes consummate; but 
 unless the precise portion of land which she is to have is 
 particularl}^ specified, as was formerly sometimes done, she 
 cannot enter till dower is assigned to her; for she might, in 
 that case, choose whatever part of the lands she pleased, 
 which would be injurious to the heir. The widow has there- 
 fore ^lo esiate in the lands of her husband till assignment; for 
 the law casts the freehold on the heir, immediately upon the 
 death of the ancestor."^ Tenancy by entireties, it is true, 
 existed at the common law, and was an estate dependent upon 
 the marriage relation for its creation and continuance. But 
 it was not created solely by such relation. It was generally 
 produced by a gift to the husband and wife, or by a purchase 
 made by him, the conveyance for which, by his direction, 
 was taken in the name of both himself and his wife. It did 
 not arise as the inevitable consequence of the marriage rela- 
 tion, nor was it designed or calculated as a means of assuring 
 to each spouse his or her just share of the assets or gains of 
 the matrimonial copartnership. It existed but rarely, and 
 depended for its creation on the generosity of relatives seek- 
 ing to make some provision for the wife, or on the generosity 
 of the husband, pursuing a like object. The co-ownership 
 of which we are about to treat, like tenancy by entireties, ex- 
 isted in connection w4tli the marital relation, but instead of 
 being a rare and accidental incident, it was, in the absence of 
 stipulations to the contrar}', the unavoidable result of that 
 relation. Instead of representing the geneiosity of husband 
 or relatives, it was a just recognition of the services of the 
 wife, and of her care and fidelity as one of the marital co- 
 
 » Litt. sec. 36; 1 Greenl. Cruise, 153. '^ 1 Greenl. Cruise, 168.
 
 183 COMMUNITY PROPERTY. § 122 
 
 partners, and it seciu-ed to her as a matter of right not a mere 
 life estate in one-third of her husband's lands, but an estate 
 in fee-simple equal to his in quantity, and including all the 
 matrimonial acquisitions, whether real or personal. 
 
 ^ 122. In the civil law, the interests of the husband and 
 ■wife were more distinct than at common law. The civil law 
 ' ' does not recognize in the husband and wife that union of 
 persons by which the rights of the wife were incoi-porated 
 and consolidated, during the coverture, with those of the 
 husband. It does not, therefore, subject her to those civil 
 disabilities which must have resulted from that union. The 
 husband and wife are regarded as distinct persons, with sepa- 
 rate rights, and capable of holding distinct and separate 
 estates."' The community of goods between husband and 
 wife, which has been adopted in different forms in many sys- 
 tems of Jurisprudence, if it was ever a part of the Eoman 
 law, fell into disuse before the compilation of the Digest, and 
 existed only where the parties adopted it by their nuptial 
 agreement.' At their marriage, the wife brought her dos, and 
 the husband his donatio propter nuptias, or antidos. As to all 
 their other property, each retained and exercised the rights 
 of OAvners in severalty. The wife's property not subject to 
 the doa Avas called bona extra dotem. The dos, or dotal prop- 
 erty, was that contributed at the marriage by or on behalf of 
 the wife. The husband exercised dominion over it during 
 the coverture, received the rents, fruits, and profits thereof; 
 and could alienate such part as was personal, and that only. 
 The interest and authority of the husband over the dotal 
 property ceased at the dissolution of the marriage, and the 
 property, with its accessions, reverted to the wife or some of 
 her relatives, except as to the parts he had laAvfully sold, and 
 for these parts he was accountable for the prices realized. 
 The donatio propter nuptias Avas the gift of property required 
 by the civil laAv to be made on behalf of the husband ad sus- 
 tlneada onera rnatrimoidi. It seems to ha\'e been treated as 
 a mere security for the wife's dos. The husband Avas entitled 
 to all profits derived from it during coverture, and to its res- 
 
 1 Burge Colo)iial Law, 2G3.
 
 § 123 COMMUNITY PROPEKTY. 184 
 
 toration on the dissolution of the marriage. The property of 
 the wife which was extra dotem consisted of imraiyhernalia and 
 receptitia. The former included the property brought by her 
 into the house, or of which the husband had possession, and 
 of which inventoiy was taken; the latter term indicated the 
 property of which she retained possession wholly separate 
 from her husband.^ 
 
 § 123. Community in America. — The States of Louisiana, 
 Texas, California, and Nevada, and the Territories of Arizona, 
 Idaho, and New Mexico, instead of adopting the provisions of 
 either the civil or the common law in regard to the property 
 relations of husband and wife, have made them co-owners or 
 copartners in interest, by creating a community of property 
 between them verj' similar to that existing under the laws of 
 France and Spain. In the three States first named, this sys- 
 tem had been in force, and large and valuable interests had 
 become vested under it, before their attachment to the United 
 States, and before they had become, to any considerable ex- 
 tent, inhabited by people accustomed to the common law. 
 The Province of Lower Canada, o^ving, no doubt, to the par- 
 tiality of its citizens of French birth or ancestry to the laws 
 and institutions of their fatherland, has recently adopted a 
 Civil Code containing the chief features of the Code Napoleon, 
 including the law creating, defining, and regulating the com- 
 munity of assets between husband and wife. In the State of 
 Missouri, and probably in other parts of the territory ceded 
 to the United States by France, the French Law, though not 
 now in force, has been, to some considerable extent, the sub- 
 ject of judicial investigation, in connection with claims to 
 real estate the title to which had been acquired while the 
 country and its inhabitants were yet under the dominion of 
 France. It would be as foreign to the object of this work to 
 undertake an exposition in detail of the whole of the law re- 
 specting community, as to undertake a like detail of the com- 
 mon law regulating the rights and relations of husband and 
 wife. But as the community is a species of co-ownership,^ 
 
 ' Burge Colonial Law, 273. 
 
 ^ " The husband and wife, during coverture, are jointly seized of the property, with 
 a half interest remaining ovor to the wife, subject only to the husband's disposal dur-
 
 185 COMMUNITY PROPERTY. §§ 124-25 
 
 ■we siittll consider it, so far at least as to show of what it is 
 generally composed, and to present some of the chief tests 
 by which to distinguish it from other property o-s\-ned by 
 either of ihe spouses in severalty. 
 
 § 124. A community is either legal or conventional: 
 legal Mhen established by force of the law, independent of 
 any marriage contract;' and conventional when modified by 
 some agreement of the parties which the law aiathorized them 
 to make.' The community, whether legal or conventional, 
 commences, according to the French law, from the day of 
 contracting the marriage before the officer of the civil power; 
 and cannot, even by stipulation, begin at any other time.^ 
 
 ^ 125. The modifications of the legal community by 
 which such community becomes conventional instead of legal, 
 may embrace every description of agreement except: 1st. 
 Those contrary to good morals; 2d. Those derogating from 
 the rights resulting from the power of the husband over the 
 persons of his wife and children, or from the rights con- 
 ferred on the surviving husband or wife by the ''Title of 
 Paternal Power," and by the "Title of Minority, Guardian- 
 .ship, and Emancipation;" 3d. Those changing the legal order 
 of sviccessiou.* The principal modifications are : 
 
 1st. By way of realization; viz., that the present or future 
 moveables shall be excluded from the community, in whole 
 or in part. 
 
 ing their joint lives. This is a, present, definite, and certain interest." (Beard i'. Knox. 
 5 Cal. 256.) Affirmed in Do Godey v. Godey, 39 Cal. 164, where the Court, in siieak- 
 ing of the interest of the wife in the common propertj', said: " The thcoiy iy>on 
 which the right of the wife is founded is, that the common property was acquired by 
 the joint eflbrts of husband and wife, and should be <livided between them if tlie 
 marriage tie is dissolved either by the deatli of the husband or by a decree of the 
 Court. Her mere right in the communitj' property is as well defined and ascertained in 
 contemplation of law, even during the man'iage, as is that of the husband." Speak- 
 ing of husband and wife, the Supveme Court of Texas said: " Their rights of propirty 
 in the effects of the community Are perfectly equivalent to each otlier." (Wright c. 
 Hays, 10 Tex. 133.) The estate vested in husband and wife by virtue of the law of 
 community, is such a vested right that the Legislature has no power to divest it by 
 any law. (Portis i'. Parker, 22 Tex. 702.) 
 
 ' Clvii Code of Lower Canada, necs. 1268 and 1270. 
 
 -' Civil Code of Lower Canada, Bee. 1384. 
 
 •• Code Napoleon, sec. 1390; Civil Code Lower Canada, sec. 1269. 
 
 ■■ Code Napoleon, sees. 1497 and 1387 to 1390. See also Ai-t. 4632 Paschal's Tex. Dig.
 
 § 126 COMMUNITY PROPERTY. 186 
 
 2d. By way of mobilization, that the whole or some part 
 of the immoveables shall be included in the community. 
 
 3d. That each of the parties shall pay his or her ante- 
 nuptial debts. 
 
 4th. That in case of renunciation by the wife, she may re- 
 sume her contributions, free and unincumbered. 
 
 5th. That the survivor shall have &preciput or reversion. 
 
 6th. That the spouses shall have unequal shares. 
 
 7th. That there shall be between them community by gen- 
 eral title; or, in other words, a universal community.' 
 
 To these the Code Napoleon prefixes the further modifica- 
 tion that the community shall only embrace purchases.'^ As 
 in treating of the subject of cotenancy luider the common 
 law, we shall devote no space to the consideration of modifi- 
 cations of the law efiected by agreements entered into by the 
 parties, we shall not now depart from our plan so far as to 
 give any further attention to conventional or modified com- 
 munity, but shall appropriate the remainder of this chapter 
 to the legal or unmodified community. ' 
 
 g 126. The legal eomniunity in some countries ex- 
 tended to all the property belonging to the parties at or 
 subsequent to the marriage ; in others, it embraced only the 
 moveables of the parties at the time of their marriage, and 
 certain acquisitions made afterwards. Thus, according to the 
 law of Holland, the communio honorum, or legal community, 
 was either vmiversal or particular. The universal included 
 all the property of both husband and wife before or at theii* 
 marriage, and also that which they acquired during coverture. 
 ' ' The communio particularis comprises only the property 
 which is acquired by, them during the coverture. It is called 
 communio quoestuum."'^ In delivering the opinion of the Su- 
 preme Court of Missouri, Judge Scott, referring to rights of 
 property created while that State was a Spanish province, 
 said : ' ' By the Spanish law, which prevailed here at the time 
 of this marriage, by mere operation of law, without any stip- 
 ulation or agreement, a community or partnership was estab- 
 
 ' Code Lower Canada, sec. 1384. - Code Napoleon, sec. 1497. 
 
 a Burge Col. & For. Laws, 277.
 
 187 COMMUNITY PROPERTY. § 127 
 
 listed between husband and wife of all tlieii' estate, both real 
 and personal."' If this statement be correct, then the law in 
 force in ]\Iissouri must, in this respect, have established be- 
 tween the spouses rights similar to that of the universal com- 
 munity in force in Holland. But the position of Judge Scott, 
 imless based upon some special law or custom of the Province, 
 does not seem to be tenable. According to Mr. Burge: "The 
 law of Spain does not recognize the general communio honorum 
 which prevailed in Holland, but admits only the commiimo 
 quoestuurn. The latter is constituted between the husband 
 and wife as the legal and necessary effect of the marriage. 
 The property of which it consists is termed ganancial, Bienes 
 cjananciales.''- According to the above quotation, and to other 
 reliable authorities, the community, according to the laws of 
 Spain, excluded all property owned by the spouses prior to 
 theii' marriage.^ Nor did it embrace everything acquired 
 during the existence of the marital relations; but only those 
 acquisitions "which were attained by the industry, the labor, 
 or the negotiation of one or both tie parties; those, in fact, 
 which arose ex quesiu, or by onerous title, and not those by 
 lucrative title, such as legacy, inheritance, or donation, made 
 separately to one of the pai-tners in matrimony. These last 
 acquisitions are not the fruit of the joint or several labor or 
 diligence of the parties, but arise from the personal merits 
 of the donee. "^ 
 
 ^ 127. The French community embraced more than 
 that of Spain, but less than that of Holland. It consisted: 
 
 1st. "Of all the moveable property which the married 
 parties possessed at the day of the celebration of the mar- 
 riage, together ^-ith all the moveable property Avhich falls to 
 them during the marriage by title of succession, or even of 
 donation, if the donor have not expressed himself to the con- 
 trary. 
 
 2d. " Of all the fruits, revenues, interests, and arrears, of 
 what nature soever they may be, fallen due or received during 
 the marriage, and arising from property which belonged to 
 
 ' Childress v. Cuttor, IG Mo. 41. 
 - 1 Burge Col. & For. Lawn, 418. 
 3 Schmidt's Civil Law Spain aud Mexico, 12; WilkinBon v. Wilkinson, 20 Tex. 242.
 
 §§ 128-29 COMMUNITY PROPEKTY. 188 
 
 the married persons at the time of the celebration, or from 
 such as has fallen to them during the marriage, by- any title 
 whatsoever. 
 
 3d. "Of all the immoveables which are acquired during 
 marriage."^ 
 
 g 128. In California, all property owned by either hus- 
 band or wife before marriage, and that ' ' acquired afterwards, 
 by gift, bequest, devise, or descent, with the rents, issues, 
 and profits thereof," is separate property;'* and "all other 
 property acquired after marriage by either husband or wife, 
 or both, is community property."^ " Community property is 
 property acquired by husband and wife, or either, during 
 marriage, when not acquired as the separate property of 
 either."^ "The earnings and accumulations of the wife, and 
 of her minor children living with her or in her custody, while 
 she is living separate from her husband, are the separate 
 property of the wife."'' 
 
 ^ 129. The laws of Arizona, Idaho, and Nevada/ 
 
 >■ Code Napoleon, sec. 1401; Civil Code, Lower Canada, sec. 1272. '^ 
 
 ' Civil Code, sees. 162-3. ■' Ibid, sec. 164. * Ibid, sec. 687. = Ibid, sec. 169. 
 
 •5 "All property, both real and personal, of the wife, owned by her before her mar- 
 riage, and that acquired afterwards by gift, bequest, devise, or descent, shall be her 
 separate property; and all property, both real and personal, owned by the husband 
 before marriage, and that acquired by him afterwards by gift, bequest, devise, or de- 
 scent, shall be his separate property. 
 
 "All property acquu'ed after the marriage, by either husband or wife, except such 
 property as may be acquired by gift, bequest, devise, or descent, shall be common 
 property." (Comp. Laws of Arizona, ed. of 1871, p. 306, sees. 1 and 2; Laws of 
 Idaho, Session 1866-7, p. 65, sees. 1 and 2.) Sees. 1 and 2 of the Act of the Legisla- 
 ture of Nevada, defining the rights of husband and wife, are as follows: 
 
 Sec. 1. "All property of the wife, owned by her before marriage, and that acquired 
 by her afterwards by gift, bequest, devise, or descent, with the rents, issues, and 
 profits thereof, is her separate property; and all property of the husband, owned by 
 him before marriage, and that acquired by him afterwards by gift, bequest, devise, or 
 descent, with the rents, issues, and profits thereof, is his separate property. 
 
 Sec. 2. "All other property acqtured after marriage, by either husband or wife, or 
 both, except as provided in sections fourteen and fifteen of this act, is community 
 property." (Comp. Laws, Nev., p. 56, sees. 151-2.) Sections fourteen and fifteen of 
 the same act are as follows: 
 
 Sec. 14. " The earnings and accumulations of the wife, and of her minor children 
 living with her or in her custody, while she is living separate from her husband, are 
 the separate property of the wife. 
 
 Sec. 15. " When the husband has allowed the wife to appropriate to her own use 
 her earnings, the same, with the issues and profits thereof, is deemed a gift from him 
 to her, and is, with such issues and profits, her separate property." (lb. p. 58, sees. 
 164-5.)
 
 189 COMMUNITY PROPERTY. §§ 130-32 
 
 establishing the property relations of the spouses, are in 
 several respects identical, both in form and substance, with 
 the provisions of the Civil Code of California, quoted in the 
 preceding section. 
 
 § 130. In Louisiana, by section 2371 of the Civil Code, 
 the "partnership or community consists of the profits of all 
 the eiiects of which the husband has the administration and 
 enjoyment, either of right or in fact, of the produce of the 
 reciprocal industry and labor of both husband and wife, and 
 of the estates which they may acquire during the marriage, 
 either by donation made jointly to them both, or by purchase, 
 or in any other similar way, even although the purchase be 
 only in the name of one of the two and not of both, because 
 in that case the period of time when the purchase is made is 
 alone attended to, and not the person who made the pur- 
 chase." 
 
 g 131. In Texas, "All the effects which both husband and 
 wife reciprocally possess at the time the marriage may be dis- 
 solved, shall be regarded as common effects or gains, unless 
 the contrary be satisfactorily proved."' "All property, both 
 real and personal, of the husband, owned or claimed by him 
 before marriage, and that acquired afterwards by gift, devise, 
 or descent, as also the increase of lands or slaves thus ac- 
 quired, shall be his separate property. All property, both 
 real and personal, of the wife, owned or claimed bj her before 
 marriage, and that acquired by gift, devise, or descent, as 
 also the increase of all lands thus acquired, shall be the sep- 
 arate property of the wife. " ^ ' 'All property acquired by either 
 husband or wife during the marriage, except that which is 
 acquired in the manner specified in the preceding section, is 
 common property."" 
 
 ^ 132. The domicil of the husband and -wife, at the 
 period of their marriage, may be considered as aftectiug the 
 question whether property acquired in or removed to some 
 other State than that in which the marriage was celebrated, 
 is to be governed by the law of the matrimonial or oi the 
 
 ' Paachal'B Tex. Dig. Art. 4C38. ■' lb. Art. 4G41 . ' lb. ^Vjt. 4G1'2.
 
 g 132 COMMUNITY PROPERTY. 190 
 
 actual domicil. Foreign jurists have never been able to agree 
 as to whether the rights of the spouses are controlled by the 
 law of the matrimonial domicil, or are subject to the laws of 
 the State or nation in which the spouses may, from time to 
 time, choose to take up their residence. > The American ad- 
 judications on this subject are nearly all embraced in the de- 
 cisions of the Courts of the State of Louisiana. By these 
 decisions, the rights of spouses migrating to that State are 
 governed, as to all subsequent acquisitions, by the laws of 
 Louisiana,^ and as to all prior acquisitions by the law of the 
 country in which such acquisitions were realized.^ Parties 
 marrying with the intention of removing to another State, are 
 supposed to have designed that their marital rights should be 
 subject to the laws of such State. Therefore, persons who 
 at their marriage intend going to Louisiana to reside, are 
 there treated as subject to the law of community." The dom- 
 icil of the husband is also the domicil of the wife. If he take 
 up his domicil in a State, she thereby acquires a domicil in 
 the same State.* The fact that the wife lives in another State, 
 does not divest her of her interest in the community.'^ The 
 general tendency of the American decisions, and the expressed 
 preferences of American jurists, are in favor of declaring 
 •'the law of community to be a real law, and not a personal 
 laAV," and therefore that "it ought to regulate all things which 
 are situate within the limits of the country wherein it is in 
 force, but not elsewhere.'"^ "Hence, if persons, who are 
 
 1 story Conf. Laws, sees. 166-176; Wharton Conf. Laws, 193-8. 
 '■^ Saul V. His Creditors, 7 Mart. 593; Gale v. Da^•is, 4 Mart. 645; Le Breton v. Nou- 
 chet, 3 Mart. 60. In Lower Canada, the rule is different. If parties married where 
 the law of community did not prevail, afterwards acquire a domicil in Lower Canada, 
 their subsequent acquisitions are not subject to the law of community— (Rogers v 
 Rogers, 3 Lower Canada Jur. 64)— and if married in Lower Canada, they are treated 
 as still subject to the law of community, though they have acquired a domicil else- 
 where. (Laviolette v. Martin, 11 L. C. R. 254.) But where parties domiciled in 
 Lower Canada were married elsewhere, it will be presumed, in the absence of proof 
 to the contrary, that the matrimonial rights of the parties at the place of their mar- 
 riage were the same as the rights of parties married in Lower Canada. (Brodie v. 
 Cowan, L. C. Jur. 96.) 
 
 - Allen V. Allen, 6 Rob. La. 104; Routh v. Her Husband, 9 lb. 224; Ford v. Ford, 
 2 Mart. N. S. 574; Fisher v. Fisher, 2 La. An. 774; Walker v. Durerger, 4 lb. 569. 
 The same rule is applied in Texas. The State v. Barrow, 14 Tex. 179. 
 
 ■• Kashaw v. Kashaw, 3 Cal. 322. 
 
 5 McKenna's Succession, 23 La. An. 369; Moore v. Thibodeaux, 4 La. An. 74. 
 
 « Story's Conf. Laws, sec. 174; Succession of Melissa Robinson, 23 La. An. 174.
 
 191 COMMUNITY PKOPERTY. § 133 
 
 married in Louisiana, where the law of community exists, 
 own immoveable property in Massachusetts, where such com- 
 munity is unknown, upon the death of the husband, the wife 
 would take her dower only in the immoveable property of her- 
 husband, and the husband, iipon the death of the wife, would 
 take, as tenant by curtesy, only in the immoveable property 
 of his wife."^ 
 
 § 133. Lands given by the sovereign to either of the 
 spouses, during coverture, formed, according to the laws of 
 Spain, the separate property of the one in whose name the 
 gift was made, except when the gift was in consideration of 
 military services rendered by the husband, without pay, and 
 while he was supported out of commimity assets.- This law 
 has been held to be applicable to a donation made by the 
 United States government to a citizen of Louisiana, while the 
 laws of Spain were still in force in that State. ^ The chief 
 test for determining whether property acquired by either hus- 
 band or wife during the marriage was commimity assets, under 
 the laws of Spain, was to ascertain whether it was acquired 
 by onerous title. If so acquired, it belonged to the com- 
 munity. ' 'An onerous title is defined to be that by which we 
 acquire anything, paying its value in money, or in any other 
 thing, or in seiwices, or by means of certain charges and con- 
 ditions to which we are subjected."* The grants of land 
 made to married men in Texas, under the colonization law 
 of 1823, and also lands acquired by husbands, as heads of 
 families, under the act of January 4, 1839, have been treated 
 in that State as acquisitions by onerous title, and as being, 
 on that account, exempt from the general rule that grants 
 from the sovereign are the separate estate of the grantee.* 
 The decisions in Texas are based upon the theoiy that as the 
 gift from the government was made upon certain conditions 
 with which compliance was necessary, and as certain fees were 
 
 ' Story's Confl. Laws, sec. 454. 
 
 - Wilkinson v. Am. Iron Mountain Co. 20 Mo. 128; Frique v. Hoplcins, 4 Mart. N. S. 
 212; Eouquier v. Rouquier, 5 Mart. N. S. 98; Gayosa v. Garcia, 1 Mart. N. S. 334. 
 •' Hughey v. Bai'row, 4 La. An. 250. 
 * Yatea v. Houston, 3 Tex. 453; Noe v. Card, 14 Cal. 5%. 
 i Wilkinson v. Wilkinson, 20 Tex. 242; Yates v. Houston, 3 Tex. 453.
 
 g 133 COMMUNITY PROPERTY. 192: 
 
 required to be paid to certain officers of the government, the 
 acquisitions were by onerous and not by lucrative title. The 
 judicial tribunals of California dissent from those of Texas 
 upon this subject. A Justice of the Peace, under the Mexi- 
 can government, granted a lot in the present city of San 
 Francisco to one Noe, subject to the conditions that, within 
 one year, the lot should be fenced and have a house built 
 thereon, and certain municipal fees established by law paid. 
 In regard to these conditions, the Court, by Chief Justice 
 Field, said : ' 'At the civil law, as at the common law, dona- 
 tions may be accompanied with conditions, the performance 
 of which may be required for the possession or enjoyment of 
 the property donated. When the donation is solicited for 
 specific purposes, it may be accompanied with conditions 
 limiting the property to such purposes without changing the 
 character of the act, even when the conditions impose the 
 discharge of expensive and burdensome duties. Thus, if one 
 should solicit a gift of land in order that he might construct 
 a church or college thereon, and the land should be granted 
 on condition that such church or college should be erected, 
 the gift would be none the less a donation for the presence of 
 the condition. * * * The premises were not, therefore, the 
 less gratuitously given or the less valuable to him, because 
 granted subject to the condition of their appropriation to that 
 end. The house and fence were to be built for the benefit of 
 the donee, and not for the government. There was, therefore, 
 no consideration in the performance of these acts, moving to 
 the government, which can be regarded in the nature of a 
 price, which is essential in all contracts of sale. The condi- 
 tion requiring the construction of house within a year was 
 very generally annexed to grants made under the Mexican 
 government in California, whether the grant embraced a city 
 lot or leagues of land. The performance of the condition 
 was exacted in furtherance of the general policy of the Re- 
 public to induce settlements, and not as a price to the gov- 
 ernment upon any notions of sale." The Court were also of 
 the opinion that the fees required to be paid ' ' were altogether 
 incidental to the grant, and formed no part of its considera-
 
 193 COMMUNITY PROPERTY. §§ 134-35 
 
 tion/' and that the title to the lot vested in Noe, as his sep- 
 arate estate.^ 
 
 § 134. Property purchased before marriage remains 
 
 the separate property of the spouse by -whom it was so pur- 
 chased, though the conveyance was not made until after the 
 celebration of the marriage. If the purchase be made be- 
 fore marriage, and money be thereafter draAvn from the com- 
 munity funds to complete the payment, the property is never- 
 theless, iu Louisiana, considered as separate propeiiy, but 
 the funds so drawn are a charge in favor of the community 
 and against the spouse for whose benefit they have been ap- 
 propriated.^ 
 
 g 135. Rights of property acquired during coverture 
 
 are not divested from the community by the death of either 
 member thereof, before the acquisition of a perfect legal title. 
 In Texas, C and his wife, in 1846, settled a tract of land, and 
 continued to occupy the same until her death in 1848. After 
 her death, her husband, continuing on the land, received, in 
 1850, from the commissioner acting for the State, a certifi- 
 cate, as a married man, for six hundred and forty acres of 
 land. The claim was made before the commissioner after 
 the death of the wife, but was based upon settlement per- 
 fected in her lifetime, and allowed accordingly. In a contest 
 between the husband, claiming the lands as his separate 
 estate, and the children, claiming as heirs of their mother, 
 the Court thought that there could "be no question that the 
 land was the community property of C and his wife, or, to 
 speak more accurately, that C and his wife acquired such in- 
 choate right, by their settlement and occupation of the land, 
 as entitled the surviving husband to have the certificate issue 
 to him, and that, when the land was secured by the certificate 
 issued by Ward, commissioner, and the subsequent survey, 
 the title inured to the benefit of the heirs of the deceased 
 wife."* The principles here applied to title acquired by oc- 
 
 I No6 V. Card, 14 Cal. 595. Seo also Wilson v. Castro, 31 Cal. 420; Scott v. Ward, 
 13 Cal. 468; Fuller v. Ferguson, 26 Cal. 546. 
 ■■' LawBon v. Ripley, 17 La. 251. 
 ^ Cannon i'. Murphy, 31 Tex. 407. 
 
 C. & p.— 13
 
 g§ lo6-37 COMMUNITY PROPEBTY. 194 
 
 cupation in the lifetime of the wife, are equally applicable 
 where property has been purchased by the husband during 
 coverture, and the conveyance, in pursuance of such pur- 
 chase, is made subsequent to the death of his wife.^ The 
 rights of the wife's heirs can only be enforced against the 
 husband, or against some one claiming under him, with 
 notice that he held the title in trust for the community. ^ 
 
 § 136. A gift in the name of both husband and wife 
 
 may be shown to have been intended for her sole benefit. 
 The Supreme Court of Texas, in considering a case involving 
 this question, reasoned as follows: "The evidence shows that 
 the donor intended the husband to act as trustee. Had the 
 gift been to the husband alone, it might have been shown by 
 parol evidence that the gift was in trust for the use of the 
 wife. It has been held in several cases that the creation of 
 trusts by parol, and the proof of them by parol evidence, has 
 not been prohibited by the statutes of this State; and if a 
 trust for the wife, by parol, could be fastened upon a separate 
 gift to the husband, much more naturally and reasonably 
 would it attach to a joint gift to the husband and wife. We 
 conclude that parol evidence was admissible to show that the 
 gift, though joint to husband and wife on the face of the deed, 
 was intended and should operate only as gift to the wife."" 
 
 g 137. Lands purchased with the separate property of 
 
 the wife, but conveyed to the husband, are nevertheless, in 
 California, as between the husband and wife, her separate 
 property.* Whether the decisions declaring such property to 
 be the separate estate of the wife, are to be understood as 
 meaning that she is invested with the legal title, does not 
 clearly appear. It is far more probable that, upon this pre- 
 cise question being presented, the Court would hold that the 
 husband held the legal estate in trust for his wife. This 
 seems to be the view of the matter sustained by the adjudi- 
 cations upon this subject in Texas. '^ But in Louisiana, if 
 property be purchased in the name of the husband, but paid 
 
 ' Morris v. Coviugton, 2 La. An. 259. - Sexton v. McGill, 2 La. An. 190. 
 
 ■' Dunham v. Chatham. 21 Tex. 247. * Ptich v. Tubbs, 41 Cal. 34. 
 
 5 Dunham v. Chatham. 21 Tex. 247.
 
 195 COMMUNITY PROPERTY. §^ 138-39 
 
 for out of the separate estate of the wife, it becomes assets of 
 the community, but the i^rice given constitutes a legal charge 
 in favor of the wife against the community.^ "The husband, 
 employing a fund belonging to the wife, in the purchase of 
 property in his own name, without her consent, becomes the 
 owner as head of the community, and owes to his wife the 
 amount thus employed."- In all cases, in Louisiana, where 
 it shall be proved that the husband has received the amount 
 of any paraphernal property alienated by the Avife, or has 
 "other-snse disposed of the same for his individual interest, 
 the wife shall have a legal mortgage on all the property of 
 her husband for the reimbursing of the same."-' 
 
 ^ 138. The improvements made upon the separate 
 estate of either of the spouses, during the marriage, were, 
 like other property acquired during coverture, assets of the 
 community, unless paid for out of separate funds, or pro- 
 cured otherwise than by onerous title. But where the im- 
 provements were fixtures attached to the soil, and could not, 
 in the nature of things, be divisible in specie, the community 
 estate was reimbursed for their cost out of the separate estate 
 of the spouse upon whose property the improvements had 
 been constructed.* 
 
 g 139. In Texas, crops grown upon the separate land of 
 the wife, and cultivated by her slaves, are nevertheless com- 
 munity property. The statute allows her to retain the in- 
 crease of her lands as her separate estate. The Supreme 
 Coui-t conceded that the terms " increase of lands" were suffi- 
 cient to include crops raised thereon; but thought that to 
 allow the words to have this meaning " would lead to results 
 wholly inconsistent with the recognized principles of law 
 upon which the system of community is based." '^" ^' * 
 "The principle," said the Court, " Avhich lies at the founda- 
 tion of the whole system of community property is, that what- 
 ever is acquired by the joint efforts of the husband and wife 
 
 ' Brown v. Cobb, 10 La. 181; Le Blaise v. Lo Blauc, 20 La. An. 207. 
 •■' Comeau v. Fontenot, 10 La. 407. 
 ■•* Civil Code La. Art. 23G7. 
 
 * Rice 11. Rice, 21 Tex. 6G; Frique v. Hopkins, 4 Mart. N. S. 220; Uouiiiijjuez v. Lee, 
 17 La. 300; Hughev v. Barrow. 4 La. An. 249; Noi'- v. Oarcl, 14 Oal. 505.
 
 ^ 140 COMMUNITY PROPERTY. 1^6 
 
 shall be their common property. It is true, that in a particu- 
 lar case, satisfactory proof might be made that the wile con- 
 tributed nothing to the acquisitions; or, on the other hand, 
 that the acquisitions of property were owing wholly to the 
 wife's industry. But from the very nature of the marriage 
 relation, the law cannot permit inquiries into such matters. 
 The law therefore conclusively presumes that whatever is 
 acquired, except by gift, devise, or descent, or by the ex- 
 change of one kind of property for another kind, is acquired 
 by their mutual industry. If a crop is made by the labor of 
 the wife's slaves on the wife's land, it is community property, 
 because the law presumes that the husband's skill or care 
 contributed to its production; or, that he, in some other way, 
 contributed to the common acquisitions."^ 
 
 § 140. "The increase of slaves and animals, by the 
 early laws of Spain, belonged to the spouse who brought 
 them into marriage. By the later statutes, however, and the 
 modern jurisprudence of that country, the produce of these 
 things are considered to result as much from the care and 
 solicitude of the possessors as from nature; and that, as 
 such, they form a part of the gains which are to be divided 
 between the husband and wife."^ In Texas, the children of 
 a slave were held to be the property of the spouse to whom 
 the mother belonged;" but the increase of all other animals 
 owned by either spouse, was deemed to be community prop- 
 , erty.'' In California, a man, engaged in the business of deal- 
 ing in live stock, had accumulated, at the time of his mar- 
 riage, about twenty thousand doUars worth of property, 
 consisting of horses, cattle, and some money. After the 
 marriage, he continued in business as before, for about five 
 years, when he died, leaving an estate of the value of about 
 forty thousand dollars, and composed of four thousand dol- 
 lars worth of the stock possessed at his marriage, and of the 
 increase of such stock, together with other stock bought with 
 the proceeds of sales of the original stock. The Court held 
 
 ' De Blane v. 'Lynch, 23 Tex. 28; Fortes v. Dunham, 2i Tex. 611. 
 ^ Ducrest v. Bijeau, 8 Mart. N. S. 198; Bonner v. Gill, 5 La. An. 630, 
 a Cartwright v. Cartwright, 18 Tex. 629. 
 * Howard v. York, 20 Tex. 670; Bateman v. Bateman, 25 Tex. 270.
 
 197 COMMUNITY PROPERTY. § 141 
 
 ' ' that as the deceased was engaged iu no other business, the 
 profits, or common property, were made up and constituted 
 by the dilference between the original value of the capital 
 and the value of the property held at the time of the death, 
 less the community' debts. "^ 
 
 § 141. Rents, Produce, and Profits in California.— By 
 
 section fourteen of article eleven of the Constitution of the 
 State of California, "All property, both real and personal, of 
 the wife, owned or claimed by her before marriage, and that 
 acquired afterwards by gift, devise, or descent, shall be her 
 separate property." The Legislature, subsequently to the 
 adoption of this Constitution, enacted that the rents and 
 profits of the separate estate of either husband or wife should 
 be deemed common property, except in certain cases specified 
 in the act. The Supreme Court declared this act unconstitu- 
 tional and void, so far as it operated upon the separate estate 
 of the wife. The terms separate property, according to the 
 views of the Court, included not merely the legal title, but 
 also the right to the beneficial enjojnnent of property. "It 
 is not perceived," said the Court, " that propei-ty can be in 
 one, in full and separate ownership, with a right in another 
 to control it, and enjoy all its benefits. The sole value of 
 property is in its use : to dissociate the right of property from 
 the use in this class of cases, would be to preserve the name — 
 the mere shadow— and destroy the thing itself, the substance."" 
 The same Court subsequently applied what it deemed the log- 
 ical conclusions resulting from the decision above referred 
 to, in a case where the husband had ostensibly carried on the 
 business of farming lands belonging to his wife. The hus- 
 band and wife resided on these lands. He had raised a crop 
 of wheat, which was attached on a wi'it issued against him. 
 Whereupon the wife sued the attaching officer for damages 
 occasioned by his levy; and the officer claimed that the hus- 
 band had, from the circumstances of its production, some 
 interest in the crop. The wife's claim was sustained, because 
 "all property which can be shown to belong to the separate 
 
 ' Lewis V. Lewis, 18 Cal. 059. 
 
 •■' George v. RanHom. 15 Cal. 323; Spear v. Ward, 20 Cal. 074.
 
 §g 142-43 COMMITN'ITY PROPERTY. 198 
 
 estate of the wife, by satisfactory testimony, whether the same 
 be real, personal, or mixed, and all the rents, issues, and 
 profits thereof, whether the same be the fruit of trade and 
 commerce, of loans and investments, or the spontaneous pro- 
 duction of the soil, or wrested from it by the hand of in- 
 dustry, is, under the Constitution, sacred to the use and en- 
 joyment of the wife. -^^ * ^ The husband cannot, by any 
 independent act of his, acquire an interest in the separate 
 estate of the wife. It is even doubtful whether the Legisla- 
 ture can confer upon him, against her consent, a dominion 
 over her property sufficient for the purpose of management 
 or control. However that may be, it cannot go beyond that 
 point. That the husband cannot, by his management, super- 
 vision, or labor, acquire any interest iu the estate itself, is 
 conceded; and by parity of reasoning, he cannot acquire any 
 interest in the increase, for that is hers also, and vipon the 
 same terms — the latter being a corollary of the former pro- 
 position."' 
 
 g 142. Mixed Title. — A tract of land may be owned 
 partly by one of the spouses as his or her separate estate, 
 and partly by the community. If a purchase be made in the 
 name of the wife, and part only of the price be paid out of 
 her separate estate, she acquires ' ' a separate interest in the 
 land in proportion to the amount of the purchase price paid 
 for out of her separate property ; and the balance of the pur- 
 chase, not x^aid for with the separate means of the wife, is 
 community property."'^ 
 
 PRESUMPTION THAT PROPERTY IS COMMUNITY. 
 
 g 143. The presumption of law in regard to all property 
 acquired by or in the name of either husband or wife during 
 the continuance of the marital relations, is that it is community 
 property. This presumption, as we shall hereafter show, is 
 not conclusive. But it must first be removed by satisfactory 
 evidence before any of the acquisitions of the spouses, vest- 
 ing in them, or either of them, subsequently to the marriage,^ 
 
 ' Lewis V. Johns. 24 Cal. 102. 
 
 - Claiborne v. Tanner, 18 Tex. 72; Love i' Robertson, 7 Tex. 6.
 
 199 COMMUNITY PKOPEKTY. g 143 
 
 can be treated as separate property. So if tlie date of the 
 acquisition be so uncertain that it cannot be clearly ascer- 
 tained whether it belongs to the community or not, all doubts 
 will be determined against those asserting the existence of a 
 separate estate. There may also be a doubt whether the 
 community existing between the spouses was legal or conven- 
 tional. x\nd here the burden of proof is upon those who 
 seek to have the commtmity treated as conventional. If the 
 wife admits the existence of an antenuptial agreement, affect- 
 ing her marital relations in regard to property, still she is not 
 bound to keep possession of the agreement and produce it 
 whenever a contest may arise between herself and the heii's 
 of her husband. "A wife seldom takes the precaution of pre- 
 serving a copy of her marriage contract. It is deposited with 
 the notary for the benefit of every person interested therein ; 
 and when she places her person and property in the power of 
 a man, a woman seldom keeps her papers from him. The law 
 rendering the wife, by the marriage alone, a sharer of the prop- 
 erty acquired by the husband, if this advantage was renounced 
 by the marriage contract, or if any other change was made in 
 the provisions of the law, he ought to produce the contract."' 
 It may be stated as a general principle of law, applicable 
 at least in every part of North America where the comnmnio 
 bonorum has been adopted in any form or to any extent, that 
 all property held by husband and wife, or either of them, 
 or standing in the names of both, or in the name of either, 
 is presumed to belong to the community, until the contrary is 
 shown.^ This presumption, according to some of the author- 
 ities, may be more easily overcome when a deed is taken in 
 the name of the wife, than when one is taken in the name of 
 the husband, because it is much more unusual for conveyances 
 intended for the benefit of the community to be made to the 
 
 ■ Bruneau r. Bmneau's Heirs, 9 Mart. 219. 
 
 ' City Ins. Co. v. Steamboat Lizzie Simmons, 1!) La. An. 249; Bouligiiy i'. Fortier, 
 16 La. An. 213; Block v. Melville, 22 La. An. 1-17; Sulstrang r. Belts, 24 La. An. 295; 
 Hti.ston V. Curl, 8 Tex. 242; Love v. FioLertson, 7 Tex. 11; lliggins v. Johnson, 20 
 Tex. 394; Barbour v. FaircLikl, G Lower Canada Eep. 113; Succession of Wado, 21 
 La. An. 345; Chapman v. Alden, 15 Tex. 278; Smith v. Smith, 12 Cul. 224; Ford v. 
 Ford, 1 La. Eep. 20G; Smalley i\ Lawrence, 9 Kob. La. 214; Fisher c. Gordy, 2 La. 
 An. 763; Scott v. Ward, 13 Cal. 470; Mitchell r. Man-. 2(iTex. 331; Cooke v. Bremond, 
 27 Tex. 457; Provost v. Dclalioussaye, 5 La. An. (iio.
 
 g 144 COMMUNITY PROPERTY. 200 
 
 former than to the latter. ' ' This invariable presumption, which 
 attends the possession of property by either spouse during 
 the existence of the community, can only be overcome by 
 clear and certain proof that it was owned by the claimant 
 before marriage, or acquired afterwards, in one of the par- 
 ticular ways specified in the statute, or that it is jDroperty 
 taken in exchange for, or in the investment, or as the price of, 
 original property so owned or acquired. The burden of proof 
 must rest with the claimant of the separate estate. Any other 
 rule would lead to infinite embarrassment, confusion, and 
 fraud. In vain would creditors or purchasers attempt to show 
 that the particular property seized or bought was not owned 
 by the claimant before marriage, and was not acquired by 
 gift, bequest, debase, or descent, or was not such property 
 under a new form consequent upon some exchange, sale, or 
 investment. In vain would they essay to trace, through its 
 various changes, the disposition of any separate estate of the 
 wife, so as to exclude any blending of it with the particular 
 property which might be the subject of consideration."^ 
 When the mfe alleges that property le^sded upon as com- 
 munity assets is her separate estate, because it was acquired 
 after the dissolution of the community of property, or after a 
 judgment of separation of propeiiy between herseK and her 
 husband, the presumption that it is common property must be 
 rebutted by her, and if the judgment of separation of prop- 
 erty be attacked by the creditor on that ground, she must show 
 affirmatively its reality and good faith.^ 
 
 I 144. A deed taken in the name of the wife was 
 referred to in the preceding section; and the statement was 
 there made that, according to some of the authorities, such a 
 conveyance did not create so strong a presumption that the 
 property thereby acquired became community, as though the 
 deed were taken in the name of the husband. In one of the 
 authoriiies thus referred to, this question is discussed and 
 determined as follows : 
 
 "A deed of purchase, taken in the name of the husband or 
 
 ' Meyer u. Kinser, 12 Cal. 253. 
 
 ^ Webb V. Peet, 7 La. An. 92; Harden v. Nutt, 4 La. An. 66; Dennistoun v. Nutt. 2 
 La. An. 483.
 
 201 COIIMUXITY TEOPEKTY. g 144 
 
 the wife, has a twofold aspect or character. It may be a con- 
 veyance of separate, or it may be a conveyance of common 
 property, though as a general rule the purchase belongs to 
 the community; and therefore arises the presumption, that 
 though the deed, upon its face, conveys a separate right to 
 the husband or vnie, yet the conveyance is in fact for the 
 benefit of the community. The presumption that the deed 
 to the husband is a conveyance to the commimity is, under 
 ordinary circumstances, much more strong than when the 
 deed is to the wife. The husband has the active dominion 
 and control over the common property. He can alienate, ex- 
 change, or dispose of it, without the consent of his partner 
 in matrimony; and his acts, if not done with a fraudulent in- 
 tent to her injury, will be good. He sells and purchases in 
 his own name. Conveyances are rarely taken by the husband 
 in the joint name of himself and wife, or in her name alone; 
 and therefore, when made in the name of the Avife, b}" the 
 direction of the husband, the presumption that the property 
 belongs to the common gains has not the force attached to it 
 when arising upon a deed to the husband in his own name."' 
 The language here employed clearly indicates that the pre- 
 sumption that a conveyance to one of the spouses is for the 
 benefit of the community, is not so strong Avhen the convey- 
 ance is to the wife as when it is to the husband. But this 
 language was employed in the consideration of a controversy 
 arising between a wife and the creditors of her husband, the 
 debts being contracted after the making of the conveyance. 
 This controversy could be determined on the same principles 
 as though it were between the husband and wife, as, under 
 these circumstances, the creditors had acquired no greater 
 rights than were vested in the husband subsequently to the 
 conveyance. Therefore, if the language quoted can be re- 
 garded as establishing the rule that stronger proof is required 
 to rebut the presumption arising from a conveyance to a hus- 
 
 ' Hifj'giuH V. Johnson, 20 Tex. 395; appi-ovcd in Sniitli i'. Boqutt, 27 TfX. 513. In 
 the last named case the statement is made, that if the husband •' jjurchuse with liis 
 separate property or community funds, and take the title in the name of tlie wife, the 
 presumption, as between themselves and all others not claiming as innocent pur- 
 cliasers, will be that the properly was intended for her and not for himself or th^- 
 communitv."'
 
 ^ 145 COMMUNITY PROPERTY. 202 
 
 band than would be necessary to accomplish a like result if 
 the conveyance were to the wife, this rule must, in its opera- 
 tion, be limited to controversies between husband and wife, 
 or between the husband or wife and some third person, who 
 is not to be regarded as a purchaser without notice. But the 
 general rule seems to be too well established to admit of any 
 considerable doubt, that the fact that the title is taken in the 
 name of the wife " does not raise even a presumption in her 
 favor. " ^ 
 
 ^ 145. To rebut the presumption that a conveyance 
 made to one of the spouses was intended for the benefit of 
 the community, evidence may, at least as against either hus- 
 band or wife, and those claiming under them, or either of 
 them, with notice, be introduced to show that the purchase 
 was made with the separate funds of either spouse, or to 
 show any other fact or facts tending to impart to the acquisi- 
 tion the character of separate estate.^ But a more important 
 question, and one involved in more doubt, is whether, as 
 against third persons not affected by notice of its true charac- 
 ter, a conveyance made to either husband or vnie, containing 
 no expressions on its face tending to show that it is not de- 
 signed as a conveyance to the community, can be proved to 
 be a conveyance to the grantee as his or her separate prop- 
 erty. In Texas, it is clear that a deed made to a wife cannot 
 be shown to be intended as a conveyance to her as her sep- 
 arate property, as against the grantee of her husband, unless 
 such grantee had notice of the wife's interest. "We know of 
 no principle upon which such evidence can be received for 
 the pui-pose of explaining or modifying such deeds, after the 
 property has passed into the hands of innocent purchasers, 
 and thereby engrafting upon it a trust to their detriment. 
 Such a doctrine would go far to destroy the utility of written 
 evidences of title to land, and the registration of conveyances 
 for the purpose of notice. The inspection of a deed only 
 
 1 Smalley v. Lawrence, 9 Rob. La. 214; Davidson v. Stuart, 10 La. R. 147; Andrew 
 D.Bradley, 10 La. An. 606; Meyer v. Kinzer, 12 Cal. 253; Kohner v. Ashenauer, 17 
 Cal. 581; Succession of Wade, 21 La. An. 345; Block v. Melville, 22 La. An. 147. 
 
 - Woods V. Whitney, 42 Cal. 361; Smith v. Boquet, 27 Tex. 512; Peck v. Brumma- 
 gim, 31 Cal. 441; Ingersoll v. Truebody, 40 Cal. 612.
 
 203 COMMUNITY PROPERTY. ^ 146 
 
 charges a party witli notice of the facts which its contents 
 import. An inspection of this deed authorized the defendant 
 in error to infer that the property was a part of the community 
 estate, and justified him in dealing with it as such. T^at the 
 title when acquired by the community A\as taken in the name 
 of the wife, imposes no additional burden upon the purchaser 
 of inquiring as to the equities of husband and wife in respect 
 to it." ' But the decision here quoted from is certainly against 
 reason and against a majority of the authorities on the subject. 
 Necessarily, the rule must be different where the conveyance 
 is made to the wife from what it is where the conveyance is 
 made to the husband. He has full control over the community 
 property; he alone can make a valid contract to purchase, or 
 execute a valid conveyance. The natural way of condaicting 
 the affairs of the community would be to take conveyances 
 of real estate in his name. When the deed is made to tiie 
 wife, the transaction is not being conducted according to the 
 natural and usual way of acquiring community property. It 
 is true the acquisition may be for the benefit of the com- 
 mrmity ; but it is equally trae that it may be for the exclusive 
 benefit of the wife. The pm-chaser, as he derives title through 
 this deed, is, of course, charged with notice of its contents, 
 and of the fact that the wife alone is named as a grantee. 
 That she is so named, is inconsistent with the ordinary course 
 pursued in obtaining community assets, but agi-eeable to the 
 methods naturally and necessarily employed in acquiring title 
 to be held as her sole and separate estate. Ought not a pur- 
 chaser to be required to exercise some care in ascertaining 
 why this business has been conducted in her name, and why 
 a departure has been made from the common form of convey- 
 ances intended for the benefit of the community? 
 
 g 146. The Courts of the State of Louisiana have con- 
 sidered the question referred to in the preceding section, and 
 have reached a conclusion very different from that subse- 
 quently announced by the Supreme Court of Texas. " It is 
 true," said the Supreme Court of Louisiana, "as a general 
 rule, that the law considers to be common property that which 
 
 ' Cooke I'. Br< iiir.iul. 27 T. \. 400.
 
 g 146 COMMUNITY PllOPERTY, 204 
 
 is acquired by husband and wife during the marriage, although 
 the purchase be in the name of one of the two, and not of both. 
 The reason is, that in that case, the period of time when the 
 purchase is made is alone attended to, and not the person who 
 made it. But we are not ready to say that no distinction 
 ought to be made when the property is clearly shown to have 
 been bought by the separate funds of one of the parties, and 
 particularly with the funds of the wife which never came under 
 the administration of the husband. It is a well settled doc- 
 trine in our jurisprudence, that money received during the 
 marriage, even by the husband, on account of the wife, does 
 not fall into the community, but remains her separate prop- 
 erty. According to article 2361 of the Louisiana Code, the 
 wife has the right to administer personally her paraphernal 
 property without the assistance of her husband; and by article 
 2315, paraphernal is considered as the separate property of 
 the wife. There necessarily results from these provisions of 
 the law a power allowed to the wife to administer alone her 
 paraphernal estate as she pleases; and a right to alienate her 
 separate property, and to invest her paraphernal funds in 
 whatever manner she thinks proper and most advantageous 
 to her interest, provided she does it with the authorization of 
 her husband."' The principles announced in the opinion 
 from which the preceding quotation was made were, a few 
 years later, applied by the same Court, in a contest between 
 the wife and the creditors of the husband. The creditors 
 insisted that if the separate property of the wife had been 
 employed in the purchase, this fact should have been ex- 
 pressed in the act by which she acquired the property; but 
 the Court disposed of this claim as follows: "The objection 
 does not appear to us to be founded in law. In regard to 
 creditors, such a statement would of itself be without effect, 
 except in giving notice to third persons. But as the husband 
 is the head and master of the community, having alone the 
 administration, a purchase in the name of the wife would not 
 be in the usual course of business, and consequently would 
 be sufficient to put third persons upon inquiry. As this rule 
 seems to be applicable to promissory notes signed by the wife, 
 
 1 Dominguez v. Lee, 17 La. 299.
 
 205 COMMUNl'^Y PROPERTY. § 147 
 
 we see no reason why it should not be eqnaUy applicable to 
 other contracts entered into by her. The wife, if required, 
 would be bound in all cases to establisL the realit}' of the sale 
 to her, dehors the act; and the same proof would be necessarj- 
 in order to make her acknowledgment in the act binding 
 upon her."^ 
 
 § 147. Conveyance to Wife, Rule in California. — The lan- 
 guage quoted in the last section clearly indicates that the Court 
 considered that the fact that a conveyance was made to the 
 wife was sufficient to put the purchaser upon inquiry in refer- 
 ence to the true intent and effect of the deed. But as the 
 controversy arose between the wife and her husband's credi- 
 tors, and not between her and the husband's grantee, the lan- 
 guage of the Court has only the force which may be accorded 
 to an emphatic declaration of the opinion of the Court upon 
 a matter considered by way of illustration or argument, but 
 not necessary to the determination of the case. But the ques- 
 tion has been put in issue and determined in California, as 
 will sufficiently appear from the following extract from an 
 opinion prepared. by Judge Sawder: 
 
 ' ' In this case, it was shown to the satisfaction of the Court, 
 that the premises in question were purchased with funds be- 
 longing to the separate estate of the wife. They became, 
 therefore, in fact, her separate property. The conveyance 
 was upon the face to the wife. The apparent record title was 
 in her, and not in her husband, Silas Fuller. The deed is 
 sufficient in law to convey a title to the wife, but whether it 
 did, in fact, convey an estate in common, or a separate estate,, 
 manifestly depended upon a fact dehors the deed. Ostensibly,, 
 the intent was to vest the title in the grantee named, Jane E. 
 Fuller. It did not appear on the face of the deed that the 
 grantee was a married woman — or that, being a married 
 woman, the consideration was paid out of her separate estate. 
 The deed, then, so far as shown upon its face, might have 
 conveyed a title absolute to a feme sole, a se]jarato estate to a 
 feme covert, or an estate in common to husband and wife. 
 Upon the best view for the plaintiff, the deed upon its face 
 
 ' Metcalf V. Clark, 8 La. An. 287. Htc also Goiior i'. Goiioi-, 11 Rob. L:i. ')-2Ck
 
 g 148 COMMUNITY PROPERTY. 206 
 
 was equivocal. But it aflforded to all persons, seeking to ac- 
 quire title under it, a clue to the title, wliicli they were bound 
 to pursue, or suffer the consequence of their laches. The 
 grantee is a woman. The presumption of law is that she is 
 sole, and prima facie a conveyance from her would pass the 
 title. But she may be married, and her deed may not pass 
 the title. The fact as to whether she is married or single, 
 all parties dealing with the land must ascertain, or omit to 
 do so at their peril. So, also, if a gi-antee of a conveyance 
 for a money consideration is a married woman at the date of 
 the conveyance, 'prima facie a conveyance by the husband, in 
 his own name, of the land so conveyed to the wife, will be 
 presumed to pass the title; but in fact it may not, for the 
 reason that the land may still be the separate property of the 
 wife, which he had no power to convey. And in such cases, 
 as in the case last mentioned, all parties claiming title through 
 the husband to lands, the title to which never stood in his 
 name, must ascertain, at their peril, whether he did in fact 
 have the power to convey. 
 
 The record title in this case was notice to all the world 
 that the land in dispute might be the separate property of 
 Mrs. Fuller, and every party dealing with it did so at his 
 peril. The plaintiff was, by the record, put upon inquiry as 
 to the true condition of the title. The grantee upon the 
 record was capable of taking the land, and was a different 
 person from the one from whom the plaintiff derives his title. 
 If the plaintiff did not avail himself of the means afforded 
 by the record to ascertain the true state of the title, it is his 
 own fault, and he cannot claim to be an innocent pur- 
 chaser."^ 
 
 I 148. Authority of Husband and Wife respectively. — 
 
 Under all the forms of community existing in North America, 
 the husband has the exclusive control and management of 
 the common property, with the right to convey or encumber 
 it as he may deem proper.^ The only limitation upon his 
 power in this respect is, that he shall not employ it for the 
 
 ' Ramsdell r. Fuller, 28 Cal. 43; approved, Peck v. Vandenberg, 30 Cal. 36. 
 - Higgins V. Johnson, 20 Tex. 396; Brewer v. Wall. 23 Tex. 588: Prinn v. Barton, 
 18 Tex. 206; Wright v. Hays, 10 Tex. 132.
 
 207 COMMUNITY PROPERTY. § 148 
 
 pm-pose of defrauding his wife of her interest as a member 
 of the commnnity. "A deed of gift of a portion of the 
 common property by the husband is not void per se. If the 
 gift be made with the intent of defeating the claims of the 
 wife in the common property, the transaction would be tainted 
 with fraud. In the absence of such fraudulent intent, a vol- 
 imtaij disposition of a portion of the property, reasonable 
 in reference to the whole amount, is authorized by the stat- 
 ute, which gives to the husband the absolute power of dis- 
 position of the common property as of his own sejaarate 
 estate."' But in Louisiana, the code prohibits the husband 
 from making any " conveyance infer vivos by a gratuitous title 
 of the immoveables of the community, nor of the whole or 
 of a quota of the moveables, unless it be for the establish- 
 ment of the children of the marriage. Nevertheless, he mav 
 dispose of the moveable effects by a gratuitous title to the 
 benefit of all persons."'^ If a note, made in consideration of 
 community property, or from any cause forming a part of the 
 community assets, is given to and in the name of the wife, 
 the husband, as the head of the community, can sue thereon 
 in his own name.'' But the authority vested in the husband, 
 as the head of the community, and by virtue of which he is 
 authorized to control and dispose of its assets, may, at least 
 in Texas, be transferred from him to the Avife, by his abandon- 
 ment of his position of head of the community, or by his 
 total incapacity to transact the business affairs of the marital 
 partnership. In the case in which this question was first de- 
 termined, the husband left his wife in Texas, and sought an 
 iisylum on the Rio Grande, beyond the limits of his State. 
 Here he remained for more than five years. During all 
 that time, the wife remained at home, took care of herself 
 and family, and assumed general control over the community 
 effects. About two years after she had been thus left by her 
 husband, .she acquired title, in her own name, to a tract of 
 
 ■ Lord r. Uougli, 4;f Cal. 584. 
 
 - Civil Code L:i. Art. 2;i7.3; BiHtor r. Mcn<<c. 21 Lu. An. 21(;: (ll.iiii r. Klain. .3 La. 
 All. 611. 
 
 * Crow V. Van Sickle, N( v. 148; Beigcl v. Lauge, 1!) La. An. 112. The law pro- 
 sumt's a note made t(i the wife to be couimiinity property. WcIIh v. Cochrane, 1-3 Tex. 
 128: Hommingwavf. Matthews,. 10 Tex. 207; Tr\on r. Sutton, i:i (,'al. 490.
 
 ?j 148 COMMUNITY PBOPERTY. 208 
 
 land, and nearly four years after, she made a deed of gift to 
 her son of a portion of this acquisition. The validity of this 
 conveyance was subsequently drawn in question, and was sus- 
 tained by the Supreme Court. In pronouncing judgment, 
 the Court announced the following views in regard to the re- 
 spective rights and powers of the husband and wife : ' ' Their 
 rights of property in the effects of the community are per- 
 fectly equivalent to each other. The difference is this, that, 
 during coverture, her rights are passive; his are active. He 
 has the free administration and disposition (if untainted by 
 fraud against the wife) of such property; and he is subject 
 to the corresponding duty of maintaining his wife and family, 
 and defraying out of this property the debts contracted dur- 
 ing marriage. So long as he discharges his duty as a hus- 
 band, his superior rights remain, unquestionably, in full 
 vigor. But when he abandons the administration of the com- 
 mon property, deserts his wife and country ; when he ceases 
 the discharge of his duties, and contributes in no mode to 
 the support of his wife and family, reducing the wife to the 
 necessity of providing for them, and of taking care of the 
 common property, or, otherwise, suffering it to go to waste; 
 and when this absence is prolonged several years — do not his 
 rights over the effects of the community, from the nature of 
 things, cease? and are not the passive rights of the wife 
 quickened into vigorous activity? 
 
 "She is necessarily compelled to assume the position of 
 the husband; to discharge his duties, and incur his responsi- 
 bilities; and her powers should correspond to the position 
 which, by the default of the husband, she is thus compelled 
 to assume; and especially should the controlling power of the 
 husband, over the goods of the community, be transferred to 
 the wife. Her right in the property is equal to that of the 
 husband. During his presence, he has the administration, 
 subject to the trusts incumbent on the property. This right 
 of control must necessarily cease where he can and will no 
 longer exercise it; and the wife, the other joint owner, must 
 be vested with the authority, or it cannot exist anywhere."^ 
 
 ' Wriglit V. Hays, 10 Tex. 133. Where the husband is absent, there is no reason or 
 rule of law prohibiting the wife from making such conh-acts respecting the commun-
 
 209 COMMUNITY rROPERTY. § 149 
 
 § 149. upon the decease of either of the spouses, the 
 community is at once terminated. The sui-vivor, whether 
 husband or wife, cannot alienate any more than his or her 
 moiety, nor make any contracts imposing any liability upon 
 the share of the deceased spouse. ^ By the law of community, 
 as it existed in Spain, and as it still exists in Texas'" and 
 Louisiana,^ upon the death of either spouse, his or her moiety 
 immediately vested in his or her heirs, subject to its propor- 
 tion of the community debts. The same rule prevailed in 
 California until the year 1861.-' At that time, the statute de- 
 linin"- the rights of husband and wife was so amended as to 
 provide that iipon the dissolution of the community by the 
 death of the wife, the entire common property shall, without 
 administration, vest in the husband; but upon the dissolution 
 by the death of the husband, one-half of the common prop- 
 erty vests in the wife, and the other half is subject to the 
 testamentary disposition of the husband; and in default of 
 such disposition, goes to his descendants. The husband 
 cannot, by any testamentary disposition, affect the wife's in- 
 terest in the community property.^ 
 
 ity property as are necessaiy for its preservation, or for the support of herself and 
 children. Cheek v. Bellows, 17 Tex. 616; FuUerton v. Doyle, 18 Tex. 12. Dui-ing 
 the insanity of the husband, the wife becomes the head of the community, and has 
 the same powers as in case of his abandonment of her. Forbes v. Moore, 32 Tex. 199. 
 
 • Broussard v. Bernard, 7 La. 222. This case is in harmony with the two preceding 
 citations; but is opposed by Jones v. Panaud, 1 Cal. 
 
 - Thompson v. Cragg, 2i Tex. 598. 
 
 a Walker v. Kimbrough, 23 La. An. 637. 
 
 ♦ Broad v. Broad, 40 Cal. 496. 
 
 i Conn V. Davis, 33 Tex. 208; Estate of Silvey, 42 Cal. 212- 
 
 C. <fc p.— 14
 
 CHAPTEE VIII. 
 
 EELATIONS OF COTENANTS. 
 Greneral Statement and Division of the Subject, $ 150. 
 
 RESTRAINTS ARISING FROM FACT OP COTENANCY. 
 
 Relations generally those of Mutual Trust, ^ 151. 
 
 Cannot assail Common Title, § 152. 
 
 An apparent exception to this rule, § 153. 
 
 Acquisition of Adverse Title, § 154. 
 
 Whether Adverse Title may be asserted by Tenants in Common holding under 
 
 different Deeds, § 155. 
 Waiver of right to claim benefit of purchase of Adverse Title, $ 156. 
 Procuring renewal of Lease by Co-Lessee, in his own name, $ 157. 
 Acquiring Tax Title, § 158. 
 Purchase from Grantee in Tax Deed, Q 159. 
 Husband of Cotenant, ^ 160. 
 
 Duration of Bestraints arising from Cotenancy, $ 161. 
 Bestraints of Cotenancy terminated by Eviction, § 162. 
 Whether there must be Title to make Cotenancy, $ 163. 
 No Restraint on Cotenants contracting with one another, § 164. 
 No Kestraints on buying interest of the other at forced sale, ^ 165. 
 
 ACTS PRESUMED TO BE IN SUPPORT OF COMMON TITLE. 
 
 Act of one presumed to be for Common Benefit, $ 166. 
 Entry of one confers Seizin on all, $ 167. 
 
 ACTS AND RESTRAINTS OF ONE COTENANT APFECTING THE OTHERS. 
 
 Estoppel against one, ^ 168. 
 
 Admissions of one, § 169. 
 
 Bepresentations of one, ^ 170. 
 
 Notice to one, § 171. 
 
 Acts of one not to prejudiop. the other, ^ 172. 
 
 Befusal by one, $ 173. 
 
 Beneficial Acts, § 174. 
 
 210
 
 211 EELATIONS OF COTENANTS. § 150 
 
 Acts to save Common Property, * 175. 
 
 Redemption of Lands, ^ 176. 
 
 Eeceiving Payment of Joint Rents, $ 177. 
 
 Receiving Payment of Joint Demand, § 178. 
 
 Release by one, ^ 179. 
 
 Giving Notice to Quit, ij 180. 
 
 Eeceiving Notice to Quit, ^ 181. 
 
 Cannot Contract for one another, ij 182. 
 
 Cannot Transfer for one another, i^S 183, 
 
 Cannot Pledge for one another, ^184. 
 
 Cannot create Easement, ^ 185. 
 
 May acquire Easement, ^ 186. 
 
 Easement, when not extinguished, § 187. 
 
 Agency and Ratitication, vS 188. 
 
 § 150. General Statement and Division of the Subject. — 
 It is self-evident that two or more persons cannot own the 
 same piece of property in undivided interests, without being 
 placed in a different relation towards one another than though 
 their ownership consisted of tenancies in severalty of distinct 
 articles of personalty or of segregated parcels of real estate. 
 In the first place, the unity of possession incident to every 
 species of cotenancy necessarily brings those entitled to the 
 possession in frequent contact with one another, and thereby 
 affords to the designing abundant opportunities for securing 
 the confidence of the unwary. The interests of the different 
 co-o^vners seem so identical that neither is likely to mistrust 
 the other of harboring any schemes at variance with a con- 
 tinued reliance upon and respect of the common title. And 
 while the relation of cotenancy is generally thus productive 
 of sentiments of mutual tnist between the several owners, it 
 Avould, but for the imposition of legal restraints, enable each 
 to betray those trusts, by taking advantage of those infirmities 
 in the common title, which, by reason of his common interest, 
 had been disclosed to him. In the second place, the fact that 
 the interest of each cotenant can usually be advanced only 
 through the general welfare of all, naturally induces one to 
 act for the advantage of the other; and creates a presumption, 
 in the absence of circumstances indicating a different design, 
 that the act of one is intended for the ])enefit of all. In the 
 third place, the fact that each cotenant is in law deemed to 
 be in possession with the otliors, and is iji fact often appar-
 
 g 151 RELATIONS OF COTENANTS. 212 
 
 ently in the exclusive possession, frequently invests one of 
 the cotenants with the most important indicia of title, and 
 leads third persons to believe either that he is the sole owner, 
 or at least the accredited agent of all the owners. 
 
 It is not to be expected that any system of jurisprudence, 
 which, like the common law, is to a great extent composed 
 of the precedents made, from time to time, by the application 
 of preconceived ideas of justice to the actual and ever vary- 
 ing exigencies of business affairs, would be created without 
 adapting itself to the various relations under which men may 
 be called upon to act; nor without containing distinct recog- 
 nitions of the principle, that an act proper and harmless 
 enough in some of the relations of life, should be discoun- 
 tenanced and forbidden in others. And therefore, as cotenants 
 must always in fact have stood in different relations towards 
 one another, than though they were tenants in severalty, the 
 common law came into being recognizing those differences, 
 and creating such rules as their existence made necessary. 
 These rules are the subject of this chapter; and in attempting 
 to show what they are, we shall consider our subject under 
 the three divisions in which, in our judgment, it is naturally 
 divided : 1st. "What restraints are imposed by law to prevent 
 a cotenant from betraying the trust arising out of the fact of 
 cotenancy; 2d. What acts may a cotenant safely presume to 
 exist in support of, and in subordination to, the common claim 
 of right; and 3d. By what acts, and under what circumstances, 
 can one cotenant affect the others, in dealing with third 
 parties. 
 
 EESTRAINTS ARISING FROM FACT OF COTENANCY. 
 
 § 151. Relations are those of Mutual Trust.— All the 
 restraints imposed upon cotenants in regard to their dealing 
 between one another in reference to the common property, 
 are founded mainly, if not exclusively, upon the theory that, 
 so far as the common subject of ownership is concerned, they 
 are each bound to defend the interest of the other; or if not 
 to defend, at least not to make any direct or indirect assault 
 upon such interest. The case of tenants in common coming 
 into joint possession of real estate as co-heirs or co-devisees,
 
 213 RELATIONS OF COTENANTS. g 151 
 
 has always been spoken of as creating special obligations 
 between the joint OA\-ners; in fact, as forbidding either to do 
 any act which could be unlawful or improper, if done by a 
 trustee charged with the care and preservation of a trust 
 estate. The general theory of the law upon this subject is 
 correctly represented by the following extract from an opinion 
 delivered in the highest judicial tribunal of the State of Ten- 
 nessee : 
 
 "Tenants in common by descent are placed in confidential 
 relations to each other by operation of law, as to the joint 
 property, and the same duties are imposed as if a joint trust 
 were created by contract between them, or the act of a third 
 party. Being associated in interest as tenants in common, 
 an implied obligation exists to sustain the common interest. 
 This reciprocal obligation will be enforced in equity, as a 
 trust. These relations of trust and confidence bind all to put 
 forth their best exertions, and to embrace every opportunity 
 to protect and secure the common interest, and forbid the 
 assumption of a hostile attitude by either."' 
 
 Tenants in common by descent are imder no other or greater 
 obligations towards one another than other cotenants fre- 
 •quently are. Where two or more come to an estate by devise 
 or descent from a common source of title, the relations between 
 them are presumed to be relations of trust and confidence. 
 Such a presumption may not appear so strong Avhere the co- 
 tenants acquire their respective interests, at difi'erent times 
 and by different conveyances; and it may, in certain cases, 
 disappear altogether. But where the cotenants acquired their 
 interest by a joint conveyance, under which they both went 
 into possession, there can be no doubt that the relation neces- 
 sarily produced is as much one of trust and confidence as 
 though it originated in devise or descent. And even where 
 the cotenants come to their titles at different times and from 
 different grantors, they may, by being in the actual joint pos- 
 session, and by a course of behavior in reference to one an- 
 other and to the common subject of ownership indicating an 
 intent to support and respect the common title, create relations 
 
 ' Tisdale v. Tisdale, 2 Sneed, 599. Sec also Vau Hoino v. Fonda, 5 Johns. Cli. 388; 
 Lee V. Fox, G Dana. 171; Picot v. Page, 26 Mo. 421.
 
 § 152 RELATIONS OF COTENANTS. 2M 
 
 of mutual trust and confidence asistrong in fact and as worthy 
 of consideration in law, as the relations growing out of the 
 acquisition of title from a common source, by the same pur- 
 chase or descent. If two or more agree to become tenants in 
 common of a tract of land, and one of their number is deputed 
 to make the necessary negotiations for its purchase, at the 
 most reasonable price for which it can be obtained, he occupies 
 such a relation towards the others as binds him to guard their 
 interests, and to make no profit for himself in the transaction. 
 If he represents to them that the land can be had at a speci- 
 fied price, and they thereupon contribute to the purchase by 
 paying their proportion of this price, they may, upon discover- 
 ing that he in fact procured the land for less than the amount 
 represented, retain their interest in the land, and recover back 
 from him the amount paid by them in excess of their propor- 
 tions of the true price. ^ 
 
 § 152. One cannot assail Cominon Title. — "The rule of 
 law, that a person coming into possession of lands under the 
 agreement or license of another, cannot be permitted to deny 
 the title of the latter, when called upon to surrender, is of 
 almost universal application."^ This principle extends to one 
 who takes possession by virtue of a claim of title, of which 
 title he is cotenant with others. Upon any contest arising 
 between himself and his cotenants, he cannot, at least while 
 remaining in possession, deny the validity of the common 
 source of title, nor defend himself by proving that the para- 
 mount title is in some third person." Thus, where property 
 descended to several as co-heirs, and one of them subse- 
 quently undertook to assail the ancestor's title, the Court, in. 
 determining that he could not be permitted to do so, said : 
 "John Streeter was the common source of title. His child- 
 ren, there being no will, are presumed to have taken the 
 premises by descent, as tenants in common. It is not for 
 the defendant to say that the common ancestor had no title, 
 and that his possession is not as a tenant in common, but in 
 
 ' King V. Wise, 43 Cal. 633. 
 " Phelan v. Kelley, 25 Wend. 391. 
 
 '■' Braintree v. Battles, 6 Vt. 395; Funk v. Newcomer, 10 Md. 301; Burnhams v. Van> 
 Zandt, 7Barb. 91.
 
 216 RELATIONS OF COTENANTS. ^ 153 
 
 his own individual right."' An action of ejectment was 
 brought for the undivided one-half of a tract of land, in 
 which the plaintiff's claim was based upon an alleged agree- 
 ment between himself and defendant to enter upon and hold 
 the lands in controversy for their equal benefit — each to con- 
 tribute his share towards the expenses of the common occu- 
 pation; and that, in pursuance of such agreement, the pos- 
 session was taken, and the contribution to the expenses 
 thereof was made. One of the defenses insisted upon was 
 that such agreement involved a contract to jump laud for 
 joint benefit, and wrongfully take it from a third person, and 
 was therefore void, as illegal and against public policy. This 
 portion of the defense was disposed of in the following lan- 
 guage: " If the case of the plaintiff be otherwise established, 
 the defendant cannot defeat it by the application of the maxim, 
 Ex dolo malo non oritur actio, nor set up in his defense that 
 both he and the plaintiff entered on the premises wrongfully 
 in the first instance. Upon well settled principles, he cannot 
 be permitted, if entering and remaining in possession as a 
 tenant in common, to assail the common title or draw its valid- 
 ity in question."^ 
 
 g 153. An apparent exception to the rule, that a eoten- 
 
 ant in possession cannot assail the common title, exists where 
 reliance is placed on an adverse occupation for a period suffi- 
 cient to create a bar by virtue of the Statute of Limitations. 
 This, though apparently an exception, is, upon close examina- 
 tion, found not to involve any violation of the general rule ; for 
 one cotenant who defends an action brought by another, on 
 the ground that the latter is barred by this statute, concedes the 
 title of the cotenant, and seeks to avoid it for not being as- 
 serted in proper time. A conveyance from any third person 
 claiming under some other title may be offered in evidence 
 by a defendant who has pleaded the Statute of Limitations 
 against his cotenant; and when so offered, it may be received, 
 not for the purpose of sustaining an. assault on the common 
 title, but in support of the plea of adverse holdhig.'' 
 
 ' JackHon v. Streeter, 5 Cow. 530. - lioniht-inier i\ Baldwin, 12 Cal. 3i. 
 
 » Phelan v. Kelley, 25 Wend. :yji.
 
 § 154 KELATIONS OF COTENANTS. 216 
 
 § 154. Purchase of Adverse Title. — A catenant cannot 
 take advantage of any defect in the common title by pur- 
 chasing an outstanding title or incumbrance and asserting it 
 against his companions in interest. The purchase is, not- 
 withstanding his designs to the contrary, for the common 
 benefit of all the cotenants. The legal title acquired by him 
 is held in trust for the others, if they choose, within a reason- 
 able time, to claim the benefit of the purchase, by contribut- 
 ing, or ofi'ering to contribute, their proportion of the purchase 
 money. ^ " This principle arises from the privity subsisting 
 between parties having a common possession of the same land 
 and a common interest in the safety of the possession of each, 
 and it only inculcates that good faith which seems appropriate 
 to their relative position."^ "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 him- 
 self, 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 
 obligations to do nothing to the prejudice of each other's 
 equal claim which the relationship of the parties created. 
 Community of interest produces a community of duty, and 
 there is no real difference, on the ground of policy and justice, 
 whether one cotenant buys up an outstanding incumbrance or 
 an adverse title, to disseize and expel his cotenant. It can- 
 not be tolerated when applied to a common subject, in which 
 the parties had equal concern, and which created a mutual 
 obligation to deal benevolently with each other, and to cause 
 no harm to their joint interest."^ 
 
 I 155. When Purchase of Adverse Title permitted. — 
 
 As the rule forbidding the acquisition of adverse titles by a 
 
 ' Titsworth v. Stout, 49 111. 78; Sullivan v. McLenans, 2 Clarke, M2; Eothwell v. 
 Dewees, 2 Black U. S. 613; Jones v. Stanton, 11 Mo. 433; Keller v. Auble, 58 Pa. St. 
 410. 
 
 ^ Venable v. Bcaucliamp, 3 Dana, 324. 
 
 » Van Home v. Fonda, 5 Johns. Ch. 407; Gossom v. Donaldson, 18 B. Monr. 230; 
 Picot 11. Page, 26 Mo. 421; Brown v. Homan, 1 Neb. 448.
 
 217 RELATIONS OF COTENAXTS. ^ 156 
 
 cotenant, from being asserted against his companions, is 
 always said to be based upon considerations of mutual trust 
 and confidence supposed to be existing between the parties, 
 the question naturally arises whether the rule is applicable 
 where the reasons on which it is based are absent. Joint- 
 tenants, tenants by entii-ety, and coparceners, always hold by 
 and under the same title. Their union of interest and of 
 title is so complete, that, beyond all doubt, such a relation of 
 trust and confidence unavoidably results therefrom that neither 
 will be pei-mitted to act in hostility to the interests of the 
 other in reference to the joint estate. Tenants in common, 
 on the other hand, may claim under separate conveyances, 
 and through different grantors. Their only unity is that of 
 light to the possession of the common subject of ownership. 
 As their connection is not necessarily so intimate as that of 
 other cotenants, it may well be doubted whether they should 
 always be subject to the restraints imposed upon the others. 
 There are many cases in which the rule in regard to the ac- 
 quisition of an adverse title by a cotenant is spoken of in 
 general terms as applying to tenants in common, irrespective 
 of their special and actual relations to one another. But an 
 examination of the decisions clearly shows that tenants in 
 common are not necessarily prohibited from asserting an ad- 
 verse title. If their interests accrue at different times, and 
 under different instruments, and neither has superior means 
 of information respecting the state of the title, then either, 
 iinless he employs his cotenancy to secure an advantage, may 
 acquire and assert a superior outstanding title, especially 
 where the cotenants are not in joint possession of the prem- 
 ises.' 
 
 g 156. Purchase of Outstanding Title, when may be 
 asserted. — The purchase made by a cotenant of an outstand- 
 ing title or incumbrance is not void, nor does the interest so 
 acc^uired by liim, or any part of it, by operation of law, vest 
 in his cotenants. They may not wisli to share in the benefits 
 of liis purchase; for, in their judgment, the title purchased 
 by him may not be paramount to that before held in common. 
 
 ' IJoberts v. Thorn, 25 Tex. 73G; Frontz v. Klotscli, 28 Wis. 317; Wright r. SiH.Try, 
 21 WiH. 331; Brittiu v. Handy, 20 Ark. 381; MatthvwH c. Bliss, 22 Pick. 48.
 
 § 157 RELATIONS OF COTENANTS. 218 
 
 The law gives them a privilege which they may assert. This 
 privilege consists in the right to obtain a conveyance of the 
 title bought in, upon their paying their share of the price at 
 which it was bought. The privilege may be waived by an 
 express refusal to reimburse the cotenant for his outlay, or 
 by such a course of action as necessarily implies such a 
 refusal. The right of a cotenant to share in the benefit of 
 a purchase of an outstanding claim, is always dependent on 
 his having, within a reasonable time, elected to bear his por- 
 tion of the expense necessarily incurred in the acquisition 
 of the claim.* A most natural and material inquiry, then, 
 is what is a reasonable time. To this inquiry no positive 
 answer can be given. In this, as in all other questions in 
 regard to reasonable time, no doubt each case must neces- 
 sarily be determined upon its own peculiar circumstances. 
 The cotenant asking a court of equity to award him the ben- 
 efit of a purchase, must show reasonable diligence in making 
 his election. Whatever delay he may have occasioned, must 
 be entirely consistent with perfect fair dealing on his part, 
 and in nowise attributable to an effort to retain the advan- 
 tages, while he shirks the responsibilities, of the new acqui- 
 sition. If his delay in making his election known can be 
 justly accounted for on the theory that he was waiting as "a 
 means- of speculation for himself, by delaying imtil the rise 
 of the land, or some event yet in the future, shall determine 
 his course, he will be deemed to have repudiated the trans- 
 action and abandoned its benefits."- Therefore, where a co- 
 tenant repudiated the purchase when made, and for more 
 than a year afterwards refused to contribute his ratio of the 
 price, he was, in equity, denied all right to participate in 
 the benefit of the purchase.^ 
 
 § 157. The rene-wal of a lease in favor of any of the 
 
 lessees is governed by the rules established by law in refer- 
 ence to the acquisition of an outstanding title by a cotenant. 
 The new or renewed lease is held by the lessee in whose name 
 it is taken, in trust for his co-lessees under the old lease, in 
 
 ' Leet'. Fox, 6 Dana, 177; Brittiu i\ Handy, 20 Ark. 403; Buchanan v. King, 22 
 Gratt. 414. 
 ^ Mandeville i\ Solomon, 39 Cal. 133; Buchanan i\ King, 22 Gratt. 414.
 
 219 RELATIONS OF COTENANTS. >5 158 
 
 proportion to their respective interests.' The parties in pos- 
 session under a lease are jointly entitled to participate in the 
 benefits of a renewal. Before either can take and hold a 
 lease to himself alone, his cotenants must have declined their 
 portion of its benefits, or have refused to submit to their 
 share of its obligations. But if two or more hold land by 
 virtue of a contract to purchase, and one of them refuses to 
 contribute his ratio of the amount unpaid, and for want of 
 such payment, the contract is forfeited, he who was willing to 
 pay his share may take a. new contract for the whole land for 
 his own benefit. No trust arises in favor of him who has 
 thus " unconscientiously and inequitably refused to pay his 
 proportion of the purchase money," and has thereby compelled 
 the other to make the best bargain he could. - 
 
 § 158. Tax Title. — As a general rule, no cotenant will be 
 permitted to assert against his companion a title acquired by 
 purchase at tax sale, for taxes imposed on their common 
 property during their joint ownership. Tax titles affecting 
 undivided interests may arise from a sale which includes the 
 interest of all the owners, or from a sale which includes the 
 interest of but one. Where, as in the former case, the co- 
 tenant purchasing at the sale is himself in fault, for not making 
 payment of the amount due on his own moiety, there is no 
 doubt that his purchase cannot be enforced against his com- 
 panions, except as a basis for compelling them to reimburse 
 him for their pro rata of the sum paid to release the common 
 property from a common bvirden.^ But where the purchasing 
 cotenant has paid his taxes, and is therefore free from fault, 
 and there is nothing in the relations between the parties im- 
 posing any obligation on either to pay the charge upon the 
 moiety of the other, then it is diifficult to assign any reason 
 for restraining the tenant not in default from bidding for his 
 own use at the tax sale. A payment by any of the tenants 
 relieves him from liability to loss through any subsequent 
 
 ' Burrell v. Bull, 3 Sandf. Cli. :!0; Palmer i\ Young, 1 Vcrn. 27G; ILiiniltou v. 
 Denny, 1 Ball & B. 199. 
 
 - Chapin v. Powers, 7 Paij^e, 147. 
 
 ^ Page V. Webbter, 8 Mich. 2G3; Butler v. Porter, 1.3 Midi. 292; Maulo v. IJidor, .'il 
 Pa. St. 377; Lloyd v. Lyndi. 28 Pa. St. 419: Dowikt's Adnir. v. Smith, 38 Vt. 407.
 
 g 159 KELATIONS OF COTENANTS. 220 
 
 sale. If any other undivided interest be sold, it must be de- 
 ducted from the moieties of those who are in default.' If the 
 parties whose interests have been released from the tax lien 
 are free from all further obligation, and have no interests 
 liable to be divested by the sale, then why should not they be 
 permitted to bid as freely and with the same effect as though 
 the sale were under an execution issued upon a separate judg- 
 ment against the other cotenant? In California, a sale of the 
 whole property to a tenant in common has been held to pass 
 the legal title to him, on the ground that the "statute under 
 which the sale was made gives conclusive effect to the deed, 
 except as against actual frauds and prepayment of taxes." 
 The decision here referred to was made upon an appeal from 
 an order granting the purchaser a writ of assistance to place 
 him in possession of an undivided interest in certain real 
 estate. That, even under this statute, the purchaser may be 
 treated in equity as a trustee for his cotenant, is certainly 
 inferable from the following reasoning of the Court: "As a 
 general rule, neither a tenant in common nor a mortgagee can 
 acquire a tax title and set it up against his cotenant or mort- 
 gagor; but this rule rests on the doctrine of constructive 
 frauds, and is not applicable in a case like the present, where 
 the fraud must be actual. It is possible that in equity the 
 purchase Avould be regarded as a trust, and relief administered 
 on that ground, but in this proceeding the defendant cannot 
 avoid the effect of the deed. He must present a proper case 
 for equitable interference before the assistance of the Court 
 can be invoked in his behalf. His defense is based on the 
 invalidity of the deed, and under the statute the deed cannot 
 be rejected as void.'"- 
 
 g 159. Repurchase after Lapse of Time to Redeem. — 
 
 In Pennsylvania, it seems to be well established that if land 
 be sold for taxes and the time for redemption passed, so that 
 an absolute and indefeasible estate vests in the purchaser, 
 any jDrior existing cotenancy in such land, together with the 
 relations and obligations incident to such cotenancy, is de- 
 termined and set at naught. Therefore, either of the late co- 
 
 ' Braker v. Devereaux, 8 Paige, 513. ^ Mills v. Tukey, 22 Cal. 379.
 
 221 RELATIONS OF COTENANTS. § 160 
 
 tenants may acquire from the purchaser at the tax sale the 
 title which he thereby obtained, and may hold such title free 
 from all tiiists and obligations in fayor of his former co- 
 tenant.' In the case in which this conclusion was tii-st 
 reached, the period for redemption had expired some eighteen 
 year's prior to the pui'chase by one of the late cotenants from 
 the gi-antee of the tax deed. But in a subsequent case, the 
 period intervening after the termination of the time allowed 
 for redemption, and before the purchase of the tax title by 
 one of the part owners, was not more than one year. If a 
 long period elapses after the creation of a tax title, and the 
 purchaser is regarded and treated by the late cotenants as 
 the true owner, and the latter, on their part, have abandoned 
 all pretensions to the property, then it may be that either 
 of them is at liberty to disregard his former relations, and 
 to purchase the whole property for himself. But under any 
 other circumstances, it seems to us that the Pennsylvania 
 cases do not represent the true state of the law, because they 
 are directly in conflict with the well settled rule that a person 
 under ' ' any legal or moral obligation to pay the taxes can- 
 not, by neglecting to pay the same and allowing the land to 
 be sold in consequence of such neglect, add to or strengthen 
 his title by purchasing at the sale himself, or by subsequently 
 buying from a stranger who purchased at the sale. Other- 
 wise, he would be allowed to gain an advantage from his own 
 fraud or negligence in failing to pay the taxes. "^ 
 
 g 160. The husband of a tenant in common, or of a 
 
 coparcener, stands in such a relation to the property that his 
 acquisition of an outstanding claim will be treated as tliough 
 he were himself one of the cotenants. The information 
 which he would naturall}' acquire in regard to the common 
 estate, the fact that he would, at common law, be entitled to 
 the management and profits of his wife's moiety, and wordd 
 thereby be enabled to obtain the confidence of the other 
 owners, bring him as mucli Avithin the reason of the rule as 
 
 ' Lewis 11. llobiusoii, 10 WiUts, :i54; Kirhputrick v. Matliiot. 1 Watts A- S. 251; licin- 
 both V. ZerVx) Run Improvement Co., 29 Pa. St. 1-13. 
 ^ Moss I'. Shear, 25 Cal. 45; Coppinger v. Rice, 33 Cal. 425.
 
 g 161 RELATIONS OF COTENANTS. 222 
 
 though he were one of the immediate cotenants,^ But an 
 executor of one cotenant may buy the moiety of another co- 
 tenant for his own use. The purchase will not be held in 
 trust, because it is not the purchase of an outstanding or ad- 
 verse title, nor of anything in reference to which there was 
 any fiduciary relation between the executor and the heirs of 
 his testator.^ 
 
 g 161. Duration of Restraints on assertion of Adverse 
 Claims. — The duration of the restraint upon the acquisition 
 and assertion of a paramount adverse title is coextensive 
 with the existence in fact of the relations of cotenancy. It 
 can neither precede the cotenancy nor continue after the 
 community of interest has ceased. Nor can the creation of 
 a cotenancy have any retroactive effect vipon the rights of 
 any of the parties. No breach of fidelity or good faith can 
 be presumed from a purchase before the cotenancy com- 
 menced. Therefore, if a man having a title to land, there- 
 after, in conjunction with others, acquires another claim of 
 title, this acquisition does not impose any obligation on him 
 not to assert his former title, nor does it confer on his co- 
 tenants any right to participate in the former title on any 
 other terms than he chooses to enforce.^ So the termination 
 of the cotenancy generally releases the parties from any re- 
 straint imposed by it. An exception to this rule exists when- 
 ever the former cotenant is bound by a warranty of title, ex- 
 press or implied. Hence, where partition is made, " as the 
 law makes each partitioner the warrantor of the others, to the 
 extent of the portion allotted to him, whether there be an 
 express warranty in the deed or not, and as no principle is 
 better settled at common law than that a warrantor is barred 
 or estopped to claim against his own warranty, it seems clearly 
 to follow that no party to a partition can be permitted to as- 
 sert an adverse title for the purpose of ousting another party 
 from his portion, allotted to him by the same partition, 
 
 ' Bothwell V. Dewees, 2 Black U. S. 618; Lee v. Fox, 6 Dana, 176; Young v. Adams, 
 14 B. Monr. 127. 
 - Alexander v. Kennedy, 3 Grant's Ca. 380. 
 ' Sneed's Heirs v. Atherton, 6 Dana, 279
 
 223 RELATIONS OF COTEXAXTS. g§ 162-63 
 
 tliough there be no express warranty in the deed."' Where 
 cotenants became antagonistic to each other in their claims 
 and interests, and a sale of their joint interests was made by 
 virtue of an order of Court, it was held that there remained 
 no duty or obligation on the part of either of them not to 
 acquii-e an outstanding mortgage, and that such mortgage, 
 though obtained at a large discount, could be enforced for 
 the full amount due upon it.^ 
 
 ^ 162. After Eviction the Privity between the Parties 
 is Destroyed. — "Thejare no longer tenants in common of 
 that land, because it is taken by a paramount claim; and for 
 the same reason, neither of them has any longer a joint or 
 separate interest in it. It belongs to another, and is taken 
 fi'om their common stock into the possession of that other. 
 Where there is no common interest, the privity, and all con- 
 sequences following from it, necessarily cease."'' A purchase 
 of this paramount title made after the eviction "does not 
 affect any common interest, nor create any common right or 
 advantage." Such purchase, therefore, is held free from any 
 trust in favor of the purchaser's late cotenant. And where 
 one cotenant has ousted the other, by an entry on the land, 
 claiming and exercising the rights of an owner in severalty, he 
 may buy in a distinct adverse title, and assert it to protect 
 iind retain his possession against his cotenant. "• 
 
 ^ 163. Whether must have Title to impose Restraints. — 
 A question liui^ been raised whether, in order to estop a party 
 from acquiring an adverse claim, he must not be tenant in 
 common of some title. In some cases where two or more have 
 purchased from one whom they supposed to have title, and it 
 turned out that he had none whatsoever, it has been deter- 
 mined that each Avas at liberty to obtain the whole tract from 
 the true owner. "The bare fact that each had been cheated, 
 neither gave any right to the other, or deprived him of the 
 full and absolute right to purchase from the real owner, when 
 
 ' Veiiabk- v. Beauclianij). :! Dana. 32(;. 
 
 - Wells 1'. Chapman, 4 Saiidf. Ch. 341. Sw also nciiihotli r. ZitIx.' riiin Iinprovc- 
 rm-nt Co., 20 Pa. St. 145. 
 ■'• Coleman r. Cokraan. 3 Dana, 40.3. 
 * I.armaii r. Hiu>v's HuirH. 13 I'.. Monr. 418; Gillaspic r. Oribmii. 3 A. K. Marsh. 78.
 
 § 163 RELATIONS OF COTENANTS. 224 
 
 discovered. " ' The cases whicli approve this language involved 
 a determination of the rights of persons who had made pur- 
 chases from a claimant, believing him to have title. The lands 
 purchased seem to have been vacant public lands. The in- 
 terest acquired under the deed was neither possession nor the 
 right to the possession. It was properly described in one of 
 the cases as "mere moonshine;" and in each case it was ad- 
 judged to have no force to prevent either party from obtaining 
 title in his own name and for his own use from the Government. 
 These cases were probably determined correctly. But it is 
 manifest that the principles enounced in them should be 
 confined to identical cases. There may be no valid objection 
 to permitting a person to acquire for his own use vacant lands 
 owned by State or Federal Government, notwithstanding he 
 may have before been so unfortunate as to be concerned in a 
 joint purchase from one having no title. But to say generally 
 that co-grantees are not liable to the restraints imposed on 
 cotenants merely because they obtained no title, would be to 
 except out of the general rule those cases in which equitable 
 considerations most imperatively demand its enforcement. No 
 doubt in these, as in all other cases, the test to be applied is 
 to consider the actual relations of the parties rather than their 
 nominal relations. If, notwithstanding the fact that they are 
 named as co-grantees in a deed, they acquired nothing from 
 their purchase, and either never exercised the rights of joint 
 owners, or have ceased to consider themselves within the re- 
 lation of cotenancy on account of their failure of title, then 
 both should be free to deal with the subject matter of their 
 former purchase. If, on the contrary, though they have no 
 title, the parties continue to regard each other as cotenants, 
 and if, on that account, they are apparently sustaining toward 
 each other relations of trust and confidence, then neither 
 should be at liberty to act in hostility to the interests of the 
 other. If a distinction is to be taken in regard to the re- 
 straints imposed on cotenants, based upon the difference be- 
 tween want of title and defective title, then a very embarrassing 
 question must frequently arise as to the point where a defective 
 title becomes so defective that it may be regarded as "mere 
 
 I Smiley v. Dixon, 1 Penrose & Watts, 440; Roberts v. Tliom, 25 Tex. 736.
 
 226 EELATIOXS OF COTENANTS. g§ 164-65 
 
 moonshine." Whenever an outstanding title is paramount to 
 that of the cotenants, then their title, though some may tenn 
 it defective only, is in fact no title. To hold that cotenants are 
 bound only when they have title is therefore holding that they 
 are free, except when neither can injure the other, 
 
 g 164. No Restraints on Cotenants Contracting -with 
 one another. — The cotenants are at liberty to contract with 
 one another, in relation to all matters, including the subject 
 matter of the tenancy. One may lease his moiety to the 
 other; and upon such leasing, the parties bear to each other 
 the relations, are subject to the obligations, and entitled to 
 the rights, of landlord and tenant. The cotenant leasing 
 has the right to distrain for rent due on the lease. ^ "Joint- 
 tenants may make a subdivision of time of their respective 
 occupancy of the property held in joint-tenancy, and if an 
 injmy is committed upon the joint right, while it is held in 
 the exclusive possession of one of the joint-tenants, imder 
 the subdivision, trespass may be sustained by the exclusive 
 possessor for the time being. "^ 
 
 I 165. Either may buy interest of other at Forced 
 Sale. — The reasons which prevent a cotenant from purchasing 
 and asserting an outstanding title, do not apply with equal, 
 and generally not with any, force against his purchasing the 
 title of his cotenants, whether the sale be voluntary or in- 
 voluntary. Unless some fraud can be shown to have been 
 perpetrated, or some superior knowledge taken advantage of, 
 there is no doubt that a cotenant may purchase at an execution 
 or judicial sale the moiety of any of his companions in interest, 
 and that he may retain and assert the title thereby acquired, 
 as fully as though he were a stranger to the judgment defend- 
 ant.^ But it seems to be assumed in Pennsylvania, that if a 
 judgment be against all the cotenants for a joint debt, neither 
 of them can acquire any title against the others by bidding 
 in their joint property at the execution sale; and that the 
 sheriff's deed, though regularly issued, can only give a title 
 
 ' Cowper V. Flctclier, G BcHt .fc S. 470; 1 I'latt LoaHcs. 131; Sndgar v. HeiiBton, Cro. 
 Jac. Oil; Story n. Jolmson, 2 Yo. .t Col. Excli. 580. 
 '^ Curtis V. Swoaringon, BrcfHO, 100. 
 ^ Gunter V. Laffan, 7 (Jal. 588; Brittin v. Handy, 20 Ark. 404. 
 
 C. & p.— 15
 
 g 166 RELATIONS OF COTENANTS. 226 
 
 in trust for the cotenants to th& extent of their shares before 
 the sale.^ 
 
 ACTS PRESUMED TO BE IN SUPPORT OF COMMON TITLE. 
 
 g 166. Acts of one presumed to be for Benefit of all. — 
 All acts done by a cotenant and relating to or affecting the 
 common property, are presumed to have been done by him 
 for the common benefit of himself and the others. The re- 
 lation between him and the other owners is always supposed 
 to be amicable rather than hostile ; and his acts are therefore 
 regarded as being in subordination to the title of all the ten- 
 ants, for by so regarding them they may be made to promote 
 the interests of all.^ Therefore, as a general proposition, the 
 entry of one cotenant enures to the benefit of all.^ "But this 
 proposition is based upon the supposition that the entry is 
 made either eo nominee, as cotenants, or that it is silently 
 made, without any avowal in regard to it, or without notice 
 to a cotenant that it is adverse."^ "As both have an equal 
 right to the possession, the law presumes that if one only 
 enters, and takes the rents and profits, he does this act as 
 well for his companion as for himself. But this presumption 
 may be rebutted by the overt acts of the one so entering : by 
 such acts as show that he means to hold exclusively for him- 
 self, without being accountable to any one."^ "The posses- 
 sion or entry of one tenant in common, or joint-tenant, is 
 always presumed to be in maintenance of the right of all; 
 and he shall not be presumed to intend a wrong to his com- 
 panions, if his acts will admit of any other construction."* 
 And where the entry was made upon the common property, 
 as a tenant in common, the subsequent exclusive receipt and 
 retention of the rents and profits were not deemed sufficient 
 to rebut the presumption that the possession was held in 
 
 ' Gibson «. Winslow, 46 Pa. St. 384. 
 
 - Baker v. Whiting, 3 Sumn. 485. 
 
 '•^ Ford u. Gray, Salk. 285; Smales v. Dale, Hob. 120; Doe i-. Keen, 7 T. R. 386; 
 GUkey V. Peeler, 22 Tex. 663; Knox i-. Silloway, 1 Fairf. 201; Young v. Adams, 14 B. 
 Monr". 127; Villard v. Robert, 1 Strob. Eq. 393: Van Valkenburgh v. Huff, 1 Nev. 142. 
 
 * GUI V. Fauntleroy, 8 B. Monr. 188; Manchester v. Doddridge, 3 Ind. 360: Clymer 
 V. Dawkins, 3 How. U. S. 689. 
 
 •"' Bryan v. Atwater, 5 Day, 191; Buckmaster v. Needham, 22 Vt. 617. 
 
 •^ StoarnB on Real Actions, 41.
 
 227 RELATIONS OF COTENANTS. g 1()7 
 
 support of the commou title.' "It is clear, where there is 
 no visible adverse possession of a part of a tract, an entry by 
 any cotenants on the tract gives a seii^in of the whole, accord- 
 ing to their titles ; because the tract is not severed or divided 
 by any visible bounds, or inclosure, or adverse seizin; and 
 the entry must inure as a seiiiu of all the cotenants, and for 
 their benefit."'- 
 
 g 167. Possession of one when presumed to be Posses- 
 sion of all. — The entry of one cotenant, as we have shown, 
 is, in the absence of clear proof to the contrary, construed as 
 conferring seizin upon all. And, supported by the same 
 reasons, and prevailing to the same extent, is the rule that 
 the continuing possession of a cotenant, whether the entry 
 was made by himself alone or in connection with his com- 
 panions, is the possession of all the cotenants.^ This rule 
 prevails not merely in behalf of those who were cotenants 
 when the entry was made: its benefits extend to all who 
 afterwards acquire undivided interests in the property. 
 Thus, if A and B together own personal property of which 
 A is in actual possession, and B sell his moiety to C, the 
 possession of A immediately becomes the possession of C 
 also. Therefore, being at once, by presumption and con- 
 straction of law, put in possession as tenant in common with 
 A, it is not necessary that C should take actual possession 
 with A, to make his purchase good under the Statute of 
 Frauds, as against the creditors of B. If A, the cotenant in 
 possession, had sold his interest, then the sale should have 
 been followed by an actual change of possession, because 
 there was no cotenant whose actual possession could have 
 operated for the benefit of A's vendee.^ The possession of 
 one cotenant has been held to be the constructive possession 
 of his companion, even when the latter had been removed 
 from the premises by the sheriff, acting by authority of a 
 
 ' Thorntou v. York Bank, 45 Me. l(J-2: Parkor v. The Proprii tors, .1 Met. !»'J; Allen 
 V. Hall, 1 McCord, 131. 
 
 - Thomas v. Hatch, 3 Sumn. 181; Cunningham v. Itoberson, 1 Swan, 138; Chitty 
 on Descents, .57. 
 
 ^ StroEg V. Colter, 13 Minn. 82; Bogard r'. Jones, 1» Humph. 73!t; Waring i-. Crow. 
 11 Cal. see; Colman v. Clements, 23 Cal. 2ir>. 
 
 * Brown v. Graham. 24 111. C:)0.
 
 g 168 RELATIONS OF COTENANTS. 228 
 
 writ of possession issued upon a judgment against the party 
 removed.^ But it seems that there may be an entry made, 
 and possession thereunder held by a tenant in common, with- 
 out conferring any seizin upon his cotenants. Thus, where 
 G was in possession of land claiming title thereto under a 
 deed from H, and by several judgments against him three- 
 fourths of the land was recovered from G, and entry was 
 made under these judgments, but nothing took place to dis- 
 turb the actual seizin of G, the Court held that the entries 
 made by the cotenants who sued for and recovered their sev- 
 eral moieties, did not enure to the benefit of the other co- 
 tenant.^ On the other hand, it is insisted that if the posses- 
 sion of one of the cotenants operates for the benefit of all, 
 it follows that neither of them can be disseized by a stranger 
 to the title, who recognizes the rights and respects the pos- 
 session of the others. " The possession of the other tenants 
 in common, held for the benefit of all, would seem to defeat 
 any attempt to create an adverse seizin, as against one."* If 
 a person enter upon lands, and acquire possession thereof 
 adverse to the true title, and afterwards recognizes the title 
 of part of the owners, and abandons his adverse holding as 
 against them, this abandonment revests the seizin in all the 
 rightful co-owners, including the cotenants whose rights were 
 not directly recognized by the disseizor.* 
 
 ACTS AND RESTRAINTS OF ONE COTENANT AFFECTING THE OTHERS. 
 
 § 168. No Estoppel against one affects the other.— As a 
 general rule, no estoppel created against either of the coten- 
 ants can prejudice the rights of the others.^ If one cotenant 
 bring an action in regard to his own moiety, the judgment 
 rendered in such action cannot result in any diminution of 
 the rights of the others. Because the judgment is thus 
 powerless to operate upon the interest of the cotenant who is 
 not a party to the action, it follows that he is not precluded 
 
 ' Bemecker v. Miller, 40 Mo. 474. 
 ■^ Oilman v. Stetson, 18 Me. 431. 
 
 ■' Farrar v. Eastman, 10 Me. 195; Readings. Royston 2 Salk. 423; Vaughan v. Bacon, 
 15 Me. 455. 
 
 * Vanghan v. Bacon, 15 Me. 457. 
 
 * Walker v. Ferryman, 23 Ga. 314.
 
 229 RELATIONS OF COTENANTS. g 168 
 
 from testifying therein as a witness ou behalf of his com- 
 panion.^ A case quite recently decided by the Supreme 
 Court of California, furnishes a strong illustration of the 
 entire freedom of every tenant in common from adjudications 
 to which he is neither a party nor a privy. W. H. & H. were 
 sued in an action of trespass quare clausum /regit for excavat- 
 ing a tract of which they each owned an undivided one-fourth. 
 From some cause, a judgment on the merits was rendered 
 against them, which, in effect, forever precluded them from 
 asserting their title. Subsequently S, the tenant in common 
 of the remaining undivided one-fourth, brought his action of 
 ejectment against the plaintiff in the former suit, seeking to 
 recover possession of the entire tract. Having succeeded in 
 establishing, to the satisfaction of the Court, his title to the 
 undivided one-fourth, S claimed that his right to recover the 
 whole tract was in no manner impaired by the adjudication 
 against his cotenants. In conceding and enforcing this claim 
 the Court said: "The plaintiff deraigns his title to one un- 
 divided fourth of the premises in controversy under a valid 
 Alcalde grant, and is entitled to recover possession of the 
 whole property as against the defendant, who has shown no 
 title, unless the judgment in the case of Sutton v. Woods et 
 al. shall have the effect to limit the recovery to the one un- 
 divided fourth only. Neither plaintiff nor his grantors were 
 parties to that action, or in privity with the defendants there- 
 in; and it is conceded that liis rights are unaffected by the 
 judgment. But it is said AVoods, Hastings & Haskell, the 
 defendants in the former action, who were then cotenants in 
 common with plaintift"s grantors, are concluded by the judg- 
 ment, and are estopped thereby from setting up title or a right 
 to the possession, as against the present defendant, who was 
 the plaintiff in that action; and hence that the present plain- 
 tiff is nof entitled to recover the possession of the three- 
 fourths formerly claimed by them, and to which it is argued 
 the defendant has the Ijetter title, as against Woods, Hastings 
 & Haskell. But one of the incidents of a tenancy in common 
 holding the title is, that each of the cotenants is entitled to 
 the exclusive possession of the entire property, as against the 
 
 ' Boiinett u. ilr'thiiifjton, Hi Kerg. A U. lf»."»; Hamini'tt v. Bloinit. 1 Swan, :W5.
 
 g 168 RELATIONS OF COTENANTS. 230 
 
 whole world, except his cotenants. As between tenants in 
 common and a trespasser, each tenant in common is better 
 entitled to possession than a wrongdoer. The former is seized 
 per mi et per tout, and has an interest in the whole, which en- 
 titles him to the enjoyment of the entire estate, as against 
 every one except his cotenants. Is the defendant a cotenant 
 with the plaintiff? If so, he must have acquired that status 
 by means of the judgment in the former action, in which it 
 was adjudged, as between him and Woods, Hastings & Has- 
 kell, he had the better right to the possession. But he did 
 not thereby become vested with their title, or succeed to 
 their interest in the property. The judgment added nothing 
 to his former title, but left it as it was before; and the point 
 decided was that his was better than the title of his adver- 
 saries. I do not comprehend how all this can have the effect 
 to convert the defendant into a tenant in common with the 
 plaintiff's grantors, who were not parties to the action, and 
 were unaffected by the judgment. Notwithstanding the judg- 
 ment, the defendant, so far as it concerns the plaintiff and 
 his rights, is as much a trespasser now as when he first en- 
 tered on the lot; and I am not aware of any exception to the 
 rule that as against a trespasser one of several tenants in 
 common is entitled to the possession of the entire property. 
 The judgment, it is true, estops Woods, Hastings & Haskell 
 from asserting title as against the defendant. But the}- are 
 not asserting it in this action ; nor are their rights in ques- 
 tion here. On the contrary, plaintiff' is entitled to the pos- 
 session of the whole property, not on the strength of their 
 title or right to the possession, but of his own, as one of 
 several tenants in common, having a better right as such to 
 the entire property than a mere intruder without title. Nor 
 can it be doubtful that the plaintiff and Woods, Hastings & 
 Haskell are still tenants in common notwithstanding the judg- 
 ment in the former action. The only effect of the judgment 
 was to estop the defendants therein from asserting the title 
 which they claimed against Sutton, the present defendant; 
 and the Court did not attempt to interfere with the relation 
 of a tenancy in common then existing between them and the 
 plaintiff's grantors. No question of that kind was before the 
 Court, and of coui'se it had no power to deal with it, if it
 
 231 - RELATIONS OF COTENANTS. j^ 169 
 
 had attempted to do so. As between the several tenants in 
 common, their relations toward each other were therefore 
 wholly unaffected by the judgment.'" 
 
 ^ 169. Admission made by one Cotenant. — The general 
 rule of law seems to be established, though not without 
 doubt and dissension, that, when two or more are jointly in- 
 terested, an admission made by one is binding upon all.- 
 The general impression prevails that joint-tenants form no 
 exception to this rule. This impression, while it does not 
 appear to be founded upon any direct adjudication, is mani- 
 fest from a number of decisions in which the question was 
 incidentally considered." On the other hand, we have the 
 excellent authority of Lord Coke, that a lease accepted by a 
 joint-tenant cannot bind his cotenant: "If one joyntenant in 
 fee take a lease for yeares of an estranger by deed indented 
 and dyeth, the survivour shall not be bound by the con- 
 clusion, because he claymes above it, and not under it."* 
 Whatever the law upon this subject may be when the interest 
 is joint, no doubt exists that a mere community of interest 
 never enables one of the parties to bind the others by any 
 admission in reference to the common subject of ownership. 
 Thus, where an attempt Avas made to introduce in evidence 
 the admission of a tenant in common, for the purpose of 
 prejudicing the interests of his companions, the Court said: 
 "Although this admission might have been sufficient to con- 
 clude him, if he had been the only plaintiff, it ought not to 
 affect the interest of the other plaintiffs who claim as tenants 
 in common wdth him. If an ejectment is brought by tenants 
 in common, the plaintiff may give in evidence the separate 
 titles of the several lessors to separate parts of the premises, 
 and recover accordingly. But it w^ould seem an unjust rule 
 which would suffer one tenant in common to admit away the 
 rights of others. As far as I have been able to discover, an 
 
 ' Williams v. Sutton, 43 Cal. 71. 
 
 - Greenl. Ev. sec. 174; 1 Ch. Ev. 7."); 2 SUiik Ev. 2'S\ Wliitccmib c. Whiting, 2 Dou},'. 
 K. B. 652. 
 
 ^ Bernard v. Walker, 2 Upper Canda E. & A. liip. 140; Lucas r. Delacour, 1 M. A 
 Sel. 249; Crosso v. Bedinficld, 12 Sim. 35; KeniMc r. Farren, 3 Car. A- P. 023; Die- 
 trich V. Dietrich, 4 Watts, 107. 
 
 ■• Co. Litt. \?>r, (I.
 
 g 169 RELATIONS OF COTENANTS. 232 
 
 admission by a party to the record is evidence against him 
 who makes it — and where there are partners, against them 
 also — but not against others who happen to be joined as 
 partners to the suit."^ "Where a deed made to two was 
 claimed to have been intended and accepted as a mortgage, 
 it was sought to establish the character of the deed as a se- 
 curity, by introducing in evidence the admission of one of 
 the grantees. "Holding them to be tenants in common," 
 said the Judge, in deciding this question, "I do not find that 
 the admission of one would, on general principles, be bind- 
 ing on the other; on the contrary, it has been held that such 
 an admission would not be binding against the cotenant in 
 common, though both are parties on the same side of the 
 suit. As a general rule, indeed, such an admission of one 
 cotenant should not be binding on the other; for, admitting, 
 in this case, the truth to be that the deed was really intended 
 by all parties to be an absolute conveyance, as it imports, it 
 would be hard and unjust that the owner of a several interest 
 held under it should have that interest cut down to a security 
 only, because the owner of the other moiety had chosen for 
 any purpose to deny that the intention was such as the deed 
 expressed."^ Joint-devisees under a will, like tenants in com- 
 mon, are not affected by an admission made by either con- 
 cerning the validity of the will. Devisees sometimes stand 
 upon a different footing from cotenants in common. The in- 
 terests of the former are generally more unequal than those 
 of the latter. "We therefore at once feel the justice of the 
 rule which protects a legatee who has thousands involved in 
 the question from being prejudiced by the admissions of one 
 who has but a shilling."^ Whenever the Courts have assigned 
 their reasons for deciding that the admission of one cotenant 
 in common should not bind the other, the chief of these 
 reasons has always been the manifest injustice of allowing one 
 owner to be deprived of his property by the declarations of 
 a co-owner. Now, this injustice is as manifest and as una- 
 
 ' Dan V. Brown, i Cow. 492; McClellan v. Cox, 36 Me. 101; Caldwell v. Aager, 4 
 Minn. 223; 1 Greenl. Ev. sec. 176; Jaggers v. Binnings, 1 Stark. Kep. 64. 
 
 ■^ Bernard v. Walker, 2 Upper Canada E. & App. 146. 
 
 » Dietrich v. Dietrich, 4 Watts, 167; Hauberger v. Eoot, 6 Watts & S. 437; Borard 
 t). Wallace, 4 Serg. & R. 499: Nussearu Arnold, 13 Serg. & K. 323.
 
 233 RELATIONS OF COTENAN'TS. '0^ 170-71 
 
 voidable where the interest is joint as where it is several. A 
 joint-tenant has no greater control over his companions than 
 a tenant in common has over his. ^^1J, then, should one 
 suffer any greater detriment than the other by the act or ad- 
 mission of his cotenant? 
 
 ^ 170. Representations made by a tenant in conunon 
 stand upon the same ground, and are controlled by the same 
 rules of law, as his admissions. They can create no estoppel, 
 nor furnish a basis of any claim against the other cotenants 
 in common. The objection to binding one by the representa- 
 tions of another is, that this Ccinnot be done without doing an 
 injuiy to him who has not pai-ticipited in the representations, 
 and making him responsible for the default of one over Avhom 
 he can exercise no control.' This objection is undoubtedly 
 as unanswerable and as unavoidable, in the case of joint- 
 tenants as in that of tenants in common. 
 
 ^ 171. Notice to One. — If notice to one part owner ever 
 operates as notice to another, it is rarely by reason of their 
 relation as cotenants. Unless one has been made the agent 
 of the other, by virtue of partnership relations, or of some 
 other means, neither can ordinarily be charged and held ac- 
 countable for the knowledge of the other. If an incumbrance 
 or conveyance be in existence affecting the title to land, and a 
 purchase be made by several jointly, or as tenants in common, 
 those who have notice of the incumbrance or conveyance \n.ll 
 hold their title in subordination to it, while those who did not 
 have such notice, vriW obtain their title free from the claim to 
 which their cotenants are subjected.^ The rule that notice to 
 a cotenant is not, by mere force of the relation of cotenancy, 
 notice to any of his companions, unless in case of notices to 
 quit, seems to prevail without any qualifications or exceptions. 
 An estate was conveyed to a husband and wife, her property 
 forming the consideration of the conveyance. There was 
 then in existence a mortgage on the land, of which the hus- 
 band alone had notice. This mortgage Avas subsequently 
 foreclosed by "a regular statute foreclosure." Afterwards, a 
 
 ' The Doxkr Limo Kock Co. v. Doxtor, G K. I. 373. 
 
 ■' WiHwall V. McGown, Tloffm. Ch. I'Jf); S. 0. 2 Barb. 270; l»arkorr. Kane, 4 Wis. 1.
 
 g 172 RELATIONS OF COTENANTS. 234 
 
 contest was carried ou between the wife, who claimed the 
 land as surviving tenant by entirety, and S, who claimed as 
 gi-antee under the purchaser at the foreclosure sale. The 
 Court by which this contest was ultimately determined could 
 not see how the wife could be affected "by the notice which 
 her husband had of the unregistered mortgage." Her claim 
 was neither by, through, nor under her husband, nor could 
 she be charged with his notice by reason of being his ^dfe. . 
 If chargeable at all, then, it must have been on account of 
 being gi-antee in a deed with one who had notice. But upon 
 this point the opinion of the Court, as stated by Judge Bron- 
 son, was as follows: "On a conveyance to two or more per- 
 sons, whatever may be the nature of their estate, I am not 
 prepared to admit that notice to one would be sufficient to 
 overcome the registry laws as to all the purchasers. We have 
 not been referred to any authority in support of such a posi- 
 tion, nor has any fallen under my obser^-ation. It is easy to 
 see why the estate of the fraudulent vendee should fail, but 
 it is difficult to understand upon what principle the other and 
 innocent vendee can also be punished for his transgression."^ 
 
 § 172. One not Prejudiced by Act of Another.— Except 
 where limitations and restraints are imposed by law on ac- 
 count of the mutual trust and confidence arising out of the 
 relation of cotenancy, each of the parties may act for himself 
 in regard to his own moiety; and as to such moiety, has aU 
 the powers of management and disposition incident to own- 
 ership in severalty. Nor can his powers in this respect be 
 impaired, or his rights diminished, by any act of his com- 
 panions. Hence, if a survey or location be made by several 
 of the cotenants, and thereafter recognized by them as em- 
 bracing the true location and extent of the lands in which 
 they are interested, this cannot prejudice the rights of the 
 other cotenants. It is never in the power of some "to affect 
 by their action or disclaimers the rights of other claimants. 
 No action of a portion of several tenants in common can im- 
 pair the rights of their cotenants."' The act of a part owner 
 in locating his land under a deed, is in nowise binding on his 
 
 ' Snyder r. Sponabk-, 1 Hill, 569. ^ Malioney r. Van Winkle, 21 Cal. 582.
 
 235 RELATIONS OF COTENANTS. 5^ 173-74 
 
 co-owners, unless ratilied or authorized by tliein.' The same 
 rule applies to contracts made in regard to the common prop- 
 erty. Neither cotenant can enlarge, vary, or I'enew the con- 
 tract, or continue it in force after a forfeiture has been in- 
 euiTed. A note was given for the amount of the price agreed 
 to be paid for certain land. On payment of this note, a con- 
 veyance of the land was to be made. When the note became 
 due, payment thereof was demanded, and the demand was ac- 
 companied by the tender of a deed. The maker of the note 
 declared himself unable to make payment, and stated that 
 he would have to give up his contract. Some three years 
 later, payment of the note was tendered to one of the part 
 owners, who refused to accept it. The tender was then made 
 to, and the money accepted by, the other owner. This accept- 
 ance was held to be binding on him who received it; and the 
 purchaser's bill for specific performance was dismissed as to 
 the cotenant who had refused to waive the forfeiture.^ 
 
 g 173. When Cotenant affected by Refusal of his Com- 
 panion to Act. — While no act of a cotenant, unless author- 
 ized or ratified, can ordinarily have any effect against his 
 companions, a refusal to act may sometimes affect those who 
 do not participate in nor sanction the refusal. Thus, if the 
 cotenants are jointly bound to make a conveyance, and, upon 
 demand, one of them refuses to do so, a good cause of action 
 at once arises against all bound by the agreement. The 
 reason of this is, that the party demanding has a right to a 
 conveyance of the ivliole title. If one of the parties posi- 
 tively refuses, the rights of the beneficiary under the contract 
 can only be enforced by suit. Therefore, he is excused from 
 making any further demand, since no act on the part of the 
 others could avert the necessity of a proceeding against them 
 in connection with their cotenant, who, on his part, declines 
 to fulfil the joint engagement.' 
 
 g 174. Bound by Beneficial Acts. — " Every act done by 
 one joint-tenant which is for the benefit of his companions 
 will bind them; but those acts which prejudice his com- 
 
 ' Jackson v. Moore, C Cow. 723. '^ PeariH ii. Covillaud, C Cal. 020. 
 
 =* Blood V. Goodrich, !) Wend. 79.
 
 g 175 BELATIONS OF COTENANTS. 236 
 
 panions in estate will not bind them; and if the benefit be 
 doubtful, two joint-tenants have no right to elect for a third." • 
 The general proposition of law, as above quoted, is well sus- 
 tained by the common law authorities. But it is evident that 
 many distressing questions may arise as to what acts are neces- 
 sarily presumed to be so beneficial as to authorize either joint- 
 tenant to bind the others. Upon this subject, the reports 
 furnish no rules of general application. They, however, con- 
 tain adjudications in a variety of cases, by which cotenants 
 were held to be affected by acts of their companions. It is 
 doubtful whether these adjudications can be referred to any 
 one general principle. Some of them proceed upon the theory 
 that the act was binding because for the common benefit; 
 others, upon the theory that for certain purposes, and under 
 certain circiunstances, one cotenant has necessarily the right 
 to act on behalf of the others; and still other cases proceed 
 upon the assumption that, in certain instances, cotenants or 
 co-obligees may be treated in law as one person; and that a 
 payment to, or a release by, one must therefore be regarded 
 as a satisfaction to all. One of the instances in which an act 
 sanctioned by less than the whole number has been considered 
 the act of all, because presumed to be beneficial to all, is 
 distraining for rent. Whenever two or more claim by one 
 and the same title, whether as joint-tenants, parceners by 
 common law, or parceners by custom, either of them may dis- 
 train for the rent due to all.'' This rule does not appear to 
 be dependent upon any presumption that one is, for this pur- 
 pose, the agent of the other; for it prevails, notwithstanding 
 the conceded fact that one of the cotenants refused to sanction 
 the distress.^ 
 
 g 175. Acts to Preserve Coininon Property. — It has been 
 determined, where property owned by several as tenants in 
 common, was in such imminent peril that some active measures 
 were essential to its protection, that one of the part owners 
 present on the ground at the point of danger, "had the right 
 
 * Addison on Contracts, 334. 
 
 ■^ Leigh V. Shepherd, 5 Moore, 297; 2 Bro. & B. 465; Robinson v. Hofman, 4 Bing. 
 562; PuUen v. Palmer, 5 Mod. 72; Page v. Stedman, Carth. 364. 
 ^ Robinson *-. Hofman. 6L. J. Rep. C. P. 113; 4 Bing. 562; 3 Car. & P. 234.
 
 237 RELATIONS OF COTENANTS. § 176 
 
 to adopt such means for its protection from injuries by the 
 flood as the exigencies of the time seemed to require." 
 Therefore, any person who acted in such circumstances under 
 directions from one of the cotenants, in an attempt to preserve 
 the property, " ought not to be, and cannot on any just prin- 
 ciple be, rendered liable in damages for the injuries that fol- 
 lowed."' 
 
 g 176. Redemption of Lands. — One of the acts that either 
 part owner may do, without special authority from the others, 
 is to redeem the whole property from a prior sale made in 
 solido for the gross amount of taxes due thereon.^ While the 
 other cotenants may participate in the benefit of the redemp- 
 tion, the act of their companion is not binding on them so 
 far as to impose upon them a personal obligation to reimburse 
 him for their proportion of the amount necessarily expended 
 in effecting the redemption. The amount thus expended may, 
 no doubt, be asserted as a lien against the joint property. 
 But beyond this, the cotenant has no means of enforcing con- 
 tribution; because the other cotenants had the right to aban- 
 don their interest in the lands, and to forfeit all claims to it, 
 by non-payment of the tax liens against it.^ But in California, 
 under a statute permitting a minor to make his redemption 
 within six months after attaining his majority, it has been 
 decided that such minor had no right to redeem beyond the 
 extent of his own interest, when he was tenant in common 
 with others who were not under any disability, but had per- 
 mitted their time for redeeming to expire.^ The general rule 
 is that, "If the equity of redemption be the property of 
 several persons as joint-tenants, or tenants in common, one 
 of them may redeem; each as against an incumbrance, and 
 subject to account with his cotenant, being entitled to pos- 
 session and receipt of the whole of the rents."* "But it 
 seems one cannot redeem his moiety only; for this would be 
 directly contrary to the principle that a mortgage is to be re- 
 deemed entirely, or not at all."** 
 
 ' Crary v. Campbell, 24 Cal. C37. 
 
 '■' Loomis V. Puigroe, 43 Mo. 299; Haisey v. Blood, 29 Pa. St. 322. 
 
 3 WatkinH v. Eaton, 30 Mo. 534. 
 
 * Quinn v. Kf-nnoy, Oct. Term, 1873. Seo also Kirkham v. Dupont, 14 Cal. 559. 
 
 * FiHher on Mortn. 52C; Waugh v. Land, G. Coop. 130; Wynne v. Styan, 2 Ph. 30C. 
 « FiaLer on Morta. 52C.
 
 §§ 177-78 RELATIONS OF C0TENANT8. 238 
 
 § 177. Authority of one to receive Payment of Rent. — 
 In a case whicli came before Lord Kenyon, involving the de- 
 termination of the question whether the lessee of several 
 tenants in common might pay the whole rent to one, after 
 notice requiring him not to do so, his Lordship said: "In 
 order to maintain plaintiff's case, it was necessary for him to 
 prove that a ierre tenant may pay the whole rent to one ten- 
 ant in common, not only without the concurrence of both, 
 but contrary to express notice of the other. But no case, no 
 resolution in the books, has been cited to warrant such a 
 position, and all the analogous cases are the other way. 
 Therefore, the justice of the case, and the argument of anal- 
 ogous cases, being with the avowant, and the payment having 
 been made after notice and against conscience, I am of 
 opinion that the avowant is entitled to judgment."^ This 
 case upheld the right of a tenant in common to distrain for 
 his moiety of the rent after it had, contrary to his expressed 
 wish, been paid to a cotenant. So far as we can ascertain, 
 this opinion of Lord Kenyon's has never been directly called 
 in question. In fact, no precisely similar case seems to have 
 either before or since found its way into the reports. But in 
 the absence of express notice not to do so, it seems clear 
 that a lessee holding under a joint lease may pay the whole 
 of the rent to either of his lessors, and that such payment 
 will be a full discharge of the claims of each and all of such 
 lessors, by whatever cotenancy their title may be held.- 
 
 § 178. Authority to receive Payment of Joint Demand. 
 — As between bankers and their customers, the rule of law is, 
 that if a deposit be made by two or more jointly, the bank 
 is not authorized to allow a withdrawal of any part thereof, 
 without the joint order of the depositors.^ With this excep- 
 tion, a debt, demand, or other personal obligation due jointly 
 to two or more persons ma}' be released by payment to 
 
 ' Harrison v. Barnby, 5 T. R. 249. 
 
 - Decker v. Johnson, 15 Johns. 481; Sherman v. Ballon, 8 Cow. 308; Grossman v. 
 Lauber, 29 Ind. 621; Griffin v. Clark, 33 Barb. 46. As to joint-tenants, see Robinson 
 V. Hoffman, 4 Bing. 562; 3 Car. & P. 234; 1 Moore & P. 474; Husband v. Davis, 10 
 Com. B. 645; Webb v. Ledsam, 19 Jur. 775; 1 Kay & J. 385. 
 
 ■■• Turns p. Stephenson. 1 Moody & E. 145.
 
 239 RELATIONS OF COTENANTS. § 179 
 
 either.' It may also be discharged by an accord and satis- 
 faction with one of the joint payees, by which he has ac- 
 cepted part payment in coin, and allowed a set-off against 
 himself for the balance. Upon the death of a joint payee, 
 the entii'e debt sui'^'ives to the other. If pa^^Tnent to one 
 were not a discharge of the entire debt, then it might happen 
 that he who had received the debt might, by virtue of his 
 right as survivor, recover the ichoJe again. If the debt is 
 secured by a mortgage, either of the mortgagees may receive 
 payment, and discharge the whole lien.^ ' ' So far as the 
 mortgagor is concerned, all the mortgagees are to be re- 
 garded as one person, and he has a right to deal with each 
 as representing all. By accepting a joint mortgage, each 
 mortgagee gives to every other the power which this prin- 
 ciple implies, as each member of a copartnership clothes 
 each of his copartners with power to bind him in all matters 
 ■\\dthin the scope of their joint business. Except for the 
 purpose of receiving payment and acknowledging satisfac- 
 tion, the powers of an ordinary- joint obligee over the obliga- 
 tion would not probably correspond Avith those of a partner; 
 but to that extent, they must be identical, otherwise the ob- 
 ligor could never safely i^ay to one of the several obligees. 
 The certificate of one mortgagee, therefore, was sufl&cieut to 
 entitle the mortgagor to a discharge of his mortgage on the 
 record."' 
 
 ^ 179. Release.— The general rule, sanctioned at least by 
 all the early and most of the late authorities, is that whenever 
 the cavise of action existing in favor of any number of coten- 
 ants is joint, the release \>\ one bars an uctiou by the others.^ 
 And it seems that in all personal actions "tenants in common 
 may have such actions personal joyntly in all their names, as 
 of trespasse, or of offences which concern their tenements in 
 common, as for breaking their houses, breaking their closes, 
 
 ' Wallace v. Kelsall, 7 Mees. & W. 264; Husband r. Diivis. 10 Com. B. 045; Joui-s r. 
 Yates, 9 Bam. .t C. 532; Fitoh r. Fonnaii. It Johns. 174; PieiHon v. Hooker, It Johns. 
 68; 2 CowenV TrciitiBC, 2cl ed. 772; Bulklcy c. Dayton. 14 Johns. 387. 
 
 ■' The People 1). Keyser, 28 N. Y. 228; Bowes r. Seet,'er, 8 Watts .V S. 222. 
 
 " Selden, J. in The People r. Keyser, 28 N. Y. 235. 
 
 * Ruddfxk'H Case, C Co. 25 a: ]t:t/infc c Ruddoek Cio. Eliz. 048; Pierson r. Hooker, 
 3 Johns. 70.
 
 g 179 BELATIONS OF COTENANTS. 240 
 
 feeding, wasting and defowling theii- gi-asse, cutting their 
 woods, for fishing in their pischary, and such like. In this 
 case, tenants in common shall have one action jointly, and 
 shall recover jointly their damages, because the action is in 
 the personalty and not in the realtie."' Therefore, an action 
 for trespass on their land, being strictly personal, may be 
 barred by a release from either of the cotenants.^ It is said 
 the failure to interpose the release by way of plea in abate- 
 ment, is of no consequence. "The right to release the action 
 arises out of the right to control and discharge the ground of 
 action. And if the cause of action may be released after 
 action brought, it may be after it has arisen and before that 
 time."^ But, in another case, it is said that if the cotenant 
 who has not released, commences a separate suit, the release 
 is not available, unless pleaded in abatement.^ A member of 
 a proprietary cannot release a claim for damages, because the 
 right of action never accrued to him but to the whole body. 
 As he could not have sustained nor controlled any action, 
 either by himself nor in conjunction with others, he cannot 
 prejudice its maintenance by those who are entitled to sus- 
 tain and control it.'^ But there are cases which seem to de- 
 part from the common law rule, in regard to a release given 
 by a cotenant. Thus, in one case, an action was brought by 
 two, to recover damages for the conversion of some steers of 
 which they were tenants in common. One of the plaintiffs 
 settled with the defendant and gave him a release. But the 
 Court held that, "a settlement of the action by one tenant in 
 common, without the consent of the other, will only enure as 
 a settlement of the damages belonging to the party settling."^ 
 This decision was not made in the Court of last resort in the 
 State in which it was pronounced; nor does it appear to be in 
 harmony with either the later or the earlier decisions in the 
 same State; but so far as it denies the right of a cotenant to 
 release his companion's share of damages, it is supported by 
 
 I Litt. sec. 315. 
 
 - Austin V. HaU, 13 Johns. 286; Kimball v. Boynton, '^2 Me. 291; Kimball v. WU- 
 8on, 3 N. H. 96. 
 •■• KimbaU v. Boynton, 22 Me. 291. 
 * Wilson V. Gamble, 9 N. H. 75. 
 ^ Allen V. Woodward, 2 Foster, 544. 
 •- Gock V. Keneda, 29 Barb. 122.
 
 241 RELATIONS OF COTENANTS. g 180 
 
 the principles laid down in the highest judicial tribunals of 
 some of the other States.' 
 
 ^ 180. Giving Notice to Quit. -In England, there seems 
 to be but little iloubt ihafc iu case of a joint lease by two or 
 more cotenants, a notice to c[uit is eflfectual to teiminate the 
 tenancy though given by less than the whole number of the 
 lessors. The reason of this rule was thus explained by Lord 
 Tenterden: ''Upon a joint demise by joint-tenants upon a 
 tenancy from year to year, the true character of the tenancy 
 is this, not that the tenant holds of each the share of each so 
 long as he and each shall please, but that he holds the whole 
 of all so long as he and all shall pletise; and as soon as any 
 one of the joint-tenanls gives a notice to quit, ho eft'ectually 
 puts an end to that tenancy : the tenant has a right, upon such 
 notice, to give up the loliole, and unless he comes to a new ar- 
 rangement with tlie other joint-tenants as to their shares, he 
 is compellable so to do. The haidship upon the tenant, if he 
 were not entitled to treat a notice fiom one as putting an end 
 to the tenancy as to the whole, is obvious ; for however willing 
 a man might be to be sole tenant of an estate, it is not very 
 likely he should be willing to hold undivided shares of it; 
 ajid if, upon such a notice, the tenant is entitled to treat it as 
 putting an end to the tenancy as a whole, the other- joint-tenants 
 mus^ have the same right. It cannot be optional on one side, 
 and on one side only."- The case of Right v. Cuthell,'" 
 which may seem to sustain a difierent conclusion fr-om that 
 of Lord Tenterden, was apparently determined upon the pe- 
 culiar phraseology of the lease. This lease contained a pro- 
 viso that it might be terminated by either party upon notice 
 in writing, under his or their respective hands. It Avas, there- 
 fore, held that ■ notice to quit, given by two out of three of 
 the lessors, was insuflicient, because it was not under the 
 hands of all, as the lease contemplated it should bo. The 
 reasons iirged for declaring a notice to (juit effectual, though 
 
 ' LougfcUow iJ. Quinsby, 2!) Mi;. I'.IO; Baker c. Jcwill, (J Mass. 400; IIdIIiukI d. Wold. 
 4 Grcoiil. 2r)5. 
 
 -■ T)(Ks<]. AkUii I'. Summorrtcit, 1 IJ. A Ad. HO; Allord »'. Vickfiy, 1 Cur. & M. 2«(); 
 Doc. d. Kiiidcrsluy i\ Ilufe'lien, 7 Mees. & W. 141. 
 
 -."< East, 191. 
 
 V. A- v.- V\
 
 § 180 RELATIONS OF COTENANTS. 242 
 
 given by less than the whole number of the lessors, are as 
 applicable to a joint demise made by tenants in common, as 
 to such a demise when made by joint-tenants. The lessee, 
 when one or more of his lessors, holding as tenants in com- 
 mon, gives a notice to quit, is no longer the lessee of all, and 
 ought not to be required to hold a lease for a moiety when he 
 originally contracted for tlie wliole. The further question 
 arises whether the lessee, though he cannot continue as lessee 
 of the whole, should not be allowed to continue lessee of the 
 moiety for which no notice had been given. ' ' To hold that 
 a notice to quit by one of several lessors must terminate the 
 entire lease, might be a great hardship to the tenant, as it 
 might compel him to give up what it would be for his interest 
 to hold, and what he had not been called upon to surrender 
 by the owner." The only American case, coming within our 
 observation, which treats upon this subject, holds that a no- 
 tice to quit, given by part of the lessors, cannot so terminate 
 the entire tenancy as to enable all the lessors to maintain 
 summary proceedings under the landlord and tenant act. It 
 is also clear that the Court which determined this case was 
 inclined to doubt* the correctness of what we have stated to 
 be the law in England, and to assert that, "if the lease by 
 joint-tenants or tenants in common be in the usual form, it 
 will be regarded as a demise by each of his own share only, 
 and for aught we can see, must, upon authority, stand much 
 upon the same footing as separate leases, so far, at least, as 
 respects the question before us. If, on the other hand, the 
 lease was to be regarded as a joint demise by all, then a 
 notice by all would seem to be necessary to determine it, for 
 it can hardly be concluded that a joint demise could be de- 
 termined by a single lessor, unless so stipulated. " ' Whether 
 a notice by one or more lessors shall or shall not be held to 
 terminate the tenancy between the lessee and the lessor who 
 did not join in giving or authorizing such notice, it is, in 
 either event, clear that neither cotenant has, by virtue of 
 the ordinary relations of cotenants, any authority to act as 
 agent of his companions, in giving such notice. If the no- 
 tice has any effect over the moieties of the owners who do 
 
 ' Picardr. Perlev. 45 N. H. 191.
 
 243 RELATIONS OF C'OTEN ANTS. §^ 181-82 
 
 not unite in it, this effect arises not from any presumed rela- 
 tion between the cotenaut authorizing one to act as agent for 
 the other, but from the nature of the leasing, and from the 
 natural and reasonable presumption that the lessee never con- 
 templated being a lessee of an undivided interest. 
 
 § 181. Receiving Notice to Quit. — It has been held that 
 a notice to quit, where there are two lessees, need not be 
 served on but one of them ; ' and that such service is at least 
 evidence that the notice reached the other lessee, though he 
 lived elsewhere.- No case overniling or even doubting the 
 correctness of this conclusion has come within our observa- 
 tion. Probably, no such cases exist. But if a notice to quit 
 operates upon the rights of a lessee upon whom it 'was never 
 served, then it must be admitted that an unjust and unreason- 
 able exception has been established to the general rale, that 
 notice to a cotenant is not notice to his companions. 
 
 g 182. Cotenants cannot Contract for each other. — As 
 A general rule, no cotenant has, by virtue of the relation of 
 cotenancy, any authority to bind his companions in interest 
 by any contract, whether relating to the joint property or 
 otherwise. Therefore, neither can, in the absence of special 
 authority so to do, make a valid leasing of the moiety of his 
 companions.^ And " Ave believe that there is no principle in 
 law better settletl than that one joint-tenant, or even partner, 
 cannot bind a cotenant or copai'tner in a contract for the sale 
 of real property, Avithout an express authority before the 
 contract is made, or a ratification of the contract after- 
 wards."* The same rule applies to any promise made by one 
 of the cotenants on behalf of both;'' nor is such promise 
 rendered more binding on the one who did not assent to it 
 by the fact that he was a copartner with his cotenant in a 
 firm which, however, had been dissolved before the promise 
 was made." 
 
 ' Doe, (1. Macartney v. Ci'ick, 5 Esp. 1%. 
 
 - Doe, d. Bradford v. Watkins, 7 East, 551. 
 
 •' Mussey v. Holt, 4 Foster, 254. 
 
 ♦ Hanks v. Enloo, 33 Tex. C27. 
 
 5 Brooks V. Harris, 12 Ala. 500: Merrill v. Berksliirc, 11 Pick. 274. 
 
 « Lane r. Tvlcr, 49 M.'. 252.
 
 ^ 183 RELATIONS OF COTENANTS. 
 
 244 
 
 'd l&o. Transfer by one Cotenant.— Neitlier of the co- 
 tenants has any authority, by virtuo of the relation of coten- 
 ancy, to transfer, or, by any means, to dispose of the common 
 proiperty.' Of course, if there is anything sufficient to estab- 
 lish ;ui implied or an express delegation of authority, the rule 
 is different; for one co tenant i^ not precluded from acting as 
 agent for his companion, when duly authorized. So the pur- 
 pose for which the subject matter of ownership is acquired 
 may be such as to necessarily create a presumption that one 
 of the owners is empowered to dispose of the whole prop- 
 erty. Therefore, when the whole title is claimed to have 
 passed by a s:du made by a part owner, testimony is always 
 admissible to show that he had authority to act for his co- 
 tenant, or that, in the absence of such authorization, the 
 latter has ratified the act. If the article was manufactured 
 for sale, then there woiiid arise a strong and perhaps a con- 
 clusive presumption in favor of a bona fide purchaser, that 
 either part owner was empowered to sell the whole.- But 
 where L and M, being owners as tenants in common of an 
 oil-well, constructed u tank and filled it with their oil, agree- 
 ing that the oil should not be sold until $5 per barrel could 
 be procured for it, and L sold the whole for $1 25 per barrel, 
 it was held that the sale did not convey any legal or other 
 title to the purchasers in excess of L's ownership.^ Bills of 
 exchange and promissory notes, made in favor of two or more 
 persons, are subject to the general rule, and cannot be trans- 
 ferred by any less than the whole number of the payees.^ If, 
 at the making of the note or bill, the payees were partners, 
 and each had, on that account, authority to make a transfer 
 for the others, this authority is revoked by a subsequent dis- 
 solution of the copartnership. After such dissolution, all 
 the late partners must unite in order to transfer title in sev- 
 eralty.' 
 
 ' Cailyle v. Patterson, 3 Bibb, 95; Strickland v. Parker, 5i Me. 268. 
 - Oviatt V. Sage, 7 Conn. 99; Jaekson u. Paxson, 25 Ga. 3G. 
 •i Mason v. Norris, 18 Grant Ch. 501. 
 ' Story on Bifis, sec. 197. 
 
 :• Sanford v. Mickles, 4 .Johns. 227; Sayre i'. Frick, 7 Watts & S- 384: Bobbins v. 
 TuUcr. 24 N. Y. 576.
 
 2-l'5 KELATRONS OF COTENAXTS. §§ 184-85 
 
 § 184. Pledge by on«j Cotenant. — A pledge of the com- 
 mou properh- made by one of the cotenants has no eiiect ou 
 the rights ol the others, except to confer ou the pledgee the 
 right to rotiiiu j/ossession to the extent of the pledgor's in- 
 terest, and no further.' This i- equally tnie, whether tlie 
 pledge be made to secure the individual debt of him who 
 makes it, or vhe joint debt of himself and his cotenants. 
 Thus, where one of two cotenants of a leasehold interest 
 made an assignment thereof to secure their joint debt, the 
 Court referred to its former decision, that " one partner was 
 not authorized to execute an assignment of the property of 
 the firm, in the firm name, for the benefit of creditors, with- 
 out consent of his copartner;'' and from this former decision, 
 was sure that "if a partner cannot execute an assignment 
 of the assets of the firm, clearly a joint debtor cannot of the 
 joint property. "- 
 
 ^ 185. Cotenants cannot Create an Easement. — As a ten- 
 ant in common cannot make a grant of any specific part of the 
 common land, which will convey any title against his coten- 
 ants, it follows that he cannot grant any right or easement 
 ui)on any speci-fied portion so as to confer any right capable 
 of successful assertion against the other o%vners.''' This rule 
 is, equally true whether an easement or right of way be claimed 
 as a way of necessity, or as founded on an express grant. If 
 a grantor convey lanas from which it is necessary that the* 
 grantee shall have a right of way over other lands of the 
 giantor, the law presumes that it was the intent of the parties 
 that such right of way should bo given, and the grantor will 
 therefore be compelled to give it. But it the lands over w hich 
 the right of way is claimed belong to others as cotenants with 
 the grantoi-, they carrnot be prejudiced by a presumed inUml 
 ill which they did not participate.'' And so where it is claijue<l 
 thai a highway has been dedicated by the acts of the owners. 
 it must be shown that all of the cotenants participated oi- con- 
 furrcd in those acts.'' 
 
 ' Sijiiih ('. Clarke, 7 Wis. 5G3. 
 - Gat4'K y. Audrcws, ;J7 N. Y. Go'.*. 
 
 • Wasliburn on Eaatment** and Servitudes, ch. 1, sec. 3; Portuiori' v. Jiiinii, 3 Dowl. 
 .1 It. llo; D. & S. Iliiilway Co. v. Wawii, 3 Bcav. 119. 
 
 * CrilliijH r. Preiiticv, 1.5 Conn. 426. * Scott v. KtiiU-. 1 Sncod. (l.".).
 
 g§ 186-88 RELATIONS OF COTENANTS. 246 
 
 § 186. May acquire Easement over Land held by one 
 in Severalty. — Cotenants may acquire by adverse user ease- 
 ment over lands held in severalty by one of their number. 
 This has recently been determined by the Supreme Court of 
 Errors of the State of Connecticut. The question was thought 
 by the Court to be one "not discussed in the books." The 
 Judges considered it clear that such an easement may exist, 
 and rested their conclusion on this reasoning : 1st, that if a 
 way was appurtenant to an estate, it would not become extinct 
 on the acquisition of the servient estate by one having a moiety 
 of the dominant estate, but would remain unimpaired in favor 
 of himself and his cotenants; ^d, that it was clear that an 
 easement over A's land in favor of A and B, cotenants of other 
 lands, may be acquired by grant; and 3dly, if such an ease- 
 ment could exist, founded on a grant, it might be presumed 
 from such user as "shall be evidence of a grant. "^ 
 
 ^ 187. Easement not Extinguished by Owner being 
 Cotenant of Servient Tract. — "Where the dominant tract of 
 land is at one time OAvned by a person who is at the same 
 time tenant in common in the servient tract, this ownership 
 is not such a unity of title as extinguishes the right of way. 
 "A unity of possession or right that extinguishes a prescrip- 
 tive right must be such that the party should have an estate 
 in the land a qua and in the land in qua, equal in duration, 
 quality, and all other circumstances of right. The title to 
 one imdivided third part as tenant in common did not consti- 
 tute such a unity, for it did not authorize him to set apart any 
 portion for a private way for himself, as if he had been sole 
 
 "2 
 
 owner. 
 
 ^ 188. Agency and Ratification. — One cotenant may act 
 as agent for the others when authorized so to do. This au- 
 thorization may be inferred from the acts of the parties, and 
 need not be established by any express delegation of author- 
 ity. Where one of the cotenants had, after the execution of 
 a lease, always acted as the managing owner, and there were 
 many circumstances tending to show that in so doing he was 
 
 ' Bradley Fish Co. i\ Dudl^, 37 Conn. 144; Hickox v. Parmlee, 21 Conn. 86. 
 •' R«ed I'. West, 16 Gray, 284.
 
 247 RELATIONS OF COTENANTS. g 188 
 
 acting withiii tlie scope of authority given him by his com- 
 panion, it was said that it was properly a question to be left 
 to the jury whether the latter was not bound by the act of the 
 former in accepting a surrender of the term.^ So, where a 
 tender of an appraisement of real estate was required to be 
 made to the owners, and one of the owners had, dui'ing all 
 the proceedings, acted on behalf of himself and the others 
 who were members of his family; and the tender was made 
 to him for the benefit of the family; and he, when such ten- 
 der was made, said, ' ' We will not receive it" — these facts 
 were thought to satisfactorily show that the person to whom 
 the tender was made was, by his cotenants, authorized to re- 
 fuse it.^ A deed of a specific parcel of land made by one co- 
 tenant is not binding on the others, nor can their rights be, 
 to any extent, prejudiced by it. Such a conveyance, how- 
 ever, is not void, but voidable only. It may therefore be 
 approved and ratified by the cotenants, and thereby be made 
 to operate as a conveyance in severalty.^ And so any act 
 done by either co-tenant, in the name and as the act of his 
 companion, becomes binding on the latter from and after his 
 ratification thereof.* 
 
 ' Dodd V. Acklom, 6 Man. <t Gr. 672; 7 Scott N. R. 415. 
 
 ■■' Dyckman i-. Mayor of N. Y. 7 Barb. 507; affirmed in 1 Selden, 434. 
 
 3 rail V. Brown, 5 Cush. 289. 
 
 ■* Dyckman i'. Mayor of N. Y. 7 Barb. 507.
 
 CHAPTEE IX. 
 
 TRANSFERRING AND LEASING LANDS OF A COTENANCY. 
 
 Conveyance bj^ one Tenant in Common to another, § 189. 
 
 Conveyance by one Joint -Tenant to another, § 190. 
 
 Conveyance by one Coparcener to another, § 191. 
 
 Conveyance by Cotenant out of possession, § 192. 
 
 Conveyance to Strangers, ^193. 
 
 Each may Convey his Moiety at pleasm-e, § 194. 
 
 Right to Convey by Metes and Bounds, § 195. 
 
 Conveyance by one Cotenant not to prejudice another, ^ 196. 
 
 Conveyance by one Cotenant as Color of Title, ^ 197. 
 
 Conveyance of Ores by one Cotenant, v> 198. 
 
 Conveyance of part void as to other Cotenants, ^ 199. 
 
 Reasons for this rule, ^ 200. 
 
 Rule denied in Ohio, vS 201. 
 
 Rule denied in Virginia, § 202. 
 
 Rule denied in California, ^ 203. 
 
 Rule denied in Missouri, j 204. 
 
 Grantee can acquii-e no higher Right than Grantor, ^ 205. 
 
 Conveyance of part as between Grantor and Grantee, § 206. 
 
 Conveyance of part, effect after Partition, ^ 207. 
 
 Conveyance where Cotenancy includes distinct Parcels, v> 208. 
 
 Conveyance where each Grantor Covenants for Jiimself alone, ^ 209. 
 
 Covenant of Seizin, when broken, (\ 210. 
 
 General words restrained to interest specified, v> 211. 
 
 Relative Rights of different Grantees in Severalty, ^ 212. 
 
 Conveyance by Sale under Execution, vS 213. 
 
 Officer may Levy and take exclusive Possession, ^ 214. 
 
 Officer must take exclusive Possession, vS 215. 
 
 Levy iipon and Sale of part by Metes and Bounds, 216. 
 
 Levy ui)on interest of one, under Execution against aU, vS 217. 
 
 Conveyance as affecting Policy of Insurance, § 218 
 
 Change of Possession, \^ 219. 
 
 Leasing, § 220. 
 
 g 189. A conveyance from one tenant in common to 
 another must be in the same form as though the estate con- 
 veyed was in severalty, instead of an undivided interest. 
 
 248
 
 249 COWEYIXG AND LEASING. ^ 100 
 
 Eacli tenant in coiumou lias a several and distinct frooliold. 
 And "as they ^s*cl•o created by diflcuviit acts, and difl'evont 
 liveries, tliey muyt also pass to each olhei" by distiiiet liv- 
 eries."' "When several persons are tenants in common, or 
 when joiiil-ienants do by severance become Iciiants in com- 
 mon, the tide to each share is to be cairied oa precisely in 
 the same manner as if the title to that share was a title to a 
 distinct farm."- "Tenants in common cannot veZfO-sr to each 
 othoi-; for a release supposeth the party to have the thiug in 
 demand; but tenants in common have several distinct free- 
 hokls, which (hey cannot transfer otiierwise than ns persons 
 who are sole seized."" "The books maybe traced to the 
 earliest periods, and it will be fouiid that no author lia-s raaiji- 
 tained that one tenant in common can convey to another in 
 any other way, or by a conveyance whose operation is dilie)- 
 eni from those used by feofifers between whom no such rela- 
 tionship exists. It follows from this that, however convey- 
 ances between ten<inl« in common may operate, and they 
 cannot operate by way of release, they must contain icord'i of 
 'p(ri)cliiihi fi) pa^^ a /"ee."^ 
 
 ^ UK). A eonveyance from one joint-tenant to nnother 
 niMy and ouglit to be by release. "The proper convoiyance 
 in this case is by release; for one joint-tenant cannot enfeoff 
 his companion, because they are botk actually seized of the 
 whole estate."' "If there be two joint -tenants and one release 
 to the other, this passeth a, fee without the word heirs, be- 
 cause it refers to the whole fee, which they jointly took, and 
 are possessed of by virtue of the first conveyance."** But 
 while a release is the proper form of conveyance when one 
 joint-tenant wishes to transfer his interest to the other, yet 
 other forms of conveyance, the terms of which are so broad 
 M^ i<» comprehc.i.l ;i i<'le;tsp, will be allowed to operate accord- 
 
 ' 1 Ci-iiifie Tit. 32, <■. (J; sec. 20. 
 
 •^ ?, Pr. Absts. 40. / 
 
 ' 5 Bac. Ab. 240. 
 
 ■* Ik'Cior V. Waug)), 17 Mo. 28. But ste Johnson v. Stovciis, 7 Cush. 433, whore a 
 K loaso to one tenant in common from tho others was treated un suflicLcnt to paan thoir 
 entate. 
 
 •' 2 Cr. IHt. lb, c, 2, sw. 22; 2 Hil. Koal I'. 2W; Ilarrinon c. Bulsry, T. Itavni. 11:!. 
 
 « r, Bao. Ab. 240.
 
 g 191 CONVEYING AND LEASING. 250 
 
 ingly, and therefore to transfer tlie interest of the joint-tenant. 
 Where one joint-tenant sealed and delivered a deed to the 
 other, in which it was expressed that he "granted, bargained, 
 sold, assigned, set over, and confirmed" all his interest, title, 
 and claim on the lands held in jointure, the question was 
 "whether this deed was sufficient to pass the part or share of 
 the joint-tenant who made the deed to the other to whom the 
 deed was made, or not." The Court said, "it was so clear 
 there could be no question about it; and therefore judgment 
 was given for the plaintiff who claimed under the deed."^ 
 That some words of conveyance have so large a signification 
 as to include and therefore to dispense with the necessity of 
 using words of lesser extent, is mentioned with some emphasis 
 by Lord Coke, where he says : "And here it is to be observed, 
 that some words are large, and have a generall extent, and 
 some have a proper and particular application. The former 
 sort may contain the latter; as dedi or concessi, may amount 
 to a grant, a feoffment, a gift, a lease, a release, a confirma- 
 tion, a surrender, etc., and it is in the election of the party 
 to use which of these purposes he will."^ The general rule 
 is that a deed shall always be carried into effect if possible. 
 The primary intent of the grantor is presumed to have been 
 to pass the land. He is not supposed to have intended it to 
 pass by a particular way, and by no other. If the words 
 which he has employed in his conveyance can in any way take 
 effect as a transfer of the estate intended to be conveyed, it 
 will pass to the grantee, though the deed cannot "operate in 
 the very way which the parties appear to have intended it 
 should operate."* 
 
 g 191. Coparceners may Convey to each other by Re- 
 lease and also by FeofFment. — "When two or more persons 
 become seized of the same estate by a joint title, either by 
 contract or by descent, as joint-tenants or coparceners, and 
 one of them releases his right to the other, such release is 
 said to enure by way of mitter Vestate. For where two several 
 
 ' Chester y. Willan, 2 Savmd. 96; Eustace v. Scawen, Cro. Jac. 696; Ballard v. Sit- 
 well, Clayt. 32; James v. Portman, Owen, 102; Thockmorton v. Tracy, Plowd. 156. 
 
 ^ Co. Litt. 301 h. 
 
 ^ Eoe V. Ti-anmer, 2 Wils. 75; Sheppard's Touchstone, 82-3. Sec note to Chester v, 
 Willan. 2 Saund. 96.
 
 251 CONVEYING AND LEASING. ^ 102 
 
 persons come iu by the same feudal contract, one of them 
 may discharge the other the benefits of such contract by a 
 release ; because no notoriety is needful, for there was a suffi- 
 cient notoriety in the prior feudal contract. Thus, two co- 
 parceners come into one entire feud, descending from their 
 ancestor : they may therefore release privately to each other, 
 because they take by the former descent, which established 
 them in possession without notoriety. But since coparceners 
 do also transmit distinct estates to theii' children, they may 
 pass their estates by distinct feoffments. 
 
 In consequence of the pri^'ity which must necessarily exist 
 in releases that enure by way of m liter Testate, a fee will pass 
 by such a release, without any toords of limitation. For the 
 parties are not in by Avay of the release, but by the orig- 
 inal feudal contract, which passed an inheritance; and the 
 release only discharges the pretensions of one of them to the 
 (jther. So that where one joint-tenant or coparcener releases 
 to the other, the releasee is in by the original conveyance ,' 
 and such release is not considered as an alienation."' 
 
 ^ 192. Conveyance by Cotenant out of Possession. — 
 Wherever the law forbidding or avoiding conveyances made 
 by a person out of possession of the property is in force, it 
 applies to cotenants as well as to claimants in severalty. The 
 principle that the possession of one part owner is also the pos- 
 session of the others, may be invoked in aid of such a convey- 
 ance. The fact that the gi-antor was not in the actual personal 
 possession of the land will not avoid his deed, as long as the 
 relation between him and his cotenants is such that he has 
 the right to consider their possession to be for his benefit as 
 well as for theirs. But if they have been guilty of an actual 
 ouster, or if they entered in their own right and not as coten- 
 ants, or if from any cause their possession is not his, but on 
 ,the contrai-y is adverse to him, then he must regain posses- 
 sion before he can be in a condition to make a conveyance of 
 his interest in the subject of the tenancy. - 
 
 ^'K, ' 4 Cr. Tit. 32, c. C, sees. 22 and 24; IJcctor v. Waugh, 17 Mu. 28; Smitli on Real 
 ^ and Personal Property, 242; 2 Hil. Real Propertj-, 300; 1 Washb. on Real Proixrty, 
 >s*: 415. 
 •Tx ' CoHBtantine i\ Van Winkle, G Hill, 19C; Bird e. Bird, 40 Me. 403.
 
 §g 193-96 CONVEYING AND LEASING. 252 
 
 g 193. In conveying to third persons, a cotenant, 
 whether joint-tenant, coparcener, or tenant in common, must 
 use the same kind of conveyance as though the estate sought 
 to be transferred were held in severalty. The deed must 
 therefore contain words of inheritance in order to pass an 
 estate in fee.' 
 
 g 194. Each cotenant may convey his moiety at pleasure, 
 
 without the consent or knowledge of either of his com- 
 panions in interest.^ This is true in every species of coten- 
 ancy. In the case of tenants in common, the grantee is sub- 
 stituted as a tenant in common, having the same rights, and 
 subject to the same obligations, as his grantor. But if the 
 grantor he a coparcener or joint-tenant, his grantee succeeds 
 to the same quantity of interest as that held by the grantor; 
 but he holds it l)y a diflerent tenure — viz., as a tenant in 
 t'ommon, and not as a joint-tenant or coparcener. Few if any 
 questions require to be litigated in reference to the effect of a 
 conveyance of his moiety by one cotenant to a person who 
 thereby becomes a member of the cotenancy. The questions 
 most frequently recurring involve a determination of the effect 
 of a conveyance in which the granting cotenant has assumed 
 to convey, not his moiety, but an entirety. 
 
 g 195. A conveyance made by a cotenant, and assuming 
 
 to dispose of a part of the lands of the cotenancy, or of the 
 grantor's interest in such part, may become a subject of legal 
 altercation for the purpose of ascertaining — 1st, its effect 
 upon the interests of the cotenants who did not unite in its 
 execution; or 2d, its effect upon the interest of the grantor 
 held by him at the time of the conveyance, or subsequently 
 accruing to him by ^ irtuo of the cotenancy. 
 
 j; 196. The interest of one cotenant cannot be diminished, 
 varied, or otherwise prejudiced or affected l)y a conveyance 
 made by another cotenant, except in the case of a joint- 
 
 ' 1 Washb. ou ileal Estate, 412; 3 Pr. ou Abstracts of Title, 49; 1 Washb. on Keal 
 Estate, 4:15. In New Bruns^-ick, it bas been beld, that as a man cannot convey to 
 himself, a deed from A, grantor, to himself and B and C, grantees, vests the whole 
 estate in B and C, becaose the grant to A is inoperative. Cameron v. Steves, 4 All. 
 141. 
 
 - Bradley r. Harkness, 26 Cal. 77.
 
 253 CONVEYINc; AND LEADING. gg 197-98 
 
 tenancy or coparcenary, in which the only eliect upon the 
 tenant not joining in the deed is to transform a joint estate 
 into a tenancy in common. Whatever the deed may profess 
 to dispose of, the grantee, as between himself and the other 
 cotenants, can obtain no greater interest than his gi'antor had 
 the right to enjo}.' This is true iiTespective of the character 
 of the cotenancy, or the nature of the propert}* sold, unless 
 the tenancy consisted of property the title to which could be 
 transferred by mere transfer of possession. 
 
 >^ 197. As Color of Title. — A conveyance b}' one cotenant, 
 purporting to convoy an estate in severalty, cannot operate to 
 the prejudice of another. This is tiiie only so far as the im- 
 mediate effect of such conveyance as a transfer of title is 
 concerned. It does not follow that i)0 rights can grow out of 
 it, nor that it is, even as against the other cotenants, mere 
 waste paper for all purposes. Such a conveyance constitutes 
 color of title. The entry of the grantee made under the deed, 
 and claiming an interest coextensive with that with Avhich the 
 deed purports to deal, is an entry under color of title. The 
 cotenants are therefore bound to take notice of the deed and 
 of the entry made under it, and to take such steps as may be 
 recpiired to enforce a recognitioji of their legal rights. Should 
 they fail to do so within the time prescribed by the Statute of 
 Limitations, their rights will be no longer susceptible of en- 
 forcement; and their interests, by operation of that statute, 
 will vest in the party in possession under the deed.^ 
 
 {5 198. A conveyance of the minerals in a tract of land, 
 
 reserving his interest in the land itself, made l)y a cotenant 
 to a stranger, is regarded as void as against the cotenants of 
 the grantor, ''because it is an attempt to create a ncAv and 
 distinct tenancy in common, between one cotenant and the 
 (others, in distinct j)arts of the common estate, which is con- 
 trary to the rules of law."'' The reasons on which this rule 
 is based are the same which are thought in many of the 
 States to be sufficient to invalidate a conveyance made by 
 
 ' MaVioney v. Mkldloton. 41 Cul. r,2; White c. Brooks. llfN. H. 405; Bigtlow r. Ti>y)- 
 liff, 2.") Vt. 27.3. 
 
 ■" Wcisinger n. Miirjjhy, 2 Head, G79. 
 
 ' Adams v. Brit,'f,'s Iron Co., 7 CuBh. .368; BoHton FraiikliniU- Co. i . Condit, I'J N. .). 
 E<j. ;j!t4.
 
 g 199 CONVEYING AND LEASIN'G. 254 
 
 either of the cotenants, aucl purporting to convey his interest 
 in a part only of the lands of the cotenancy. 
 
 § 199. Is a Deed of a part by Metes and Bounds Void? — 
 
 That deeds made by one cotenant conveying a part of the 
 real estate of a cotenancy by metes and bounds are "un- 
 doubtedly void, and the other cotenants may at all times so 
 treat them," is a general declaration made in express terms 
 in some of the cases, and well supported by a long train of 
 decisions,' though we cannot see that these decisions are, in 
 turn, supported by reason, or are necessary to the preserva- 
 tion of the rights of the cotenants. Such a conveyance is 
 undoubtedly void so far as it undertakes to impair any of the 
 rights of the other cotenants. It will not justify the grantee 
 in taking exclusive possession of the part described in his 
 deed. It will not deprive the other cotenants of the right 
 to enjoy every part and parcel of the real estate; nor can it, 
 to any extent, prejudice or vary their right to a partition of 
 the common property. The grantee is liable to lose all his 
 interest in the parcel conveyed to him, by its being set off to 
 some other of the cotenants upon partition. But although 
 the deed does not impair the rights of the other cotenants, it 
 by no means follows that they may treat it as void, or entirely 
 disregard it. While falling short of what it professes to be, 
 it nevertheless operates on the interest of the grantor, by 
 transferring it to the grantee. The latter acquires rights 
 which the cotenants ought to be bound to respect. They 
 ought not to be permitted to ignore his conveyance, and treat 
 him as one having no interest in the property. 
 
 ?j 200. The reasons on which the rule stated at the 
 beginning of the preceding section, and there admitted to be 
 sustained by the weight of authorities, has been supported by 
 
 ' Marshall v. Trumbull, 28 Conn. 185; Mitchell v. Hazen, 4 Conn. 509; Gri.swold r. 
 .Johnson, 5 Conn. 365; Hinman r. Leavenworth, 2 Conn. 244; Porter v. Hill, 9 Mass. 
 35; Bartlett v. Harlow, 12 Mass. 348; Smith i'. Benson, 9 Vt. 140; Gates v. Treat, 17 
 Conn. 392; The Boston Franldinite Co. v. Condit, 19 N. J. Eq. 401; Holcomb v. 
 Coryell, 3 Stock. 548; Blossom v. Brightman, 21 Pick. 284; Peabody c. Minot, 24 
 Pick. 333: Lamb v. Wakefield, 1 Saw. C. C. 256; Dorn v. Dunham, 24 Tex. 377; Good 
 V. Coombs, 28 Tex. 51; Primm v. Walker, 38 Mo. 98; PhUlips v. Tudor, 10 Gray, 82; 
 Jeffers v. Radcliff, 10 N. H. 246: Great Falls Co. c. Worster, 15 N. H. 449; Duncan r. 
 Sylvester, 24 Me. 485; Cogswell v. Keed, 12 Me. 200; Gibbs r. Swift, 12 Cush. 398: 
 Carroll v. Norwood. 1 Har. A J. 100; P.ichardsoa c. Miller, 48 Miss, 334.
 
 255 CONVEYING AND LEASING. § 200 
 
 the Courts, are very fairly showu and illustrateclby Chief Justice 
 Shaw, in the case of Adam v. Briggs Iron Company.' "The 
 gi-Qund upon "which the doctrine is established is, that a tenant 
 in common of an entire estate is entitled, on partition, to 
 have his property assigned in one entire parcel according to 
 his aliquot part. The respective coteuants may convey their 
 shares to one or many gi-antees, as they please, so it be of 
 the entii'e estate; because, whether there be one or many co- 
 tenants, each may still have partition, which is inseparably 
 incident to an estate in common, and have it in one parcel, 
 and of the like kind and quality- with the estate which he 
 holds in common. I have a moiety; my cotenant has a 
 moiety. He may convey a quarter of the whole estate to 
 one, an eighth to another, a sixteenth to another, and so on 
 indefinitely, letting in other cotenants with me. But all being- 
 seized of aliquot parts, in the same estate, and of like kind 
 and quality, my right to partition is not disturbed by the 
 number of the cotenants. But if he could convey his aliquot 
 part, in specified parcels of the estate, he might diminish the 
 value of m}- right, if not render it worthless." In another 
 case, the additional reason is adduced for considering the 
 deed void, viz., "that such deed breaks the imity of posses- 
 sion."' The reasons supporting the rule that a deed of his 
 inter'sst in a specified part of the whole tract, when made by 
 one cotenant, may be treated as a nullity by the other coten- 
 ants, are : 1st, that such conveyance would destroy the unity 
 of possession; and 2d, that it would impair the right to par- 
 tition. It is not claimed that such a deed, if treated as valid 
 to the extent of passing the title of the grantor, would affect 
 the right of the cotenants not joining in its execution, to 
 enter upon and enjoy the common property as fully as the}- 
 might lawfully do before the conveyance was made. The 
 unity of possession would be broken to this extent only : one 
 of the original cotenants would relinquish his right to enter 
 upon and enjoy a part of the premises, and the right so re- 
 linquished would pass to another person, to be exei'cised only 
 within the limits prescribed l)y the deed. Tliis ]);utial de- 
 
 ' 7 Cusli. 3C9. 
 
 • Primm c. Wiilkcr. 38 Mo. 98; but this case is (ivciTnkd l>y IJariilianli r. (^iinplxll. 
 
 .-)0 Mo. rm.
 
 g 201 CONVEYING AND LEASING. 256 
 
 Btniction of the unity of possession Las not seemed ob- 
 noxious to Courts in a State wli ere tlie right io (convey a part 
 by metes and bounds has been uniformly denied. Thus, in 
 an early case in Massachusetts, a cotenant had leased a part 
 of the lands of the cotenancy, and the question arose whether 
 sirch lease was void as against the other cotenants. The 
 Court argued that as each cotenanl, until part'tion, had a 
 light to occupy any part of th(^ common properly, and as he 
 might assign this right of occupancy to a stranger, and as 
 the leasing was but an assignment of this 3-ight, ihut the 
 lease must be held valid in law.' This decision, so far as we 
 can ascertain, has never been questioned. If it can be ac- 
 cepted as a true exposition of the law, it follows that the 
 unity of possession between tenants in common, or other co- 
 tenants, may be so far broken that one of them may, by his 
 own act, relinquish his right to be in possession of some 
 part, and transfer such right to a stranger. If the unity of 
 possession may be so broken by a lease, we see no reason 
 why a conveyance should be declared void for attempting to 
 do what might be lawfully accomplished by a lease. The 
 second objection made to a conveyance of a part of the sub- 
 ject of the tenancy — viz., that it would impair or defeat the 
 rights of the other cotenants to a partition — is not good, be- 
 cause, in point of fact, it is not true. The rule maintained 
 by the cases which we shall now proceed to consider, gives 
 the deed effect even against the cotenants, yet assures to the 
 latter every right which they had before it was made. 
 
 '6 201. Rule in Ohio. — In what is probably the earliest 
 case affirming the right of either cotenant to convey, by 
 metes and bounds, his interest in a part of the common 
 property, the Court said: "The determination of this ques- 
 tion is attended with considerable difficulty. This difficulty, 
 however, arises not so much from any apparent inconsistency 
 or impropriety 4n such grant, as from a possible inconveni- 
 ence which might result to the cotenant who retains his 
 estate. One tenant in common may grant his entire interest 
 or estate in a particular species of property— a tract of land 
 
 ' Piisinjr v. Stamiard, 17 Muss. 285.
 
 257 CONVEYING AND LEAf^ING. ^ 201 
 
 for instance — or he may grant one-half as a smaller propor- 
 tion of liis interest in the same entire property. If this be 
 coiTect, no good reason is perceived why he may not grant 
 his entii'e interest in a particular part. A and B are seized 
 of a section of land as tenants in common. It is well estab- 
 lished that A may grant his entire interest or estate in the 
 section, and the conveyance will be valid. Upon what prin- 
 ciple, then, can it be said that if he convey his entire in- 
 terest in particular quarter of such section, snch conveyance 
 shall be void? Certainly A and B, tenants in common as 
 aforesaid, might with propriety unite and convey a particular 
 quarter of the section, and a complete title in the gi-antee 
 Avould be vested. Would not the title of the grantee be 
 equally valid if the tenants in common should, by separate 
 deeds, convey to him their individual interest in ^oi particu- 
 lar quarter? This question, it is believed, must be answered 
 in the affirmative, and if so, it proves conclusively, that one 
 tenant in common may transfer to a third person his entire 
 interest in a part of the property held in common. Otherwise, 
 we run into the absurdity that a deed, properly executed by 
 one individual, which is an entire thing, and j^urports to con- 
 vey a specific proj)erty, must depend for its validity ujjon the 
 execution of a similar instrument by a third person, who is 
 no way party to the first. The principal reason assigned why 
 one tenant in common shall not be allowed to convey, as 
 before stated, is, that by so doing, he may do a great injury 
 to his cotenant, by compelling him, in case of partition, to 
 take his proportion of the estate in small parcels, very much 
 to his disadvantage. If such evils would result, they ought, 
 if possible, to be avoided. It does not folloAv, however, that 
 because one of two tenants in common can convey his estate 
 in Si part of the property so held, therefore the rights of his 
 cotenant are affected. This cotenant will still have the same 
 interest in every part, and in the Avhole of the property. He 
 can still compel partition, and may have his share of the 
 property set off io him in severalty, in the same manner he 
 could have done had no conveyance been made."' 
 
 ' Lessee of White r. Sayro, 2 Oliio, 112; Ebeiiozer ProntiHs' Cuko, 7 Ohio, 473; Treon 
 ". Emtiick, lb. .'l!il; DenniHon v. FoHter, 9 lb. 120. See alsoCampuu v. Godfrey, 18 
 Midi. 32. 
 
 C. k P.— 17
 
 gg 202-3 CONVEYING AND LEASING. 258 
 
 g 202. In Virginia, the doctrine of these Ohio decisions 
 
 has been affirmed. Tlie Court of Aj)peals, in determining 
 the effect of a conveyance, such as we are now considering, 
 treated it as valid to the extent of transferring to the grantee 
 such rights as the grantor x^ossessed, and therebj' making the 
 grantee cotenant with the cotenants of the grantor. "The 
 deed being good against the grantor, the entry of the tenant 
 under it would be lawful; and though it might be inoperative, 
 so far as the rights of the cotenaut were thereby prejudiced, yet 
 as it would invest the grantee with the estate of the grantor, 
 so far as he could lawfully convey, the grantee would be ten- 
 ant in common with the cotenant of his grantor to the extent 
 of the interest conveyed. His possession and seizin would 
 be the possession and seizin of both, because such possession 
 and seizin would not he adverse to the right of his com- 
 panion, but in support of their common title."' 
 
 ^ 203. In California, this question has been decided by 
 
 the Supreme Court in at least two careful and well considered 
 judgments. In the first, Field, then Chief-Justice of Califor- 
 nia, now an Associate Justice of the Supreme Court of the 
 United States, quoted with approbation the decisions made 
 in Ohio and Virginia. The argument put fortli in Smith v, 
 Benson,- that " if one tenant in common is permitted to con- 
 vev his portion of the estate by separate parcels to more than 
 one, he may to any number, and if these conveyances are 
 valid, the cotenant is bound to make partition with each of 
 these separate grantees, and an estate which originally was 
 valuable, with a right to partition with one only, becomes 
 wholly worthless from the obligation to submit to perpetual 
 subdivision,'" was thus answered by Judge Field: "But we 
 do not see that any such result necessarily follows, for the 
 partition may be directed without reference to the gi-antees 
 under the conveyances, further than to make them parties to 
 the proceedings in partition, in connection with their grantor, 
 as representing his interest as original cotenant. Their claim 
 to conti'ol or affect the partition, by reason of their respective 
 
 1 Eobinett r. Pre^iton's Heirs, 2 Eob., Va., 278. 
 •-' 9 Vt. 141.
 
 259 CONVEYIXG -VXD LEASING. § 203 
 
 conveyances, may be entirely disregarded. The grantees are 
 to be considered as taking their conveyances subject to this 
 condition. Their position in that respect is not very dis- 
 similar to that of grantees of premises upon which judgments 
 stand as liens, or in relation to which suits are instituted, 
 with notice of their pendency filed in the Recorder's office. 
 Such grantees woiild acquire interests, liable indeed to be 
 destroyed by sale under the judgments, or the result of legal 
 proceedings, but, until such destruction, capable of enforce- 
 ment against intruders and trespassers."' In a subsequent 
 case, in the same State, the general effect of such a convey- 
 ance is described as follows: "The rights thus assigned to 
 the grantee are precisely those pertaining to the grantor in 
 the special tract — no greater, and no less. The grantor, be- 
 fore his conveyance of the special tract, held his undivided 
 interest therein subject to the coutingencj' of the loss of it, 
 if on partition of the general tract the special tract should 
 be allotted to one of "his cotenants. The grantee then ac- 
 quires all the interest of his grantor in the special tract, and 
 that interest is a tenancy in the special tract in common with 
 the cotenants of his grantor; but his conveyance did not 
 sever the special tract from the general tract, so far as the 
 cotenants are concerned, and the general tract is therefore 
 liable to a partition so far as the cotenants of the grantor are 
 concerned, as it Avould be had the conveyance of the special 
 tract not been made."'- In the case from which this last 
 quotation is taken, the precise question before the Court -was 
 whether the grantees of specified parcels under the original 
 tenants in common were necessary parties to proceedings for 
 partition. The case presented the remarkable and perhaps 
 unprecedented peculiarity, that while the premises in litiga- 
 tion included twenty-five thousand acres of land, no person 
 had title in severalty to any part, nor did any one hav(^ an 
 undivided interest in the whole. Tliis peculiaiity might 
 have been urged, independent of general principles, as a 
 controlling reason for allowing and requiring tlu^ partition to 
 be conducted by and against grantees of specified tracts. 
 
 1 stark V. liaiiett, 15 Cal. 370. 
 
 ^ GatcH r. Sidiium, So Cal. 538; Sutter r. San Francisco, :)(; Cal. H."
 
 ^g 204-5 CONVEYING AND LEASING. 260 
 
 This case, so far as it holds that such grantees are necessary 
 parties to partition, is in harmony with decisions in some of 
 the States, whose Courts, in other respects, have not fully 
 recognized the doctrines of the Ohio, Virginia, and Califor- 
 nia decisions.^ 
 
 g 204. The Supreme Court of Missouri, quite recently 
 
 in opposition to an obiter dictum contained in an earlier de- 
 cision of the same tribunal, declared in favor of the validity, 
 as against his cotenants, of a conveyance of a part of the 
 lands of the tenancy made by one of the tenants in common. 
 The Court contended that such conveyances did not, as much 
 us at common law, interfere with partitions of the common 
 property ; that while under the common law a partition was 
 made in kind, it was, under the law of Missouri, not neces- 
 sary to make it in that manner, but the property might be 
 sold and the x^roceeds distributed among the parties according 
 to their respective rights ; and that a conveyance of small in- 
 terests, if likely to prejudice the co-owners upon a partition 
 in kind, could be rendered harmless to work injustice, by 
 ordering a sale of the whole property, at which each tenant 
 has the liberty of purchasing as he may think proper. ' ' When 
 the reason for the rule ceased, the rule itself also ceased, and 
 accordingly, such conveyances have been made, and ac- 
 <piiesced in by the legal profession as valid. Large amounts 
 of property, no doubt, have been acquired, and are now held 
 on the faith of their validity; and under the circumstances, 
 it is the duty of the Court, when no rule of law is violated, 
 to uphold them, and to protect the citizens in the enjoyment 
 of their just acquisitions. "- 
 
 ^ 205. But in no case can the conveyance of one tenant 
 in common, or of any less than all the cotenants, give the 
 grantee any greater rights than those held by the grantor or 
 grantors. As neither cotenant, nor any number less than the 
 Avhole, can of right exclusively occupy any specific parcel of 
 the premises, no grantee from any less than all the tenants 
 can acquire the right to exclusively enjoy any specific parcel. 
 
 '- Harlan v. LaDgbam, 69 Pa. St. 238; Whittoii v. Whitton. 38 N. H. 133. 
 - Barnhart r. Campbell, 50 Mo. 599.
 
 "261 CONVEYING AND LEASING. § 206 
 
 And as no cotenaut, nor any number less than all, can of right 
 demand that a partifular jiart shall be set off to him or them 
 iij^on partition, therefore no grantee of any less than all the 
 part o-RTiers can acquire such right.' But while no such 
 gi-antee has an absolute legal right to have the part granted 
 to him set off to him or to his grantor upon partition, yet he 
 has rights which Avill receive the consideration of the Court, 
 and will be respected as far as they can be without prejudice 
 to the rights of the other part owners. The Court, wherever 
 the interests of the other owners will not be impaired there- 
 by, will set off to grantees of specified parcels the tracts in- 
 cluded within their respective deeds. -^ 
 
 g 206. Conveyance of Part, as between the Parties. — 
 
 From a decision in Maine, we infer that the Courts of that 
 State are inclined to declare a deed made by a coteuant and 
 purporting to convey a part of the premises in severalty, in- 
 operative for all pui-poses until such tract shall be set off' to 
 the grantor in severalty, or the conveyance shall be otherwise 
 ratified by the other cotenants. " Such a conveyance," says 
 the Court, "cannot, in any event, operate contrary to the ex- 
 pressed declarations and intentions of the parties, to convey 
 an estate in common instead of an estate in severalty. Wliile 
 the law, for the pui'pose of making a deed operative, will give 
 it such a construction that it may, if possible, conTey by any 
 legal mode of conveyance the estate intended to be conveyed, 
 it will not permit such a construction as would convey an 
 estate of a different kind or description from that intended to 
 be conveyed."^ But this decision, in so far as it determines 
 that a conveyance by a cotenant assuming to transfer an estate 
 in severalty can have no effect until the grantor has an estate 
 in severalty on which the deed may operate, has never, so far 
 as we can ascertain, been approved. It was a logical conclu- 
 sion drawn from a false premise. If it were true that a con- 
 veyance were never permitted to convey any estati* difVerent 
 
 ' Doni V. Dunham, 24 Tex. 370; Stark t>. Barrett, 15 Cal. 868. 
 ^ McKce r. Bailey, 11 Graft. .340; Cnmpau v. Godfrey, 18 Midi. 38: lldicuiub v. 
 Coryell, 3 Stock. 548. 
 ^ Houtter r. Porter. 27 Me. 417.
 
 ?i 207 CONVEYING AND LEASING. 262 
 
 from that intended to 1)6 conveyed, then we should agree in 
 the conclusion announced in Maine. But such is not the case. 
 "If a deed cannot operate in the manner intended by the 
 parties, the Judges will endeavor to construe it in such a way 
 as that it shall operate in some other manner."' "When the 
 deed cannot take effect, according to the letter, it will be con- 
 strued so as it may take some effect or other.'"- Although a 
 gi-antee may not obtain the kind of estate, or the quantity of 
 interest for Avhich he bargained, we know of no reason why 
 he should be denied such a lesser estate or interest as his 
 grantor could convey. The question whether a conveyance 
 in severalty can operate as a conveyance of an interest in an 
 estate held in cotenancy can not arise between the grantor 
 and the grantee in the deed, because the former is estopped 
 from raising it. The case is simply one where a grantor con- 
 veys a greater interest than he owned at the time. It is the 
 ordinary case where a party is estopped to claim that he owned 
 a less interest than his deed purports to convey."" Even in 
 Massachusetts, a State where the Courts have been inclined 
 to restrain the power of cotenants to make any conveyance, 
 on its face inconsistent with the cotenancy, it is established 
 that a deed "by metes and bounds is not void, but is good 
 .against everybody but the cotenants, and can only be avoided 
 by them."* 
 
 § 207. Conveyance of Part, Effect after Partition.— In 
 the preceding section, we discussed the question whether a 
 conveyance made by one tenant in common, purporting to 
 convey part of an estate in severalty, could take effect so as, 
 between the parties, to transfer the undivided interest; and 
 this question we found not altogether free from doubt. But 
 when, upon partition, or by conveyance from his cotenants, 
 or through any other means, the grantor acquires an estate in 
 severalty in the premises so conveyed by him, this subse- 
 quently acquired estate vests in his grantee by operation of 
 
 ' Jackson r. Blodgett, 16 Johns. 178; Goodtitle v. Bailey, Cowp. 600. 
 
 - 1 Pr. Abs. Title, 312. 
 
 ^ Smith V. Modus Water Power Co., 35 Conn. 100. 
 
 ' Dall V. Brown, 5 Cush. 291.
 
 -63 CONVEYING AND LEASING. j^ 208 
 
 the previous couveyanee. In this proposition, all the author- 
 ities treating upon this subject seem to concur.' 
 
 g 208. Where Cotenancy includes Distinct Parcels. — 
 The rule that one coteuant cannot convey his moiety in a 
 sjDecifiecl part of the lands held in common, does not, accord- 
 ing to a preponderance of the authorities, even where it is 
 recognized as of general obligation, apply to the conveyance 
 of an entire lot or parcel of land, though the cotenants of 
 such lot or parcel are also cotenants of other lots or parcels. 
 8o, though the subject of the tenancy may consist of a single 
 tract of land of which neither cotenant could convey his in- 
 terest in a part, as against his cotenant, yet the cotenants 
 may, by an agi-eement express or implied, convert this tract 
 into several smaller tracts. This happens when all the co- 
 tenants, or when one with the approbation of the others, 
 cause the tract to be laid out into town lots or blocks, sepa- 
 rated from one another by streets and alleys. In such cases, 
 the acts of the pai-ties turn a cotenancy of one large tract 
 into several cotenancies of several distinct but smaller tracts, 
 ' ' and they become tenants in common of each lot or parcel 
 by itself." Therefore, "one of them may convey all his un- 
 divided interest in the whole of any one of these distinct 
 parcels; and his deed will be valid and effectual against his 
 cotenants."^ But cases are not wanting which limit the right 
 of a cotenant to convey his interest in any specific part of 
 the lands of the cotenancy, although they coiisist of distinct 
 parcels. As the chief objection to such conveyance is its 
 alleged interference with the right to partition, it is claimed 
 that this objection exists with equal force where the lands, 
 though separate, are within the same jurisdiction, and are 
 therefore liable to partition in the same proceeding. For 
 instance, if A and B ovm two lots of land as cotenants, an 
 
 * Primm v. Walker, 38 Mo. 07; Cox r. McMullin, 11 Gratt. 90; Cunningham o. Pat- 
 toe, 99 Mass. 251; De Witt v. Harvey, i Gray, 401; Johnson v. Stevens, 7 Ciish. 433; 
 Campau v. Godlrey, 18 Mich. 37; Challefox v. Ducharme, i Wis. 554; Smitli c. Ben- 
 son, 9 Vt. 138; McKco v. Barley, 11 Gratt. 340; Cogswell v. Reed, 12 Me. 198; Ilolcoinlj 
 V. Coryell, 3 Stock. 548. 
 
 - Primm v. Walker, 38 Mo. 98; Carroll r. Norwood, 1 Har. .V .1. 100; Holme;; r. Mo- 
 Gee, 27 Mo. 597; Butler v. Boys, 25 Midi. 54; Starr v. Leavitt, 2 Conn. 24(J; IJeinicker 
 r. Smith, 2 liar. & J. 421,
 
 §g 209-10 CONVEYING AND LEASING. 264 
 
 advantageous partition may often be accomplished by assign- 
 ing one to A and the other to B. But if B may sell his in- 
 terest in one lot, then A must submit to two actions for par- 
 tition, resulting in his having not one whole lot, but two half 
 lots, situate in different localities. For these reasons, it has 
 been intimated that the rule forbidding conveyances by either 
 cotenant of his interest in a part of the subject of the ten- 
 ancy, applies where the lands are in distinct parcels, hnt all 
 situate in one county.' So it has been held, with a great ex- 
 hibition of confidence in the correctness of the decision, that 
 the rule extends to " a variety of tracts of land throughout 
 the State. "2 
 
 g 209. An agreement to convey, entered into by several 
 cotenants, by which they stipulate that they will give * ' a 
 good and sufficient warranty deed," etc., does not require 
 either to warrant the title of the others. It is complied with 
 if each makes a separate deed of his moiety containing the 
 stipulated covenant, or if all join in a deed in which each 
 grantor warrants his share, but not that of his co-grantor.^ 
 
 ^ 210. Covenant of Seizin, when Broken. — If a cotenant 
 undertake to convey his interest in a part of the premises, 
 and insert in the conveyance a covenant that he has a good 
 right to sell and convey, such covenant is broken instantan- 
 eously upon the delivery of the deed, if the lands be situated 
 in one of the States in which such attempted transfers are re- 
 garded as void.* Where a grantor covenants that he is seized 
 in fee of an undivided interest in the premises conveyed, and 
 partition had previously been made by order of Court, of 
 which he was ignorant, he is liable on his covenant, although 
 he conveys no more than his original jDortion of the whole 
 tract.' When he conveys the premises in severalty with a 
 covenant of seizin, he becomes liable for the breach of his 
 covenant as to the moiety of his cotenant. The damages are 
 one-half of the consideration of the deed, where the interest 
 of the other cotenant is an undivided one-half,^ and, in other 
 
 ' Peabody v. Minot, 24 Pick. 333. '^ Thompsoia v. Barber, 12 N. H. r)G5. 
 
 ■' Coe V. Harahan, 8 Gray, 198. * Mitchell v. Hazen, 4 Conn. 495. 
 
 a Morrison v. McArthurr. 43 Me. 567. « Downer v. Smith, 38 Vt. 468.
 
 265 CO.XYEYINe; AM) LEASING. ^^ 211-lti 
 
 cases, we suppose, would bear the same proportion to the 
 consideration paid for the conveyance tliat the title of the 
 non-convejing cotenants bears to the title assumed to be con- 
 veyed. 
 
 g 211. Words in Deed restricted to Interest Conveyed. — 
 A conveyance of an undivided half of a certain farm, bounded, 
 etc., (giving the exterior boundaries,) together Avith all the 
 grantor's " estate, right, title, interest, claim, and demand 
 whatsoever, " which he hath to the above described premises, 
 either in law or in equity, from the last will of S. S., etc., 
 does not convey, nor purport to convey, any more than an 
 undivided one-half interest. The general words used must 
 be restrained to the particular occasion. The object of the 
 deed was undoubtedly to convey but a moiety, ' ' and the gen- 
 eral words are thrown in to show how the right of the grantoi- 
 was derived."^ If the description in a deed is " one-half of 
 the land hereinafter described, both in quantity and quality, 
 one-half of all the lands contained within the bounds here- 
 after mentioned, namely, beginning, etc., the one-half of the 
 whole of said land, and one-half of the buildings on the 
 same, and also one other piece of land, containing, etc., and 
 bovinded," etc., such description will be construed as efl'ecting 
 a conveyance of one-half only of the last named tract. "The 
 terms and also, which introduce the description of the land 
 in question, show that the same portion of the land was in- 
 tended to be granted as of that described in the preceding 
 part."- 
 
 § 212. The rights of different grantees in severalty of 
 
 distinct parcels of land from the same cotenant are equal, irre- 
 spective of the dates of their several grants. Thus, if a tenant 
 in common of a lot of land sell and convey the north one-half 
 thereof in severalty to A, and the south one-half thereof in 
 severalty, at a subsequent date, to B, A has not, on account 
 of the priority of his grant, any superior legal or equitable 
 rights to B. If, at the time of the conveyances, the parties 
 all supposed the grantor to be seized of an estate in severalt}-, 
 and a moiety thereof is afterwards recovered by a claimant 
 
 ' .Jackson r. Stevens. 10 .ToIiuh. 114. ■* Hiip;{oo<l v. Wliitman, 13 Mass. 405.
 
 i/g 213-14 CONVEYING AND LEASING. 266 
 
 under a paramount title, A cannot compel such a partition as 
 will set off the north half to him, and leave the moiety re- 
 covered to be assigned out of B's half. "There seems no such 
 relations between earlier and later purchasers as authorize 
 the former to impose any such obligations on the latter. The 
 rights and equities of each are equally ample and perfect. 
 The loss which they suffer in this instance is not from an in- 
 cumbrance, which may be extinguished, either by the appro- 
 priation of the land left with the heirs or a contribution among 
 themselves, but is a full and paramount right over a portion 
 of the lands of each . As respects heirs, we would endeavor 
 to mould their rights, so as to protect the alienee of their an- 
 cestor, but we tind no authority to apply any such principles 
 between purchasers, and we must leave each to sustain his 
 share of the burthen."^ 
 
 § 213. Involuntary Transfer. — The interest of either co- 
 tenant may be divested from him and vested in another by 
 involuntary transfer thereof, the same as though the property 
 were held in severalty. No one, so far as we know, has ever 
 denied that the interest of a cotenant may be seized, either 
 upon execu.tion or attachment, and thereby appropriated to 
 the discharge of his liabilities. The cases in which such 
 seizures and appropriations have been sustained are nume- 
 rous.^ The chief difficulty has been to determine the respec- 
 tive rights of the seizing officer and the cotenants of the 
 judgment or other debtor to the possession of the property, 
 and the extent of property Avhich must be embraced in a levy 
 upon the real estate of a cotenant. 
 
 § 214. Officer w^ith Execution may take Exclusive 
 Possession. — In respect to the relative rights of an attaching 
 officer and the cotenant of the person against whom the at- 
 tachment issued, to the possession of personal property taken 
 under the attachment, there is no doubt that the officer is en- 
 titled to take exclusive possession and to retain such posses- 
 
 ' Deniiison v. Foster. 9 Ohio, 130. 
 
 - 3Ielville v. Brown, 15 Mass. 82; McMechan v. Griffing, 9 Pick. 537; Heydon v. 
 Heydon, 1 Salk. 392; Buddmgton v. Stewart, 14 Conn. 408; Hayden r. Binney, 7 
 Gray, 410; James v. Stratton. 32 111. 202; Munroe v. Luke, 19 Pick. 39; Strickland v. 
 Parker, 54 Me. 263.
 
 267 CONVEYING AND LEASING. g 215 
 
 sion until the sale, and may deliver the Avliole to the purchaser.^ 
 It is conceded that this rule works a hardship upon the co- 
 tenant whose interest is not attached, and who has been guilty 
 of no act or default w^hich ought to prejudice him, by producing 
 a temporary suspension of the rights and privileges of owner- 
 ship. The officer must not undertake to sell the whole. Though, 
 for the purposes of the writ, he may take exclusive possession, 
 he has no right to assume the authority of conveying title to 
 the whole; and whether he assumes to do so or not, he cannot 
 affect the title of any cotenant not included in his writ. An 
 involuntai-y, like a voluntary transfer or conveyance, cannot 
 prejudice those who are not in law parties to it. Upon a sale 
 of property upon execution, the purchaser becomes tenant in 
 common with the cotenant of the judgment debtor. The at- 
 taching officer, it is said, is not bound to permit a severance 
 and partition of chattels in his possession. If the cotenant of 
 the judgment debtor severs his share from the goods seized 
 under the writ, he is liable to the officer in an action of trover. 
 The creditor is not compellable to assent to a division. He 
 has the right to seize upon and sell the undivided share of 
 the debtor in the whole property.'- If the officer levy upon 
 the property as belonging to the defendant exclusively, in- 
 stead of le\'}-ing upon his uudi\aded interest, this is an in- 
 vasion of the rights of the other cotenants, for which they 
 may sustain an action.'' 
 
 § 215. Officer must take Possession. — The officer hold- 
 ing a writ of attachment or execution against one cotenant 
 may, as we have seen, take exclusive possession of the chat- 
 tel levied upon, retain it vmtil the sale, and then deliver it to 
 the purchaser. But taking possession is not optional Avith 
 the officer. He must take possession, or in some way subject 
 the property to his control, in order to make a valid levy and 
 sale.^ 
 
 ' Waldman v. Brodor, 10 Cal. 378; Walsh c. Adams. ;5 Dcnio, 125: Bcrnal r. Hov- 
 ious, 17 C(.l. 547: Ca)d\rell r. Anqcr, 4 Minn. 217: Waddcll r. Cook. 2 Hill. 48: Phi^ 
 1 ps V. Cook, -24 Wtiid. 389; Wtlch v. Clark, 12 Vt. C8G; Whitncv i\ Ladd, 10 Vt. 1C5; 
 fieed f. Sbepardauii, 2 Vt. 120. 
 
 ^ Reed I'. Howard, 2 Met. 40. 
 
 '■' Neary v. Caliill, 20 111. 214; King v. Manning Com. l!ep. Gil); Waddcll t>. Cook, 2 
 H;.11, 48. 
 * Brown v. Lane, 19 Tex. 203; Converse v. McKec, 14 Tex. 30.
 
 g 216 CONVEYING AND LEASING. 268 
 
 § 216. Convey ance of Part \inder Execution. — We have 
 
 already seen that the decisions determining the effect of a 
 conveyance made by a cotenant, and purporting to convey 
 his interest in some specified parcel, are very inharmonious. 
 The reasons which exist in the case of a voluntary are some- 
 what different from those accompanying an involuntary con- 
 veyance. The purchase of a grantor's interest in a specified 
 parcel is in effect a wager that such parcel will be set off to 
 him on partition, or otherwise confirmed to him by the other 
 cotenants. Still, if such circumstances exist that the grantor 
 sees fit to make, and the grantee to accept, a conveyance 
 which may, in the event of an unfavorable partition, convey 
 nothing, we can see no valid reason for denying the utmost 
 effect to the deed which it can be given, consistently with the 
 rights of the other cotenants. But in the case of an involun- 
 tary transfer of property, the interest of the person whose 
 estate is to be divested by compulsion ought to be carefully 
 considered and jealously guarded. If an officer may lawfully 
 levy on a specific parcel and subject it to a forced sale, he 
 may thereby sacrifice the property of the defendant, for few- 
 persons would be found willing to bid for that which, when 
 j)urchased, consisted of a mere contingent interest — an in- 
 terest which the other cotenants were not bound to notice, 
 and which might be finally lost upon a partition of the com- 
 mon property. Hence the rule, supported by a decided pre- 
 l>onderance of authorities, is that a levy and sale of the 
 debtor's interest in a specific part of the lands cannot be 
 sustained.' The highest judicial tribunals in several of the 
 States, as we have shown, have declared themselves in favor 
 of sustaining conveyances by metes and bounds of a jjart of 
 a cotenant's lands as far as may be done without prejudicing 
 the cotenants of the grantor. Wliether all these tribunals 
 would uphold an involuntary conveyance of the same nature 
 cannot be ascertained, because the question does not seem to 
 have arisen except in the State of Ohio. In that State, the 
 deed of the sheriff is given the same effect, in this respect, 
 
 ' Hinman v. Leavenworth, 2 Conn. 244; Starr v. Leavitt, 2 Conn. 246; Staniford v. 
 Piillerton, 18 Me. 229; Lawrence c. Burnham, 4 Nev. 368: Soutter v. Porter, 27 Me. 
 405; Smith v. Knight, 20 N. H. 17.
 
 269 CONVEYING AND LEASING. ^§ 217-18 
 
 as though it were a vohiiitary couveyance.' But if the same 
 persons are eotenants of separate tracts of land, an execution 
 need not be levied upon both tracts. A levy upon and sale 
 of one tract is nt)t an attempt to create new tenancies, for 
 each separate tract is generally treated as forming the subject 
 of an independent tenancy.'- 
 
 § 217. Execution against both Cotenants. — If an execii- 
 tion be issued against two or more cotenants, and one of 
 them point out certain real estate as being subject to levy as 
 the property- of his co-defendant, and thereupon such prop- 
 erty' is levied upon, advertised, and sold as the property of 
 such co-defendant, when in fact it belonged to both defend- 
 ants, the only title divested by the sale is that of him whose 
 interest was seized. The fact that both cotenants were also 
 judgment debtors does not alter the effect of the sale ; ^ nor 
 does the pointing out of the property as subject to levy as 
 above stated, create any such estoppel as to prevent him who 
 so pointed it out from asserting his title as a part o-uaier."* 
 
 § 218. A policy of insurance containing the stipulation 
 
 "that, in case of any sale, transfer, or change of title of any 
 property insured by this company, or of any individual interest 
 therein, such insurance shall be void and cease," is rendered 
 void by a sale and transfer by one partner to one of his co- 
 partners of his interest in the partnership property without 
 the consent of the company.'^ The condition of this policy 
 included, in language too clear to be misunderstood, a trans- 
 fer by one partner or cotenant to the other, because it ex- 
 pressly stipulated against conveyances of any "individual 
 interest." But the same rule has been applied where the 
 condition being expressed in less precise terms, provided 
 "that if the property should be sold or conveyetl M'ithout 
 the consent of the company, it should be void." The reasons 
 given in support of the rule are, that "in making contracts 
 of insurance, the company has regard to the habits and ch.-ir- 
 acter of the other contracting parties. If a firm is composed 
 
 ' Treon v. Emerick, 6 Ohio, ;]99. - Butler i\ Roys, 2o ."^licli. ."53. 
 
 ^ Southerlaiid v. Cox, '.i Dov. 394. ^ AndrowH o. Murpliy. 12 Ga. 431. 
 
 '■> Di:c y. The Mercantih; Ins. Co., 22 111. 272; The Hiiitfonl Fire Iiis. Co. r. lioss, 23 
 In.l. 182.
 
 g 218 CONVEYING AND LEASING. 270 
 
 in part of prudent, careful men, a company may be willing to 
 insure the property of the firm, though the others are of an 
 entirely different character. But if, after this was done, those 
 who were prudent and careful, could, by selling out to the 
 others, leave the company exposed to the unguarded negli- 
 gence of the latter, it might suffer the same evil as from a sale 
 to strangers." ' But this line of reasoning has not always been 
 regarded as conclusive, and, in a number of cases, it has been 
 adjudged that a transfer from one part owner to another is 
 not within the general prohibition of alienation of the prop- 
 erty insured.^ In deciding this question, the Court of Appeals 
 of the State of New York said: "It is suggested that the 
 proviso may have been designed to secure the continuance in 
 the firm of the only member in whom the insurers reposed 
 confidence. The onl}' evidence of their confidence in either 
 is the fact that they contracted with all; and the theory is 
 rather fanciful than sound, that they may have intended to 
 conclude a bargain with rogues, on the faith of a proviso that 
 an honest man should be kept in the firm to watch them. 
 Certainly, nothing appears in the present case to indicate 
 that all the assured were not equally worthy of confidence; 
 and it is not to be presumed that, in any case, underwriters 
 would deliberately insure those whose integrity they had 
 reason to distrust.'"^ The answer here given to the argument 
 that the proviso may have been inserted to retain in the firm 
 some member in whose honesty the assurers had especial con- 
 fidence, is equally applicable as a reply to the other argu- 
 ment, that such proviso may have been incorjDorated in the 
 policv to secure the continuance in the firm of the member 
 upon whose discretion and caution the insurers chiefl}' relied. 
 The theory is truly nioie fanciful than I'eal. If any such 
 special confidence induced the granting of the policy, this 
 fact ought to be proved rather than presumed. But the chief 
 
 ' Keeler c. Niagara Fire Ins. Co.. 10 Wis. 536; Finley v. The Lycoming County Mu- 
 tual Ins. Co., 30 Pa. St. 312; Buckley r. Garrett, 47 Pa. St. 204. 
 
 -' McMasters r. The Westchester Mutual Ins. Co., 25 Wend. 379; Tillou v. Kingston 
 Mutual Ins. Co., 7 Barb. 570: Wilson v. The Genesee Mutual Ins. Co., IG Barb. 511: 
 4 Kern, 418: Dey r. The Poughkeepsie Mutual Ins. Co.. 23 Barb. 627; Buflalo Stean: 
 Engnie Works *". The Snn Mutual Ins. Co.. 17 N. Y. 412; Hobbs v. Memphis Ins. Co., 
 1 Sneed, 444. 
 
 •' Hotlman r. Etna Ins. Co.. .^2 N. Y. 411.
 
 271 CONVEYING AND LEASING. gg 219-20 
 
 vice of the rale that alienation between joint owners avoids 
 a policy of insurance is, that it seems to be as applicable to 
 the transfer of the interest of the dishonest and imprudent, 
 as to that of the honest and prndent cotenant. 
 
 ^ 211*. The change of possession necessary to free a 
 sale of personal property from the imputation of fraud, and 
 to render it valid as against the creditors of the vendor, can- 
 not ahvays be accomplished -when the chattel belongs to co- 
 tenants, only one of whom parts "with his interest. If a 
 chattel be in the possession of A, B, the cotenant of A, has 
 no legal means of acquiring possession. B may sell his in- 
 terest to C, but he cannot authorize C to take possession. 
 C must therefore wait until A is willing to surrender posses- 
 sion, or until, in some unguarded moment, he allows C an 
 opportunity of seizing and carrying it away. The law does 
 not require C to obtain j^ossession from A, in order to estab- 
 lish, even as against creditors, the validity of his purchase 
 from B.' 
 
 >J 220. Cotenants may lease either to one another or to 
 strangers. They may all concur in the lease, or each may 
 lease his moiety separately. If, however, the lessors be co- 
 parceners or tenants in common, the lease operates as the 
 separate demise of each, and must be so treated. Leases 
 made by cotenants are subject to the same limitation in their 
 etfect to which conveyances are subject: viz., they cannot 
 transfer any higher right than the cotenant making them pos- 
 sessed; they cannot impair the rights of the other cotenants, 
 nor confer a right to occupy the Avhole, nor any particular 
 part in severalty. But one joint-tenant may impair or i)Ost- 
 pone the rights of the other, as survivcn-. "As each of sev- 
 eral joint-tenants in fee, or for their lives, has an estate not 
 only for his own life, but for his companion's too, he may 
 grant a lease for years of his owji share, to commenci' at a 
 futur(i day, nay, even after his death, the term in the mean- 
 time existing in interest, though not in possession. And llie 
 same rule prevails in the case of joint-tenants for years. "- 
 
 ■ Beaumont r. Crane, 1-1 Mass. 400; CuhIuii},' r. IJrood. 11 Alkn, 380. 
 ■^ Sne 1 riatt on Leases, p. 125 to l.'JS, lor lull trcatnu'iit of subject ol' leases liv ami 
 between joint-tcnantH, tenants in common, and coparceners.
 
 CHAPTER X. 
 
 OF THE OUSTER OF ONE COTEXANT BY ANOTHER. 
 
 Difference between E-vidence of, and of ordinary Ouster, ^ 221. 
 
 Burden of Proving, ^ 222. 
 
 By Adverse Entry, ^ 223. 
 
 By Enti-y under Deed of the Whole, ^ 224. 
 
 By Entry under Deed of the Whole, i 225. 
 
 Conveyance of the Whole, without Enti-y, vS 226. 
 
 Possession under Decree of Partition, vS 227. 
 
 Exclusive Possession of Part, ^ 228. 
 
 Notice of Ouster, whether must be given Tenant Ousted, j 229. 
 
 Notice of Ouster, whether must be given Tenant Ousted, $ 230. 
 
 Difference between Ouster as Defence and as Cause of Action, <\ 231. 
 
 Is a question for the Jury, ij 232. 
 
 Mvist be found in direct terms, vS 233. 
 
 Ouster by Force, ^ 234. 
 
 Ouster by Denial of Coteuant's Plight, § 235. 
 
 Ouster by Refusal to let Cotenant in Possession, ^ 236. 
 
 Ouster by Refusal, what demand necessary to, <J 237. 
 
 Ouster by Receiving Rents, ^ 238. 
 
 Ouster by Cutting Timber, vS 239. 
 
 Ouster by Building Permanent Structiu-e, 240. 
 
 Ouster, unequivocal acts essential to, ^ 241. 
 
 Ouster, when may be inferred, iS 242. 
 
 Disseizor, taking Deed from a Cotenant, ^ 243. 
 
 Ouster, Statute in England concerning: 6 244. 
 
 g 221. An ouster of his cotenant by a tenant in common 
 
 is an act which may, iu general terms, be described in the same 
 language as any other ouster, i.e., it "is a wrongful disposses- 
 sion or exclusion of a party from real property, who is entitled 
 to the possession." Ouster, both where the property is OAvned 
 in severalty and where it is held in undivided interests, de- 
 pends upon the intent of the party taking and holding pos- 
 session. This intent can rarely be established by the declar- 
 ations or confessions of the party in whose mind it is claimed 
 
 272
 
 273 OUSTER. § 221 
 
 to have been formed. It must therefore generally be evi- 
 denced from the acts of the party. If a person having no 
 title thereto enter upon a parcel of land and subject it to his 
 dominion, and claim and exercise the rights of ownership over 
 it, little or no doubt can exist, in the absence of explanatoiy 
 i-ircumstances, that he intended to oust the true o\\-ner. But 
 if, on the other hand, a cotenant enter upon the whole or any 
 part of the realty of the cotenancy, as he has a legal right to 
 enter, the law presumes that he intends nothing beyond an 
 assertion of his right. There must, therefore, exist other 
 and stronger evidence to prove that one cotenant has ousted 
 another, than would be required to prove that a person having 
 no right to the possession had ousted an owner in severalty.^ 
 An ouster, "as against a cotenant, cannot be proved merely 
 by acts which are consistent with an honest intent to acknowl- 
 edge and conform to the rights of the cotenant, although such 
 acts might be sufficient evidence of an ouster between the 
 parties, if there was no tenancy in common, and each claimed 
 the whole."" "From the peculiar and intimate connection 
 existing between tenants in common of real estate, the proof 
 of an ouster, by one of another of them, ought to be of the 
 most satisfactory nature."^ "The acts and declarations of 
 the party in possession are to be constnied much more 
 strongly against him, than where there is no privity of title. "^ 
 ' ' There must be outward acts of exclusive ownership of an 
 unequivocal character, overt and notorious, and of such a 
 nature as by their own import to impart information and 
 give notice to the cotenants that an adverse possession and 
 an actual disseizin are intended to be asserted against them.""* 
 "There can be no legal doubt that one tenant in common 
 may disseize another. The only diflerence between that and 
 the other cases is, that the acts which, if done by a stranger, 
 would pe?' se be a disseizin, are, in the case of tenancies in 
 common, susceptible of explanation consistently with the real 
 title. Acts of ownership are not, in tenancies in common, 
 
 ' Barret v. Cobnni, 3 Met. Ky. 513; Forwai'd v. Deetz, 32 Pa. St. 72. 
 
 ^ Newell V. Woodnitt', 30 Conn. 498. 
 
 ^ Adam u. Ames Iron Co., 24 Conn. 235. 
 
 < Baily v. Trumrnell, 27 Tex. 328. 
 
 •' Warfield i'. Lindell, 38 Mo. 581. See same case in 30 Mo, 283. 
 
 C. & p.— 18
 
 §§ 222-23 ousTEK. 274 
 
 necessarily acts of disseizin. It depends on tlie intent witii 
 which they are done."' 
 
 § 222. The burden of proving an ouster always 
 devolves upon the cotenant who asserts its existence. If the 
 action be in ejectment, and the fact of ouster be denied by 
 the defendant, the plaintiff must show that he has been ousted 
 before he can prevail. If, on the other hand, the defendant 
 avers the existence of an ouster and a continuous adverse 
 holding for a time sufficient to bar the plaintiff's remedy by 
 operation of the Statute of Limitations, the burden of prov- 
 ing such ouster is shifted from the plaintiff to the defendant. 
 Prima facie, the possession of every cotenant is presumed 
 to be by virtue of his title, and not in hostility to the rights 
 of his cotenants. Whoever seeks to assert a remedy, to the 
 granting of which the fact of ouster is a prerequisite, must 
 first remove this j^nma facie presumption. "The law will 
 not presume, without evidence, that any man intends to do an 
 unlawful act, but will presume that every man, having a right 
 of entry or possession, enters or occupies according to his 
 title. "^ But in order to throw upon plaintiff the onus of 
 establishing that the possession of the defendant is hostile, 
 the latter must show that he is a cotenant with the plaintiff. 
 This rule is applicable whether the declaration proceeds upon 
 the theory that the plaintiff is the sole owner, or upon the 
 theory that he is the owner of a sj)ecified undivided interest. 
 It does not follow necessaril}', nor will any prima facie pre- 
 sumption be indulged, that because plaintiff is entitled to one 
 moiety, the defendant is entitled to the other. But when the 
 defendant proves his cotenancy with plaintiff, the presumption 
 of law arises that the possession is not adverse; and the plain- 
 tiff must then overcome this presumption before he can re- 
 cover."' 
 
 g 223. Adverse Entry. — The difficulty of determining 
 whether a given state of facts constitutes an ouster of one co- 
 tenant by another may be removed by circumstances or dec- 
 
 ' Prescott V. Nevers, 4 Mason C. C. 330; Thornton v. York Bank, 45 Me. 161. 
 - Van Bibber's Lessee v. Frazier. 17 Md. 443: Berthold v. Fox, 13 Minn. 507. 
 ■■• Gillett i'. Stanley. 1 Hill. 127; Sharp c. Ingraham, 4 Hill, 116; Sigler v. Van Riper, 
 10 Wend. 419: Arnot v. BjhOI-. ITill & Denio. 181.
 
 275 OUST Ell. ^ 224 
 
 larations fi'om which the true intent of the party is clearly 
 manifested. If the intent in the mind of the tenant making 
 or resisting an entry is to take or retain the projDerty as his 
 OAvn, and this intent is so clearly manifested by him as to be 
 known to the other co-owners, or as to be noticed by persons 
 of ordinary diligence in attending to their own interests, then 
 there is no longer any reason to presume that the entry was in 
 harmony with the rights of the cotenants, and it must be con- 
 ceded that an ouster has been committed. "Althouo-h the 
 entry of one is, generally speaking, the entry of both, yet if 
 he enter claiming the whole to himself, it Avill be adverse."' 
 
 I 224. The character of an entry may be inferred from 
 
 the conveyance imder which it is made, as well as established 
 by direct declarations of the party making it. The entry of 
 a person imder a conveyance which purports to convey a 
 moiety may T>^ell be presumed to be simply as claimant of 
 such moiety. But when the conveyance purports to disj^ose 
 of the whole, should not the entry be presumed to be in the 
 assertion of a right in severalty? Should not such entry be, 
 of itseK, sufficient evidence that the grantee intended thereby 
 to assert all the rights with which his grantor has assumed 
 the authority to invest him ? In other words, is not an entiy 
 under a conveyance which purports to convey the entirety, 
 equivalent to an express declaration on the jiart of the grantee 
 that he enters "claiming the whole to himself;" and is it not, 
 therefore, such a disseizin as sets the Statute of Limitations 
 in motion in favor of such grantee? The answers made to 
 these questions are irreconcilable. But a decided majority 
 of them are certainly in the affirmative.- Judge Story, in the 
 case of Prescott v. Nevers,* says: " I take the principle of law 
 
 ' Lodge V. Patterson, 3 Watts, 77; Ashley i-. Rector. 20 Ai-k. 359; Sbiamway v. Hol- 
 brook, 1 Pick. 117; Clymer's Lessee v. Dawkins, 3 How. U. S. C89; Daniel r. Wood- 
 roflfe, 2 H. L. Cas. 832; Caperton r. Gregory, 11 Gratt. 508. 
 
 ^ Nelson v. Davis, 35 Ind. 483; Clark r. Vaughan, 3 Conn. 191; Hurno r. Iluwell, 
 46 Ga. 0; Gill i-. Fauntleroy's Heirs, 8 B. Monr. 18G; Long c. Stapp. 49 Mo. 508; Gray 
 I'. Bates, 3 Strob. 500; Bogardus v. Trinity Church, 4 Paige, 178; Bigelow v. Jones, 
 10 Pick. 102; Goewey v. Urig, 18 111. 242; Hinkley v. Greene, 52 111. 230, 233; Clapp v. 
 Broraagham, 9 Cow. 530; Bradstreet r. Huntington, 5 Pet. 145; Clymer's Lessee i\ 
 Dawkins, 3 How. U. S. 089; Townsend .V Pastor's Case, 4 Leon. 32; lieed r. Taylor, 5 
 Barn. & Ad. 575; Parker v. The Proprietors, 3 Met. 101; Alexander v. Kennedy, 19 
 Tex. 490: Cain v. Furlow, 47 Geo. 074; Long c. Stapp. 49 Mo. 500. 
 
 ' 4 Mason, C. C. 330.
 
 g 224 ousTEK. 276 
 
 to be clear, that where a person enters into land under a claim 
 of title thereto by a recorded deed, his entry and possession 
 are referred to such title; and that he is deemed to have a 
 seizin of the land coextensive with the boundaries stated in 
 his deed, where there is no open adverse possession of the 
 laud so described in any other person." In an early case in 
 New York, a conveyance had been made by V for a whole lot. 
 But it appeared that the grantor, instead of being entitled to 
 the whole property as sole heir, as was supposed at the mak- 
 ing of the deed, was only one of the heirs. The Court held 
 that this did not change the entry nor control the possession 
 of the grantee, so as to render it an entry and possession as a 
 tenant in common.^ So in Pennsylyania, the broad proposi- 
 tion is maintained that the possession of land by a purchaser 
 "under a deed of an entire lot, is adverse to the rightful 
 owner, though tenant in common with the grantor, "^ because 
 "the entry is under an adverse title and not as cotenant."^ 
 "The sale, in such case, of the whole tract, is in effect such 
 assertion of claim to the whole as cannot be mistaken, because 
 it is wholly incompatible with an admission that the other 
 tenant in common has any right whatever."* If the convey- 
 ance made by a tenant in common, in addition to purporting 
 to dispose of the entirety, contains a covenant of general war- 
 ranty against the claims of all persons, no room is left for a 
 doubt that the grantor intended to deal with the lands as his 
 individual estate, and that the grantee believed he was ac- 
 quiring an estate in severalty. The entry of the grantee can- 
 not be presumed to be that of a cotenant, nor in subordination 
 of the rights of the cotenancy. Acts of ownership on the 
 part of such a grantee must necessarily be adverse to any 
 other part owner. His possession taken under such deed, 
 and continuing the requisite period of time, creates in him a 
 complete title in severalty, by virtue of the Statute of Limit- 
 ations.^ "When one tenant in common conveys the whole 
 
 '- Jackson v. Smith, 13 Johns. 411. 
 - Culler V. Moteer, 13 Serg. & E. 358. 
 •* Dikeman v. Parrish, 6 Pa. St. 225 
 * Law I). Patterson, 1 Watts & S. 191. 
 
 ^ Thomas v. Pickering, 13 Me. 337; Marcy i'. Mai'cy, 6 Met. 371; Wright ti. Saddler, 
 20 N. ¥. 329.
 
 277 OUSTER. g 225 
 
 estate in fee, 'v\-ith covenants of seizin and warranty, and his 
 gi-antee enters, and claims and holds exclnsire possessiou, 
 the entry and claim must be deemed adverse to the title and 
 possession of the cotenant, and amount to a disseizin."' 
 
 § 225. On the other hand are a few authorities, directly 
 in conflict Avith the theory that the entry of one who is a part 
 OAvner only, should be regarded as hostile to the other owners, 
 merely because he enters under a conveyance of the whole. 
 These authorities probably rest upon the idea that the gran- 
 tee knows, or should know, the true state of the title, and 
 that the other owners have the right to assume that his entry 
 is in accordance with his title, and not coextensive Avith the 
 pretensions of his deed. But in some instances, the doctrine 
 which we have stated in the preceding section, and there 
 supported by quite an array of authorities, has been denied 
 Avith an assumption of confidence which, to whatever cause 
 attributable, could not have resulted from an examination of 
 the reported adjudications on the subject. In the case of 
 Seaton v. Sou,^ it appeared that one Bropliy entered into the 
 possession of a lot under a deed for the whole, and believing 
 that this deed did in truth convey the whole. Commenting 
 upon this, the Supreme Court, by Rhodes, J. said: "His 
 entry under the deed executed to him, and his belief at the 
 time that the deed conveyed the entire title, followed by his 
 exclusive actual possession, did not amount to an ouster of 
 his cotenant. As between tenants in common, adverse pos- 
 session begins with an actual ouster. Nothing short of an 
 actual ouster will sever the unity of possession." And in an- 
 other case, and in a different Court, the broad statement is 
 made that "it has never been considered that a conveyance 
 by one joint-tenant, or tenant in common, of all his interest 
 in real estate, though the land is described in such a manner 
 as to pass the whole under the deed, if the grantor had owned 
 the whole, is notice of itself to tlie other joint owner of such 
 exclusive claim to the land, as to oust him of his legal seizin 
 in the land. He has the right to suppose that by such a 
 deed both the grantor and the grantee understand it to cou- 
 
 ' Kittredge v. Locks, 17 Pick. 247. '' 32 Cal. 461.
 
 §226 ousTEE. 278 
 
 vey the real interest the grantor owns in the land."' The 
 above language seems to point to a distinction between a 
 deed which on its face assumes to convey the land, and one 
 which, without making such an assumption, is nevertheless 
 sufficient to convey a title in severalty, if such the grantor 
 had, because it purports to convey all his interest in the land. 
 Such a distinction is not without foundation in reason and 
 in authority.'^ One who assumes to convey his interest with- 
 out specifying its extent, instead of asserting his title to be 
 perfect and in severalty, seems to put the purchaser on his 
 guard, and to direct him to inquire concerning the nature 
 and extent of his acquisition. Such a grantee in entering 
 may be presumed to enter not as sole owner, but as succeed- 
 ing to the true interest of his grantor, for that is all with 
 which the deed purports to deal. The case decided in Cali- 
 fornia is based on no such distinction. It states an unquali- 
 fied proposition of law, and must therefore be considered as 
 in direct conflict with the authorities — as unsustained and 
 unsustainable. What a marked contrast exists between the 
 declaration so confidently made in California, and the one 
 made, with equal confidence, and in the following language, 
 by the Supreme Court of Tennessee : "It seems to be well 
 settled in this State and elsewhere, that if one tenant in 
 common assume to convey the entire land, or any specific 
 part of it, by metes and bounds, his deed will be color of 
 title ; and possession under it for seven years will be adverse 
 to the right and title of the cotenants, and bar their action to 
 recover the land conveyed. It is an actual ouster and dis- 
 seizin of the cotenant, which he is bound to notice; and in 
 order to create this adverse relation, no formal or other 
 notice from the vendee in possession is necessary."'' 
 
 g 226. But a conveyance alone, without possession 
 taken under it, can never amount to an ouster.* The same 
 remark is applicable to a mortgage of the whole. If such 
 
 ' Roberts v. Morgan, 30 Vt. 324. 
 
 '^ Edwards v. Bishop, 4 N. Y. 64; Lefavour v. Homan, 3 Allen, 356; Pureell v. Wil- 
 son, 4 Gratt. 21. 
 
 ^ Weisinger v. Murphy, 2 Head, 679; citing Waterhouse v. Martin, Peck, 392, 411; 
 Higbee v. Rice, 5 Mass. 352. 
 
 < Hannon i'. Hannah, 9 Gratt. 152.
 
 279 OUSTER. §^227-28 
 
 mortgage can have any relevancy in determining whether the 
 mortgagor had been gnilty of an ouster, it must be in connec- 
 tion -w-ith other circumstances, tending to sliow an intent to 
 hold the property adversely.^ 
 
 iJ 227. Possession taken under a decree purporting to 
 
 be a partition ot the lauds therein described, and setting off 
 to persons therein named different tracts in severalty, is, even 
 more conclusively than taking possession under a conveyance 
 in severalty, an act of ouster. In fact, it seems to be re- 
 garded as sufl&cient evidence of an ouster, and as notice of 
 the existence of such ouster to all persons whose interests 
 are imperiled by it.- " Inasmuch as such partition is a noto- 
 rious act of ouster," an entry made under it claiming the 
 whole of the land "would, on general principles, as against 
 a citizen not laboring under a disability, operate as the com- 
 mencement of a prescription in favor of all who held adversely 
 under such decree; and possession under it, accompanied 
 with the circumstances enumerated in the statute, would 
 ripen into a bar against a joint owner thus disseized."'* 
 
 § 228. An exclusive possession of a part of the common 
 
 estate is, to the extent of land embraced by it, as inconsist- 
 ent with the common title as the occupation of the whole 
 would be. " Whether any given act will amount to an ouster, 
 must depend upon whether the act is or is not consistent Avitli 
 the common title; that is, consistent "vvith the common right 
 to occupy and enjoy, for, beyond that, there is, as to tenancies 
 in common, no common title. This generalization is advanced 
 as a test by which to determine whether a tenant has or has 
 not been ousted as the result of any given act; and we accept 
 the test as generally correct. It follows, then, that whether 
 the exclusion of one tenant by another is from the whole land, 
 or only from a part of it, is a matter of entire indifference; 
 for the partial exclusion no more consists with the common 
 right to occupy than the total exclusion. The act done, in 
 the one case, is of the same essential character as the act done 
 
 ' Leach i-. Beattles. 33 Vt. 198; Wilson o. Callishaw, l;) Pa. St. 27G; Moore v. Culli- 
 shaw, 10 Pa. St. 227; Hodgdon r. Sliannon, 44 N. H. 577. 
 ■'Clymer's Lessee c. Dawkins, 8 How. U. S, C88. 
 » Cryer v. Andrews, 11 Te.\. 181.
 
 § 229 OUSTER. 280 
 
 in the other. In both cases, the result reached is the same ~ 
 tortious esckision — and the only difference between the cases 
 is, that in one the wrong is more extended than in the other. 
 But that difference lies in circumstance and not in principle; 
 and it follows, by the very point of the agreed test, that an 
 ouster of a part of the common land by one tenant in common 
 of another is legally possible."^ 
 
 § 229. Notice of Ouster. — When a possession has once 
 been held or taken, eo nominee, as a tenant in common T^ath 
 others, it may afterwards become adverse. When rights de- 
 pendent upon such adverse possession are claimed to have 
 accrued, so that the cotenants out of actual possession are 
 barred of their legal remedy to recover possession, the ques- 
 tion arises, Did these cotenants, against whom the adverse 
 possession is asserted, have sufficient notice of its hostile 
 character? For it is obvious that when lands are once held 
 by a cotenant for his companions as well as for himself, they 
 have the right to presume that his continued possession is 
 also for their common benefit, unless they have some notice 
 of a change in its character. If this were not so, the tenant 
 in possession could be obtaining a title in severalty through 
 the operation of the Statute of Limitations, while his co- 
 tenants had no reason for suspecting that their rights were 
 either denied or imperiled. Shocked by the thought that a 
 cotenant so in possession should thereby obtain and enforce 
 an unconscientious advantage over his companions in in- 
 terest, the Courts have sometimes announced doctrines Avhich 
 would seem to negative the possibility of a friendly posses- 
 sion changing to a hostile one in the absence of expressed 
 notice. A husband, on the death of his wife, remained in 
 possession of their common property. By the Mexican law, 
 under which the property was acquired, he was entitled to 
 one-half, and the heirs of the wife were entitled to the other 
 half. After his death, the question arose as to whether he 
 had not been in possession of the property adversely to the 
 heirs ; but the Court said : ' ' The deceased was holding the 
 property, in presumption of law, as well for the heirs as for 
 himself. They were tenants in common with him in it : his 
 
 i Carpentier v. Webster, 27 Cal. 5i9.
 
 281 OUSTER. ^ 229 
 
 possession was their possession; and lie could not, merely by 
 his act of control or dominion, as of his own property, how- 
 ever unequivocal, change the title and tenure, unless such 
 acts and claims Avere brought directly to the knowledge of 
 the heirs, and they assented or acquiesced."' So the Su- 
 preme Court of the State of Georgia has laid down the gen- 
 eral proposition that "a possession that in its commence- 
 ment is not adverse to the title of the true owner, can only 
 become adverse to that title in one Avay: the holder must 
 change his mind and intend to hold adversely, and knoidedge 
 or notice of this intention must come to the true o^-uer."- 
 In Vermont, possession was taken hy the grantee in a quit 
 claim deed for the whole premises. He entered claiming 
 title to the whole ; and many years subsequently, claimed the 
 benefit of this entry as an ouster of Sutherland, the other 
 part owner. "This," said the Court, "probably Avas an act 
 which Sutherland might have elected to treat as an ouster, 
 and have thereupon brought and maintained an action of 
 ejectment, without other proof of any ouster, and without 
 making any demand to be let into possession of his share. 
 But we do not consider that this alone would be such an 
 ouster as would bar a joint owner of his rights, unless he 
 commenced his action within fifteen years thereafter. An- 
 other element is necessary in order to make it sufficient to 
 found an adverse holding upon, and that is notice of such 
 exclusive and hostile claim, to the joint owner out of posses- 
 sion. When one joint owner is in possession of the whole, 
 the legal presumption is that he is keeping possession, not 
 only for himself, but for his cotenants, according to their 
 several interests, and the other joint owners have the right 
 to so understand, until they have notice to the contrary; and 
 the statute would only run from the time of such notice. We 
 consider the principle substantially the same as between land- 
 lord and tenant as to converting a mere fiduciary possession 
 into an adverse or hostile one."^ This opinion was subse- 
 quently reaffirmed in the same Court, when it was further 
 stated that: "There can be no doubt that the notice should 
 
 ' Old V. De La Guerra, 18 Cnl. 75. - Lawson v. Cuuuingbuui, 21 Ga. 45'.t. 
 
 ^ Roberts V. Moi-L'au, 30 Vt. 321.
 
 § 230 OUSTER. 282 
 
 be sufficieutly explicit to give the cotenant, against whom 
 such adverse and hostile claim is made, to understand that 
 the tenant making such claim will no longer keep possession 
 for his cotenant, and to impose upon the cotenant the neces- 
 sity of protecting his interests by that measure of diligence 
 which the Statute of Limitations requires."' 
 
 g 230. Notice of Ouster continued. — The general lan- 
 guage employed in the decisions cited in the preceding section 
 very strongly tends to establish the broad proposition that no 
 ouster can be sufficient to set the Statute of Limitations in 
 motion unless it is shown to have been brought home to the 
 hnoialedge of the cotenant against whose rights it has been 
 committed. But in other cases, and supported as we think 
 by sound reasoning, a distinction is made between an alleged 
 ouster resting upon open, visible, and notorious acts, and an 
 ouster predicated upon a mere denial of the cotenant's rights, 
 or upon some act not of so notorious a nature as to be evident 
 to every person evincing any considerable interest in the sub- 
 ject of the tenancy. This distinction was very well stated and 
 supported by Napton, J. in delivering the opinion of the Su- 
 preme Court of the State of Missouri: "To constitu.te an 
 adverse possession of one tenant in common against his co- 
 tenants, there must be some notorious act asserting an entire 
 owmership. It is further said, in some cases, that this act 
 must be brought home to the knowledge of the cotenant. 
 This, we suppose, depends upon the nature of the act. If it 
 consists altogether of a mere verbal assertion of entire owner- 
 ship, such an assertion could not, with any propriety, be re- 
 garded as an act of adverse possession of which the cotenant 
 was bound to take notice, unless made to him, or communi- 
 cated to him. A declaration to a mere stranger amounts to 
 nothing, unless that declaration is brought to the knowledge 
 of the cotenant. But when the act is of such a nature as the 
 law will presume to be noticed by persons of ordinary dili- 
 gence in attending to their own interests, and of such an un- 
 equivocal character as not to be easily misunderstood, it is 
 not believed to be necessary that any positive notice should 
 
 ' HoUcy V. Hawley, 39 Vt. 534.
 
 283 ousTEK. § 231 
 
 be given to the cotenaut, or that it devolves upon the posses- 
 sor to prove a probable actual knowledge on the part of the 
 cotenanat. It is sufficient that the act itself is overt, notorious; 
 and if the cotenant is ignorant of his rights or neglects them, 
 he must bear the consequences."' The conclusion here an- 
 nounced seems to be fully supported by a decision in Penn- 
 sylvania, in the course of which it was said that : ' ' The 
 character of adverse possession is given, not by proving notice 
 to persons interested, but by the nature of the acts done by 
 the party. There must be a hostile intent, and that intent 
 must be manifested by outward acts of an unequivocal kind. 
 To constitute a disseizin, it was never held to be requisite 
 that notice should be given to the disseizee, or that he had 
 knowledge of the entry and ouster committed on his land. 
 Tlie open act of entry on the land, with the declared in- 
 tent to disseize, constitute the disseizin."^ In a subsequent 
 case in the same State, the proposition was affirmed that : " In 
 order to prove that one tenant in common has claimed the ivhole 
 exclusively, it is not requisite that lie should be proved to have 
 made an express declaration to that effect; for it may be showai 
 as clearly from his acts as from his words. For this purpose, 
 it will be sufficient to show that he entered upon the whole of 
 the land and took the possession thereof as if it had been his 
 own exclusively; and that he has continued to occupy the 
 whole, either by himself or his tenants, and to receive the 
 rents, issues, and profits of the same, for twenty-one years, 
 without having accounted to his cotenant for any portion 
 thereof, or any demand being shown to have been made on 
 him to do so, or evidence given of his having acknowledged 
 the claim of his cotenant."'' 
 
 ^ 231. Difference bet-ween Ouster as a Defense and as 
 a Cavise of Action. — According to the view of the law taken 
 by the highest court in Connecticut, no ouster can exist so as 
 to authorize an action of ejectment by one tenant in common 
 against another, unless there has been an actual tortious ex- 
 
 ' Warfitld V. Liudell, 30 Mo. 282. Sec namo casv, 38 Mo. 578. IJcafliniud in La- 
 peyro v. Paul, 47 Mo. 590. 
 
 - Lodge I'. Patterson, 3 Watts, 77. See also Alexander v. Kcunedy, I'J Tex. 492. 
 ■' Law ('. Patterson, 1 Wattn <V: S. 191.
 
 I 231 OUSTER. 284 
 
 pulsion, or the defendant has refused, upon demand, to per- 
 mit the plaintiff to enter into the common possession and 
 enjoyment of the premises. It is not enough that the de- 
 fendant is in possession of the whole, claiming every part as 
 owner in severalty, and having no knowledge of the invalid- 
 ity of such claim. The reasoning by which this position was 
 maintained was that ouster is necessarily dependent upon an 
 intent to oust; that "actual intent implies actual knowledge, 
 and there can be no wrongful dispossession or wrongful ex- 
 clusion, no adverse intent and adverse holding, where one is 
 in the enjoyment of what he honestly supposes to be his, and 
 has no knowledge that any person has, or claims to have, a. 
 right to participate in the possession of it. A person who 
 has received, by inheritance from his father, an estate, and is 
 in the enjoyment of it, is in one sense holding adversely to 
 all the world; but not in the sense in which the term is used 
 in the law of disseizin. He has done and is doing no wrong- 
 ful act. He has not dispossessed any one, and is not wrong- 
 fully excluding any one of whose right or claim he has any 
 knowledge. He is not guilty of any wrongful intent. Non 
 constat, if any one has any right, or claims to have any, but 
 that if apprised of the claim in a reasonable and proper man- 
 ner, he will admit it. He is honestly in the enjoyment of an 
 apparent clear right; he knows of no other right to which he 
 should yield, and is conscious of no duty unperformed. Be- 
 fore such a man can be subjected to the cost and damage de- 
 manded in an action of disseizin, it is just that the demandant 
 should apprise him with reasonable precision of the nature of 
 his claim, and give him reasonable opportunity to determine 
 his duty and form his intent. So are all the analogies of 
 the law, and less than that would be a reproach to it. With- 
 out that, in such a case, there can be no sufficient evidence of 
 an ouster."' If the foregoing decision can be accepted as a 
 correct exposition of the law, it follows that acts sufficient to 
 establish an ouster when proved as a defense are insufficient 
 when proved as a cause of action. Take, as an illustration, 
 the case of an exclusive occupancy, under a claim of owner- 
 ship in severalty, accompanied with the occupant's belief that 
 
 ' Newell V. Woodruff, 30 Conn. 498.
 
 285 OUSTER. g 232 
 
 his claim is unquestioned and unquestionable. If he be sued 
 in ejectment by a cotenant, the latter cannot recover, in the 
 absence of a demand for possession, because there is )w ouster. 
 But if the possession has continued for a length of time suffi- 
 cient to create a title by disseizin, then the plaintiff would not 
 be able to recover, because, from such possession, the jury 
 would be justified in finding an ouster. Nor is there any 
 reason why a cotenant in possession, intending to liold for 
 himseK alone, should be entitled to have a demand made on 
 him for possession, which does not apply with equal force 
 where the demandant is o's\Tier in severalt}'. No doubt, in- 
 stances have occurred where an occupant believed he had a 
 perfect title, and yet had none. And no doubt, if the worth- 
 lessness of his own title had been clearly shown to him, he 
 might have given up possession without waiting to the end of 
 costly and hopeless litigation. His innocence in regard to 
 the relative value of his own title and that of the demandant 
 may make it seem equitable that he should be apprised ' ' with 
 reasonable precision of the nature of his claim, and given 
 reasonable opportunity to determine his duty and form his 
 intent." But the law does not consider his ignorance. He 
 is as liable to the costs of an action for possession as though 
 he knew in advance that his title would be adjudged invalid. 
 If a defendant ma}' lose the luhule of his property, and be, in 
 addition, made responsible for the costs of the action, we 
 cannot see that a defendant who may lose but a part should 
 receive any better treatment; provided that in both cases the 
 possession was sufficiently hostile as, when continued for the 
 requisite time, to ripen into a perfect title by disseizin. 
 
 {^ 232. Is a question for the Jury. — The cases which 
 present the greatest difficulty in determining w^hether one 
 cotenant has been ousted by another are those in which the 
 original entry was apparently or confessedly that of a coten- 
 ant, or was at least not made in any such a manner as pointed 
 to a denial of the rights of his companions in interest. In 
 such cases, as there is nothing to give notice that the entiy 
 was hostile, in order to show that a subsequent possession 
 became adverse, a state of facts must be proved from which 
 an actu!"l ouster is directly established, or from whicli such
 
 ^ 233 OUSTER. 286 
 
 ouster may be inferred. The question of ouster is always a 
 question of fact to be determined by the jury.' It would be 
 difficult to find any instance in which this question was in- 
 volved in sufficient doubt to give rise to a controversy at law, 
 and in which the facts constituting the alleged disseizin were 
 of so decisive a character, that the Court could say, as a 
 matter of law, that they did amount to an ouster. But 
 nevertheless there are many decisions on this subject which 
 enable us to determine, as well as we can determine any 
 question of fact, what, as between cotenants, does or does 
 not constitute an ouster. 
 
 ^ 233. Jury must find Ouster in express terms. — Where 
 an issue is found upon the question of ouster, the finding of 
 the jury to sustain a judgment in favor of the litigant on whom 
 the burden of establishing the ouster rests, must show that 
 they have determined that such ouster was committed. It is 
 not enough that a special verdict finds a state of facts from 
 which the jury would have been amply justified in finding an 
 ouster. In a case decided in the Supreme Court of California, 
 the special verdict of the jury found that defendants were in 
 sole possession, that plaintiff had demanded to be let into 
 possession with them, and that they refused to comply with 
 such demand. In considering this finding, the Court said : 
 ' ' The trouble with the verdict is, that it does not find an ouster, 
 either in terms or by legal conclusion. A demand is found, 
 and a refusal matching the demand; but ' demand and refusal' 
 does not fall within any definition of ' ouster ' as that term is 
 used in the law governing the relation of tenants in common. 
 Neither acts of ownership by one tenant in common, nor re- 
 fusal to allow cotenants to enter, necessarily work a disseizin. 
 The laAv will not presume from either the one or the other, 
 nor from both combined, that there was an intent to oust. 
 That intent must be established as a fact by the finding of the 
 jury. Conversion is one of the j)oints to be established in 
 actions of trover ; but it is settled that ' demand and refusal ' 
 is not conversion, but only evidence of it for the consideration 
 of the jury. In the absence of all explanation, the Court 
 
 ' Harmon c. .James, 7 Smedes <t M. 119; Piircell v. Wilson, 4 Gratt. 22; Carpentier 
 r. Mendonliall, 28 Cal. 486: Cumming.s v. Wyraau, 10 Mass. 468.
 
 287 OUSTER. §g 234-35 
 
 would be justified in directing or advising the jury to infer an 
 ouster in a case like tlie one at bar, from the fact of de- 
 mand and refusal; but the inference is to be made by the jury, 
 and not by the Court."' 
 
 § 234. Manual force, when actually applied to the 
 expulsion or to the exclusion of a cotenant, gives so immis- 
 takable a character to the transaction, that the question as to 
 whether an ouster has been committed admits of no debate. 
 But the absence of proof of the application of such force 
 never conclusively negatives the existence of an ouster.^ An 
 actual ouster does not necessarily mean an act accompanied 
 by real force. No turning out by the shoulders is neces- 
 sary.^ As in the absence of evidence of the use of force, 
 there may still be an ouster, we shall proceed to consider: 
 1st, what acts other than the employment of force are suffi- 
 cient to justify a jury in inferring an ouster; 2d, what acts 
 are not sufficient to justify a jury in such inference. 
 
 § 235. The denial of a right of a cotenant made to him 
 
 directly, or brought to his knowledge, is, when accompanied 
 by the exclusive possession, sufficient to Avarrant a finding of 
 an ouster.^ But such denial may be by acts as well as by 
 declarations. The assertion by one in j^ossession that he is 
 sole owner, and his selling or ofiering or contracting to sell 
 as owner in severalty, are equivalent to an express denial. •'* 
 A mere refusal to pay rent is not a denial of the title of the 
 cotenant,'' unless such refusal is accompanied Avith a claim of 
 title on the part of the tenant in possession.' " One tenant 
 in common in possession dabning the ivhole, and denying 
 possession to the other, is beyond the mere act of receiving 
 the whole rent, which is equivocal. This was certainly evi- 
 dence of an ouster of his companion."^ "The moment 
 
 ' Carpeutit-r v. Mendcuhiill, 28 Cal. 48G. 
 
 - Sigler V. Van Riper, 10 Wend. 420; Manchester r. Doddridge, 3 Ind. 363; Corbin 
 r. Cannon, 31 Miss. 573; Warfield v. Lindell, 30 Mo. 281: .Jefcoat c. Knotts, 13 KicL. 
 50; Cai-pentier v. Gardiner, 29 Caf. ICO. 
 
 ^ Doe V. Prosser, Cowper, 217. 
 
 < Sigler V. Van liiper. 10 Wend. 410; Humbert r. Trinity (Jhnreh, 21 Wend. C04. 
 
 '■' Valentine v. Nortbiop, 12 Wend. 495; Carpenter v. Thayer, 15 Vt. 55G. 
 
 "Dot; I'. Prosser, Cowp. 217. 
 
 7 Pliilljps II. Gregg, 10 Watts, 158. 
 
 « llellings V. Bird, U East, 50.
 
 §§ 236-37 ousTEE. 288 
 
 either denies the title of his cotenant and gives notice of it, 
 the possession is adverse, and if continued without action or 
 entry for twenty-one years, is a valid title to the land, to the 
 extent of the claim so made, if accompanied with actual, ex- 
 clusive possession."^ But the assertion of the party in pos- 
 session, that he claims as an OA\Tier in fee, is not equivalent 
 to an assertion of ownership in severalty. As a part owner, 
 he is an owner in fee of every part and parcel of the prem- 
 ises. His claim is therefore in accordance with his title, and 
 not inconsistent with the admission of an equal right in an- 
 other.^ A denial of a cotenant's title must, in order to ren- 
 der the cotenant in possession liable for an ouster, be of a 
 clear and unequivocal character. If he merely admits the 
 fact of possession, and adds that "it is hard to pay for the 
 land twice, " this is rather an ' ' ejaculation of regret" than an 
 unequivocal denial of demandant's title.'* 
 
 § 236. A refusal by one in possession '' to let his cotenant 
 
 come in, or to participate in the enjoyment of the common 
 property, is equivalent to turning him out."* Of course, this 
 rule applies only to real estate; for a tenant in common in 
 possession of a chattel is under no obligation to allow his co- 
 tenant to participate in such possession.'' A statement made 
 to demandant that he cannot have possession unless he obtains 
 it at law, is a sufficient ouster to entitle him to an action of 
 ejectment.'' "The authorities are decisive, that when the co- 
 tenant makes a proper demand, not for his share of the rents 
 and profits, but to be let into possession, and the request is 
 refused, and the tenant upon whom the demand is made con- 
 tinues in possession thereafter, such possession will be con- 
 sidered as adverse, even though there was no formal denial of 
 title."' 
 
 g 237. A demand made by a cotenant out of possession 
 
 on a cotenant in possession, which informs the latter that the 
 
 ' Longwell v. Bentley, 3 Grant's Cas. 177. 
 
 - Edwards v. Bishop, 4 N. Y. 64. 
 
 ^ Colburn v. Mason, 25 Me. 435. 
 
 -> Eoberts v. Moore, 3 Wall. Jr. 297. 
 
 ^ Gotten V. Thompson, 25 Ala. 679. 
 
 « Gordon v. Pearson, 1 Mass. 335; Allen v. Hall, 1 McCord, 132. 
 
 ' Carpentier v. Webster, 27 Cal. 562.
 
 289 OUSTER. §§238-40 
 
 former is the ' ' principal owner of certain lands, and that he 
 demands to be let into the immediate possession and enjoy- 
 ment of the same and every part and jjarcel thereof, " is a suffi- 
 cient demand. The words "to be let into possession," used 
 between tenants in common, are not equivalent to a notice to 
 quit, nor to a claim of the right to an exclusive occupancy, 
 because the demand may be fully acceded to without relin- 
 quishing the rights of the tenant in possession.' 
 
 § 238. The receipt, for a long period of time, of all the 
 rents and profits of a tract of land, is a fact which may prop- 
 erly be admitted in evidence before the jury to assist them in 
 determining whether there has been an ouster. Such a re- 
 ceipt is said to raise not a legal but a natural joresumption of 
 an ouster, ' ' passing with the jury for what it is worth, and 
 operating no further than it happens to produce actual con- 
 viction of the fact as it was allowed to in Nickle ^. McFar- 
 lane, 3 Watts, 167."^ The exclusive receipt of rents and profits 
 cannot alone be taken as conclusive evidence of an ouster.^ 
 But if this receipt be ' ' under a claim of exclusive right, or 
 with a manifest intent to possess the whole exclusively, it is 
 equivalent in law to an ouster of his cotenant."'* 
 
 § 239. Going upon land and cutting timber standing 
 thereon, at occasional intei-vals extending over a long period 
 of time, is not a disseizin of the owner. Hence the fact that 
 one cotenant has so entered upon the common lands and cut 
 and taken timber therefrom, can never establish a title by dis- 
 seizin against the other cotenants." 
 
 § 240. Building Permanent Structure. — It is said that 
 such ' ' an exclusive appropriation by one cotenant of a part 
 of the land to his own use" as arises "from the erection of a 
 permanent structure, would be evidence of an ouster."" An 
 exclusive occupation of part of the land for a temporary pur- 
 
 ' Carpentier v. Webstor, 27 Cal. 503. 
 '^ Bolton V. Hamilton, 2 Watts <fe S. 299. 
 
 ^ Catlin V. Kidder, 7 Vt. U; Willison r. Watkins, :i Pot. 51; Johnson v. Toulmin, 18 
 Ala. .'54; Chambera v. Chambers, .'( Hawks, 232, -Vllon i: Hall, 1 3IcCord, 132. 
 •* Doe I'. ProHBer, Cowp. 217; Owen v. Morton, 24 Oal. 376. 
 ■■> Ewer V. Lovc-11, 9 Gray, 277; Peck c. Ward, 18 Pa. St. 508. 
 * Bennett u. CleDience, Allen, 18. 
 
 C. & p.— 19 ]■
 
 § 241 OUSTER. 290 
 
 pose, such as piliug boards and lumber, is not au ouster.' 
 And while we have the general language, quoted above, stat- 
 ing that the erection of a permanent structure " would be evi- 
 dence of an ouster, " we are at a loss to know what degree of 
 importance should be attached to such evidence. It maj be 
 that the fact of the erection, out of his own means, of a house 
 or other permanent structure, would be a material circum- 
 stance to be considered in connection with other facts, for the 
 purpose of determining whether the cotenant making the erec- 
 tion was holding the premises for himself alone, or for the 
 other cotenants as well as for himself. But as long as it is 
 conceded that each cotenant may enter upon, and enjoy the 
 common property, we shall not be inclined to admit that evi- 
 dence of the erection of a permanent structure can be suffi- 
 cient to justify a finding of ouster. It may be that the lands 
 cannot be enjoyed as each tenant is entitled to enjoy them, 
 without making exten sive and permanent improvements . "Why 
 should the cotenant, willing to be at the expense of such im- 
 provements, be compelled to desist from making them, and 
 required to leave his lands in a condition in which he cannot 
 use them advantageously to himself? for he is necessarily so 
 compelled and required, if his improvements are to be treated 
 as hostile acts, subjecting him to the penalties visited upon a 
 cotenant found guilty of an ouster of his companion in in- 
 terest. 
 
 g 241. Unequivocal Acts essential to Ouster. — The in- 
 ference of law in regard to possession of a tract of land held 
 by any person, is that such possession is by virtue of the title 
 which such person happens to have. If he be a part owner, the 
 presumption of law must necessarily be that he enters as such 
 part owner, intending, while enforcing his own rights, to re- 
 spect those of his cotenants. The fact of his possession is, 
 of itseK, in harmony with his title. Until, by some act of an 
 unequivocal character, he indicates that his possession is no 
 lono-er the possession of his cotenants as well as of himself, 
 he is not liable to be proceeded against for having committed 
 an ouster, nor can he claim to have acquired any rights against 
 
 ' Keav I'. Goodwill. 16 Mass. 1.
 
 291 OUSTER. §242 
 
 them based upon their disseizin.' "In the cases in which one 
 tenant in common has successfully asserted the statute against 
 his cotenants, there have been unequivocal acts, such as re- 
 sistance of the right of entrj^; confession of disseizin; selling, 
 leasing, or improving the premises, or part of them."- 
 
 § 242. Ouster, froin vrhat inferred. — From what we have 
 said in regard to the necessit}" of the existence of some act 
 of an unequivocal nature, in order to impart to the posses- 
 sion of a cotenant such a hostile character as to convert it 
 into an ouster, it must not be assumed that direct evidence 
 of such act must always be produced. When an issue arises 
 in regard to an alleged ouster, certain acts and circumstances 
 may be put in evidence, which, though they do not establish 
 a direct keeping or turning out, nor an express denial of title, 
 yet tend to create ' ' a natural presumption of an ouster, " and 
 to force upon the minds of the jury the conviction that an 
 actual ouster must have taken place. "If one tenant in com- 
 mon has been in possession a great number of years, without 
 any accounting to his fellow -commoners, this is proper evi- 
 dence, from which the jury may infer an adverse posses- 
 sion."" In some instances, such possession has been re- 
 garded as raising a presumption of law which the jury are 
 not at liberty to resist. "^ An exclusive possession under a 
 claim of title for forty years, while the other cotenants re- 
 sided in the same county and failed to assert any claim to 
 their property, warrants the presumption of an actual ouster."* 
 ' ' When one tenant in common enters on the whole, and takes 
 the profits of the whole, and claims the tvhole exclusiveli/ for 
 twenty-one years, the jury ought to presume an actual ouste]- 
 though none be proved."" "It is necessary, in order to 
 maintain a title by disseizin by one tenant in common against 
 another, to show some act or series of acts to indicate a de- 
 
 ' Van Bibber v. Frazier, 17 Md. i50; WasH v. Buckiiaui, 38 Me. 3G0; Challol'oux i'. 
 Ducharme, 8 Wis. 287; 4 Wis. 554; Man- v. Gilliam, 1 Cold. 488; Blakoiicy v. Fergu- 
 son, 20 Ark. 547; McClung v. Ross, 5 Wheat. 116. 
 
 - TuUocli V. Worrall, 49 Pa. St. 140. 
 
 ■' Bryan v. Atwatcr, 5 Day, 188. 
 
 •• Van Dych v. Van Burcn, 1 CaineH, 84. 
 
 i JackHon v. Whitbeck, e> Cow. G33. 
 
 « Frederich i'. Gray, 10 Sery. & R. 188.
 
 g 242 ousTEB. 292 
 
 cisive intent and purpose to occupy tlie premises to the ex- 
 clusion and in denial of the right of the other. The facts 
 which will sufficiently prove such ouster and adverse posses- 
 sion will vary according to the different circumstances of 
 parties, and no definite and positive rule can be laid down 
 by which all cases can be governed. It may, however, be 
 safely said that a sole and uninterrupted possession and per- 
 manency of the profits by one tenant in common, with the 
 knowledge of the other, continued for a long series of years, 
 without any possession or claim of right and without any per- 
 ception of profits or demand for them by the cotenant, if un- 
 explained or controlled by any evidence tending to show a 
 reason for such neglect or omission to assert a right, will fur- 
 nish evidence from which a jury may and ought to infer an 
 actual ouster and adverse possession. Such an inference is 
 reasonable and justified under the circumstances, because men 
 do not ordinarily sleep on their rights for so long a period, 
 and a strong presumption arises that actual proof of the 
 original ouster has become lost by lapse of time."' The facts 
 of a case, and the law applicable thereto, were thus stated in 
 the Supreme Court of Pennsylvania : ' ' One tenant had died in 
 debt to the others, and apparently insolvent. The sui-viving 
 owners and their representatives, during nearly forty years, 
 paid the taxes and ground rent; for a suspension of these pay- 
 ments would have lost them the whole estate, comparatively 
 worthless then, but valuable now. They mortgaged the prop- 
 erty, and placed their mortgage on record. At different times, 
 they erected and re-erected buildings suitable to their busi- 
 ness. They received the profits of the land, smaller probably 
 than its expenses, but large in the aggregate, without account- 
 ing or being called to account. When the property has be- 
 come valuable, certain of the dead man's heirs come forth and 
 recover a proportionate part, without paying a dollar of the 
 expenditures. Considered separately, each of these facts may 
 have been inconclusive; together, they bore powerfully on the 
 result, for if ' improving lands, and receiving the rents, issues, 
 and profits thereof, are in all cases the highest acts of owner- 
 ship which can be exercised over them, and the exercise of 
 
 ' Lefavour v. Homan, 3 Allen, 355.
 
 293 ousTEK. g 242 
 
 these acts strongly marks the possession with exclusiveness 
 and hostility,' the defendant's testimony ought to have given 
 a preponderance to the scale. To tell the jury that perception 
 of profits was insufficient, and that from all the facts in the 
 case they were not bound to presume an ouster, was to fall 
 short of the mark. The facts tending to prove the ouster 
 should have been submitted to the jury for their decision, 
 with the insti-uctiou, that if found to be undenied and unex- 
 plained, and believed to be true, they would justify the find- 
 ing of the ouster claimed to have taken place. "^ 
 
 Where the proof established an exclusive possession, a 
 taking of the entire profits, and paying of the taxes, for a 
 period extending beyond the Statute of Limitations, with 
 the acquiescence of the other cotenants, and without any 
 claim of possession or any demand for an accounting of rents 
 and profits, the Coui-t thought that this '* evidence had no 
 tendency to prove direct acts of actual ouster. It consisted 
 merely of facts and cii-cumstances going to show negligence, 
 inattention, remissness, and failure to claim any right or title, 
 or make any demand for an account of the profits — mere ac- 
 quiescence on the one side, and a continuous and exclusive 
 possession of the whole premises on the other — taking all 
 the profits and paying the taxes for more than twenty-six 
 years, and for a time beyond the full period of the Statute of 
 Limitations, both as a bar to an ejectment and a bar to an 
 action of account. Upon evidence of this kind, it would 
 have been entirely proper for the Court to instruct the jury 
 that they were at liberty to presume— that is, to infer— an 
 actual ouster, if, upon the whole evidence before them, con- 
 sidered together, with the great lapse of time, they should 
 be morally convinced and satisfied that such had been the 
 fact. Such evidence, in such case, may be allowed to over- 
 come the legal presumption in favor of tenancy in common, 
 and it will be deemed sufficient in law to warrant a jury in 
 inferring and presuming an actual ouster and an adverse 
 possession for the statute bar; and the jury is not bound to 
 find, nor should the Court instruct them to find, such actual 
 ouster. The doctrine goes no further than to leave it to the 
 
 ■■' Kevsfi- 1'. Evans, 30 Pu, St. 500.
 
 § 242 OUSTER. 294 
 
 jury, not upon a legal presumption, but upon a natural pre- 
 sumption, passing for what it may be worth with them, and 
 operating upon the minds as it may happen to produce an 
 actual conviction of the fact."^ 
 
 "The sole enjoyment of property for a great number of 
 years, without claim from another, having right and under 
 no disability to assert it, becomes evidence of a title to such 
 sole enjoyment; and this not because it clearly proves the 
 acquisition of such a right, but because, from the antiquity 
 of the transaction, clear proof cannot well be obtained to 
 ascertain the truth, and public policy forbids a possessor to 
 be disturbed by State claims when the testimony to meet 
 them cannot easily be had." ^ "An exclusive adverse posses- 
 sion of the whole tract of land, or the exclusive receipt of 
 the rents and profits, no demand being made by the other 
 cotenant, or if made refused, and his title denied, may be 
 evidence of a disseizin or actual ouster."^ 
 
 The most extreme position of which we have any knowl- 
 edge, which has been assumed in regard to the ouster of one 
 cotenant by another, is that exhibited by the following ex- 
 tract from a recent opinion of the Supreme Court of Cali- 
 fornia: "The Court finds that Shepherd, the landlord of the 
 defendants, had been in the actual adverse possession of the 
 demanded premises from the year 1853 to the present time, 
 claiming title adversely to the plaintiffs and all other persons ; 
 but that the plaintiffs had made no demand prior to the com- 
 mencement of the action to be let into the possession, and 
 had made no offer or attempt to take possession. If an 
 ouster can be inferred from these facts, it must rest solely on 
 the ground that Shepherd was in the adverse possession, 
 claiming title adversely to the plaintiffs. It does not appear 
 that the adverse holding and claim of title were open and 
 notorious, nor that the plaintiffs had notice of it. It is 
 therefore unnecessary for us to decide whether, if these facts 
 had appeared, the ouster would have been established, in the 
 absence of a demand by the plaintiffs to be let into the pos- 
 
 ' Warfielu v. LindeU, 38 Mo. 581. 
 
 ^ Thomas v. Garvan, 4 Dev. 223; Cloud v. Webb* Id. 290. 
 
 ^ Hubbard v. Wood, 1 Sneed, 286.
 
 295 oxjsTER. g 243 
 
 session. But it is clear that an adverse holding and claim of 
 title do not, of themselves, constitute an ouster. The tenant, 
 out of possession, has a right to assume that the possession 
 of his cotenant is his possession, until informed to the con- 
 trary, either by express notice or by acts and declarations 
 which may possibly be equivalent to notice under certain cir- 
 cumstances. But imtil he has notice, either actual or con- 
 structive, in some form, that the possession of his cotenant 
 has become hostile, it will be deemed in law to have been 
 amicable, notwithstanding the tenant in possession may in 
 fact have been holding adversely. If the rule were otherwise, 
 the tenant out of possession might be disseized and lose his 
 remedy by the bar of the Statute of Limitations, without 
 notice that the possession of his cotenant, which before was 
 amicable, had become hostile. To avoid this injustice, the 
 law deems the possession to have continued amicable imtil 
 the tenant out of possession has, in some method, been noti- 
 fied that it has become hostile. We are therefore of the 
 opinion that the facts shown by the findings do not establish 
 an ouster."* 
 
 ^ 243. Possession of Trespasser made Amicable by his 
 becoming Cotenant, — The presumption that the possession 
 of a part owner of land is not adverse to the other part owners 
 has been held to prevail where such possession, when first ac- 
 (juired, was taken and lield without any right or title what- 
 ever, and was therefore hostile to the title held by the coten- 
 ancy. Thus in one instance, it appeared that possession was 
 taken by parties without any title, and that afterwards some 
 of them acquired an undivided interest in the premises, the 
 Court said: " It is insisted that the verdict finds an ouster of 
 the plaintiff by all the defendants, except Stout, White, and 
 Slanhard, to wit, their unlawful entry upon the premises in 
 September, 1858 — a year and a half before the rights of the 
 defendants as tenants in common were acquired. It is said, 
 in support of this position, that the possession acquired in 
 1858 was by disseizin, and it is added ' that the possession 
 never lost its hostile character;' and it is upon this assump- 
 
 ' Miller v. Myt-rH, 40 Cal. 538.
 
 § 244 OUSTER. 296 
 
 tion of fact that the whole argument turns. But the verdict 
 demonstrates that the possession unlawfully taken in 1858 did 
 lose its hostile character, prima facie, on the 9th of March, 
 1860, when, as the verdict finds, thej became tenants in com- 
 mon with the plaintiff. The moment the defendants became 
 tenants in common with the plaintiff, their possession lost its 
 hostile character bj the legal effect of the fact, and it cannot 
 be presumed that the possession was otherwise than amicable 
 thereafter, until the contrary is made to appear. " ^ 
 
 I 244. English Statute. — The common law presumption 
 that the entry and possession of one cotenant was the entry 
 and possession of all, was, as we have stated, liable to be re- 
 butted by showing that the entry was made as a sole owner 
 or as a disseizor, or that, though the entry was made in the 
 character of a cotenant, the possession, at some subsequent 
 period, became adverse and exclusive. The difficulty of de- 
 termining whether a given state of facts negatived this pre- 
 sumption of law was so insurmountable that no precise rules 
 could be laid down for its solution. The most that the Courts 
 could do in the cases ordinarily coming before them, requiring 
 a finding upon the question of ouster, was to inform the jury 
 that they might consider certain established facts, and if sat- 
 isfied therefrom of the existence of an ouster, thej- might so 
 find, though no direct ouster could be proved. In this state 
 of the law no counsel, however sagacious or well informed, 
 could confidently advise his client that an ouster had or had 
 not been committed. Part owners in possession claiming and 
 believing themselves to be owners in severalty, were exposed 
 to the hazard of being called upon, after the lapse of long 
 periods of time, to defend themselves against stale claims to 
 a moiety of their lands ; and this, perhaps, when the testimony 
 necessary to rebut such claims could no longer be obtained. 
 On the other hand, cotenants not in actual possession of their 
 lands were exposed to the danger that the possession held 
 by their cotenant, and which to them seemed to be perfectly 
 amicable and entirely consistent with the rights and relations 
 
 ' Carpentier v. Mendenhall, 28 Cal. 487. The purchase by defendant, pendeiUelUe, 
 of an undivided interest, divests his possession of its hostile character, prima facie. 
 Carpentier y. Small, 35 Cal. 356; House v. Fuller. 13 Vt. 165.
 
 297 OUSTER. § 244 
 
 of cotenancy, would be proved to be of a diiferent cliaracter, 
 and have attributed to it u different effect, from what they 
 had always expected. We think it Avas wise, therefore, in 
 Parliament to remove all these doubts and dangers by legis- 
 lating the presumption itself out of existence, as it did in 
 the following language : 
 
 "And be it further enacted. That Avheu any one or more of 
 several persons entitled to any Land or Eent as Coparceners, 
 Joint Tenants, or Tenants in Common, shall have been in 
 Possession or Eeceipt of the Entirety, or more than his or 
 their undivided Share or Shares of such Land or the profits 
 thereof, or of such Eent, for his or their own Benefit, or for 
 the Benefit of any Person or Persons other than the Person 
 or Persons entitled to the other Share or Shares of the same 
 Land or Eent, such Possession or Eeceipt shall not be 
 deemed to have been the Possession or Eeceipt of or by 
 such last mentioned Person or Persons or any of them."' 
 
 ' Sec. 12, Ch. 27 of 3 and 4 Will. 4. Tliis act was recommended by tiie Real Prop- 
 erty Commissioners, and was brought in by Lord Brougham, (Daniel i'. Woodroflfe, 
 2 H. L. Cas. 834.) This statute was given a retrospective operation, (see 2 H. L. 
 Cas. 833; Culley c. Taylerson, 11 Ad. and El. 1017.) LordDennian, C. J., in deliver- 
 ing the judgment of the Court in the last named case, said: 'The first question 
 arising upon this clause is, whether it extends to make the possession of coparceners, 
 joint-tenants, or tenants in common, separate possessions from the time the act came 
 into operation, or whether it has relation back to all coparceners, joint-tenants, and 
 tenants in common, who have ever l>een such, from the first time of their being co- 
 parceners, joint-tenants, and tenants in common. If it is confined to make their 
 possession separate only from the time of the act coming into operation, then it 
 would not affect the present case, because tlie lessor of the plaintiff would only have 
 a separate possession for a few years before the ejectment, and liis right to recover 
 would be what it was at common law, and, as we have before said, upon the second 
 section of the act. But we are of opinion that, from the language of the act, it has 
 a relation back, at least as far as relates to the object of this act, and has the effect of 
 making their possessions separate from the time when they first became coparceners, 
 joint-tenants, or tenants in common."
 
 OHAPTEE XI. 
 
 THE EIGHTS OP COTENANTS BETWEEN ONE ANOTHEE. 
 
 Eight to Possession of Chattels, $ 245. 
 
 Right to Possession of Chattels by Bailee, § 246. 
 
 Eight to Possession of Title Deeds, § 247. 
 
 Eight to Possession of every part of Realty, § 248. 
 
 Eight to Possession is not a right to injure, § 249. 
 
 Eight to take Possession, § 250. 
 
 Eight to use Common Property, $ 251. 
 
 Eight to sever Personal Property, § 252. 
 
 Eight of Lessee or Licensee, § 253. 
 
 Eight of Cotenants of Crops, § 254. 
 
 Eight of Owners of Party Wall, § 255. 
 
 Eight of Owners of Party Wall, duration of, § 256. 
 
 § 245. The possession of a chattel owned in any of 
 
 the various species of cotenancy, like the possession of any 
 realty so held, is something to which each of the cotenants is 
 equally entitled. The result of this equality of right, when 
 acting upon realty, is, as we shall show,^ that each cotenant 
 may at all times enter upon and enjoy every part and parcel 
 of the common lands; but he must so do this as not to inter- 
 fere with the equal right of each of his cotenants to possess 
 and enjoy the same property, and every part thereof. Many 
 kinds of personal property are not susceptible of beneficial 
 enjoyment in common, nor even of a joint and equal posses- 
 sion. Hence the common law never undertook to assure to 
 cotenants of personalty the common possession or enjoyment 
 thereof. "If two be possessed of chattels, personalis in com- 
 mon by divers titles, as of a horse, an oxe, or a cowe, &c., if 
 
 J See sec. 248. 
 
 298
 
 299 RIGHTS OF COTENANTS. § 246 
 
 the other take the whole to himselfe out of the possession of 
 the other, the other hath no remedie but to take this from 
 him who hath done him the -wrong to occupie in common, <fec., 
 when he can see his time."' As two or more persons could 
 not, at the same time, well use or have actual possession of 
 the same horse, cow, or other entire and inseverable chattel, 
 and as each of the part owners was equally entitled to be in 
 the exclusive enjoyment and possession of such chattel, and 
 no one of them could exhibit any claim paramount to that of 
 his fellows, the law refused to exercise any authority over the 
 chattel, and left it with him who happened to have it in his 
 possession.^ In a case determined by the Supreme Court of 
 Illinois, where the parties were tenants in common of a ma- 
 chine, the Court seemed to be of the opinion that each co- 
 tenant would be compelled, upon a proper demand, to permit 
 the other to have an equal use with him of the subject of the 
 cotenancy.^ This portion of the opinion was, however, not 
 necessary to the determination of the case. There is a class 
 of chattels which we may term severable, because they are so 
 susceptible of division that either of the cotenants may law- 
 fully take his proportion from the mass, and thereafter hold 
 it in severalty. While the law does not, in general, inter- 
 pose in behalf of one cotenant because the other has the ex- 
 clusive possession of any or all of the common property, and 
 refuses to surrender or share such possession, yet, as we shall 
 see hereafter, an exception exists in the case of severable 
 chattels, where one of the cotenants, by maintaining exclus- 
 ive control, prevents the other from making that severance 
 of his moiety to which ho is by law entitled.* 
 
 § 246. A bailee or pledgee of a cotenant, in possession 
 of a chattel belonging to the cotenancy may retain such pos- 
 session as long as he continues to be such bailee or pledgee.* 
 If the bailment be made by all the cotenants, it cannot be 
 
 ' Litt. sec. 323. 
 
 ^ Conover v. Earl, 26 Iowa, 169; Frans v. Young, 24 Iowa, 378; Koningsborg v. 
 Launitz, 1 E. D. Smitb, 215; Farrr. Smith, 9 Weud. 338; Sontliwortli v. Smith, 27 
 Conn. 3.59; Jones v. Brown. 38 E. L. & E. 304; llusscll v. Allen, 13 N. Y. 177; Uart 
 V. Fitzgerald, 2 Masn. 509; Wright o. Bennett, 3 Barb. 451. 
 
 » Swartwout v. Evans, 37 111. 442. 
 
 " See Bee. 252. 
 
 * Franz c. Young, 24 Iowa, 'MT>.
 
 g 247 EIGHTS OF COTENANTS. 300 
 
 terminated by any less number, and tbe bailee may success- 
 fully resist a suit for the possession until a demand has been 
 made by all the co-owners.^ 
 
 § 247. Title Deeds pass with the Land.^ — He in whom 
 the title to land is exclusively vested, has a right to the sole 
 custody of all the deeds which in their operation are limited 
 to his land. An equal right to the custody of a deed, or other 
 muniment of title, may exist : 1st, when two or more persons 
 are cotenants of the property described in the deed; 2d, where 
 two or more persons have different parcels of land in severalty, 
 the title to which is deraigned through the same conveyance. 
 In either case, the rights of the parties to the possession of 
 the common muniment of title seem to be identical with the 
 rights of cotenants to the possession of their common, insev- 
 erable chattels. "Whoever has possession may retain it. If, 
 however, it happens to be out of his custody, and another 
 equally entitled take it, he may keep it. In other words, the 
 right to the possession of the deed being equal, the law will 
 not interfere to take it away from either.^ Hence one lessee 
 cannot sustain detinue against his co-lessee for the posses- 
 sion of their common lease.* Nor can such action be main- 
 tained by any person for a muniment of title, as against 
 another equally entitled to its custody. "It is well estab- 
 lished by the second resolution in Lord Buckhurst's Case, 1 
 Co. Eep. 1, and by other authorities, that he who has occa- 
 sion to use a deed is entitled to the legal custody of it; but, 
 where two have an equal interest in a deed, and each may have 
 occasion to use it, as, for instance, where the same deed grants 
 Whiteacre to A and Blackacre to B, as it is manifest that both 
 cannot hold the deed at the same time, to whom does the legal 
 custody belong? If it were a chattel, it might be used in turn 
 by several having an interest in it; but it is not so with a deed, 
 which must remain in some custody until the occasion for 
 using it may arise. Upon this subject there are few author- 
 ities, for the cases relating to property do not apply. In the 
 
 I Atwood V. Ernest, 13 Com. B. 889; 76 E. C. L. 889. 
 
 '■' Lord V. Wardle, 3 Bing. N. C. 680; 4 Scott, 402. 
 
 =• Jickling on the Analogy between Legal and Equitable Estates, 240. 
 
 ■* Clowes V. Hawley, 12 Johns. 484.
 
 301 RIGHTS OF COTENANTS. g 247 
 
 case put, each has a common interest, and each may have oc- 
 casion to use the deed, but both cannot use it at the same 
 time. The only way of avoiding unseemly contest for the 
 possession is to rule that he who first has it may keep it; and 
 this seems to be the result of the only authority which bears 
 directly on the subject. In Vin. Abr. Faits (Z) pi. 15, it is 
 laid down, from Bro. Abr. Charters de Terre and the Year 
 Book, 4 H. 7, fo. 10, that ' if land bo given to A for life, re- 
 mainder over (to several) by deed, any of them who first gets 
 the deed shall retain it; and, therefore, whoever has any land 
 entered in the deed, where others have residue of the laud, 
 yet he that has this parcel may on account thereof retain the 
 deed.' 
 
 "The reason which gives the first possessor a right to hold 
 the deed so long as he retains it in his possession, gives the 
 other party having an interest in the deed a right to keep it 
 should it come to his custody. It is the interest which each 
 has in the deed, and the occasion which each may have to 
 use it, which gives each the title to have it. In the case put, 
 it may hold the deed against B, because he has an interest in 
 it and may have occasion to use it, and therefore if ho get it 
 from A, he may hold it against A. For fraud or force which 
 may be used to get possession of the deed, either party ma}- 
 perhaps have a remedy against the other; but the title to the 
 deed is ambulatory between those who have an interest in 
 and may have occasion to use it, and each is entitled to keep 
 the deed from the other so long only as he actually retains it 
 in his custody and control, but no longer."' While a tenant 
 in common cannot sustain any action at law against his co- 
 tenant for the possession of their title deeds, he may, by pro- 
 ceedings in equity, compel them to be produced for his 
 inspection.^ Courts of equity will also make such orders in 
 regard to the custody and preservation of title deeds as ma}' 
 be necessary to secure the rights and promote the convenience 
 of the cotenants.^ 
 
 ' Foster V. Crabb, 12 Com. 15. 140; IG Jur. 835; 21 L. J. C. P. 189; Yea v. Field, 2 
 T. It. 708. 
 
 ^ Wright V. Plumptrec, 3 Mad. Cli. 481. 
 
 ^ Elton I'. Elton, C Jur. N. S. 1.30; Yates i'. Plnmbe, 2 Snialc A G. 174; Burton v. 
 Neville, 2 Cox, 242; Lambert v. Rogers, 2 Mer. 489.
 
 § 248 EIGHTS OF COTENANTS. 302 
 
 ^ 248. Rigtit to be in Possession of Realty. — Every mem- 
 ber of a cotenancy, irrespective of the quantity of his interest, 
 has the right at all times to be in possession of every part and 
 parcel of the real estate of the cotenancy. This right neither 
 of his cotenants can lawfully impair or abridge. Neither has 
 any right to restrain the entry of the other, though such entiy 
 is sought to be made in order to accomplish some act prejudi- 
 cial to the rights of the cotenant who resists it. Thus, where 
 two were tenants in common of a barn-floor, on which one of 
 them sought to enter for the avowed purpose of removing the 
 other's wagon, and the latter resisted the entry, the Supreme 
 Judicial Court of Massachusetts were of the opinion "that 
 the defendant, as tenant in common of a barn-floor, occupied 
 by complainant and himself, had no right to use force and 
 violence to prevent his cotenant from entering the door, though 
 it was for the declared purpose of removing defendant's wagon; 
 and that such declared purpose afforded no justification for the 
 assault."^ In an important and well considered case, decided 
 by the Supreme Court of California, the defendant resisted 
 an action of ejectment brought by his cotenant, and justified 
 his resistance on the ground that his possession, though ex- 
 clusive as to a parcel, did not embrace any greater area than 
 he would be entitled to upon a partition of the entire tract. 
 The portion of the opinion of the Court disposing of this 
 branch of the case is as follows : 
 
 ' ' Had the defendant a right to the exclusive posssession 
 of the sixty acres, on the ground that it did not exceed his 
 share? 
 
 "As the case does not show that there had been any parti- 
 tion between the parties, and as it does not disclose a lease 
 from the plaintiff to the defendant, nor any agreement or 
 license to occupy, it follows, that if the defendant had the 
 exclusive right asserted, it must be found in the law of the 
 relation that existed between the parties as tenants in com- 
 mon. 
 
 "A tenancy in common is where two or more hold pos- 
 session of lands or tenements at the same time by several 
 and distinct titles. The quantities of their estates may be 
 
 ' Commonwealth v, Lakeman, 4 Cush. 597.
 
 303 RIGHTS OF COTENANTS. § 248 
 
 different; their propoi'tionate shares of the premises may be 
 unequal; the modes of acquiring their titles may be unlike, 
 and the only unity between them be that of possession. Thus, 
 one may hold in fee and another for life ; one may acquire his 
 title by purchase, another by descent; one may hold a fifth, 
 another a twentieth, and the like.' Tenancies in common 
 differ in nothing from sole estates but the blending and 
 unity of possession.'^ ' Neither of the cotenants knoweth his 
 own severalty, and therefore they all occupy promiscuously. 
 Tenants in common are they which have lands and tene- 
 ments in fee-simple, fee-taile, or for term of life, etc.; and 
 they have such lands or tenements by several titles, and not 
 by a joint title; and none of them knoweth his severall, but 
 they ought by the law to occupie these lands or tenements in 
 common, and pro indiviso, to take the profits in common. 
 And because they come to such lands or tenements by sev- 
 erall titles, and not by one joint title, and their occupation 
 and possession shall be by law between them in common, 
 they are called tenants in common.'^ Coke, in commenting 
 on the foregoing passage, remarks as follows : ' The essential 
 difference between joint-tenants and tenants in common is, 
 that joint-tenants have the land by one joint title and in one 
 right, and tenants in common by severall titles, or by one 
 title and severall rights ; which is the reason that joint-tenants 
 have one joint freehold, and tenants in common severall free- 
 holds. Onely, this property is common to them both, viz., 
 that their occupation is undivided, and neither of them 
 knoweth his part in severall.'^ In section tliree hundred and 
 twenty-three, it is stated that ' each of the tenants in common 
 may enter and occupy in common, per my et per tout, the lands 
 and tenements which they hold in common; and this not- 
 %vithstanding they are severally seized.' 
 
 "From these citations it is manifest that by the very law 
 of the relation existing between tenants in common, each and 
 every of them has the right to enter upon and occupy the 
 whole of the common lands and every part thereof. The 
 rule that tenants in common hold their lands by unity of 
 
 ' 2 Bl. Com. 191; Co. Litt. 189 a. '■' 2 Bl. Com. I'.H. 
 
 ^ Litt. 188 b. < Coke Litt. sec. 2iti.
 
 § 248 RIGHTS OF COTENANTS. 304 
 
 possession inculcates something more than the technical 
 truth that the possession of one tenant is prima facie the 
 possession of the other. In our judgment, it also involves 
 the doctrine that the tenants, respectively, have a right to 
 enter upon the whole, and upon every part of the whole land, 
 and to occupy and enjoy the whole and every part of it, and 
 that the tenants, respectively, are restrained, by correlative 
 obligation, from resisting the exercise of this right in either 
 of its branches. * * * Before partition, a tenant in common 
 has no share, except one which is undivided; and that he 
 cannot possess in severalty, for the reason that it is un- 
 divided; and, furthermore, he ' knoweth not of this, his sev- 
 erall.' The only unity between tenants in common is the 
 unity of possession, and if each man knew and could desig- 
 nate his part in severalty, without partition, even this unity 
 would soon be destroyed. He who has no right to possess, 
 except in common with others, in claiming the right to pos- 
 sess solely any part of that to which the common right ex- 
 tends, utters a solecism. 
 
 ' ' Counsel insist that ' while defendant occupies no more 
 than his proportionate share, such possession is consistent 
 with the common title, and therefore his possession is no 
 ouster.' It is true that the bare occupation of the sixty acres 
 by the defendant is not inconsistent with the common title; 
 but couple with that occupation a refusal on his part to allow 
 the plaintiff to enter and occupy the sixty acres with him, 
 and we have then a possession in him that is not consistent 
 with the common title, and which, therefore, does amount to 
 an ouster."^ 
 
 ^ Carpentier v. Webster, 27 Cal. 544. This decision was made the subject of a 
 lengthy and unfriendly review in the numbers of The Pacific Law Magazine pub- 
 lished respectively in January and February, 1867, (vol. 1 p. 1, and vol. 1 p. 67.) 
 The reviewer, no doubt, considered the doctrine that different cotenants may at the 
 same time be "in the actual possession — the positive pedis possessione — not only of 
 the same identical piece of land, but of every part, parcel, and particle thereof— all 
 claiming under separate derivations of title — all having diverse views and interests 
 as to the use to be made of the premises — and each being equally entitled with every 
 other to occupy the same spot, at the same time," as involving a legal, moral, and 
 physical heresy. As a legal heresy, because inconsistent ^vith the authorities; as a 
 moral heresy, because it permits a cotenant to enter upon and enjoy the lands im- 
 proved and beautified by another; as a physical heresy, because it authorizes two or 
 more persons at the same time to occupy the same space. In the forty odd page& 
 devoted to this review, no single opinion, whether of a Judge or of a text-writer, has
 
 305 EIGHTS OF COTENANTS. §§ 249-50 
 
 § 249. No Right to injurious Occupancy. — The right of 
 each cotenant at all times to enter upon the common property 
 must be exercised in a manner which permits the enjoyment 
 of the equal right of every other cotenant. It is not a right 
 to occupy in a manner injurious to tlie others. Therefore, 
 neither has the right to erect a dam on lands of which he is 
 sole owner or otherwise, and thereby flood the common prop- 
 erty. Such flooding would be a practical exclusion of the 
 others; and is in fact an ouster.' 
 
 § 250. The right to take possession of the subject of 
 
 the cotenancy, whether it be of real or personal estate, seems 
 to be conceded to every cotenant. Thus, in the case of chat- 
 tels, the only remedy when one cotenant has sole possession, 
 according to Littleton, is for the other to take it ' ' when he 
 can see his time."^ For an exclusive possession of realty, the 
 law has furnished a more orderly and more adequate remedy. 
 But even in case of realty, a tenant in common has the same 
 right to enter into possession as though he were tenant in 
 severalty. He may go upon the land in any manner not in- 
 volving a breach of the peace. If he acquire possession by 
 
 betu brought forward, necessarily nor even impliedly inconsistent with the doctrine 
 which the reviewer seeks to impugn. Instead of producing authorities in conformity 
 with his view, he repi-oduces the same quotations from Coke, Littleton, and Black- 
 stone, quoted and relied upon by the Supreme Court of California, and gives his in- 
 terpretation ol' the language of these writers as follows: '• They arc^ not to be under- 
 stood as intending to convey the meaning that all the tenants in common of a tract 
 of land either may or can actually and bodily occupy, and use, and take the profits of 
 the same identical part of the common lands, which would bo impossible and con- 
 trary to the order of nature, but they must, to be consistent with their own maxims, 
 mean simply that the occupation of the whole or of any dcHnite portion of the com- 
 mon lands by one is equally the occupation of the other; that the unity of jiossession 
 in such case exists between the in-tenant and the ont-tenant; and that so long as this 
 legal unity of possession continues, the out-tenant cannot maintain ejectment against 
 the in-tenant; but that, if this legal unity of possession bo broken by any act of one 
 of the t*;nants, as for instance by driving off the cattle of the cotenant from vacant 
 lands, or by preventing the cotenant to enter and occupy any portion of the common 
 lands, or, according to tho later authorities, by denying the title or right of the co- 
 tenant, then and in such case the legal unity of possession is broken, and an action 
 of ejectment may ho maintained." (Pacific Law Magazine, vol. 1, p. 77.) Tho doc- 
 trine of Cari)entier v. Webster was reaflirmed in Tevis c. Hicks, .18 Cal. 240. 
 
 ' Great Falls Co. v. Worstcr, 15 N. H. 459; Odiorne v. Lyford, 9 N. H. 502; Thomas 
 V. Pickering, 13 Me. .353; Hutchinson v. Chase, 39 Me. 514. 
 
 ■^ Litt. sec. 323. Ono joint owner of property cannot bt< guilty of larceny by taking 
 and disposing of the whole, unless bo took it out of the hands of a bailee. Kirksey v. 
 Tike, 29 Ala. 208. 
 
 C. & p.— 20
 
 3 251 RIGHTS OF COTENANTS. 306 
 
 stealth, but without any disorderly, tumultuous, or forcible 
 proceedings, his entry is justifiable, and no one has any right 
 to remove him.' No doubt, the same rule is applicable to the 
 retaking of a chattel from the cotenant who happens to have 
 it in his possession. But a cotenant has no right to take or 
 to retain possession under circumstances which would not 
 justify such taking or detention if he were sole owner. Hence, 
 if he take a lease of his cotenant who is in sole possession, 
 and thereby is enabled to enter upon the premises, he must 
 surrender the possession at the termination of his lease. If 
 he refuse, he may be removed by an action for an unlawful 
 detainer.^ 
 
 g 251. Right to use Common Estate. — Some of the au- 
 thorities declare, in general terms, that joint-tenants, tenants 
 in common, and coparceners "have a right to enjoy the estate 
 as they please."" But the enjoyment sustained by these au- 
 thorities is not a capricious, irresponsible employment of the 
 subject of the cotenancy; nor does it include such use of the 
 common estate as can only arise in obedience to the prompt- 
 ings of passion, of malice, or of insanity. It is a reasonable 
 enjoyment in some of the ordinary methods of reaping profits 
 from property of like character and under like circumstances.* 
 An inquiry into the use or employment which one cotenant 
 may make of the common property involves the consideration : 
 1st, of the acts which he may lawfully do to and with the sub- 
 ject of the tenancy; 2d, what uses of the common property, 
 not prohibited by law, are so far in excess of the rights of the 
 cotenant making the use, as to impose upon him an obligation 
 recognized and enforced, either at law or in equity, to reim- 
 burse the other cotenants on account of this excess. The 
 second branch of this inquiry we shall postpone for the pres- 
 ent, to be resumed in the chapter upon the liabilities of co- 
 tenants among one another. The acts which either cotenant 
 may lawfully do to and with the common property seem to 
 embrace everything not amounting to an ouster of the other 
 
 ' Wood I'. Phillips, 43 N. Y. 155. 
 
 - Hershey v. Clark, 27 Ark. 528. 
 
 » Story's Eq. Jur. sec. 916; Hole v. Thomas, 7 Ves. 589. 
 
 * Hawlev V. Clowes, 2 Johns. Ch. 122.
 
 307 RIGHTS OF COTENANTS. g 252 
 
 cotenant, or to a destruction, in whole or iu part, of the sub- 
 ject of the tenancy. A destnictiou in the case of chattels 
 may be either an annihilation of the chattel, or such a use or 
 disposition of it as results in a practical annihilation of the 
 rights of the other cotenants therein.' A destruction where 
 the cotenancy is of real estate is some act or series of acts, 
 by which the estate is injured beyond what would result from 
 any of the ordinaiy and reasonable means of obtaining profit 
 from a like estate. Thus, if timber standing on the land is 
 of proper size and condition for advantageous sale, either of 
 the cotenants may lawfully proceed to cut and sell it; for in 
 so doing, he makes no unusual use of the real estate of which 
 he is a tenant in fee.- But if, on the other hand, he cut sap- 
 lings and underwood at unseasonable times, this necessarily 
 involves a sacrifice of the interest of the other owners, and is 
 therefore a destruction.^ So, if a crop be planted and grow- 
 ing upon the common lands, and one of the part owners enter 
 and plow it up or otherwise destro]/ it, this would be as much 
 a destruction as is the cutting of young, unmarketable timber.* 
 A direct removal of the earth itself is a destniction pro tanto. 
 Hence no part o^vner has any right to dig up the soil and con- 
 vert it into bricks for the purpose of sale,^ nor to take out tui'f 
 for a like purpose." If the cotenancy includes a water power, 
 or other water right, neither one, nor even a majority of the 
 cotenants, will be permitted to divert the water to his sole 
 use,^ nor to so employ it as may result in the destruction of 
 their common resei-voir.** 
 
 ^ 252. The right of either cotenant to sever personal 
 property, severable in its nature, and existing in common bulk 
 and being of the same quality throughout, was probably re- 
 cognized at common law, though wo have found no authorities 
 there bearing upon this question. In the United States, this 
 
 ' See 8ec8. .312-319, for what acts constitutti a deslructioa of a chattel. 
 •^ Martj-ii 1-. KnowUys, 8 T. R. 145; llihn c. Peck, 18 Cal. G40; Dodd v. Watson, 4 
 .Tonos Eq. 48; Baker v. Wheeler, 8 Woiul. .oOT: Alford v. Brudcen, 1 Nev. 230. 
 ^ Hole V. Thomas, 7 Ves. 589. 
 ^ Harriiaii /•. Gartmaii, Harper, 430. 
 ■'• IJougall r. FoHt<,'r, 4 Grant's Ch. 325. 
 
 '• Wilkinson r. Haygartli, 12 Q. B. 8.37; Coppin^er c. (inl)l.ins. 3 Junes A L. 3lt7. 
 ' Bliss r. Rice, 17 Pick. 23; Kennedy i\ Siovil, 12 ('..nii. 327. 
 * Ballon V. Wood, 8 Cush. 48.
 
 9f 253 RIGHTS OF COTENANTS. 308 
 
 right has been involved in legal controversy with considerable 
 frequency, and has uniformly been sustained as to all prop- 
 erty of which the share of each cotenant can be ascertained 
 by weight or measurement without the assistance or consent 
 of the others. If a tenant in common of such property takes 
 any portion thereof not beyond his share, this is regarded as 
 a lawful severance, and not as an improper assumption of 
 authority. So long as he does not exceed his just proportion, 
 he may carry away, sell, or destroy it without inciirring any 
 liability to his cotenauts.^ "The rule should, of course, be 
 confined to property readily divisible and commonly divided 
 by weight, tale, or measurement, into portions absolutely alike 
 in quality and value, as grain in bulk, money, and the like. 
 It could not reasonably be applied in principle, or in practice, 
 to things in their nature so far undivisible that the share of 
 one cannot be distinguished from that of another, and where 
 each article or item has a distinct identity, plainly distinguish- 
 able from the others, and of a different value.'"' The cases 
 calling for the application of this rule have been chiefly, and 
 so far as our observation extends, exclusively, adjudications 
 in reference to grain of the same kind and qviality. We have 
 therefore no means of specifying what other articles are of 
 so severable a nature as to come within the rule. Whenever 
 a cotenant is authorized to make a severance of personal prop- 
 erty, his creditors, acting under an execution or attachment 
 against him, may lawfully seize and sever his share, or so 
 much thereof as is not by law exempt from such seizure.^ 
 
 § 253. By either lease or license, a joint-tenant, co- 
 parcener, or tenant in common, may confer upon another 
 person the right to occupy and use the property of the co- 
 tenancy as fully as such lessor or licenser himself might have 
 used or occupied it if such lease or license had not been 
 granted. If either cotenant expel such licensee or lessee, he 
 
 » Tripp y. Riley, 15 Barb. 333; Pobes v. Shattuck, 22 Barb. 568; Kimberly v. Pat- 
 chin, 19 N. Y. 330; Clark v. Griffith, 24 N. Y. 59.5; Lobdell i'. Stowell, 37 How. Pr. 91; 
 Fiquet I'. Allison, 12 Mich. 328; Erwin y. Clark, 13 Mich. 19; Newton v. Howe, 29 
 Wis. 535. 
 
 - Channon v. Lusk, 2 Lan--. •2:.''.. 
 
 ^ Newton v. Howe, 29 W
 
 309 RIGHTS OF COTENANTS. g 253 
 
 is giiilt}' of trespass.' If the lessee has the exchisive posses- 
 sion of the premises, he is not liable to any one but his lessor 
 for rent, unless the other cotenants attempt to enter and he 
 resists or forbids their entry, or unless, being in possession 
 with them, he ousts or excludes some or all of them;- or 
 unless, under the law of the State, the lessor himself would 
 have been liable had he been in such exclusive possession. 
 Whenever either of the cotenants may lawfully cut or remove 
 trees, he may authorize another to do so.^ Where two persons 
 were joint owners of a lake, with a common right of floating, 
 fishing, sailing, etc., it was contended that one of them could 
 not alienate "a portion so as to give the right to use the loch 
 for fishing, boating, and so on; for that by such a course he 
 would be making the interest of the other less than it in fact 
 is; that he would be making him an owner to the extent of 
 one-third of the lake, instead of one-half; that the o^vnership 
 of the lake was what is called a 'jus individunm' — incapable 
 of division; and that where there are two joint proprietors 
 of such a right, one of them cannot, without the consent of 
 the other, introduce a third." In disposing of this objection, 
 Lord Chancellor Cranworth said: "The argument of the ap- 
 pellant rests upon the assumption that the right to a loch is 
 a right incapable of division. But upon what does this rest? 
 The proposition comes strangely in a case which is founded 
 on the joint ownership of the two. There is nothing in the 
 law of Scotland, so far as I have been able to discover, to 
 prevent the owner of a loch from alienating any portion of it 
 as he may think fit. So also when the right to a loch is held 
 as a mere pertinent to the land. If, indeed, the effect of an 
 alienation by one of two co-owners should be to deprive the 
 other owner of the full right as to his moiety, then that would 
 give a right of action for regulation of the enjoyment. But 
 a similar right would exist independently of the alienation, if 
 one of two co-owners should use his right in excess, so as to 
 interfere with the right of the other. To illustrate this, sup- 
 pose it were not possible for more than any given number of 
 boats (say a thousand) to be simultaneously engaged in fish- 
 
 ' McGavrell v. Miirpby, 1 Hilt. i:i2. 
 
 ■■' Badger v. Holmes, G Gray, 118. 
 
 ■' Baker v. Wheeler, 8 Weud. 507; AU'ord r. Brudceii, 1 Nov. 230.
 
 g 254 RIGHTS OF COTENANTS. 310 
 
 ing on the lake, the appellant would be entitled to have five 
 hundred so employed, and Strowan would be entitled to the 
 other five hundred. Strowan could not, by alienating to 
 others, give a right to more than his due share; but if he 
 keeps within that limit, appellant has no right to complain. 
 It is the same thing to him whether the right is exercised 
 by Strowan or by others deriving title under him. In either 
 case, Strowan or his disponees might be restrained from any 
 excessive exercise of the right enjoyed in common with an- 
 other; but Strowan could not be prevented from exercising, 
 subject to the liability to be thus regulated, the right incident 
 to property in general of alienating it as he may think fit. 
 
 Heliance was placed upon two cases in which it was held 
 that where there are two joint owners of a moor, one of them 
 cannot, without the consent of the other, let to a third person 
 the right of sporting over it. Those cases, however, pro- 
 ceeded upon the special nature of the right attempted to be 
 raised. It certainly was not meant to be decided that one of 
 two joint owners of a moor may not sell his interest, or any 
 share of it, to as many joint purchasers as he may choose. 
 The same principle must govern the ownership of two or 
 more owners in common of a loch, which is the case here; 
 and I therefore concur with a majority of the Judges below 
 in the conclusion that it was competent for Strowan to sell 
 and convey to the respondent the right to use the loch, as 
 pertinent to the lands of Kinloch."^ 
 
 § 254. One who agrees to raise and crop upon the lands 
 
 of another, and to divide the same with the land owner, 
 instead of paying rent, becomes, as we have seen, a tenant in 
 common with the owner of the crops produced under the 
 agreement.'^ This cotenancy deals with, and is inseparably 
 connected with the possession of the land. For the purpose 
 of doing all acts necessary to be done, in producing, cultivat- 
 ing, harvesting, or removing and dividing such crops, each of 
 the parties has an equal right to enter upon the lands; and if 
 either forcibly resists the entry of the other, or removes him 
 after such entry, he is guilty of assault and battery." But if 
 
 ' Menzies j;. Macdonald, 36 E. L. & E. 24. - See sec. 100. 
 
 ^ Commonwealth v, Eigney, 4 Allen, 317.
 
 311 EIGHTS OF COTENANTS. § 255 
 
 the one has no right to forcibly resist the other who is about 
 to exercise his right of entry, it seems equally clear that the 
 other, if resisted, has no right to enter forcibly; and that if, 
 in entering, he uses violence towards his cotenant, lie becomes 
 a trespasser from the first, and an action of trespass is main- 
 tainable against him "for all damage resulting from the loss 
 to the real estate, and from the removal of the common prop- 
 erty."i 
 
 § 255. The respective owners of a party -wall have 
 
 the ownership thereof in severalty, each owning up to the 
 division line between Ms lot and that on which the adjoining 
 building stands. Each has an easement in the other's half 
 of the wall, which entitles each to the use of the Avhole wall 
 to support his building adjacent thereto. Either may increase 
 the height of the wall for the purpose of adding buildings on 
 liis side;^ and if, when so increased, the other tears the wall 
 down to its former height, he is liable as a trespasser.^ 
 Neither party has any right to jjull down the wall, nor to 
 remove it in whole nor in part, except when its ruinous con- 
 dition renders such action necessary.^ In a case determined 
 in Massachusetts, one of the proprietors of an ancient pai*ty 
 wall was paring about four inches of it off on the side next 
 to his lot, and erecting another wall about two inches from the 
 portion of the former wall which remained after the paring. 
 The new wall was connected with the other by occasional 
 projecting bricks and ties. A bill in equity was filed disclos- 
 ing these facts, and praying for an injunction to restrain this 
 paring of the old wall. In stating its reason for granting the 
 relief prayed for, the Court said: "The right which the 
 plaintiff had was an easement of support in a solid party 
 wall. The acts of the defendant tended to destroy this right. 
 If he could cut off the old Avail in part, and erect a new one 
 separate from it at a distance of two inches, and connected 
 with it only by occasional supports or ties, he might, in like 
 
 ' Daniels v. Brown, 34 N. H. 459. 
 ■^ Brooks V. Curtis, 50 N. Y. 644. 
 '• MattH V. Hawkins, 5 Taunt. 20. 
 
 •• Shcrred v. Cisco, 4 Kanf. 487; Bicbardij v. Kose, 9 Exc. 218; 24 E. L. & E. 40C; 17 
 Jur. 103C; 23 L. J. IJ. ^N. S.) Ex. 3.
 
 g 256 RIGHTS OF COTENANTS. 312 
 
 manner, erect liis new wall at a distance of two feet or two 
 yards, and connect it with tlie residue of tlie old wall by ties 
 of stone or wood. After such an alteration as that made hj 
 the defendants, the plaintiff's estate might be as strong and 
 well supported as before, but it would cease to be upheld or 
 sustained by the ancient party wall — a solid structure, such 
 as the plaintiffs had from time immemorial enjoyed. Under 
 the most liberal rule of allowing an adjoining owner to alter 
 and repair a partition wall to suit his own convenience, and 
 to adapt it to his wants in erecting a new building or repair- 
 ing an old one, no case goes so far as to authorize acts to 
 be done by him which in effect destroy the character of the 
 structure as a party wall."' The rights of the adjacent own- 
 ers to their party wall continue as long as the wall is sufficient 
 for the purpose for which it was designed, and the respective 
 buildings continue in a condition to need its support. But 
 if the wall becomes so decayed and ruinous that a due regard 
 for life or property renders its removal necessary, either 
 owner may, after due notice to the other, proceed to remove 
 it, and to rebuild another in its place ; and if in so doing he 
 proceed with reasonable skill, care, and speed, he is not re- 
 sponsible for any damage occasioned to the other by loss of 
 business or by exposure of his property to the weather.' 
 
 § 256. The duration of the rights and obligations of 
 
 owners of party walls, though a question of great importance, 
 is involved in grave doubts. When a party wall has been 
 established, it may, by the repair of dilapidations or by re- 
 peated tearing down and rebuilding, be continued perpetually. 
 Has either party the right to call on the other to repair and 
 rebuild, and thus to keep up the wall forever; or may either, 
 on the total or practical destruction of the wall, refuse to join 
 in the erection of another, and release his land from the ease- 
 ment which had been attached to it? Chancellor Kent, fol- 
 lowing the law of France, and out of respect to what he deemed 
 the equity of the case, declared that when a wall became ruin- 
 ous, both parties were bound to contribute to its repair and 
 reconstruction; and he accordingly compelled one to reim- 
 
 ' Phillips 'V. Boardman, 4 Allen, 1-19. 
 ^ Partridge v. Gilbert, 15 N. Y. 601.
 
 313 PilGHTS OF COTEXANTS. ^ 256 
 
 burse the other for expenses incurred in rebuilding tlieir par- 
 tition wall.' But this decision has been doubted, iind in all 
 probability "will, -whenever it is directly drawn in question, be 
 overruled in the State where it was pronounced. In one in- 
 stance, it has already been determined that the destruction 
 of the building also destroys all obligations between the 
 parties connected with their party wall; and, therefore, that 
 if one of them rebuild, placing the wall where it was before, 
 the title to so much of the wall as is beyond the division line 
 of the lots is thereby vested in the owner of the adjacent lot, 
 and that such adjacent owner may therefore use this wall as 
 his own, without contributing anything towards paying for its 
 erection.- It will be seen that this case differs from that of 
 Campbell v. Mesier, in the fact that the wall was destroyed, 
 instead of being merely in a ruinous condition. That this 
 difference is not likely to be regarded as material, appears by 
 the following extract from the opinion of Denio, C. J., of the 
 Court of Appeals : " I do not perceive any solid distinction 
 between a total destruction of the wall and buildings, and a 
 state of things which would require the whole to bo built from 
 the foundation. In either case, there is great force in saying 
 that the mutual easements have become inapplicable, and that 
 each proprietor may build as he pleases upon his own laud, 
 without any obligation to accommodate the other. Circum- 
 stances may have materially changed since the adjoining pro- 
 prietors were content with such walls as would have supported 
 two adjoining dwellings. If the right of mutual support con- 
 tinues, by means of the original arrangement, or by prescrip- 
 tion, it is for just such an easement as was originally conceded, 
 or which has been established by long enjoyment. But in the 
 changing condition of our cities and villages, it must often 
 happen, as it did actually happen in this case, that edifices of 
 different dimensions, and entirely different character, would 
 be required. And it might happen, too, that the views of one 
 
 ' Cami)hiell v. Mesier, 4 Johns. Ch. 334. 
 
 •^ Sherrcd v. Cisco, 4 Sanf. S. C. 480. A party who builds a wall one-half on his 
 own and one-half on his neighbor's hind, cannot enforce contribution from the lattiT 
 when he uses the wall in connection with a building. To entitle tlic builder to con- 
 tribution, in such case, he must have put the wall on tho other's land lawfully, and 
 with an agreement that it should be paid for when used. List v. Hornbrook, 2 West. 
 Va. 340.
 
 § 256 RIGHTS OF COTENANTS. 314 
 
 of the proprietors, as to the value and extent of the new build- 
 ings, would essentially differ from those of the other; and the 
 division wall, which would suit one of them, would be inap- 
 plicable to the objects of the other. "^ 
 
 In view of the preceding decisions, we think it may be 
 safely assumed that the mere fact that adjoining proprietors 
 have or had a party wall does not impose upon them, nor 
 their successors in interest, any obligation to rebuild the 
 Avail when destroyed, nor to do work upon it which, in sub- 
 stance, amounts to a rebuilding, in a case where the wall has 
 become in a ruinous state of dilapidation. The suggestion 
 of Judge Denio, that in cities coterminous owners frequently 
 find it necessary to change the uses formerly made of their 
 property, and that therefore a party wall necessary and suffi- 
 cient at one time, may, at a subsequent period, become un- 
 necessary or inadequate, deserves great consideration; and 
 we doubt whether one of the owners of a party wall can, 
 under any circumstances, in the absence of some special 
 agreement, be compelled to maintain or rebuild it when it is 
 no longer suitable to the changed condition of his business 
 or of his property. 
 
 ' Partridge v. Gilbert, 15 N. Y. 615.
 
 CHAPTEK XII. 
 
 LIABILITIES OF COTENANTS TO ONE ANOTHER. 
 
 Classification of, i^ 257. 
 
 For Use and Occupation, ^ 258. 
 
 For Rents and Profits, § 259, 
 
 For Services of Cotenant, § 260. 
 
 For Eepairs. ij 261. 
 
 For Improvements, ij 262. 
 
 For removal of Lien, Claim, or Title, ^ 263. 
 
 For Money collected on Insui-ance, $ 264. 
 
 For Injuries arising from Repairing or Preserving, $ 265. 
 
 For Negligence, § 266. 
 
 Of Owners of Party Wall, ^ 267. 
 
 § 257. Classification.— The liabilities of cotenants to 
 each other, arising out of their connection with the common 
 property, will now be considered. In such consideration, 
 we shall exclude, as foreign to our pm-pose, all inquiry in 
 reference to leases or other contracts made between the co- 
 tenants, because their effect is to be determined by reference 
 to their express stipulations, and by the application of the 
 same rules of construction which would be properly called 
 into requisition if the contract were between persons not 
 liable to any of the consequences flowing from a joint or 
 common interest in the same property. All the claims which 
 one cotenant may present against another, not founded upon 
 any special agreement, and arising out of the subject of the 
 tenancy, are : 1st, for use or occupation of the common prop- 
 erty; 2d, for profits received from the common property; 3d, 
 for services performed or moneys expended for its benefit; 
 4th, for damages occasioned to it by the wilful act or culpa- 
 ble negligence of the cotenant from whom redress is sought. 
 
 '615
 
 §§ 258-9 LIABILITIES OF COTENANTS. 316 
 
 g 258. For Use and Occupation. — In some parts of the 
 United States, a cotenant occux^jing the entire real estate, or 
 any portion more than equivalent to his interest, though with- 
 out any denial of his co-owner's right to enter and enjoy in 
 common with him, is liable to account for the value of such 
 occupation.^ But the decided preponderance of the author- 
 ities, both in England and in America, affirms the right of 
 each cotenant to enter upon and hold exclusive possessipn of 
 the common property, and to make such profit as he can by 
 proper ciiltivation or by other usual means of acquiring bene- 
 fit therefrom, and to retain the whole of such benefits,^ pro- 
 vided that in having such possession, and in making such 
 profits, he has not been guilty of an ouster of his cotenant, 
 nor hindered the latter from entering upon the premises and 
 enjoying them as he had a right to do.^ The reasoning upon 
 which these decisions constituting the great bulk of the author- 
 ities on this subject rests is : That as each cotenant has, at all 
 times, the right to enter upon and enjoy every part of the 
 common estate, this right cannot be impaired by the fact that 
 another of the cotenants absents himself or does not choose to 
 claim his right to an equal and common enjoyment; that it 
 would be inequitable to compel a cotenant in possession to 
 account for the profits realized out of his skill, labor, and 
 business enterprise, when he has no right to call ujion his co- 
 tenant to contribute anything towards the production of these 
 profits, nor to bear his proportion when, through bad years, 
 failure of crops, or. other unavoidable misfortune, the use 
 made of the estate resulted in a loss instead of a profit to the 
 one in possession. 
 
 g 259. The liability of each cotenant to account for 
 
 rents and profits received, was created by the statute -i and 5 
 Anne, ch. 16, and is now universally recognized. Consider- 
 able differences of opinion are manifest from the reports, 
 both English and American, as to what a cotenant must ac- 
 
 1 Thompson v. Bostwell, 1 McMullen Eq. 75; Shiels v. Stark, 14 Geo. 437. 
 
 ■^ Peck V. Carpenter, 7 Gray, 283; Crane v. Waggoner, 27 Ind. 52; Shephardv. Rich- 
 ards, 2 Gray, 424; Woolaver i'. Knapp, 18 Barb. 265; Israel v. Israel, 30 Md. 120; Pico 
 V. Cohimbet. 12 Cal. 414; Becnel v. Becnel, 23 La. An. 150. 
 
 !* Sears v. Sellew, 28 Iowa, 505; Carr v. Passaic L. & I. B. Co. 22 N. J. Eq.85; 
 Israel v. Israel, 30 Md. 126.
 
 317 LIABILITIES OF COTENANTS. §§ 260-1 
 
 coiint for; and in America further judicial discussion has 
 arisen, some of the authorities holding that this statute, by 
 imposing an obligation to account, authorizes the Courts to 
 sustain an action of hidehitatiis assumpsit for not accounting, 
 while the other authorities declare that the only remedy is 
 in an action of account at law, or by a bill in equity for like 
 pui-pose. The decisions upon both these questions will be 
 shown in a subsequent chapter, upon the remedies of co- 
 tenants against one another.' 
 
 ?/ 2G0. Compensation for his services in managing or 
 
 taking care of the property is never awarded to a cotenant, 
 except as the result of a direct agreement to that efiect; or 
 unless, from all the circumstances of the case, the Court is 
 satisfied of the existence of a mutual understanding between 
 the parties that the sei-vices rendered by one should be paid 
 for by the others.- In this respect, the law of cotenancy is 
 like that of partnership. A partner in taking care of and 
 managing the property of the concern is performing no more 
 than his duty, and is therefore entitled to no compensation 
 from his copartners. But if, at the request of the others, he 
 perform services which neither the law nor his partnership 
 obligations impose on him, "an agreement is implied that 
 he shall be paid."'' We have no doubt a like agreement will 
 also be implied when one cotenant has, at the request of the 
 others, performed services which the relation of cotenancy 
 did not impose upon him. 
 
 ^ 261. Compensation for repairs or improvements made 
 
 to or upon the subject matter of a cotenancy may be claimed: 
 1st, as forming a sufficient affirmative cause of action against 
 one of the co-owners n*^t contributing his proportion ol" the 
 expenses thereof; 2d, as forming a matter of set off, to be de- 
 ducted from an amount which one making the repairs is under 
 obligut'.on to pay to another of the cotenants for mesne profits, 
 
 ' S( (■ Chap. XIII. 
 
 '■' Soars r. Miiiwon, 23 Iowa, 389; Bradlord r. Kimberly, 3 Johns. Ch. 433; Franklin 
 I-. Robinson. 1 .Johns. Ch. 104; Kaun v. I'lcynolds, 18 Cal. 289. 
 
 ' Levi r. Karrick, 13 Iowa, 350; Lewis v. Mofl'att, 11 111. 392; Caldwell v. Liebor, 7 
 Paige Ch. 483.
 
 § 261 LIABILITIES OF COTENANTS. 318 
 
 or for profits made or received from the thing owned in com- 
 mon. There are general expressions, especially in the Amer- 
 ican reports, indicating that one cotenant may recover in an 
 action against another for necessary repairs which the latter, 
 after demand, refused to join in making.' All the cases agree 
 that a notice of the repairs needed, and a demand that he 
 participate in making them, is a prerequisite to a recovery in 
 such an action against a part owner.^ But we doubt whether 
 any case can be cited in which, proceeding upon and by virtue 
 of the common law, and in the absence of an agreement to 
 join in repairs, a cotenant obtained judgment against one of 
 his fellow-tenants for repairs made without the assent of the 
 latter, either expressed in direct terms, or necessarily implied 
 from the situation of the parties or their course of dealing 
 between each other. The common law remedy, available to 
 a cotenant who wished the others to assist in necessary repairs, 
 was by writ de reparatione faciendd.^ But this writ was al- 
 lowed only when a miU or house fell into decay.'* It was not 
 employed to obtain contribution for repairs previously made; 
 but to compel a cotenant to make, under the order and direc- 
 tion of the Court, such repairs as it adjudged to be proper.' 
 Except this remedy, to which recourse must have been had 
 before any repairs were made, "at common law, no action 
 lies by one tenant in common, who has expended more than 
 his share in repairing the common property against the defi- 
 cient tenants."^ A case illustrating the rule that the assent 
 of a j)ai"t owner to necessary repairs may be presumed under 
 peculiar circumstances and from a prior course of dealing 
 between the parties, was determined in the Supreme Court of 
 the State of Illinois. An act of the Legislature granted to 
 several persons and their heirs and assigns, a franchise to 
 
 ^ Dech's Appeal, 57 Pa. St. 472; Denman v. Prince, 40 Barb. 217. 
 
 •^ Mumford v. Brown, 6 Cow. 476; Kidder r. Eixford, 16 Vt. 172; Stevens v. Thomp- 
 son, 17 N. H. 111. 
 
 3 Co. Litt. 200 h. 
 
 * Bowles' Case, 11 Co. 82 &; Co. Litt. 200 &; Carver v. Miller, 4 Mass. 561; Loring 
 V. Bacon, 4 Mass. 576. 
 
 5 Calvert v. Aldrich, 99 Mass. 76, 
 
 « Converse v. Ferre, 11 Mass. 326; Calvert v. Aldricli, 99 Mass. 76; Wiggin v. Wig- 
 sin, 43 N. H. 568.
 
 319 LIABILITIES OF COTENANTS. § 261 
 
 establish and operate a ferry. They were reqmrecl to buikl 
 approaches to the ferry, and to keep and maintain the whole 
 in condition for public use. One of the part owners resided 
 in Europe. During his lifetime, he permitted the others to 
 manage the feny and the property connected ^-ith it. After 
 his death, his heirs also resided in Europe, and never claimed 
 or exercised any control over the property. An action in 
 assumpsit was brought by the resident part owners against 
 the heirs of the absent part owner, to recover for expenses 
 and repairs in running the ferry boats, repairing and replacing 
 them, and building and repairing the roads and dykes. 
 Breese, J., in delivering the opinion of the Court, said: 
 "The declaration shows that the greater part of the expendi- 
 ture, for which contribution is claimed, was incurred in re- 
 lie-\T.ng their ferry boat from a serious disaster — repairing it, 
 running it, and replacing it; and that the entire account is 
 for repairs to the roads, bridges, and dykes. Now, all these 
 things had to be done, under penalties, and in doing them, 
 the plaintiffs, being on the spot, were enabled to discharge 
 their associated liability to the public. There was a public 
 duty resting on them, to be discharged by them. It could 
 not, surely, have been understood by any one of the original 
 associates, or by those purchasing an interest in the fran- 
 chises, that on the death of any one of them, the enterprise 
 was to terminate or be arrested in its progress to completion, 
 and thereby all the money they had expended, and the fran- 
 chises also, be lost, or put in such peril as to render them 
 nearly valueless; or that one portion of the associates, no 
 matter from what motive, could, by his own act, thwart the 
 designs and operations of his fellows, bent on performing 
 their obligations to the public, and on making the enterprise 
 one of profit. It seems to us, that after the death of Paul 
 Mehlgarten, and before partition, the same responsibility 
 rested on his heirs as upon him, and that casualty did not 
 destroy the association, nor should it cripple the exertions of 
 those on the spot, who had, from the commencement, the man- 
 agement of the enterprise. "Whatever sums of money they 
 expended in good faith upon the leading objects of tlie asso- 
 ciation, and wliicli were necessary in order to its enjoyment, 
 and to the discharge of their obligations to the public, the
 
 §§ 262-3 LIABILITIES OF COTENANTS. 320 
 
 heirs of Paiil Mehlgarten, the defendants in this suit, are 
 justly chargeable with their proportion."^ 
 
 g 262. Improvements. — Neither cotenant has any power 
 to compel the others to unite with him in erecting buildings 
 or in making any other improvements upon the common prop- 
 erty.^ If either chooses to make such improvements, he can- 
 not recover from the others for their share of the expenses 
 incurred thereby, in the absence of an express agreement on 
 their part, or of such circumstances, or such a course of 
 dealing between the parties, as convinces the Court that a 
 mutual understanding existed between them to the effect 
 that these expenses were to be repaid.^ 
 
 § 263. For removal of Liens and Clouds on Title. — The 
 
 purchase of an outstanding title, the removal of a tax or other 
 lien or incumbrance, and the payment of a sum of money for 
 the preservation of the common property, or for the protection 
 or assertion of some common right, or the redress of some 
 common injury, are all spoken of, in general terms, as afford- 
 ing a ground for contribution in favor of one cotenant and 
 against another.^ In no instance, however, have we found 
 that either of these matters has been successfully employed 
 as an affirmative cause of action on which to base a persoual 
 judgment against a non-contributing cotenant, in the absence 
 of a previous authorization or a subsequent ratification of the 
 transaction out of which the claim for reimbursement arose. 
 If an outstanding paramount title be purchased by one co- 
 tenant, and the others fail or refuse to pay their share of the 
 purchase price, the purchaser may indemnify himself by as- 
 serting the paramount title which he has so acquired. If 
 instead of purchasing some title, he has discharged a valid 
 lien against the property, he may assert this lien to the ex- 
 tent of compelling an equitable contribution.^ And when he 
 
 ' Haven v. Mehlgarten, 19 111. 95. 
 
 - Becnel v. Becnel, 23 La. An. 502. 
 
 ■• Thurston v. Dickinson, 2 Rich. Eq. 317; Thompson v. Bostick, 1 McM. Eq. 75; 
 Dillettf. Whitner, Cheves Eq. 213; Taylor v. Baldwin, 10 Barb. 590; Drennen v. 
 Walker, 21 Ark. 557. 
 
 * Story's Eq. sees. 505 and 1235; Williams v. Gray, 3 Greenl. 207. 
 
 5 Titsworth v. Stout, 49 111. 78.
 
 321 LIABILITIES OF COTENANTS. §§ 264-5 
 
 has expended money in asserting some common right or re- 
 dressing some common injury, or in preserving the common 
 property, and has thereby been of advantage to his co- 
 owners, he may have the amounts so expended credited to 
 him, when called upon to accotmt with his cotenants.^ But 
 we think all claims by one cotenant against another, arising 
 out of the common property, and disconnected alike from 
 any agreement between the parties, and from any circum- 
 stances which clearly establish that one must necessarily have 
 been authorized to act for the other, must, in their assertion, 
 be limited to the declaration and enforcement of a lien against 
 the property. If a different rule prevailed, every part owner 
 would constantly incur the hazard of being required to pay, 
 for the removal of incumbrances, sums in excess of the value 
 of the estate. 
 
 g 264. For Insurance Collected. — A cotenant is liable to 
 his companions for their proportion of a sum of money col- 
 lected by him on a policy of insurance upon the whole prop- 
 erty, which was effected in the name of one cotenant, with 
 authority from others, and which policy purported to be " for 
 whom it may concern."^ Two out of three tenants in common 
 executed a lease of the whole estate. The lessee covenanted 
 to insure for the benefit of the lessors. The third cotenant 
 subsequently ratified the act of the others. The premises 
 were burnt down during the occupancy of the lessee. The 
 amount of the policy of insurance was paid to one of the 
 lessors. The cotenant who did not join in the lease brought 
 an action to recover a part of this amount, corresponding to 
 his interest in the property destroyed. The Court hold that 
 the insurance, under the circumstances, was in the nature of 
 rent, being one of the benefits secured by the demise; and 
 that he who had recovered the whole of it, held it to the uses 
 of his cotenants ' ' respectively, in proportion to their aliquot 
 parts of the common estate, and an action at law will lie for 
 it."' 
 
 ^ 265. Liability for Injuries. — A tenant in common is 
 not liable for injuries resulting from accidental consequences 
 
 ' Gage V. Mulholland, 10 Grant Ch. IIC. - Briggw v. Call, 5 Met. 504. 
 
 ■■' Htarka d. Sikc«, 8 Gray, 012. 
 
 C. & p.— 21
 
 g 266 LIABILITIES OF COTENANTS. 322 
 
 of repairs whicli he has a right to make, nor from conse- 
 quences resulting from extraordinary measures which were 
 apparently necessary for the preservation of the common 
 j)roperty. He may relieve himself from claims made against 
 him in either case by his cotenant, by showing that his acts 
 were necessary, and were performed with diligence and care, 
 and were free from negligence.^ 
 
 § 266. Negligence in the care and use of the eommon 
 
 property may result in its complete destruction, or in a mere 
 depreciation of its value. In case of destruction through 
 negligence, the cotenant in fault seems to be as liable to the 
 other part owners as though the destruction were wilful.^ A 
 charge that a cotenant carried oats entrusted to his care in 
 so negligent and careless a manner that the boat in which 
 they were transj)orted was filled with water and the oats lost, 
 is equivalent to an averment that the oats were destroyed by 
 such cotenant.^ So turning a lot of hogs into the street, thus 
 occasioning them to stray away and be lost renders the culpa- 
 ble cotenant liable as for a destruction.* On the other hand, 
 one Judge has gone so far as to declare that " the clear result 
 of the authorities is, that one joint owner of a ship or chat- 
 tel is not responsible to the co-owners for the careless use of 
 it. The other owners, if not satisfied to leave it in his care, 
 must look themseles to the protection of their own property."^ 
 This very clear language was employed in a decision denying 
 the liability of a part owner of a vessel, through whose neg- 
 ligence it took fire and was consumed. Very meagre and dis- 
 cordant are the authorities in reference to the possibility of 
 liability arising against a part owner for any negligence on 
 his part resulting in an injury, but not in a destruction of 
 the subject of the tenancy. On one hand, it is held that a 
 tenant in common is not liable "for negligence or misuse of 
 the common property, nor for what he might have made by 
 diligence;"** and on the other, it is said that if one tenant in 
 
 1 Boytou V. Rees, 9 Pick. 530. 
 
 - Chesley v. Thompson, 3 N. H. 9; Guillot v. Dossat, 4 Mart. 203. 
 
 =< Herrin v. Eaton, 13 Me. 196. 
 
 •• Sheldon v. Skinner, -1 Wend. 525. 
 
 5 Moody V. Buck, 1 Sandf. S. C. 308. 
 
 « Hall V. Fisher, 20 Barb. 448.
 
 323 LIABILITIES OF COTENANTS. §267 
 
 common misuse that which he has in common with another, 
 he is answerable to the other in an action as for misfeas- 
 ance.^ 
 
 g 267. The o-wners of a party -wall are not necessarily, 
 
 nor even ordinarily, cotenants thereof. They are not, there- 
 fore, in seeking redress from each other, fettered by any of 
 the limitations as to liability or as to form of action which 
 are imposed by law on cotenants. As long as the wall remains 
 in condition fit for the use for which it was originally designed, 
 and is not in a state which renders its continuance dangerous 
 to life or property, neither of the parties has any authority to 
 do any act which will impair the rights of the other or injure 
 his person or property. If either undertake to undei-pin his 
 part of the wall, he is certainly liable to the other for any 
 damages resulting from the negligence or carelessness of him- 
 self or of his agents or servants. The cases undoubtedly go 
 farther. They require the party underpinning or changing 
 his portion of the wall to reimburse the other for all injuries 
 occasioned thereby, whether the result of negligence or not. 
 "Whenever either party undertakes to change or undermine or 
 increase the height of the wall, he does so at his own peril; 
 and he must indemnify the other for any injurious conse- 
 quences, though the undertaking be prosecuted with the 
 utmost skill, diligence, and caution.^ One of the owners of 
 a part)' wall contracted with another person to make altera- 
 tions, dig do^vn the foundations, lower the floor, deepen the 
 cellar, etc., and gave notice of these intended improvements 
 to the tenant of the adjacent building, who assented thereto. 
 In consequence of these alterations, the party wall settled, 
 and the front and rear walls of the adjoining house were 
 cracked. As a defense to an action to recover for these dam- 
 ages, the defendant insisted that he was not responsible for 
 the negligence of the contractor who did the work. But the 
 Court disposed of this defense as follows: ''The cases relat- 
 ing to the liability of a person for the negligence of another, 
 who stands to him in the relation of an independent con- 
 
 » Martyn v. KiiowllyB, 8 T. 11. 14G. 
 
 " Eno V. Del Vecchio, 4 Duer, 02; llrown r. Windsor, 1 Comp. <V .Tor. 20; Bradbcc 
 V. ChriHt'8 Hospital, 4 Mau. & Gr. 714, 700; Brookw v. Curtis. 50 N. Y. 044.
 
 g 267 LIABILITIES OF COTENANTS. 324 
 
 tractor, and not of servant, have, we think, no application to 
 the present case. Here one defendant employs and directs 
 the other defendant to commit a trespass. Both are liable 
 for the consequences jointly and severally. The question of 
 negligence was wholly immaterial, or at least it was wholly 
 unnecessary that the plaintiff should prove any negligence. 
 The trespass was committed at the peril of being responsible 
 for all the injury sustained by plaintiff."^ 
 
 ' Eno V. Del Vecchio, 6 Duer, 27.
 
 CHAPTER XIIL 
 
 LEGAL KEMEDIES BETWEEN COTENANTS. 
 For Matters independent of the Cotenancy, ^ 268. 
 
 FOR RECEIPTS AND FOR USE AND OCCUPATION. 
 
 No Kemedy at Common Law, ^ 269. 
 
 Account given bj' Statute, § 270. 
 
 Account only when case is within the Statute, $ 271. 
 
 Accoiint, classification of cases, v> 272. 
 
 Account for Eents and Profits received, $ 273. 
 
 Account for Use and Occupation — English Rule, § 274. 
 
 Account for Use and Occupation in America, ^ 275. 
 
 Account for Use and Occupation in America, § 276. 
 
 Account must be for balance due as result of final settlement, $ 277. 
 
 Account, Off-sets allowed defendant, § 278. 
 
 Account, Off-sets for Improvements, § 279. 
 
 Assumpsit in Massachusetts, ^ 280. 
 
 Assumpsit in Maine, § 281. 
 
 Assumpsit in Michigan, § 282. 
 
 Assumpsit in Pennsylvania, § 283. 
 
 Assumpsit in New York, $ 284. 
 
 Assumpsit in England, ^ 285. 
 
 Assumpsit for Use and Occupation, $ 286. 
 
 FOR POSSESSION OF CHATTELS. 
 
 No Remedy at Law, $ 287. 
 Detinue, $ 288. 
 Replevin, $ 289. 
 
 FOR POSSESSION OF REALTY. 
 
 Ejectment, « 290. 
 
 Necessity of Ouster, $ 291. 
 
 Proof of Ouster, when not required, ^ 292. 
 
 What Judgment plaintiff may have, $ 293. 
 
 Interest of plaintiff less than that sued for, § 294. 
 
 Forcible Entry and Unlawful Detainer, ^S 295. 
 
 Trespass to try Titles, $ 296. 
 
 325
 
 § 268 EEMEDIES BETWEEN COTENANTS. 326 
 
 FOR ACTS OF TEESPASS. 
 
 Action on the case, ii> 297. 
 Trespass sustainable in two cases, § 298. 
 Trespass sustainable for Destruction, ^S 299. 
 Trespass sustainable for Ouster, § 300. 
 Trespass, what Ouster sustains, ^ 301. 
 Trespass, what Destruction sustains, § 302. 
 Trespass for Mesne Profits, ^ 303. 
 Trespass against Lessee of Cotenant, 6 304. 
 Waste, § 305. 
 
 FOR CONVERSION. 
 Trover, <> 306. 
 
 Trover, when sustainable, § 307. 
 Trover for selling Chattel, 308. 
 
 Trover for selling Chattel denied in some States, $ 309. 
 Trover for seUing Chattel under Execution, 310. 
 Trover against Vendee of a Cotenant, § 311. 
 Trover for destruction of Property, ^ 312. 
 Trover for destruction of Cotenant's Eights, 313. 
 
 Trover for destruction of Cotenant's Eights by emancipating slave, $ 314. 
 Trover for destruction of Cotenant's Eights by allowing chattel to be lost. 
 
 $315. 
 Trover for destruction by changing form of Chattel, § 316. 
 Trover for destruction by removal, § 317. 
 
 Trover for destruction by refusal to apply chattel to proper use, $ 318. 
 Trover by refusing to allow Severance, § 319. 
 
 FOR REPAIRS. 
 Writ to compel, ^ 320. 
 
 § 268. For Matters independent of the Cotenancy. — The 
 fact that two or more persons are cotenants imposes no re- 
 straints upon their dealing mth one another, nor does it affect 
 their legal or equitable remedies based upon any dealings be- 
 tween them, independent of the subject matter of the coten- 
 ancy. They are, like partners, at liberty to transact business 
 with one another as individuals, and each, in his individual 
 capacity, to pursue the ordinary legal or equitable means of 
 redress for any violation by one of his individual engagements 
 with the other. ^ Therefore, one may distrain for the rent due 
 him from the other who is occupying the premises under a 
 lease, entered into by himself, or acquired by assignment 
 
 ' Bond V. Hilton, Busb. 309; Ouston v. Ogle, 13 East, 538.
 
 327 REMEDIES BETWEEN COTENANTS. § 269 
 
 from a lessee.' Ou the other hand, if one tenant is lessee 
 of the other, or otherwise is entitled to exclusive possession 
 of the whole or any part of the premises by virtue of a con- 
 tract with the other, he has, on being disturbed in his occu- 
 pation, the same remedies, as though he were not cotenant 
 with his lessor.- 
 
 FOR RECEIPTS FROM THE COTENANCY AND FOR USE AND OCCUPATION. 
 
 § 269. Cominon La-w furnished no adequate Remedy. — 
 
 The enforcement of the rights and the prevention of the wrongs 
 of cotenants, arising out of the property in which they have 
 a joint or common interest, bear a close resemblance to the 
 enforcement of rights and the prevention of wrongs among 
 copartners. The ascertaining of the relative liabilities to each 
 other of joint owners or owners in common, whether they also 
 happen to be partners or not, is of difficult accomplishment 
 at law, as it usually requires the taking of an account between 
 them. Therefore, the adjustment of the liabilities of coten- 
 ants to one another and the enforcement of their relative rights, 
 have, when growing out of the common property, and not 
 based upon the commission of some tort, been generally 
 sought in courts of equity — those tribunals affording more 
 convenient and adequate means of relief than the tribunals 
 of the law. In fact, in all cases where the cotenants con- 
 tinued in possession, the common law seems to have provided 
 no means by which either could recover anything from the 
 other, who had taken more than his share of the rents and 
 profits of the estate, unless such rents and profits were re- 
 ceived by one as bailiff of the other. " If one joyntenant or 
 tenant in common of land maketh his companion his baylife 
 of his part, he shall have an action of account against him, as 
 hath been said. But although one tenant in common or joyn- 
 tenant without being made baylife taketh the whole profits, 
 no action of account lieth against him; for in an action of 
 account he must charge him as guardian, baylife or receiver, 
 as hath been said before, which ho cannot do in this case, 
 
 ' Luther v. Arnold, 8 Rich. 2G; Snclgar v. lIcnsK.n Cro. Jac. Cll; 2 Co. Rep. 212; 
 Cowper I'. Fletcher, G Best & S. -170; 118 E. C. L. -108. 
 - O'Hear v. DeGoesbriand, 33 Vt. C12; 1 Kent's Cvmin. 370.
 
 §§ 270-1 EEMEDIES BETWEEN COTENANTS. 328 
 
 unless his companion constitute him bailife. And therefore 
 all those bookes which affirm that an action of account lieth 
 by one tenant in common, or jointenant, against another, 
 must be intended when one maketh the other his bailife, for 
 otherwise never his bailife to render an account, is a good 
 plea."* 
 
 g 270. Remedy hy Statute of Anne. — As cotenants were 
 without any means of redress, when one of them had received 
 more than his share of the rents or profits of the estate, the 
 statute 4 and 5 Anne, ch. 16, was passed to remedy this defect 
 in the common law. The 27th section of this statute enacted : 
 "That from and after," etc., "actions of account shall and 
 may be brought and maintained against the executors and 
 administrators of every guardian, bailiff, and receiver; and 
 by one joint-tenant, and tenant in common, his executors and 
 administrators, against the other as bailiff, for receiving more 
 than comes to his just share or proportion; and against the 
 executor and administrator of such joint-tenant or tenant in 
 common ; and the auditors appointed by the Court, when such 
 action shall be depending, shall be, and are hereby empowered 
 to administer an oath, and examine the j)arties touching the 
 matters in question, and for their pains and trouble in audit- 
 ing and taking such account, have such allowance as the Court 
 shall adjudge to be reasonable, to be paid by the par'ty on 
 whose side the balance of the account shall appear to be." 
 Under this statute, wherever the relation of cotenanc}^ exists, 
 it creates the liability to account. But the action is not gen- 
 erally maintainable until after a demand, nor then, except at 
 reasonable periods.^ And where the custom of the country is 
 to reckon the annual rents at annual j)eriods or times, no 
 doubt these times would be adopted as the reasonable times 
 at which the cotenaut receiving the rents is required to ac- 
 count. 
 
 ^ 271. Cotenant must bring his case •within the Stat- 
 ute. — In order to obtain the benefit of this statute, the plain- 
 tiff must clearly show that his case is one for which the 
 
 » Co. Litt. 209 b; 3 Rob. Pr. 171; Henderson v. Eason, 17 Ad. & El. N. S. 718; 
 Wheeler v. Home, Willes, 208. 
 * Baruum v. Landon, 25 Conn. 150.
 
 329 REMEDIES BETWEEN COTENANTS. ^ 272 
 
 statute was desigued to afford a remedy. In the declaration 
 it should be made to appear that the parties are cotenauts, 
 and also what their relative interests are. "This is neces- 
 sary, in order that the judgment to account may show on 
 what basis or rule of liability the defendant is to account; 
 because a bailiff" at common law is answerable, not only for 
 what he has received as such bailiff, but also for what he 
 might have made of the lands with proper diligence, or as 
 some of the books say, what he might have made without his 
 wilful fault; but under the statute, he is not liable beyond 
 what he has received more than his just share or proportion." ' 
 It is not sufficient to show that the parties were cotenauts, and 
 that the defendant has received rents and profits : the addi- 
 tional fact must appear that the defendant has received more 
 than his proportion.- "The declarations since the statute have 
 always set forth that the defendant has received more than 
 his share. "^ A declaration is sufficient which "states the 
 plaintiff and defendant were tenants in common in undivided 
 moieties, and that the defendant had the care and management 
 of the whole, to receive and take the rents, etc., to the use 
 and profit of plaintiff and defendant, and, as bailiff" of the 
 plaintiff, of what he had received more than his just share and 
 proportion to render a reasonable account to the plaintiff;" 
 and which, in addition, shows that defendant received more 
 than his share. ^ 
 
 g 272. The statute of Anne, as we have seen, gives a 
 
 remedy by an action of account, in favor of one cotenant 
 against another as bailiff, ' ' for receiving more than comes to 
 his just share or proportion." This statute has, in substance, 
 been reenacted in several of the States. A very radical and 
 evenly balanced difference of opinion has arisen in regard to 
 what a cotenant may be compelled to account for, on the 
 ground that in receiving it, he has received "more than 
 comes to his just proportion." The cases in which the action 
 
 ' Hayden v. Merrill, 44 Vt. 341. 
 
 ■^ Early v. Friend, IG Gratt. 52; llayden v. Merrill, 44 Vt. 336; Stupton i'. IJichard- 
 son, l.'i Mees A W. 21; Irvine v. Hamlin, 10 Serg. & K. 221; Sargent r. Parsons, 12 
 Mass. 149. 
 
 ^ Wheeler i'. Home, Willes, 210. Sec Barnum v. Laudou, 25 Conn. 148. 
 
 ♦ Eason v. Henderson, 12 Ad. & El. N. S. O'.tO,
 
 §§ 273-4 REMEDIES BETWEEN COTENANTS. 330 
 
 of account has been sought to be sustained under this statute 
 divide themselves into two classes. In the first are comprised 
 all cases in which the cotenant, sought to be called to an ac- 
 counting, has received from a third person the rents or profits 
 of the common property. The second class includes the cases 
 in which the cotenant complained of has not received any- 
 thing from third persons, but has directly appropriated to 
 himself the use and enjoyment of all of the common estate, 
 or of more than his proportion thereof. 
 
 ^ 273. Accounting for Receipts. — The cases referred to 
 in the preceding section, as being comprised within the first 
 class, are unquestionably provided for by the statute of Anne, 
 and by all statutes of like import. ' ' Where one tenant in 
 common actually receives the rents, issues, and profits, then 
 he may be compelled to account for such profits actually re- 
 ceived."^ If one of the cotenants make a lease of the entire 
 premises as if he were a sole owner, the other cotenants are 
 entitled to their 'pro rata of the rents. ^ And, so it is said, if 
 a cotenant retain more than his share of the profits, he is 
 compellable to account not only for the original profits, but 
 also for such further profits as may have accrued to him from 
 this use of the original profits." Upon a leasing of his moiety 
 by one of the cotenants, his lessee becomes liable to account 
 to the cotenants of the lessor.^ 
 
 § 274. For Profits made and for Use and Occupation. — 
 English Rule. — So far, we have encountered no conflict of 
 authority as to what a cotenant must account for. But we 
 shall now consider the liability of a cotenant who, though en- 
 joying the whole, or more than his share of the common prop- 
 erty, receives nothing from third persons, on its account. Here 
 the harmony ends. We shall first show the rule prevailing in 
 England, by quoting the main portion of the opinion of the 
 Court in what seems to be the latest as well as the best con- 
 sidered case in that country : " It is to be observed that the 
 statute does not mention lands or tenements, or any particular 
 
 i Izard V. Bodine, 3 Stock. 404; Crow v. Mark, 52 111. 332. 
 '^ Pope V. Harkins, 16 Ala. 324. 
 a Huff V. McDonald, 22 Goo. 161. 
 *Barniim ». Landon, 25 Conn. 152.
 
 331 REMEDIES BETWEEN COTENANTS. ^ 274 
 
 subject. Every case in which a tenant in common receives 
 more than his share is within the statute : an account will lie 
 when he does receive, but not otherwise. It is to be observed 
 also that the receipt of issues and profits is not mentioned, 
 but simply the receipt of more than comes to his share ; and, 
 further, he is to account when he receives, not takes, more 
 than comes to his just share. What, then, is a receiving of 
 more than comes to his just share, within the meaning of 
 the statute of Anne? 
 
 "It appears to us that, construing the act according to the 
 ordinary meaning of the words, this provision of the statute 
 was meant to apply only to the cases where the tenant in 
 common receives money or something else, where another 
 person gives or pays it, which the cotenants are entitled to, 
 simply by reason of their being tenants in common, and in 
 proportion to their interests as such, and of which one re- 
 ceives and keeps more than his just share, according to that 
 proportion. 
 
 ' ' The statute, therefore, includes all cases in which one of 
 two tenants in common of lands leased at a rent payable to 
 both, or of a rent charge, or any money payment or payment 
 in kind, due to them from another person, receives the whole 
 or more than his proportionate share, according to his in- 
 terest in the subject of the tenancy. There is no difficulty 
 in ascertaining the share of each, and determining when one 
 has received more than his just share, and he becomes, as to 
 that excess, the baililf of the other, and must account. 
 
 ' ' But when we seek to extend the operation of the statute 
 beyond the ordinary meaning of its words, and to apply it to 
 cases in which one has enjoyed more of the benefits of the 
 subject, or made more by its occupation than the other, we 
 have insuperable difficulties to encounter. 
 
 ' ' There are obviously many cases in which a tenant in 
 common may occupy and enjoy the land or other subject of 
 tenancy in common solely, and have all the advantages to be 
 derived from it, and yet it would be most unjust to make him 
 pay anything. For instance, if a dwelling house, or barn, or 
 room, is solely occupied by one tenant in common, without 
 ousting the other, or a chattel is used by one cotenant in 
 common, nothing is received; and it would be most inequit-
 
 § 274 REMEDIES BETWEEN COTENANTS. 332 
 
 able to hold that he thereby, by the simple act of occupation 
 or use, without any agreement, should be liable to pay a rent 
 or anything in the nature of compensation to his cotenants 
 for that occupation or use to which, to the full extent to 
 which he enjoyed it, he had a perfect right. It appears im- 
 possible to hold that such a case would be within the statute; 
 and an opinion to that effect was expressed by Lord Colten- 
 ham in McMahon v. BurchelL' Such cases are clearly out of 
 the operation of the statute. 
 
 "Again, there are many cases where profits are made, and 
 are actually taken, by one coteuant, and yet it is impossible 
 to say that he has received more than his just share. For 
 instance, one tenant employs his capital and industry in cul- 
 tivating the whole of a piece of land, subject to the tenancy, 
 in a mode in which the money and labour expended greatly 
 exceed the value of the rent or compensation for the mere 
 occupation of the land; in raising hops, for example, which 
 is a very hazardous adventure. He takes the whole of the 
 crops : and is he^ to be accountable for any of the profits in 
 such a case, when it is clear that, if the speculation had been 
 a losing one altogether, he could not have called for a moiety 
 of the losses, as he would have been enabled to do had it 
 been so cultivated by the mutual agreement of the cotenants? 
 The risk of cultivation, and the profits and loss, are his own; 
 and what is just with respect to the very uncertain and ex- 
 pensive crop of hops is just also with respect to all the pro- 
 duce of the land, the friidus industriales, which are raised by 
 the capital and industry of the occupier, and would not exist 
 without it. In taking all the produce, he cannot be said to 
 receive more than his just share and proportion to which he 
 is entitled as tenant in common. He receives, in truth, the 
 return for his own labour and capital, to which his cotenant 
 has no right. 
 
 " Where the natural produce of the land is augmented by 
 the capital and industry of the tenant— grass, for instance, by 
 manuring and draining — and the tenant takes and sells it, or 
 where, by feeding it with his cattle, he makes a profit by it, 
 the case seems to us to be neither within the words or spirit 
 
 1 2 Phillips Rep. 131.
 
 333 REMEDIES BETWEEN COTEXANTS. § 275 
 
 of the act, though there are not cases of fructus industriales 
 in either case."' 
 
 In the decision of Lord Chancellor Cottenham, referred to 
 in the preceding quotation, his Lordship makes the further 
 objection to holding that a cotenant may be called to account 
 for use and occupation, that ' ' the effect would be, that one 
 tenant in common, bj keeping out of the actual occupation 
 of the premises, might convert the other into his bailiff; in 
 other words, prevent the other from occupying them, excej)t 
 upon the terms of paying him rent. There is nothing in the 
 acts of Parliament to lead to that conclusion, which is con- 
 trary to the law as clearly established from the time of Lord 
 Coke downwards."^ 
 
 § 275. American Cases affirming the English Rule. — 
 
 The construction of the statute of Anne, maintained by the 
 most recent decisions in England, has been approved in the 
 majority of instances in which it has been called in question 
 in the United States. Indeed, some of our Courts seem to 
 have preceded rather than followed the English adjadications 
 upon this subject. Thus, in Massachusetts, as early as 1815, 
 the Supreme Judicial Court denied a cotenant the right to an 
 accounting against his companion "because the plaintiff had 
 not charged the defendant with having received rents and 
 profits, o/herwise than h// his occupancy. "'^ In New York, where 
 the defendant had had the sole occupation, for a period of five 
 years, of a farm, the rent and occupation of whicli were worth 
 $200 per annum, and he was sued by liis cotenants who were 
 the owners of the undivided six-sevenths of the farm, the 
 
 ' Henderson v. Eason, 17 Ad. & EL, N. S., 701. 718. This case was decided in the 
 Exchequer Chamber on appeal from the Court of Queen's Bench. The judgment of 
 the last named Court (see Eason v. Henderson, 12 Ad. k, El., N. S., 99G) proceeded 
 upon a very different theory from that adopted on appeal, as will bo readily perceived 
 by the following extract from the oj)inioii of Lord Denman: • The ease stated that 
 he had occupied, and received the whole i^rofits, but no pait was nndcrlct: he received 
 no rent, nor anything but the profits deiived from the culture of the lands, to tho 
 expense of which the plaintiff in no way contributed. It was contended that th(! de- 
 fendant was not liable as bailiff', because it does not appear that ho had received rent, 
 and because it did not appear that lie liad received more than his just proportion. 
 But we think the words ' rents, issues, or profits,' include the proceeds of the land, 
 whether in money or in kind." 
 
 - McMahon c. Burchell, 2 Thill. 134. 
 
 ^Sargent v. Parsons, 12 Mass. 152.
 
 § 275 REMEDIES BETWEEN COTENANTS. 334 
 
 Supreme Court quoted and approved tlie opinions pronounced 
 in Henderson v. Eason and in McMahon v. Burchell.^ The 
 same cases have been approved in Indiana and Missouri, and 
 applied to legal controversies arising under a statute sub- 
 stantially like the statute of Anne.^ In New Jersey, the gen- 
 eral principle is affirmed that " where one tenant in common 
 occupies the whole estate, without claim on the part of his 
 cotenants to be admitted into possession, he is under no ob- 
 ligation to account — for he had a right to such occupancy."^ 
 But, according to the views of this Court, this general rule 
 does not extend to a case where the property was valuable to 
 rent as an entirety, and an opportunity was offered to so rent 
 it, which could not be accepted owing to the refusal of one of 
 the cotenants to Join in the lease; and such cotenant took and 
 retained exclusive possession of that part most useful to him- 
 self- The fact that the conduct of the defendant prevented 
 an advantageous lease, that his mode of occupancy was of a 
 character to exclude plaintiff from participating in the enjoy- 
 ment of it, together with ' ' other considerations connected 
 with the ownership and occupancy of the property, and the 
 conduct of the defendant in regard to it," induced the Court, 
 ' ' to consider the occupancy of the defendant as an ouster of 
 the complainant, and to make it proper that the defendant 
 should account with the complainant for the portion of the 
 premises the defendant exclusively occupied."" At quite an 
 early day, the Court of Appeals of the State of Kentucky, in 
 considering the effect of the statute of Anne, and of a similar 
 statute of Virginia, arrived at about the same conclusions 
 sustained by the most recent English decisions. "These 
 statutes," said the Court in Kentucky, "were not designed to 
 create a right in favor of a cotenant who expended nothing, to 
 share the profits resulting from the money or labor expended 
 by his companion; but they were intended to give a remedy, 
 by which the profits of the estate, growing out of its condition 
 when acquired, or which the estate yielded, or would yield, 
 independent of any extraordinary expenditure by the party 
 
 ' Woolever v. Kiiapp, 18 Barb. 265. See also, to same effect, Dresser «. Dresser, 40 
 Barb. 300; Wilcox v. Wilcox, 48 Barb. 327; Scott v. Guernsey, 60 lb. 163. 
 - Crane v. Waggoner. 27 Ind. 52; Eagan v. McCoy, 29 Mo. 367. 
 ^ Izard V. Bodine, 3 Stock. 404.
 
 335 REMEDIES BETWEEN COTEXANTS. § 276 
 
 receiving the profits, might be -apportioned according to the 
 interests of the cotenants."^ In California, the decision in 
 Henderson v. Eason has been approved, though it is said that 
 the statute of Anne has never been adopted as part of the law 
 of that State. - 
 
 g 276. But in some of the United States, the statnte of 
 
 Anne has received a different intei-pretation from that adopted 
 in England. A case arose in South Carolina, where the sub- 
 ject of the tenancy consisted of about eight hundred acres of 
 land, of which between three and four hundred acres were in 
 condition for cultivation. One of the cotenants entered upon 
 the whole land, and proceeded to cultivate that which was in 
 condition for cultivation, and to clear and improve the bal- 
 ance; and after it was so improved, proceeded to cultivate it 
 as he did the rest. Being called upon to accoimt to the co- 
 tenant not in possession, the defendant contended that he was 
 not chargeable, because he did not receive any rent. But the 
 Court held that ' ' to cultivate and have the use of lands, is to 
 receive the rents and profits, though the occupier is his own 
 tenant;" that to ascertain what rents he should be charged 
 with, the Court would inquire into the condition and rental 
 value of the land when it was first made the subject of exclu- 
 sive possession. Therefore, the defendant was required to 
 account for the rents of all the land which was in condition 
 for cultivation when he took possession, but was excused from 
 accounting for that portion which by his own exertions was 
 made capable of producing rent.^ In Virginia, the Code^ 
 contains a provision substantially like the statute of Anne. 
 The Supreme Court of Appeals, in determining a case arising 
 under this Code, considered the decisions in England, and 
 dissented therefrom, giving its reasons as follows : 
 
 "What, then, is the meaning of the words in our statute 
 ' for receiving more than comes to his just share or propor- 
 tion?' What did the Legislature intend by the use of those 
 words? Did they only intend to make a tenant in common 
 
 ' Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsli, 141. 
 ■^ Pico V. Columbet, 12 Cal. 419; Goodonowu. Ewer, IG Cul. 471. 
 ^ Thompson V. Bostwick, 1 McMullan's Eq. 75. Bee alao Holt v. Bobertson, lb. 
 475; Volentine v. Johnson, 1 Hill Ch. 49. 
 < Code, p. 580, ch. 145, sec. 14.
 
 § 276 REMEDIES BETWEEN COTENANTS. 336 
 
 accountable to his cotenants for receiving from a stranger on 
 account of rents and profits of the property more than the 
 just share or proportion of such tenant? Or did they intend 
 to make him accountable for receiving more than his Just share 
 or proportion of the rents and profits, whether paid by a 
 stranger or derived from his own occupation and enjoyment 
 of the property? I think they intended the latter. The 
 former construction may be a reasonable one in England, 
 where the ordinary mode of deriving profit from real estate 
 is by renting it out; but not in this State, where real estate 
 is generally occupied and used by the owner. "With all de- 
 ference to the Court of Exchequer Chamber, I think the con- 
 struction they put upon the word ' receiving ' is too technical 
 and narrow, at least for our country; and if it be a just one 
 in England, it is because of circumstances existing there 
 which do not exist here. I do not see the force of the dis- 
 tinction drawn by that Court between the words 'receive' and 
 ' take' in this connection. I think the word ' receiving' in the 
 statute literally means a receiving of profits as well by use and 
 occupation as renting out the property. At all events, there 
 is, in substance, no difference between them, and the former 
 is as much within the reason and the meaning of the law as 
 the latter. If a tenant in common rent out the property and 
 receive more than his just share of the rent, he is accountable 
 for the excess to his cotenants. Why should he not be alike 
 accountable when, instead of renting out the property, he 
 solely occupies and uses it, and thus receives more than his 
 just share of the profits? Why should he be told, 'If you rent 
 out the i^roperty and receive the rent, you must share it with 
 your cotenants; but if you solely occupy and use it and take 
 all the profits, you will not be accountable to them.' Would 
 he hesitate between these alternatives?"' In Vermont, in a 
 very recent decision, and after a thorough examination of the 
 authorities, the Supreme Court announced its intention to 
 depart from the English rule. " We will not attempt to lay 
 down any particular rule as a general test of liability of one 
 tenant in common occupying the common property. But it 
 
 1 Early ij. Friend, 16 Gratt. 47; Buffners v. Lewis' Exrs. 7 Leigh, 720; Graham v. 
 Pierce, 19 Gratt. 38.
 
 337 REMEDIES BETWEEN COTENANTS. §§ 277-8 
 
 is safe to say that -where, as in this case, the occupancy of a 
 tenant in common is beneficial, and at a profit to such occupant, 
 and is entire and exclusive, he is bound to account to his co- 
 tenant for what he has received by such occupancy more than 
 his just proportion."^ 
 
 § 277. Only for Balance Due. — In considering the mat- 
 ters for which a cotenant must account to his fellow-tenant, 
 we have not devoted any attention to demands in the nature 
 of counterclaims which the defendant may bring forward to 
 reduce the amount of the charges against him. "It is not 
 enough for the plaintiff to show that the defendant has taken 
 more than his proportion of a single article raised on the 
 estate, but it must be made to appear that he has received 
 more than his aliquot part of the proceeds of all the profits 
 of the common property, after deducting all reasonable 
 charges. There must be a balance due, at the commence- 
 ment of the plaintiff's action, in the hands of the defendant, 
 as the result of a final settlement of the account between the 
 parties relating to the estate owned in common."^ 
 
 § 278. Among the reasonable charges for which the 
 
 defendant will be allowed as an off-set are included all sums 
 paid for taxes or assessments, or for keeping the premises in 
 ordinary repair;^ also necessary disbursements made "for 
 the recovery, defense, or protection of the joint property,^ but 
 not the law expenses of adverse suits between the tenants in 
 common themselves."'* If the cotenant who calls for the ac- 
 counting is indebted to the other for a sum advanced in j)ur- 
 chasing the estate, the latter is entitled to have the sums for 
 which he is liable applied, first to the payment of interest 
 which had accumulated when such liability accrued, and next 
 to the payment of the principal sum.* 
 
 ^ 279. Improvements made by one cotenant independ- 
 ent of any agreement so to do, may sometimes bo proper 
 
 ' Haydon v. Merrill, 44 Vt. 348. Sec, to same effect, Shiels v. Stark, 14 Geo. 435. 
 
 - Shephard v. Kichardb, 2 Gray, 427. 
 
 - Hannan i'. Osbom, 4 Paige, 343; Dccli'H Appeal, 57 Pa. St. 472. 
 
 * Lewis and Nelson's Appeal, C7 Pa. St. 1G9. 
 
 * Volentine v. Johnson, 1 Hill Cli. 50. 
 
 C. & p.— 22
 
 2 280 REMEDIES BETWEEN COTENANTS. 338 
 
 matter to be considered in taking an account.^ But, under 
 what circumstances, and to what extent, improvements may 
 be considered in taking an account between cotenants cannot 
 be stated with desirable precision. It is probable, however, 
 that they will not be made a subject of compensation unless 
 they are of a usual character, and are necessary for the ordi- 
 nary and economical use of the property. But when the 
 propei*ty is intended by the co-owners to be devoted to a 
 special purpose, allowance may be made for such improve- 
 ments as intelligent and sagacious men know will greatly tend 
 to accomplish the pui-pose desired.^ 
 
 b 280. Assumpsit, where allowed and for w^hat. — At 
 quite an early day, the Supreme Judicial Coui-t of the State 
 of Massachusetts determined that the provisions of the stat- 
 ute of Anne, giving the action of account, necessarily, by 
 authorizing such action, also authorized an action of assump- 
 sit. The Court arrived at this conclusion, on the grounds : 
 1st that whenever account can be maintained, indebitatus as- 
 sumpsit may also; and 2d, that the statute, being remedial, 
 ought to receive a liberal construction. "It [the statute] 
 was enacted to provide a relief which could not be had at 
 common law; and the mode pointed out by action of account 
 ought to be considered as put by way of example, not of 
 limitation."^ The decision thus made has been reaffirmed in 
 many subsequent decisions in the same State; and the prin- 
 ciples there enounced have been applied to a great variety of 
 cases. Thus, in one instance indehitaius assumpsit was main- 
 tained for money had and received— the gravamen of the 
 action being that the defendant had received and retained 
 more than his share of the profits arising from the use of a 
 machine of which he and the plaintiff were cotenants.'* In 
 another case, the same form of action was successfully em- 
 ployed by one part owner of a vessel to recover his share of 
 compensation received by another part owner for services 
 during a previous voyage.'^ In the same form of action, a 
 
 '- Nelson v. Leake, 25 Miss. 199; Ruffners v. Lewis, 7 Leigh, 743. 
 •■' Reed v. Jones, 8 Wis. 464. 
 
 3 Jones V. Harraden, 9 Mass. 540. 
 
 4 Brlgham v. Eveleth, 9 Mass. 541; Moses v. Ross. 41 Me. 360. 
 
 5 Fanning i'. Cliad'R-ick, 3 Pick. 420.
 
 339 REMEDIES BETWEEN COTEXANTS. g§ 281-2 
 
 tenant ui common of certain real estate obtained his propor- 
 tion of money received by his coteuant for wood grown upon 
 the land and sold by the latter.' And so, in the same State, 
 rents and profits may be recovered in assumpsit against a co- 
 tenant. "It seems very clear that, in ordinary cases, where 
 one tenant in common has received the whole or the greater 
 share of the rents, his cotenant may have an action of assump- 
 sit, and that this is the appropriate if not the sole remedy at 
 law which he can have."" In the same State, "Money ex- 
 pended by the plaintiff to pay off a common incumbrance 
 necessary to be removed to discharge their joint covenants, 
 must equally be the proper subject of an action of assumpsit 
 by one tenant in common against his cotenant."^ 
 
 ^ 281. The rule adopted in Massachusetts has been 
 wholly or partially approved and acted upon in several other 
 States. Thus, in Maine, "It is now well settled law, that 
 where one tenant in common has received from others rents 
 and profits of the common property, he is accountable in an 
 action of assumpsit to his cotenant for his share."* 
 
 3 282. In Michigan, an extreme position has been taken : 
 one which sanctions the employment of the action of assump- 
 sit to recover the value of the plaintiff's interest in severable 
 chattels, which the defendant took in his exclusive possession 
 and refused to permit plaintiff' to sever his share. The facts 
 of this case were that grain was grown on the shares on de- 
 fendant's lands by one Jarvis. The latter mortgaged the crops 
 to x:)laintiff, who caused them to be harvested. The grain was 
 then put in the granary of the defendant, who thereafter re- 
 fused to recognize plaintiff"s rights, or to allow him to take his 
 share. Upon those facts, the action brought by the plaintift' 
 was sustained, and in so sustaining it the Court reasoned as 
 
 ) Miller v. Milk-r, 7 Pick. 13C. 
 
 •^ Munroe v. Luke, 1 Met. 464; Shcphard v. Richards, 2 Gray, 424. 
 
 ^ Dickinbon v. Williams, 11 Cush. 2G0. lu Now Brunswick, a cotenant is liable in 
 an action of money had and received for selling moro than his share of tho property 
 of the cotenancy. Shaw v. Grant, Ber. 110; Doyle v. Taylor, Id. 201. But he is not 
 liable in Buch an action for receiving more than his bhare of tho rents unless tlio ac- 
 count has been settled and a balance struck. Frost v. Disbrow. 1 Han. 73. 
 
 * Buck V. 8poflf6rd,40Me.328; Gowen v. Shaw, 40 Me. 58; Dyer r. Willjur, 48 Mc. 
 287.
 
 § 283 EEMEDIES BETWEEN COTENANTS. 340 
 
 follows: " The question then arises, whether an action prop- 
 erly lies in assumpsit. It is said, in several of the cases, that, 
 where property has been tortiously taken, and converted by 
 sale, the owner may affirm the sale, and sue for the proceeds 
 in assumpsit; but that where there has been a conversion 
 without sale, the tort cannot be waived. It certainly is some- 
 what anomalous to place parties in contract relations against 
 their will, where no privity exists; and the cases where it is 
 permitted, seem to be justified only on the ground that no 
 prejudice can result to the defendant by allowing it. But 
 where a party commits a breach of duty, which the law im- 
 plies from his express contract, assumpsit is as appropriate a 
 remedy as any other, if a plaintiff sees fit to resort to it. The 
 plaintiffs here derived their rights, as tenants, from the con- 
 tract of defendant with their grantor, creating the tenancy. 
 The grain being in a marketable condition, the cotenant in 
 possession was bound, on reasonable request, to have the 
 plaintiffs' share measured out for them. His own contract 
 precludes him from claiming more than his proportional 
 amount. When he concludes to retain the remainder, he is 
 certainly bound to pay for it; and the plaintiffs may, by their 
 consent, convert the transaction into a sale ; as it would have 
 been a sale originally, had such consent been given at the 
 time. We think no principle of law is violated by allowing 
 the action to be maintained in its present form."^ 
 
 § 283. The Courts of Pennsylvania also approve of the 
 
 action of assumpsit, as a remedy to recover rents or profits 
 received, beyond his proportional share, by either of the co- 
 tenants, and also for the recovery for any other breach of 
 engagement, express or implied, in regard to the common 
 property. Thus, in one case in that State, an action in 
 assumpsit was instituted to recover the value of a quantity of 
 lumber, taken and disposed of by the defendant. The evi- 
 dence established that the plaintiff and the defendant were 
 tenants in common of a tract of land on which a saw-mill was 
 situated. A quantity of lumber, to which plaintiff and de- 
 fendant were entitled as rent for the mill, was taken by the 
 
 ' Fiquet v. Allison, 12 Mich. 329.
 
 341 REMEDIES BETWEEN COTENANTS. § 284 
 
 latter on an agreement that the plaintifi' should have a like 
 quantity at the mill in the ensuing spring. The defendant, 
 instead of having the lumber at the mill the next spring, as 
 he agreed to do, took and disposed of it. The Court had no 
 hesitation in saying that " the plaintiff was entitled to main- 
 tain this action, on the ground that the defendant had broken 
 his promise and engagement made with the ]:)laintift' in the 
 most express terms;" and further, that, in the absence of an 
 express contract, if the defendant had taken all the lumber 
 coming as rent and sold it, " he would unquestionably have 
 been accountable to the i)laintiff for his proportion of it, in 
 assumpsit, for money had and received."' In a more recent 
 case in the same State, the defendant insisted that plaintiff 
 must resort to an action of account to recover his share of 
 rents received. The Court said: "Account render has not 
 been a favorite in modern times. The practitioner of the 
 present day is as much repelled as the ancient lawyer was 
 attracted by its cumbrous machinery and want of speed. 
 Foi-merly, it applied to bailiffs, partners, and by statute 4 
 and 5 Anne, to tenants in common. Against a bailift; who 
 refuses an account, it remains a successful remedy; and 
 those who are fond of the action, may enjoy here all the 
 happiness it is capable of imparting." After some further 
 remarks, the Court determined "to allow common sense 
 another triumph, by holding the present action maintain- 
 able."'' 
 
 § 284. Assumpsit in New York. — The decisions referred 
 to in the preceding section arc, in their general tenor, at vari- 
 ance vnth the law as understood in England, and as interpreted 
 in some parts of the United States. But before consideriug 
 the English rule and the American decisions in accord with 
 it, we shall refer to the adjudications upon this subject in the 
 State of New York, and show that they are not in entire har- 
 mony either with the English decisions nor Avith those of the 
 American Courts which have followed the conclusions sus- 
 tained by the judicial tribunals of Massachusetts. One of 
 the early cases in New York states that, as between tenants 
 
 ' Gillis V. McKiuncy, G Watts &, S. 78. 
 
 ^ BoireH'H Administrator v. Borrcll, 3.1 IViiii. St. 404.
 
 § 284 REMEDIES BETWEEN COTENANTS. 342 
 
 in common, "in case of a sale by one, and a receipt of the 
 money, an action for money had and received will lie."^ A 
 little later in the same State an action of assumpsit was sus- 
 tained by one cotenant for his share of money received by the 
 other, and being the whole amount of damages assessed for 
 the land owned in common, and taken for the construction of 
 a canal. No difficulty in sustaining the action seemed to be 
 felt by the Court. The only part of the opinion having refer- 
 ence to this branch of the case asserts that : "It is only neces- 
 sary to say that the defendant had received from the State 
 payment for a piece of property, which was owned half by 
 himself and half by plaintiffs. Clearly, therefore, half the 
 money which he thus received was received to the use of the 
 plaintiffs."^ So the Court of this State experienced no diffi- 
 culty in sustaining an action of assumpsit for money had and 
 received, to recover the plaintiff's share of money received by 
 defendant from the sale of a piece of real estate of which 
 plaintiff and defendants were tenants in common. This was 
 treated as a very clear matter. The Court, according to the 
 report, disposed of it by saying : ' ' There can be no doubt, 
 that where two tenants in common sell and convey their land, 
 and all the money is received by one, the other can maintain 
 an action for money had and received, for his moiety against 
 the other. "^ This case may be supported on the ground, that, 
 from the sale of the real estate, the relation of cotenancy had 
 terminated ; or upon the better ground, that there being but 
 one sale and one receipt of money, and therefore but one item, 
 no necessity for adjusting any account was shown. But so far 
 as rents received are concerned, it seems that no action in 
 assumpsit can be sustained by one cotenant against another 
 in New York. In that State, an agent of a guardian of two 
 tenants in common collected the rents of the entire estate. 
 In an action by such agent against the remaining cotenant, 
 the latter attempted to assert, as a set-off", his claim for one- 
 third of these rents. The Court, speaking by its Chief- 
 Justice, rejected the set-off, on the following grounds: "The 
 
 ' Seldon v. Hickoek, 2 Cai. 167. 
 
 ^ Brinckerhoff v. Wemple, 1 Wend. 473. 
 
 =* Coles i\ Coles, 15 Johns. IGl. See also Dodge v. Clyde, 7 Bob. 412.
 
 343 REMEDIES BETWEEN COTENANTS. g 284 
 
 plaintiff was guardian, or rather agent of the guardian, of 
 two of the tenants in comnaoc owning the property in ques- 
 tion. He had power, in their right, to receive the whole of 
 the rents, unless notice had been given by the defendant to 
 the terre-tenant not to pay him the defendant's share. The 
 rents received by him were properly received ; and the ques- 
 tion then is, whether one tenant in common can maintain 
 assumpsit against his cotenant for his proportion of the rents. 
 That such an action could not be sustained was the reason 
 for providing by statute for the action of account. My con- 
 clusion, therefore, is, that the defendant's remedy is in 
 another Court, or by the action of account in this Court."' 
 "While the Courts of this State denied the right of a cotenant 
 to maintain assumpsit for his share of the rents and profits 
 of real estate, they permitted him, by such an action, to 
 recover the hire or profits of personal propei*ty, especially 
 where, in the absence of complicated accounts, no reason 
 existed for compelling him to resort to the action of account 
 or to a bill in chancery. In the action in which this decision 
 was obtained, the plaintiff and the defendant were owners of 
 a schooner, employed in navigating Lake Ontario. The de- 
 fendant chartered the vessel to a third person, and received 
 most of the money. The plaintiff brought assumpsit for 
 money had and received, to recover his moiety ; and the de- 
 fendant interposed the objection, that the plaintiffs remedy 
 was by an action of account or by a bill in equity. The 
 Court thought that, as by previous decisions, a rule had been 
 established which affirmed the right of a cotenant to recover 
 his moiety on the sale of a chattel, the principles supporting 
 this rule should govern the case of the hiring of a diattel. 
 ' ' The one is a sale of the whole interest in the chattel ; the 
 other a virtual sale of the interest for a year. If the remedy 
 be appropriate in one case, it seems equally so in the other."'" 
 It is evident that the reasoning on which this last decision is 
 based must, if correct, overthrow the doctrine affirmed in the 
 preceding case of Sherman v. Ballon. That a cotenant of a 
 chattel may recover in an action of assumpsit against his com- 
 
 ' Sherman i-. Ballou, 8 Cow. 310, decided in 1828. 
 
 -« Cochran i\ Carringtou, 25 W( nd. 109, decided in 1841.
 
 § 285 REMEDIES BETWEEN COTENANTS. 344 
 
 panion in interest his moiety of the proceeds of the sale of 
 such chattel, is a rule of law which, though well settled in 
 the State of New York, is not established more conclusively 
 in the Courts of that State than the other rale, that a co- 
 tenant of real estate may sustain a like action for the purpose 
 of recovering his moiety of the fruits of the sale of such real 
 estate. Such being the case, why may we not apply the lan- 
 guage of the Court to an action of assumpsit for rents, or, in 
 other words, for the proceeds of a lease; and, comparing it 
 with a like action for the proceeds of a sale of realty, say: 
 "The one is a sale of the whole interest; the other a virtual 
 sale of the interest for a year. Jf the remedy be appropriate 
 in one case, it seems equally so in the other." 
 
 § 285. In England, the statute of Anne, giving the 
 
 action of account against a cotenant, is not understood as 
 authorizing an action for money had and received. The reason 
 assigned for this ruling is, that in an action of account, the 
 cotenant being proceeded against as a bailiff, is entitled to the 
 rights and indemnities of a receiver, and consequently should, 
 as a defense to such action, be allowed to show a losing of the 
 money without his fault; "whereas, in an action for money 
 had and received to the use of another, the defendant is liable 
 for the money absolutely. It is clear, therefore, that the 
 statute of Anne only gives an action of account, in which the 
 receiver would be entitled to all just allowances; and if so, 
 that this action for money had and received will not lie." 
 The Court also considered ' ' the case of a tenant in common 
 who receives the whole of the rent due to himself and his 
 companion as analogous to the case of tenant in common 
 taking the whole of a chattel into his possession; in which 
 case, neither trespass nor trover lies against him."^ The 
 position taken in England has been assumed and sustained 
 in several States of the Union. In Tennessee, it has been 
 held that a tenant in common cannot sue his cotenant for rents 
 received by the latter.^ A similar conclusion is announced 
 by a recent decision in Illinois.^ In Maryland, a tenant in 
 
 i Thomas v. Thomas, 5 Exch. 32. See also Crossfield v. Such, 8 Exch. 828. 
 ■■' Terrell i'. Murray, 2 Yerg. 384. 
 ••> Crow V. Mark, 52 111. 332.
 
 345 REMEDIES BETWEEN COTENANTS. ^ 286 
 
 common sued his cotenants in assumpsit to recover for ser- 
 vices rendered bj him, as auctioneer and real estate broker, 
 in making sale of the common property, and for money ex- 
 pended in advertising the property for sale. The opinion of 
 the Court, disposing of this case, quotes and approves the 
 rule laid down in Browne on Actions, that "joint-tenants, 
 tenants in common, and coparceners, cannot, in general, main- 
 tain any action against each other, because they are in the nature 
 of partners."'^ After referring to a number of decisions, all 
 of which were rendered in suits between copartners and 
 affirmed the general rule that one partner cannot sue another 
 at law, the Court said: " It is impossible to distinguish the 
 present case, in principle, from those just cited. The services 
 rendered by the plaintiff, for which he seeks to recover in this 
 action, were done during the continuance of the tenancy in 
 common, on account of the whole common projjerty, and 
 enured to the benefit of all the joint-owners, and if performed 
 by a stranger, the suit would have been against the four jointly, 
 and the plaintiff must have contributed his proportionate share 
 towards paying for them. The same reason, therefore, holds 
 against his right to maintain this action."^ 
 
 g 286. Assumpsit for Use and Occupation. — "WTiether an 
 action of assumpsit for rents and profits of the common prop- 
 erty or for the proceeds of the sale thereof can be sustained 
 or not, it is certain that no such action can be maintained upon 
 an implied promise to pay for the use and occupation of any 
 part of the land exclusively used and occupied by either co- 
 tenant.^ This is probably hot so much the result of an ob- 
 jection to the form of action, as to the manifest inconsistency 
 of the cause of action in assumpsit with the rights and relations 
 of the cotenants. Each cotenant is entitled to be in posses- 
 sion, and to use every part of the common property, so long 
 as he does not exclude his cotenant. Therefore, it is not 
 reasonable to presume that a cotenant, who has, Avithout deny- 
 
 ' Bro\viie on Actions at Law, 132; 1 Chitty'w PI. 39. 
 
 " Hamilton i'. Conine, 28 Md. 040. 
 
 " Klino V. Jacobrt, 08 Pa. yt. 57; Wilbur v. Wilbur, 13 Mot. 404; Peck v. Carpenter, 
 7 Gray, 283; Webster i-. Calef, 47 N. H. 294; Mu.sscy i'. Holt, 24 N. H. 24a; Gower v. 
 aliaw, 40 Mc. 58.
 
 § 287-8 REMEDIES BETWEEN COTENANTS. 346 
 
 ing the rights of his companion, been in the full and exclusive 
 possession, and in so being has been in the enjoyment of 
 nothing beyond his legal rights, has entered into any engage- 
 ment, express or implied, to account for the profits of such 
 possession. 
 
 FOR POSSESSION OF CHATTELS. 
 
 § 287. No Remedy at La-w. — "If two be possessed of 
 chattells personalis in common by divers titles, as of a horse, 
 an oxe, or a cowe, &c., if one take the whole to himself e out 
 of the possession of the other, the other hath no remedie but 
 to take this from him who hath done to him the wrong to oc- 
 cupie in common, &g., when he can see his time. In the same 
 manner it is of chattels realls, which can not be severed, as 
 in the case aforesaid, where two be possessed of the wardship 
 of the bodie of an infant within age, if the one taketh the 
 infant out of the possession of the other, the other hath no 
 remedie by an action of the law, but to take the infant out 
 of the possession of the other when he sees his time."^ This 
 general rule, as laid down by Littleton, remains in force at 
 the present day, in the absence of the destruction or conver- 
 sion of the common property, except so far as modified by 
 statutory enactment in some of the United States.^ 
 
 § 288. Detinue. — A tenant in common, joint-tenant, or 
 coparcener, cannot sustain an action of detinue against any 
 of his cotenants for the possession of the subject matter of 
 the cotenancy. This rule does not depend on any objection 
 to this form of action. It is based upon that equality of 
 rights incident to all cotenancies, by which every cotenant is 
 equally entitled to the whole possession of the joint property, 
 and no cotenant has such superior rights that the law will 
 interfere in his behalf to wrest the possession from another 
 who is equally entitled thereto.^ So if several co-owners con- 
 cur in delivering a chattel to a third person, he is entitled to 
 
 ' Litt., sec. 323. 
 
 - Cowles V. Garrett, 30 Ala. 341; Hinds v. Terry, Walker, 80; Tinney v. Stebbins, 
 28 Barb. 290. 
 
 3 Campbell v. Campbell, 2 Murph. 65; Bonuer v. Latham, 1 Ired. 271; Carlyle v 
 Patterson, 3 Bibb. 95; Lewis v. Night, 3 Litt. 223.
 
 347 REMEDIES BETWEEN COTENANTS. § 289 
 
 retain it until all ask liim to surrender it. " If one could on 
 his own account ask liim to have it returned to him, and main- 
 tain an action if it was refused, another might do the same; 
 and so the bailee of the chattel might be harassed by as many 
 actions as there might be joint-owners of the chattel.'' 
 :S either can any person, by this action, recover a deed, or 
 other muniment of title, from another, equally entitled to its 
 custody, whether they happen to be cotenants, or merely 
 persons holding in severalty, but deriving their titles through 
 the same conveyance.^ 
 
 § 289. Replevin. — The same reasons w-hich compel Courts 
 to deny a cotenant any redi'ess against his companion in in- 
 terest, by an action of detinue, operate with equal force 
 against an action of replevin. To sustain replevin, the plain- 
 tiff must, at least as against the defendant, be entitled to the 
 sole possession of the property sought to be recovered. This 
 is never the case between joint-tenants, tenants in common, 
 nor coparceners. Hence, neither can have an action against 
 the other for the possession of the common chattels.^ There- 
 fore, an officer levying upon the chattels of one cotenant, and 
 thereby succeeding to the latter's right of possession, is not 
 liable to have his possession disturbed by an action of replevin 
 brought by another cotenant." " Until there is a severance, 
 no one of the owners can by law sustain a claim to the exclu- 
 sive possession of the chattel. If such were not the rule of 
 law, and there were six owners in joint-tenancy or in common, 
 five of these owners might institute their separate actions of 
 reple\dn against the sixth cptenant, each claiming the posses- 
 sion by his suit, and each might obtain a judgment for the 
 restoration of the property, or damages to its value.'" The 
 rule that one cotenant cannot have an action of replevin against 
 
 ' AtTVOOd V. Ernest, 22 L. J. Rep. (N. S.) C. P. 225; 17 Jur. C03; 21 E. L. & Eq. 262 
 
 ■^ Clowes V. Hawley, 12 Johns. 484; Foster v. Crabb, 12 Com. B. 149; 10 Jur. 835: 
 21 L. J. C. P. 189; Yea v. Field, 2 T. R. 708. 
 
 ■■> Hunt V. Chambers, 1 Zabr. 023; Holton v. Binns, 40 Miss. 491; Barnes v. Bartlett 
 "15 Pick 75; McEldery i>. Flannegan, 1 H. & G. 308; Litt., sec. 323; Prentice i'. Ladd 
 12 Conn. 333; Chinn v. Respass, 1 Monr. 25; Hardy ... Sprowle, 32 Me. 323; Russell 
 V Allen, 13 N. Y. 173; Silloway i>. Brown, 12 Allen, .30; Reeves v. Morris, 2 Jebb & 
 Symes, 344; Davis v. Lottich, 40 N. Y. 390; White v. Merton, 22 Vt. 15. 
 
 •• Ladd V. Billings, 15 Mass. 17. 
 
 * Prichards' Admr. v. Culver, 2 Harr, 129.
 
 §g 290-1 REMEDIES BETWEEN COTENANTS. 348 
 
 another, is as apjDlicable to ships and vessels as to any other 
 species of personal property.^ If, by virtue of a writ issued 
 in an action of replevin, the plaintiff obtain possession of the 
 property, and the trial discloses that he and the defendant are 
 cotenants, he must surrender to the defendant the exclusive 
 possession of all the property taken under the writ.^ 
 
 FOR POSSESSION OF REAL ESTATE. 
 
 § 290. The action of ejectment is an appropriate 
 
 remedy whenever either of the cotenants has been ousted 
 by the other from the lands of the cotenancy, or any jDart 
 thereof.^ The chief difficulty in an action of ejectment 
 brought by one cotenant against another is in determining 
 whether the defendant has been guilty of such a violation of 
 the plaintiff's rights as constitutes an ouster. 
 
 g 291. Necessity of Ouster. — There are a few author- 
 ities which declare, in general terms, that one tenant in com- 
 mon may maintain ejectment against his cotenant, though no 
 actual ouster be proved.* These general declarations, as we 
 apprehend, do not indicate any conflict of judicial opinion 
 on this subject. Their apparent dissent from the well estab- 
 lished rule of law, that an ouster is requisite to an action of 
 ejectment, is in all probability the result of the employment 
 of the word ' ' ouster" as necessarily signifying an actual ex- 
 pulsion by force. If that were its only signification, then 
 instances might frequently arise where a tenant in common 
 could sustain an action of ejegtment against his cotenant 
 without showing an ouster. But, at least between cotenants, 
 the term " ouster" may denote either an actual turning out, 
 or an exclusive possession connected with some act amount- 
 ing to a total denial of the rights of the cotenant who is out 
 of possession. The fact of ouster, in one or the other of 
 these senses, is a prerequisite to the right of each cotenant to 
 
 1 Wetherell v. Spencer, 3 Mich. 123; Rogers v. Arnold, 12 Wend. 30; Prentice v. 
 Ladd, 12 Conn. 331. 
 
 ^ Russell V. Allen, 13 N. Y. 176. 
 
 ^ Adams on Ejectment, 135. 
 
 * See remark of Spencer, J„ in Shepherd v. Ryers, 15 Johns. 501; Eads v. Rucker, 
 2 Dana, 111.
 
 349 REMEDIES BETWEEN COTENANTS. § 292 
 
 maintain an action of ejectment against his fellow-tenant,' 
 The question whether a given state of facts, as between co- 
 tenants, constitutes an ouster, arises: 1st, where the defend- 
 ant claims that he is not subject to any action in ejectment 
 for the reason that his possession is consistent with plaintiff's 
 rights; and 2d, where the defendant claims that his posses- 
 sion has been so inconsistent with plaintiff's rights as to grow 
 into a perfect title in severalty by virtue of the Statute of 
 Limitations. In whichever of these two forms an issue in re- 
 gard to ouster arises, its determination is a question of fact 
 for the jury.- Nevertheless, a great number of decisions are 
 embodied in the reports, by the aid of which we are generally 
 enabled to satisfy ourselves whether a given state of facts con- 
 stitutes an ouster. We have already considered these de- 
 cisions in the chapter upon the ouster of one cotenant by 
 another.^ 
 
 ^ 292. Proof of Ouster, when not required. — While an 
 ouster is essential to the maintenance of an action of eject- 
 ment by one tenant in common against another, yet the cir- 
 cumstances of the case or the condition of the pleadings may 
 be such as to concede the fact of ouster, and thus to dispense 
 with proof of its existence. If the defendant by his ansAver 
 claim the whole premises in his own right as owner thereof 
 in severalty, he releases the plaintiff from the necessity of 
 proving an ouster at the trial. ^ "We incline strongly to the 
 opinion that the denial in the defendant's answer of all right, 
 title, and interest in the plaintiff is an admission that his own 
 possession is adverse, and may therefore well be treated as 
 equivalent to a confession of ouster, superseding the neces- 
 sity of proof on the trial."* The law of ouster, as between 
 
 ' Sigler V. Van Riper, 10 Wend. 419; Ewald v. Corbett, 32 Cal. 499; Story v. Saun- 
 ders, 8 Humph. C68; Higbee v. Rice, 5 Mass. 351; Cutts v. King, 5 Grcenl. 482; Cross 
 V. Robinson, 21 Conn. 385; Gilchrist v. Ramsay, 27 U. C. Q. B. 500; Taylor t-. Hill, 
 10 Leigh, 457; Carpcntier v. Mendenhall, 28 Cal. 485; Halford v. Tetherow, 2 Jones, 
 393. 
 
 - Clark V. Crego, 47 Barb. 617; Carjwntier v. Mendenhall, 28 Cal. 487. 
 
 i See sec. 221 to 244. 
 
 * Henderson v. Cotter, 15 Upper Canada Q. B. 345; Harrison v. Taylor, 33 Mo. 211; 
 Noble v. McFarland, 51 111. 229; Scott v. McLeod, 14 Upper Canada Q. B. 575; Mc- 
 Callum V. Boswell, 15 Id. 343. 
 
 ^ Clason V. Rankin, 1 Duer, 341.
 
 § 293 REMEDIES BETWEEN COTENANTS. 350 
 
 cotenants, was thus clearly and forcibly stated by Judge Scott, 
 in the Supreme Court of Missoun: " The law of ouster in an 
 action of ejectment between cotenants, wherein the one denies 
 that the other ever had any title to the disputed premises, 
 must be the same as in an action between those who are con- 
 nected by no such relation. If the defendant wanted the 
 benefit of the facts assumed in her instruction, why in her 
 answer did she not disclaim to hold adversely to the plaintiffs? 
 She would in one breath deny that the plaintiffs are her co- 
 tenants, and in the other claim the benefit of the relation. 
 "Where one cotenant seeks to bar another on the ground of 
 adverse x30ssession, the law requires proof of unequivocal 
 facts showing an actual ouster. So, where the title of plain- 
 tiff is not disputed by the defendant, and the case turns on 
 the fact whether there has been a disseizin of one cotenant 
 by another, the plaintiff must show an actual ouster, or that 
 some act was done by the defendant amounting to a total 
 denial of the right of the plaintiff as a cotenant. But in an 
 action where the cotenancy is denied ever to have existed, 
 there is no reason why stronger evidence of an ouster should 
 be required of one claiming as cotenant than any other party. 
 By filing such an answer as was put in in this case, an act was 
 done which showed that the defendant made a total denial of 
 the right of the plaintiffs as cotenants."^ 
 
 I 293. What Judgment Plaintiff may have.— The re- 
 covery of the plaintiff must be consistent with the title upon 
 which it is based. If he has an undivided interest, his re- 
 covery against another person having a like interest must not 
 be for the possession of the lands in entirety, but that he be 
 let into possession with the defendant.^ He is equally en- 
 titled to such joint possession, and equally denied the right 
 to exclusive possession, whether his moiety is so large as to 
 almost include the whole, or so small as to grow infinitesimal 
 when compared with the entire tract. Therefore, so far as 
 the judgment to be entered in an action of ejectment is con- 
 cerned, the relative interests of the plaintiff and defendant 
 are perfectly immaterial; but as this judgment may, and in 
 
 ' Peterson v. Laik, 2i Mo. 5i3. 
 
 2 Ewald V. Corbett, 32 Cal. 499; Tevis v. Hicks, 33 Cal. 234.
 
 351 REMEDIES BETWEEN COTENANTS. gg 294-5 
 
 all probability will, be succeeded by au action for mesne 
 profits, it is proper for the Court before which the ejectment 
 suit is tried to ascertain and settle the respective interests of 
 the parties.^ 
 
 g 294. Where Interest of Plaintiff is less than that 
 sued for. — The plaintiff may recover, though the interest 
 which he establishes at the trial is different in quantity from 
 that which he claimed in the declaration. If he declares for 
 a specified, imdivided interest, he may recover though his 
 evidence is for a much smaller interest.^ The same rule 
 probably prevails where plaintiff' declares for the whole; in 
 which case, he may recover either the whole or any undivided 
 moiety thereof, as he shall show himself entitled.* From this 
 last proposition the Courts of Maryland, as well as some of 
 the early decisions in New York, dissent. They hold that 
 plaintiff "cannot recover an undivided part when he claims an 
 entirety, nor an entirety when he demands an undivided por- 
 tion.""' 
 
 g 295. Forcible Entry and Unlawful Detainer. — It is 
 
 said that a cotenant is liable in England to a criminal prose- 
 cution for forcibly ejecting or forcibly holding his companion 
 out of possession. The Supreme Court of Illinois, at au early 
 day, maintained that the object of the Forcible Entry and 
 Detainer Act of that State was to create a civil remedy in all 
 cases which, in England, would have sustained a criminal 
 prosecution; and, therefore, that redress might be had in 
 Illinois, under the act of that State, by one tenant in common, 
 or joint-tenant, against his cotenant, where the latter forcibly 
 ousted the former.'^ A like conclusion had been reached a fe^^• 
 years previously in the Court of Appeals of the State of Ken- 
 
 ' Mahoney v. Middleton, 41 Cal. 54. 
 
 '^ Davis V. Wliitesido, 1 Biblj, 510; Burges i'. Purvis, 1 Burr, 32C; Ablctt r. Skinner, 
 1 Siderf. 229. 
 
 " Lewis V. McFarland, 9 Cranch, 151; Gist v. llobinet, 3 Bibb, 2; Gray v. Givens, 
 2G Mo. 303. 
 
 ■• Carroll v. Norwood, 5 II. & J. 174; Benson v. Mussoter, 7 H. &, J. 212. Sec also, 
 to tlie same efifect. Holmes v. Suely, 17 Wend. 75; Gillett v. Stanley, 1 Hill, 121). But 
 these New York cases are denied in Vrooman v. Weed, 2 Barb. 330; Van Keussclaer 
 V. Jones, 2 Barb. 013; Neilsou r. Neilson, 5 Barb. 573. 
 
 * Mason v. Fincb, 1 Scam. 495.
 
 §§ 296-7 REMEDIES BETWEEN COTENANTS. 352 
 
 tucky.' The judgment in such cases, like that in ejectment, 
 " should be according to the right established /or an undivided 
 interest;''' i. e., it should authorize the putting of plaintiff into 
 possession, but not the putting of defendant out of posses- 
 sion.^ If a lessee is also a cotenant at the termination of his 
 lease, and, on that account, is entitled to remain in possession, 
 he cannot be proceeded against under the act in reference to 
 unlawful detainers, and thereby compelled to surrender the 
 entire possession.^ Acts giving double rent against a tenant 
 holding over, after notice to quit, have been held to apply to 
 a cotenant who, subsequent to the expiration of a lease from 
 his companion, refused to let the latter into possession.* But 
 the cotenant continuing in sole possession after the termina- 
 tion of the lease from his companion,' is not liable for rents, 
 unless he does some act to prevent the latter from joining in 
 the occupation.^ But where one obtains possession under a 
 lease from the other, he must, at the termination of the lease, 
 surrender the possession which he acquired by it. If an ac- 
 tion for an unlawful detainer is brought against him, he can- 
 not successfully resist it by showing that the title was at the 
 leasing, and still is vested in himself and his lessor as tenants 
 in common.^ 
 
 § 296. Trespass to try titles, like an action of eject- 
 ment, cannot be sustained by one tenant in common, or other 
 cotenant, against one of his fellow-tenants, in the absence of 
 an actual ouster.^ 
 
 FOR ACTS or TRESPASS. 
 
 § 297. An action on the case has long been recognized 
 
 as an available remedy for many of the wrongs suffered by 
 one cotenant from the hands of another. Thus, Lord Coke 
 states that, "if two several owners of houses have a river in 
 
 i Eadsv. Rucker, 2 Dana, 111. The same rule prevails in Massachusetts. Pres- 
 brey v. Presbrey, 13 Allen, 281. Also in California. Bowers v. Cherokee Bob, 45 
 Cal. 495. 
 
 '■= Same as 1; and Jamison v. Graham, 57 111. 97. 
 
 3 Henderson v. Allen, 23 Cal. 519; Lick v. O'Donnell, 3 Cal. 59. 
 
 * Cutting V. Derby, 2 H. Bla. 1075, 1077; Mumford v. Brown, 1 Wend. 52. 
 
 & Mumford v. Brown, 1 Wend. 52. 
 
 6 Hershey v. Clark, 27 Ai-k. 528. 
 
 1 Taylor v. Stockdale, 3 McCord, 302; Harvin v. Hodge, Dudley, 23.
 
 353 EEMEDIES BETWEEN COTENANTS. g 297 
 
 « 
 
 common between them, if one corrupt the river, the other 
 shall have an action upon his case;"^ and Lord Kenyon de- 
 clares that ' ' if one tenant in common misuse that which he 
 has in common with another, he is answerable to the other 
 in an action for misfeasance."^ An action on the case is the 
 proper means of redi'ess for a tenant in common who has been 
 injured by the " disturbance or deprivation of the enjoyment 
 of an incorporeal hereditament."^ "It may be safely laid 
 down as a principle governing actions between tenants in 
 common, that when there is a total destruction of the article 
 held in common, an action of trover or trespass may be sus- 
 tained; but where there has been simply an abuse of it, 
 w^hereby its value is impaired, an action on the case may be 
 brought."^ It is therefore maintainable for a disturbance of 
 a common of pasture,^ or for the disturbance of a ferry by 
 setting up another ferry near it.^ If two persons have the 
 right to fish upon the lands of another, this is an incorporeal 
 hereditament. If one of these persons keeps the other out 
 of the enjoyment of this right he is liable, in an action on the 
 case, for the damages occasioned to his cotenant by such de- 
 privation.'^ ' ' In England, one commoner maintains an action 
 on the case against another commoner for surcharging the 
 common, whereby the plaintiff is unable to enjoy the common 
 in so ample and beneficial a manner as he ought and otherwise 
 would."** "In cases where there has not been a total destruc- 
 tion of the subject-matter of the tenancy in common, but only 
 a partial injury to it, waste, or an action on the case will lie 
 by one tenant in common against another; as if one tenant 
 in common of a wood or piscary does waste against the will 
 of another, he shall have waste; or if one cormpts the water, 
 the other shall have an action on the case."^ This action is 
 
 ' Co. Litt. 200 6. 
 
 '■ Martyn v. KnowUys, 8 T. R. 146; Booth v. Sherwood, 12 Minn. 429. 
 ^Duncan i'. Sylvester, 24 Me. 488; Stocks, y. Booth, 1 T. K. 428; Beach v. Child, 13 
 Wend. 343. 
 ■• Bond V. Hilton, Busb. Law, 309. 
 5 Atkinson r. TcaKdalc. 3 Wils. 278. 
 « Blissett I'. Hart, WiilcH, 508. 
 ' Duncan y. Sylvester, 24 Me. 482. 
 
 8 McLellan v. Jennoss, 43 Vt. 190; Hobson \\ Todd. 4 T. R. 73. 
 
 9 Littledale, J., in Cubitt v. Porter, 8 Barn. & C. 208. 
 
 C. & p.— 23
 
 ^ 298 REMEDIES BETWEEN COTENANTS. 354 
 
 a proper remedy for an injury to the common property, as by 
 tearing down a dam, taking wlieels out of a mill, etc.^ An 
 action on the case may be sustained by a cotenant against his 
 fellow-tenant for diverting water from a mill which they owned 
 in common,^ and also for erecting a dam across a stream, 
 vvhereby the common property was overflown.^ The same 
 action has been allowed for obstructing a cotenant from 
 cleaning out a well,** and also for a destruction by one part 
 owner of the title deeds of the joint estate,^ and also for the 
 negligence of a tenant in common, through which a mill be- 
 longing to the CO tenants was destroyed by fire.^ In North 
 Carolina, it has been held that "if a tenant in common re- 
 ceives more than his share of the j)rofits, hy an excessive use 
 of the ino'pertg, as by wearing out the land, or by an improper 
 use of it, as by cutting down the timber and selling it, he 
 cannot be treated as a tortfeasor, but the remedy of the co- 
 tenant is by an action of account, or a bill in equity for an 
 account.' 
 
 g 298. Trespass. — There was never any doubt that if either 
 cotenant destroyed the property of the cotenancy, the other 
 might have an action of trespass, and this was supposed to be 
 because, after such destruction, there was no cotenancy to be 
 pleaded in bar.^ But in some of the authorities, no other ex- 
 ception seems to be recognized; and in a few, the unqualified 
 statement is made that "trespass lies not by one tenant in 
 common against another tenant in common."^ This state- 
 ment, whenever and wherever made, must be understood as 
 being applicable only to the particular facts before the Court; 
 for it is not probable, nor even possible, that any Judge, 
 whose official position was such as to make his opinions 
 
 ' Linton v. Wilson, 1 Kerr, (New Brunswick,) 231. 
 
 ■^ Blanchard v. Baker, 8 Greenl. 253; Pillsbury v. Moore, M Me. 154; McLellan v. 
 Jenness, 43 Vt. 186; Eunnels v. Bullen, 2 N. H. 536 
 s Odiorne v. Lyford, 9 N. H. 502. 
 * Newton v. Newton, 17 Pick. 207. 
 s Daniels v. Daniels, 7 Mass. 135. 
 •' Chelsey v. Thompson, 3 N. H. 1. 
 
 7 Darden v. Cowper, 7 Jones Law, 210; Smith v. Sharp, Busb, Law, 91. 
 
 8 Co. Litt. 200 h. 
 
 9 Matt V. Hawkins, 5 Taunt. 22; McPherson v. Seguine, 3 Dev. 154; Noye v. Reed, 
 1 Man. & Ey. 63.
 
 355 REMEDIES BETWEEN COTEXAXTS. § 209 
 
 thouglit worthy of being printed in the reports, ever intended 
 to assert that, under no circumstances, can one cotenant sus- 
 tain an action of trespass against another. The action of 
 trespass, as a remedy between cotenants, is clearly sustain- 
 able in two contingencies, and in but two. The first is -where 
 there has been something which the Court feels authorized 
 by the rales of laA^- to treat as an ouster; the second is where 
 there has been some act which the Court is authorized to treat 
 as a destruction of the common property. Courts have dif- 
 fered, and beyond doubt always will differ, as to whether a 
 particular state of facts amounts to either an ouster from, or 
 a destruction of, the subject of the tenancy. Except in such 
 diversity of opinion as has arisen from this difference, the 
 rules of law governing the action of trespass as a remedy for 
 the wrongs suffered by one cotenant at the hands of his 
 fellow, seem to be entirely harmonious. 
 
 g 299. Until the destruction of the subject of the 
 tenancy, or at least until the happening of something which, 
 in its effect on the rights of the injured i)arty, is equivalent 
 to such destruction, he cannot sustain any action in trespass 
 against his cotenant, unless the latter has ousted him.' Each 
 cotenant has the right to enter upon the lands of the coten- 
 ancy. His entry cannot, therefore, of itself, support an 
 action of trespass.'- The entry being lawful, trespass AviU 
 not lie for a subsequent act not amounting to an exclusion of 
 the other part owner, nor to a destruction of the property.'' 
 Cutting and removing timber and grass, at least if done in 
 the ordinary course of taking the profits of the land, do not 
 entitle the cotenant not participating in such cutting and re- 
 moving to an action in trespass; "for if such an action 
 could be maintained, the result would be that if two persons 
 were tenants in common of two fields, and each took the 
 
 - Harman r.Gartiiian. Harper, 430; Jones r. Chiles, 8 Dana, 103; ELsliop r. Blair, 
 3G Ala. 85; Filbert v. lloff, -12 Pa. St. 97; Traugor v. Sabsamaii, U Pa. St. 517; McGill 
 r. Ash, 7 Pa. St. 397; Cubitt r. Porter, 8 Barn. & C. 257; 10 East, 21G; Jacobs v. 
 Seward, L. 11. 5 n. L. 472; Mumfonl v. Brown, 1 Wend. 52; King r. Phillips, 1 Lans, 
 435. 
 
 - Wright V. Chandler, 4 Bibb, 422; Booth v. Adams. 11 Vt. IGO; Kenuiston v. Leigh- 
 ton, 43 N. H. 312. 
 
 ■^ Cubitt r. Porter, 8 Barn. A C. 257.
 
 § 300 REMEDIES BETWEEN COTENANTS. 356 
 
 whole profits of one, they would eaeli have a right of action 
 against the other for trespass in taking the whole profits of 
 one field. It is laid down, sometimes on the ground of pub- 
 lic policy, and sometimes as ex necessitate rei, that the only 
 remedy of a tenant in common who has not had his share of 
 the profits of the common property, is by an action of ac- 
 count."^ The Courts of Vermont have gone so far as to 
 declare that where two were tenants in common of a lot, and 
 one of them entered " and cut and carried away the timber 
 from all of said lot," he was not liable in trespass therefor. ' 
 This case differs from all others coming under our observa- 
 tion, in this, that all the timber seems to have been removed. 
 But as the general principle has been thoroughly established, 
 that, in the absence of the destruction of the subject of the 
 tenancy, no action of trespass can be sustained against a co- 
 tenant unless based upon an ouster, we see no reason for ques- 
 tioning the soundness of the Vermont decision, unless the 
 facts before the Court showed such a destruction; for the re- 
 moving of all the timber is no more an ouster than is the 
 removal of a part. But there may be instances in which the 
 removal of all the timber on a tract of land is equivalent to a 
 destruction of the subject of the cotenancy. Such would be 
 the case if the sole or the chief value of the property con- 
 sisted in the timber; and perhaps taking an amount of timber 
 in excess of the ordinary projits of the estate would be a de- 
 struction ^ro tanto. But we will postpone the consideration 
 of what injuries may be redressed by an action of trespass 
 on the ground that they are equivalent to a destruction, until 
 we reach a subsequent section of this chajDter. 
 
 § 300. Trespass for Ouster. — On the other hand, if the 
 ouster of the plaintiff by the defendant be conceded, the fact 
 of their cotenancy is no defense to an action of trespass." 
 ' ' If one tenant in common enter upon his cotenant and oust 
 him of his premises, trespass quaix clausum /regit lies for the 
 
 ' Willes, J., in Jacobs v. Seward, L. E. 4 C. P. 329; afSrmed, L. R. 5 H. L. 472; 
 Van Orman v. Phelps, 9 Barb. 500; King v. Phillips, 1 Lans. 434. 
 
 ^ Wait V. Richardson, 33 Vt. 190. 
 
 ^ Erwin v. Olmstead, 7 Cow. 230; Murray v. Hall, 62 E. C. L. 439; 7 C. B. 441; Sil- 
 loway V. Brown, 12 Allen, 37.
 
 357 EEMEDIES BETWEEN COTENANTS. § 300 
 
 injury."^ In the case of Wait v. Eichardson, cited iu the 
 preceding section, it did not appear that the defendant had 
 ousted plaintiff from any part of the premises. On the con- 
 trary, as stated iu the opinion of the Court, "the plaintiff 
 herself was all the while in possession of the property, claim- 
 ing to hold it adversely to the defendant, in exclusive owner- 
 ship." Therefore, it was not possible that the effect of an 
 ouster could, in that case, become a material subject of in- 
 quiry, demanding the consideration of the Court. Neverthe- 
 less, after considering and disposing of all the matters which 
 were necessary to be considered, the Court proceeded further, 
 and said: "The manner in which the subject of trespass to 
 real property is presented in Hammond's N. P. 151, (a book 
 remarkable for philosophical and logical method iu propound- 
 ing and developing legal principles,) makes palpable the par- 
 adox involved in the idea of the right of a tenant in common 
 to maintain trespass qu. cl. against his cotenant. ' In every 
 case where one man has a right to exclude another from his 
 real immovable property, the law encircles his estate, if it be 
 not already enclosed, with an imaginary fence, etc., and en- 
 titles him to a compensation in damages for the injury he 
 sustains by the act of another passing through the boundary, 
 denominating the injurious act a breach of the enclosure.' It 
 is fundamental in the law of the subject that one tenant in 
 common has no right to exclude the other from the common 
 property. Hence, any enclosure of it, whether by the imagin- 
 ary fence which the law constructs, or by a real one constructed 
 by the hands of men, defines no right in exclusion of, and 
 constitutes no barrier against, either of the common tenants; 
 and of course the passing through such boundary by either 
 of them would be no breach of the enclosure, and could give 
 no right of action in trespass quare clausum f regit y- No 
 doubt, there are some other cases in harmony with the one 
 just alluded to, in so far as it denies that tresjJass qu. d. can 
 ever bo sustained by one cotenant against another.^ These 
 
 » Dubois «. Beaver, 25 N. Y. 128; Bennett v. Clemence, C Allen, 18; Fill)eit \\ Iloff, 
 42 Pa. yt. 97; McGill «. AbIi, 7 Bair, 3U7; Odiorue v. Lyford, y N. 11. Oil; Badger v. 
 Holmes, C Gray, 118. 
 
 '•^ Wait V. Richardson, 33 Vt. 191. 
 
 » SeeCubitt u. Porter, 8 Barn. A C. 2G9, which as to this point in overruled by Mur- 
 ray V. Hall, 7 C. B. 451; 13 Jur. 202; 18 L. J. C. P. 101.
 
 § 301 REMEDIES BETWEEN COTENANTS. 358 
 
 cases rest upon tlie assumption that an unlawful entry is an in- 
 dispensable prerequisite to an action of trespass quare clausum 
 fregit. This position seems to have been overthrown and 
 abandoned in England a quarter of a century ago.^ The argu- 
 ment adduced by the Supreme Court in Vermont, that the 
 law surrounds every one's lands with an imaginary barrier, and 
 that no action can be sustained against any cotenant for en- 
 tering such barrier because, as against his entry, it does not 
 exist, by no means ' ' makes palpable the paradox involved in 
 the idea of the right of one tenant in common to maintain 
 trespass qu. cl. against his cotenant." This barrier, whether 
 imaginary or real, has a twofold purpose. It is a defense 
 from without and from within. If it secures the owner against 
 invasion from those who have no legal right to enter, it like- 
 wise protects him from expulsion by those who, though entitled 
 to enter, are not authorized to expel. Trespass, quare clausum 
 fregit, if we may rely upon the ordinary signification of those 
 words, is a remedy for a -wTong done in h^aking this barrier. 
 Is not the barrier as much broken, in law and in fact, by un- 
 lawfully thrusting a man out of it, as by unlawfully thrusting 
 a man into it? 
 
 § 301. What is an Ouster? — As a very decided prepon- 
 derance of the authorities shows that a cotenant may sustain 
 an action of trespass against his fellow-tenant, to recover the 
 damages occasioned by an ouster, we are now naturally led 
 to the inquiry, what is an ouster, within the meaning of the 
 authorities on this subject? In response to this inquiry, we 
 think the answer of the authorities would be that in these 
 cases the word ouster has its ordinary signification, viz., "an 
 actual turning out or keeping excluded the party entitled to 
 the possession of any real property corporeal."^ It does not 
 arise from a mere denial of the plaintifi"s title. ^ But any re- 
 sistance preventing plaintiff from obtaining efiective posses- 
 sion of the land of the cotenancy is an actual ouster.^ Such 
 
 1 Murray v. Hall, 7 Com. B. 454; 13 Jur. 262; 18 L. J. C. P. 161. 
 ^ Bour. Law Die, title "Ouster." 
 3 rUbert V. Hofif, 42 Pa. St. 99. 
 
 * Silloway v. Brown, 12 Allen, 38; Doe v. Prosser, Cowp. 218; Marcy v. Marcy, 6 Met 
 371; Gordon v. Pearson, 1 Mass. 323.
 
 359 REMEDIES BETWEEN COTENANTS. ^ 301 
 
 resistance must, lioAvever, be clearly and affirmatively shown; 
 and is not presumed from equivocal facts which may or may 
 not have been designed to operate as an exclusion. Hence, 
 a finding that the gate of the premises was kept locked does 
 not establish an ouster, because it does not show that plain- 
 tiff was excluded by the locking, or that, at some time, he 
 applied to have it unlocked and was refused.' An exclusive 
 appropriation of the land to his own use, by erecting a per- 
 manent structure thereon, woiild be evidence of an ouster of 
 his cotenant.- But each cotenant has the right to place a 
 structure on the land, if of a temporary nature and for a tem- 
 poraiy pui'pose. In so doing, he does not indicate any design 
 to make any permanent appropriation, and therefore is not 
 guilty of any ouster. '' In some instances, an act has been de- 
 nominated an ouster, although nobody was removed from nor 
 kept out of the lands owned in common. Thus, in a case 
 which arose and was determined in the State of South Carolina, 
 the evidence proved that the defendant had entered upon lauds 
 of which he was a part owner, and when the season was too 
 far advanced to commence a new crop, had ploughed up the 
 corn." Upon this state of facts, Gantt, Justice, delivering 
 the opinion of the Court, said: " I can conceive of no disseizin 
 more absolute than that which took place on this occasion. 
 The plaintiff was in peaceable possession of the tenement, by 
 an express contract of lease with one of the tenants in com- 
 mon, and by as clear and indubitable implied' assent on the 
 part of the other, who, although immediately in the neigh- 
 borhood, did not interpose his equal right in opposition to 
 the act of the other, but suffered the plaintiff to repair fences, 
 plough, and plant the corn, and after it was half made, went 
 with high hand and forcibly destroyed the crop of the tenant. 
 If this did not constitute ouster or disseizin, then they are 
 terms Avithout meaning. It would be an abuse of language, 
 and a waste of time, to reason on the subject, for the purpose 
 of showing that here was a disseizin committed."' Language 
 of similar import has also been employed by Judges of great 
 
 ' Jacobs V. Seward, L. R. 5 II. L. 472. 
 
 '■^ Bc-nnctt r. Clemcncc, G Allen, 18. 
 
 ^ Keay v. Goodwin, IG Mass. 1; Bennett v. Clcmencc, C Allen, 18. 
 
 '' Harman v. QArtman, Harper, 430.
 
 ^§ 302-3 REMEDIES BETWEEN COTENANTS. 360 
 
 eminence in England. An action of trespass -was decided in 
 the Court of Queen's Bencli, in which Lord Denman and the 
 other Judges concurred in holding defendant liable to his co- 
 tenant for taking and carrying away turf; and his Lorelship 
 considered ' ' this an ouster affected by means of the destnic- 
 tion of the proj)erty," because " the turf does not so grow as 
 to become part of the accruing profits which are the subject 
 of enjoyment by the tenants in common."' These cases were, 
 beyond all question, determined in accordance with the au- 
 thorities then and now existing; but they use the term ouster 
 in a sense which includes the idea of destruction. This use, 
 if permissible, is at least unusual, and is liable to lead the 
 reader into the error of supposing that an act which could 
 not be regarded as an ouster of a tenant in severalty, is suffi- 
 cient to constitute an ouster of a tenant in common. 
 
 § 302. What is a Destruction? — The two cases last re- 
 ferred to, in the preceding section, show that trespass may 
 be sustained by any cotenant against his fellow-tenant, for 
 destroying the common estate. In this respect, these cases 
 are unquestionable. The destruction here spoken of may be 
 an annihilation of the whole or of some j)art of the subject 
 of the tenancy, or it may destroy the rights of some of the 
 cotenants while the subject remains in esse. In all cases 
 where a cotenant practically destroys the estate, or some part 
 thereof, trespass may be sustained by the injured cotenant.^ 
 It is therefore an appropriate remedy for the demolition or 
 removal of a mill, and its appropriation to the use of one of 
 the cotenants;^ and also for the diversion of water from a 
 mill owned in common to a mill owned in severalty by one of 
 the cotenants.^ 
 
 § 303. That an action of trespass for mesne profits 
 
 may be maintained by one cotenant against another after 
 and as a necessary consequence of a judgment in ejectment, 
 has long been established both in England^ and in Amer- 
 
 ' Wilkinson v. Haggarth, 12 Q. B. 8io; 11 Jur. lOi; 16 L. J. Q. B. 103. 
 '■' Symonds v. Harris, 51 Me. 19. 
 ^ McDonald v. Traftou, 15 Me. 225. 
 * Blanchard v. Baker, 8 Me. 253. 
 ^ Goodtitle v. Tombs, 3 Wils. 121.
 
 3G1 REMEDIES BETWEEN COTENANTS. g§ 30nt-6 
 
 ica.^ The jndgment iu ejectment necessarily establishes the 
 ouster of the plaintitt'. The allowance, after ejectment, of 
 the action of trespass for mesne profits, therefore forms no 
 exception to the rule that trespass between cotenants must 
 be supported by an ouster or a destruction. The defendant 
 may defalk the value of improvements made on the land 
 against the claim for mesne profits.^ 
 
 § 304. The lessee of a cotenant is not liable in an 
 
 action of trespass against him by another cotenant, for any 
 act done by him by virtue of his lease or by leave of his 
 lessor, unless the latter would also have been liable had he 
 done the same act.^ 
 
 § 305. The statute of Westminster, 2, c. 22, "enacts 
 
 that if there be two tenants iu common of a wood, turbary, 
 piscary, etc., and do waste, the other shall have a writ of 
 waste, and the waster shall have election before judgment, 
 either to have his part in certain assigned to him by the oath 
 of t^velve men, (and then the place wasted shall be assigned 
 for part thereof,) or to grant that he Avill take no more for the 
 future than his companion shall approve of; and this act, by 
 construction, has been held to extend to joint-tenants, but 
 not to parceners, because they have the writ de partitione 
 faciendd at common law.^ In some parts of the United States, 
 this statute is regarded as in force, and as rendering each co- 
 tenant liable for waste. ^ 
 
 FOR CONVERSION. 
 
 ^ 306. Trover. — Neither a joint-tenant, tenant in common, 
 nor coparcener, can maintain an action of trover against a co- 
 tenant, unless the latter has made some disposition of the 
 property entirely inconsistent with the rights of his cotenants. 
 
 ' Hare v. Fury, 3 Yeates, 13; Bennett v. Bullock, 35 Pa. St. 367; Chambers v. Cham- 
 bers, 3 Hawks, 232; Car pen tier t). Mitchell, 29 Cal. 333; Langendyck v. Burhams, 11 
 Johns. 461; Camp v. Homesley, 11 Ired. 212; Izard v. Bodine, 3 Stock. 403. 
 
 -■ Walker v. Humbert, 55 Pa. St. 408. 
 
 ■' Ord V. Chester, 18 Cal. 79. 
 
 •• 5 Bac. Ab. 306, 
 
 =• Shiels V. Stark, 14 Geo. 436; Nelson's Heirs v. Clay's, 7 J. J. M. 140. A cotenant 
 taking away the wheels of a mill is, in New Brunswick, liable to his cotcnauts for 
 waste. Linton v. Wilson, 1 Kerr, 223.
 
 § 307 REMEDIES BETWEEN COTENANTS. 362 
 
 Until these rights are ignored, no conversion occurs. The 
 right of each cotenant to continue in exclusive possession of 
 the property being universally acknowledged, it follows that 
 no conversion can arise from the fact of such exclusive pos- 
 session, and no action of trover can be sustained by reason 
 thereof.^ The plaintiff, to entitle himself to judgment, must 
 prove that the property has been sold, destroyed, or otherwise 
 disjoosed of by the defendant.^ It makes no difference that 
 the subject of the tenancy consists of crops in the possession 
 of defendant, and he, after demand, refuses to deliver any 
 part to the plaintiff.^ Under the common law, there must be 
 a destruction of the chattel or something equivalent to it — 
 something Avhich, " as it were, amounts to an ouster, so that 
 a tenant in common who commits it cannot account."* 
 
 § 307. Trover when Sustainable. — But if the facts 
 brought to the attention of the Court show such an act or 
 acts in reference to the common property as to induce the 
 conclusion that the defendant has disregarded the rights of 
 his cotenant by a destruction of the property or by an appro- 
 priation of it to his own use, then a conversion is established, 
 for which an action of trover is an appropriate means of re- 
 dress.^ The facts from which such destruction or appropria- 
 tion maybe presumed must be inconsistent with the obligations 
 of the cotenancy, otherwise no conversion is shown. The 
 facts which are thus inconsistent, and are therefore sufficient 
 to establish a conversion and to support an action of trover, 
 by the injured cotenant against his companion, cannot be 
 exactly specified, because upon this, as upon most other ques- 
 tions involving the exercise of human judgment, the conclu- 
 sions attained have not been entirely harmonious. We shall 
 now undertake to state and classify the different decisions 
 which have come within our observation, and which furnish 
 
 1 Cowan V. Buyers, Cooke"s Tenn. E. 58; Webb v. Danforth, 1 Day, 311; Eoody v. 
 Cox, 29 Geo. 309; Hiircl v. Darling, 14 Vt. 214; Brown v. Hedges, 1 Salk. 290; Brady 
 V. Ai-nold, 19 C. P. (Upper Canada) 47; Smith v. Stokes, 1 East, 363; Tyler v. Taylor, 
 8 Barb. 585; Shamburg v. Moorehead, 4 Brewster, 92. 
 
 ^ Williams v. Nolen, 34 Ala. 169; Perminter v. Eelly, 18 Ala. 716. 
 
 ^ Ballon i\ Hale, 47 N. H. 347. 
 
 * Chambre, J., in Fenuings v. Lord Grenville, 1 Taunt. 248. 
 
 5 Bell I'. Layman, 1 Mon. 40.
 
 363 REMEDIES BETWEEN COTENANTS. § 308 
 
 all the answers which can be authoritatively given to the ques- 
 tion, What acts of a coteuant amount to a conversion by him 
 of the subject of the tenancy? 
 
 ^ 308. Whether the sale of a chattel by a cotenant 
 
 thereof, representing himself to be the sole owner and pro- 
 fessing to transfer the whole title thereto, is such a conversion 
 as empowers the other cotenant to maintain an action in trover 
 against the seller, is a question Avliich has arisen with great 
 frequency, and has drawn forth very irreconcilable replies. 
 In the United States, the answers have been in the affirmative 
 in a decided majority of the cases. ^ "He who sells his co- 
 tenant's share of the property to a stranger who will hold 
 against him has violated the relation he bore, and injured his 
 companion as much, perhaps, as if he had destroyed the prop- 
 erty. Why, then, should he not have a legal remedy against 
 the wrongdoer, instead of requiring him to look to the pur- 
 chaser for his interest in the property, and he to the Avrong- 
 doer?"^ So it is said the sale " of a chattel by a cotenant 
 shows a kind of dominion imjustifiable and inconsistent with 
 the rights of the parties."" But the rule that a cotenant sell- 
 ing the whole of a chattel as his OAvn and delivering posses- 
 sion thereof to the puchaser, is responsible to his cotenant in 
 an action of trover, is not enforced merely because it affords 
 a penalty against him for violating the obligations of the 
 joint ownership. It depends upon principles which are 
 equally applicable to ownership in common and to ownership 
 in severalty. Whoever assumes the rights of ownership and 
 the power of disposition over personal property, and carries 
 this assumed authority so far as to dispose of the thing as his 
 own, thereby converts it, and makes himself liable to an action 
 of trover. If, instead of assuming authority over the whole, 
 he asumes it over apart, then the conversion exists as to that 
 
 ' Dyckman v. Valientc, 42 N. Y. 5(J0; Artlmr v. Gayle, '6S Ala. 201; C'uwh s v. Gar- 
 rett's Admr. 30 lb. 350; Daiu o. Cowing, 22 Me. 349; White v. OBburn, 21 Weiul. 70; 
 Wilson y. Heed, 3 Johns. 11. 178; Carr v. Dodge, 40 N. II. 408; Mumibrd c. McKay, 
 8 Wend. 444; Yamhill Bridge Co. v. Newby, 1 Oregon, 173; Cowan c. Buyers, Ccjoke, 
 58; White u. Brooks, 43 N. II. 407; Williams t'. Chadboiirne, Cal. GGl; ]^'eil^^on v. 
 Slade, Ala., Jan. 1873. 
 
 ^ Perminter v. Kelly, 18 Ala. 71« 
 
 3 Carr v. Dodge, 40 N. H. 408.
 
 § 309 EEMEDIES BETWEEN COTENANTS. 364 
 
 part only. It is none the less a conversion of tlie part because 
 he who converts may be the owner of another part or interest; 
 and the law does not withhold its remedy merely because the 
 conversion is of an undivided interest instead of an entirety.^ 
 In some of the cases, the rule by which a sale of the entire 
 subject of the tenancy is declared a conversion is justified 
 upon the ground that such sale is a kind of destruction of the 
 rights of the other cotenant. But the rule does not rest on 
 this ground. If it did so rest, it must necessarily fall for 
 want of sufficient support. A sale by one cotenant cannot of 
 itself affect the title of the other. It neither destroys the 
 latter's property nor any of his rights arising out of such prop- 
 erty. It is a conversion, not because of the destruction but 
 of the appropriation of the property of another. 
 
 § 309. Trover for Sale of Chattels denied. — The general 
 purport of the majority of the American decisions upon the 
 subject now under consideration was stated in the preceding 
 section. Vermont and North Carolina are probably the only 
 States which continue to breast the current of authority,'^ al- 
 though there are some early decisions in Connecticut ^ which may 
 possibly have been intended to commit that State to the same 
 course. In England, the authorities seem to be more evenly 
 divided than in the United States, but the preponderance is 
 against the rule as generally recognized in this country, and 
 in favor of the proposition that the mere sale of a chattel 
 by one part owner is not a conversion as against the other. 
 Bayley, J., in Barton v. Williams,^ said: "There may be 
 cases in which the indivisible nature of the subject-matter of 
 the tenancy in common may raise an implied authority in one 
 to sell the whole. But unless there be such authority, either 
 express or implied, a sale of the whole by one tenant in 
 common is, with respect to the other, a wrongful conversion 
 
 ' Wheeler v. Whaler, 33 Me. 3i9; Weld v. Oliver, 21 Pick. 563; Hyde v. Stone, 9 
 Cow. 230; Eains v. McNalty, 4 Humph. 358; Lowe v. Miller, 3 Gratt. 213; Delaneyt-. 
 Eoot, 99 Mass. 547. 
 
 '■^ Barton v. Burton, 27 Vt. 95; Sanborn v. Merrill, 15 lb. 700; Welch v. Clark, 12 lb, 
 681; Tubbs v. Kichardson, 6 lb. 442; Pitt v. Petway, 12 Ired. 73. 
 
 =* Oviatt V. Sage, 7 Conn. 95; Webb v. Danforth, 1 Day, 301. See also St. John v. 
 Standiing, 2 Johns. 468, decided at an early day in New York. 
 
 •• 5 Bar. & Aid. 403. ' *
 
 365 REMEDIES BETWEEN COTENAXTS. § 309 
 
 of his undiyidecl part." But tins language is a mere dictum, 
 ■whicli, probably because it Avas a dictum, was neither approved 
 nor denied by the other three Judges who wrote opinions in 
 the same case. But there are some other cases which seem 
 to sustain this dictum.' On the other hand, in a later case, 
 Parke, B., states that until a doubt was raised in Barton v. 
 Williams, he always understood that one Joint-tenant or ten- 
 ant in common of a chattel could not be guilty of a conversion 
 by a sale of that chattel, imless by such sale the interest of 
 the other cotenant was transferred to the purchaser as in case 
 of a sale in market overt.^ So there may be other sales which 
 amount to a conversion, as where the subject of the tenancy 
 is sold in different parcels and delivered to a number of pur- 
 chasers who caiTy it away.^ But unless the sale, from being 
 in market overt, invests the purchaser with a complete title in 
 severalty; or unless from the fact that, through the sale, the 
 property has been carried away, or so changed as to amount 
 to a practical destruction of the rights of the cotenant who 
 did not join in the sale, he cannot, according to the weight of 
 the English authorities, sustain an action of trover against 
 the cotenant making the sale.'' The rule sustained by the 
 majority of the English adjudications on this subject has been 
 adopted and approved in Canada; and the limitations within 
 which the rule must be confined have been stated with greater 
 clearness in that country than in England. G^vynne, J., in 
 delivering the opinion of the Upper Canada Court of Com- 
 mon Pleas, approves and thus summarizes the law as he 
 understands it from the case of Mayhew v. Herrick, decided 
 in England: " It seems to be established by that case that if 
 the sale be in market overt, so as to change the property; or 
 if the subject of the joint ownership is sold to a number of 
 purchasers, who carry away the articles; or if the conse- 
 quences attending the sale are such as to put it out of the 
 power of the plaintiff to take the property, or to pursue his 
 
 ' Stancliffo V. Ilardwick, 2 C. M. & E. 1; Higgins v. Thoman, 8 Q. B. 908. 
 - Farrar v. Beswick, 1 M. & W. G87. 
 • 3 Mavhew v. Herrick, 7 C. B. 248. 
 
 4 Maybcw v. Herrick, 7 C. B. 229; 13 Jnr. 1078; 18 L. J. C. P. 179; Fcnninga v. 
 Grenville, 1 Tauut. 241; Morgan v. Marquin, 9 Excb. 145.
 
 §§ 310-11 REMEDIES BETWEEN COTENANTS. 366 
 
 remedy against the parties wlio have got possession of it— 
 the case is different, and trover will lie."' In the same Pro- 
 vince, but by a different Court, the English rule was exam- 
 ined and approved; but adjudged not to deny the action of 
 trover where defendant had sold grain and other produce of 
 a farm, which could not be reclaimed, and he had, after re- 
 ceiving the whole proceeds, threatened to go away with the 
 money.^ 
 
 g 310. Sale of Entirety by Officer. — A sheriff or other 
 duly authorized officer may levy on the interest of a part 
 owner. To make his levy effectual, he may take possession 
 of the chattel — may retain such possession until the sale, and 
 may deliver it to the purchaser. But he has no authority to 
 sell the interest of any cotenant, other than the one named in 
 his process. If he assume to sell the whole chattel, he can- 
 not transfer the interests of all the cotenants. But in so 
 doing, he nevertheless abuses his legal authority, and renders 
 himself a trespasser ab initio. His act is a conversion of die 
 interests against which he had no authority to proceed. He 
 is therefore liable to an action of trover." 
 
 ^ 311. Vendee of Cotenant. — The purchaser at a sale made 
 by a part owner, assuming to own and sell the whole, obtains 
 no better or greater title or interest than the vendor had, ex- 
 cept the sale be made in market overt.* The vendee is there- 
 fore entitled to the rights and subject to the obligations of 
 tenancy in common. Hence, he is not liable to an action of 
 trover for continuing in sole possession of the chattel, though 
 he does so under claim of ownership in severalty.^ But if he 
 sell the chattel, claiming to dispose of the whole thereof, this 
 is a conversion. Each successive sale of the whole chattel is 
 a conversion as against the original cotenant who did not unite 
 
 1 Brady v. Arnold, 19 C. T., Upper Canada. 46. 
 
 •^ Eathwell v. Eathwell, 26 Q. B., Upper Canada, 183. 
 
 » Smyth V. Tankersly, 20 Ala. 212; Rains v. McNairy, 4 Humph. 358; Sheppard v. 
 Shelton, 34 Ala. 652; Melville v. Brown, 15 Mass. 82; Waddell v. Cook, 2 Hill, 48, 
 overruling Mersereau v. Norton, 15 Johns. 179; Ladd v. Hill, 4 Vt. 171. Contra-' 
 Pitt V. Petway, 12 Ired. 73; Welch v. Clark, 12 Vt. 681. 
 
 « Ruckman r. Decker, 8 C. E. Green, 283; 12 Am. Law Reg. 468. 
 
 ^ Dain v. Cowing. 22 Me, 348; Kilgore v. Wood, 56 Me. 155; Trammell c. McDade, 
 29 Tex. SCO.
 
 367 KEMEDIES BETWEEN COTENANTS. ^J 31'2-14 
 
 iu tlie first sale, "so that trover maybe maiutained against 
 each imtil satisfaction is obtained from one."' 
 
 {^ 312. Trover for Destruction. — Whenever one joint- 
 tenant, tenant iu common, or coparcener, destroys the sub- 
 ject-matter of the tenancy, no doubt this destruction is a 
 conversion for which redress may be sought and obtained in 
 an action of trover.'- 
 
 § 313. For Destruction of Rights. — There may be such 
 an invasion of the rights of one cotenant by another, or such 
 an appropriation of the joint proj3erty of the cotenancy by 
 one of its members, that the rights of one of the part owners 
 are in eflect destroyed or set at naught, although the property 
 out of which those rights arose may still continue in existence. 
 In such cases, where the efiect of the act of one cotenant is 
 practically a destruction of the rights of the other, the latter 
 may resort to an action of trover Avith the same success as 
 though his property had been annihilated.^ 
 
 g 314. Destruction by Emancipating Slave. — One of 
 
 the most striking illustrations of a destruction of the rights 
 of a cotenancy without any physical change in its subject- 
 matter, occurs when a slave belonging to two or more is 
 emancipated by the act of one. The emancipation operates 
 on the interest of the emancipator; but as a man cannot be 
 part free and part slave, the act of one owner transforms the 
 former slave into a freeman. The subject of the tenancy is 
 neither annihilated nor removed, in the physical sense, but 
 all legal rights in it are annihilated. He Avhos*; rights of 
 property are thus destroyed may treat this destruction as a 
 conversion, and recover the value of his interest by an action 
 of trover against the emancipator.^ 
 
 ' Dain v. Cov/ing, 22 Me. 348; Weld v. Oliver, 21 Pick. 5G4; Dyckmiiu v. Valieute, 
 42 N. y. TjCO; Kilgore v. Wood, 56 Me. 155. 
 
 -' Lowe V. Miller, H Gratt. 213; Allen i-. Harper, 2G Ala. 690; Co. Litt. 200 a, 200 h; 
 Pitt V. Petway, 12 Ired. 73; Winner v. Pcnuiiuau, 35 Md. 165; Baruardistoii v. Chai)- 
 man, 4 East, 121; Kuiglit v. Coatcs, 1 Ir. Law K. 57. 
 
 ^ Delancy v. Eoot, 09 MasH. 547. An employment ol' a chattel— as, for inbtance, a 
 seine — so as to render it ntieless by use, is a destruction. Guyther r. Pettijohn, 
 Ired. 388. 
 
 ■• Oatfleld r. Waring, 14 Johnn. 192; Nunnally v. Whito'e Executors, 3 Met., Ky., 
 584; Tom Davis ;•. Tingle, 8 B. Monr. 541.
 
 §g 315-17 REMEDIES BETWEEN COTENANTS. 368 
 
 ^ 315. By allovring Property to be Lost. — If a tenant 
 in common of liogs or other live stock turn them into the 
 road or street, and pay no further attention to them, whereby 
 they are lost, this "is at least a 'prima facie evidence of de- 
 struction."^ If materials be taken by one cotenant thereof 
 and made into a structure which is annexed to, and therefore 
 a part of, his realty, this conversion of the property into real 
 estate entitles the other cotenant to recover his share in 
 trover.^ If one of two payees of a promissory note deliver 
 it to the maker to be by him cancelled or destroyed, this, 
 "if done without the authority of the other, is as much an 
 assumption of the right of disposing of another's property 
 as could have resulted from its sale or destruction;" and the 
 injured party may therefore recover the value of his interest 
 in the note.* 
 
 g 316. Mixing and Changing Chattels. — The taking of a 
 chattel, such as iron, melting it with other iron, and manu- 
 facturing the whole into various kinds of wares, so that there 
 can no longer be any tracing or identification of the different 
 parts, is equivalent to a destruction of the chattel so taken.* 
 But if two or more are cotenants of a chattel which must go 
 through some change of form, either for its preservation or 
 to render it fit for common and profitable use, either of them 
 may cause this change to be made without being guilty of 
 any conversion of the property. Hence, if two be tenants in 
 common of a whale, one of them may convert it into oil, and 
 the two will thereby become cotenants of the oil. This is 
 regaided not as a destruction but as a preservation of the 
 svibject-matter of the cotenancy.^ 
 
 g 317. The mere removal of a chattel is, perhaps, 
 
 never equivalent to a destruction thereof. Hence, where one 
 of the part owners of a ship took and carried it away by 
 
 ' Sheldon v. Skinner, 4 Wend. 530. 
 
 - Yamhill Bridge Co. v. Newby, 1 Oregon, 174. 
 
 'i Winner v. Penniman, 35 Md. 166. 
 
 « Eedington v. Chase, 44 N. H. 37. 
 
 ^ Fennings v. Lord Grenville, 1 Taunt. 246. Maintaining possession of logs, and 
 driving them out of a river, to get them in such a condition as to preserve them and 
 prevent their depreciation in value, being an act of preservation, is not a conversion.. 
 Kilgore v. Wood, 56 Me. 154.
 
 369 REMEDIES BET"SVEEN COTENANTS. § 317 
 
 force, it was held tJiat the other part owner could not treat 
 this as a conversion and maintain trover.^ And the English 
 Courts have gone so far as to decide that even the secret re- 
 moval of a chattel with intent to sell it and convert the pro- 
 ceeds to his own use, is not a conversion when done by a 
 tenant in common.- In this direction, we think the English 
 Courts have gone farther than the American Coiu'ts will con- 
 sent to follow. It is too clear to require either illustration or 
 argument that there may be such a removal of a chattel as 
 results in an entire loss of the interest of some of the part 
 owners. A removal to some place unknown to one of the co- 
 tenants, under such circumstances as afford him no means of 
 ascertaining where the chattel can be found, certainly is such 
 a destruction of his interest as entitles him to redress in an 
 action of trover.^ The general rule in regard to the effect of 
 a removal of a chattel by one of the part owners seems to be 
 this, that while the right to retake the chattel can be success- 
 fully asserted by the part owner, he cannot sustain any action; 
 but as soon as this right is extinguished his remedy is com- 
 plete. Thus, where part of the owners of a ship seized it 
 and took it to foreign parts against the consent of the others, 
 this was not considered as suflScient to subject the seizing 
 part owners to an action; but when the vessel, while so ab- 
 sent, was lost, and its recapture thereby became impossible, 
 the non-consenting owners recovered the value of their shares 
 in trover.^ As a ship is a chattel designed to be moved from 
 port to port, and can only be profitably employed by being 
 taken or sent to foreign as well as domestic ports, its removal 
 from any place in which it may happen to be, especially if 
 such removal is to devote the ship to any usual employment, 
 cannot be regarded as any greater invasion or destruction of 
 the rights of a part owner than arises from the mere exclusive 
 possession of those chattels which are not intended, in their 
 ordinary use, to be transported from place to place. There- 
 fore, such a reasonable flexibility as commonly obtains in 
 applying general rules of law to diverse circumstances, it 
 
 I Bamardiston i'. Chapman, cited in Heath v. Uubbard, 4 East, 121. 
 ' Jones V. Brown, 38 E. L. & E. 304. 
 ■' Lvjca-s V. Wasson, 3 Dcv. 398. 
 " Knight V. Coatt.s, 1 Jr. L. II. 57. 
 
 C. & p.— 24
 
 §§ 318-19 REMEDIES BETWEEN COTENANTS. 370 
 
 seems to us, requires that those facts which may not amount 
 to a conversion of the interest of a part owner of a ship, 
 may nevertheless be tantamount to a conversion or legal de- 
 struction of a part owner's interest when the subject of the 
 tenancy is some chattel not designed, in its ordinary use, to 
 be removed from one point to another. Hence, where two 
 were tenants in common of a marine railway, consisting of 
 iron and wooden rails and sleepers, endless chain, gear 
 wheels, and ship-cradle, and one of them removed these jna- 
 terials to another town and made them into a new railway on 
 his own land, the other cotenant succeeded in maintaining 
 trover for his proportion.^ Under like circumstances, a ten- 
 ant in common of certain personal property, consisting of a 
 shingle-mill, and of a clapboard or siding-mill and a steam- 
 engine used for operating these mills, was allowed to recover 
 in the same form of action.^ 
 
 g 318. For refusal to apply Property to its proper 
 use. — In Pennsylvania, an action of trover was brought to 
 recover damages for the conversion of certain stereotyped 
 plates of a pictorial history. In the final determination of 
 this suit, the Supreme Court used the following language: 
 "The reason why one joint-tenant or tenant in common can- 
 not maintain trover against his companion is, that both are 
 equally entitled to possession, and the possession of one is 
 the possession of both, and is in accordance with the right 
 of both. But where one misitses the joint property by appro- 
 priating it to uses for which it was not designed, and refuses 
 to apply it to the purposes for which it was held by both, or 
 if one delivers the property wrongfully to a stranger, for pur- 
 poses inconsistent with the purposes for which it was de- 
 signed, and such stranger denies the title of the other, and 
 claims the exclusive possession and ownership, the reason of 
 the rule ceases, and trover may be maintained."^ 
 
 g 319. Trover for refusing to Sever. — ^Where the chat- 
 tels constituting the subject-matter of a cotenancy are of a 
 severable character, so that either cotenant may lawfully sever 
 
 ' Strickland v. Parker, 5i Me. 264. •^ Benedict v. Howard, 31 Barb. 571. 
 
 ^ Agnew V. Johnson, 17 Penn. St. 377.
 
 371 REMEDIES BETWEEN COTENANTS. g 320 
 
 and appropriate his share w-ithout the consent of the others, 
 the rule that taking, and, after demand, retaining exchisive 
 possession, is not a conversion, no longer prevails. Hence, 
 where two were tenants in common of a number of bushels 
 of grain, and one of them locked it up, and refused to per- 
 mit a division, or to recognize the rights of the other, this 
 was held sufficient to sustain an action of trover, because 
 neither a loss, sale, nor destruction of the common property 
 could more completely deprive the injured party of his rights, 
 nor ' ' give him any better legal or equitable right to an action 
 against his cotenant."^ And where the property was, in pur- 
 suance of an agi-eement between the cotenants, to be divided 
 at a particular place, and one of them took it beyond that 
 place to a point from which its return was impracticable, Jie 
 was held to be liable for its conversion.^ 
 
 FOR EEPAIES. 
 
 g 320. Writ to compel Repairs. — Where the subject of 
 the tenancy was in need of repairs, the common law, in some 
 cases, gave a remedy which compelled the several co-owners 
 to unite in making the necessary reparations. "If two ten- 
 ants in common, or joint-tenants, be of an house or mill, and 
 it fall in decay, and the one is willing to repaire the same, 
 and the other will not, he that is willing shall have a writ 
 de reparatione facienda; and the writ saith, ad reparcUionem ei 
 sustentationem ejus dem domus teneaniur; whereby it appeareth, 
 that owners are in that case bound pro bono publico to main- 
 tain houses and mills which are for habitation and use of 
 men."^ But "if there be two joint-tenants of a wood, or 
 arable land, the one has no remedy against the other to make 
 inclosure or reparations for safeguard of the wood, or coru."^ 
 It seems clear from these two quotations that this writ only 
 issued to compel repairs to a house or a mill. Some doubt 
 has arisen whether the writ enabled a cotenant to obtain re- 
 
 ' Lobdell V. Stowell, 37 How. 93; S. C. 51 N. Y. 70; Chaimon v. Lusk, 2 Lans. 211; 
 Fiquet V. Allison, 12 Mich. 330; Webb v. Manu, 3 Mich. 139. 
 
 ■' Ripley v. Davia, 15 Mich. 78. 
 
 » Co. Litt. 200 h; Cubitt v. Porter, 8 B. <t C. 2G9; Stcveua v. Thompson, 17 N. H. 
 110. 
 
 * Bowles' Case, 11 Co. 82 b.
 
 g 320 REMEDIES BETWEEN COTENANTS. 372 
 
 imbursement for repairs already made, or compelled £he co- 
 tenants to unite in making sucli repairs as were shown to be 
 necessary. In an early case in Massacliusetts, the former 
 theory was assumed to be correct/ and this case was followed 
 as authority, and without any apparent consideration of its 
 soundness, in another case in the same State,^ and also in a 
 case in the State of New York.^ Quite recently, the question 
 has been reconsidered in Massachusetts, and the earlier de- 
 cisions overruled, because the Court was satisfied from the 
 Latin forms of the writ, from the statement in Fitzherbert 
 N. B. 127, and from the cases in the Year Books referred to 
 by him, that ' ' the writ de reparatione was a process to compel 
 repairs to be made under the order of the Court," and " that 
 there is nothing to indicate that an action for damages is 
 maintainable by one tenant in common against another be- 
 cause the defendant will not join with the plaintiff in repair- 
 ing the common property."* The writ seems to have been 
 but rarely resorted to even in England, and probably has 
 never been issued or demanded in the United States. At the 
 present day, we know of no remedy, unless given by statute 
 in some of the States, by which either cotenant may be forced 
 to unite in making repairs, under order of the Court or other- 
 wise. A cotenant who has made necessary repairs may, on 
 that accoimt, obtain a deduction from an amount which he 
 might otherwise have to pay for mesne profits, or for rents 
 and profits received; but we have never met with a case, in 
 any form of action, wherein one cotenant recovered of another 
 for either repairs or improvements made without the request 
 of the defendant.* 
 
 ' Doane v. Badger, 12 Mass. 65. 
 
 - Coffin V. Heath, 6 Met. 80. 
 
 2 Mumford v. Brown, 6 Cow. 475. 
 
 * Calvert v. Aldrich, 99 Mass. 76. 
 
 5 The common law rules governing actions between cotenants have been modified or 
 abolished in many of the American States. The following note is intended to show 
 the statutory provisions on this subject in most of the States: 
 
 Arkosas.— " When one or more joiat-tenants, tenants in common, or coparceners 
 in any real estate, or any interest therein, shall take, use, or have the profits thereof 
 in greater portion than his interest therein, such person, or his executor or adminis- 
 trator, shall account therefor to his or their cotenant, jointly or severally. 
 
 "Such joint-tenants, tenants in common, and coparceners in any estate, real or 
 personal, may maintain actions of account against their cotenants who receive as
 
 373 REMEDIES BETWEEN COTENANTS. 
 
 §320 
 
 bailiffs more than theii" due proportion of the benefits of such estate." — Gould'3 
 Digest of Ark., p. 95, sees. 1 and 2. 
 
 CALiFoiunLi. — "If a guardian, tenant for life or years, joint-tenant or tenant in 
 common of real property, commit waste thereon, any person aggrieved by the waste 
 may bring an action against him therefor, in which action there may be judgment 
 for treble damages." — Code of C. P., sec. 732. 
 
 Cox>-ECTici7r. — "When two persons hold any estate as joint-tenants, tenants in 
 common, or coparceners, if one of them shall receive, use, or take benefit of such 
 estate in greater proportion than the amount of his interest in the principal estate, 
 be and his executors or administrators shall be liable to render an account to liis co- 
 tenant; and such cotenant, his executors or administrators, may bring an action of 
 account against such receiver, and recover such sum as he has received more thau 
 his just proportion as aforesaid." — Sec. 264 Act Eegulating Civil Actions, Kev. St. of 
 Conn., p. 5'J. 
 
 Delawabe. — "A tenant in common, or a joiut-tenant, or a coparcener, may main- 
 tain against his cotenant an action in the case for use and occupation." — Rev. Code, 
 187i, p. 527, sec. 2. 
 
 "A tenant in common, joint-tenant, or coparcener, committing waste of the estate 
 held ia common, joint-tenancy, or coparcenary, shall be liable to an action of waste 
 at the suit of his cotenant." — lb., p. 536, sec. 4. 
 
 Geobgia. — "Every tenant in common has the right to possess the joint property, 
 and so long as he occupies no greater piortion of it than his own share would be on 
 division, and does not withdi-aw from it any of its essential value, such as mineral 
 deposits, he is not liable to account for rent to his cotenant; but if he receives any 
 rent or other profit, or commits any waste, or if he, by any means, deprives his co- 
 tenant of the use of his fair proportion of the property', or if he appropriates all to 
 his exclusive use, or if the property is of such a character as that the use of it must 
 necessarily be exclusive, then he is liable to account to his cotenant." — Sec. 2302 Code 
 of Geo., ed. of 1873. 
 
 Illinois. — The statute of this State in reference to accoimting is almost identical 
 ■with that of Arkansas. (Sec Rev. St. El., cd. of 1858, p. 211, sees. 1 and 2.) The 
 statutes of Illinois also provide that, "If any jDerson shall assume and exercise ex- 
 clusive ownersliip over, or take away, destroy, or lessen in value, or otherwise injure 
 or abuse any property held in joint- tenancy, tenancy in common, or coparcenary, the 
 party aggrieved shall have his action of trespass or trover for the injury, in the same 
 manner as he would have if such joint-tenancy, tenancy in common, or coi^arcenary, 
 did not exist." (See same ed. Rev. St., p. 960, sec. 2.) Under this statute, trover 
 may be sustained against a cotenant who keeps exclusive possession of a chattel — 
 (Benjamin v. Stremple, 13 111. 466) — or who has converted a promissory note, (Boyle 
 V. Levings, 28 111. 314.) 
 
 Indiana. — " If a joint^tenant, or a tenant in common, or tenant in coparcenary, have, 
 by consent, management of the estate, and make, with Imowledge and without objec- 
 tion of his cotenant or coparcener, useful or necessary improvements, the cotenant 
 or coparcener shall contribute rateably thereto. 
 
 "A joint- tenant, or tenant in common, or tenant in coparcenary, may maintain an 
 action against his cotenant or coparcener for receiving more than his just propor- 
 tion."— Rev. St. of Ind., vol. 2, p. 243, sees. 15 and 16. <d. of 1H.J2. 
 
 Kansas. — Tlie statute of this State in regard to the liability of coteuants for im- 
 provements, and also in reference to accounting, is a copy of that of ludiaua.— Geul. 
 St. of Kansas, ed. of 1868, p. 541, sees. 21 and 22.
 
 §320 
 
 REMEDIES BETWEEN COTENANTS. 374 
 
 Kentucky. — " If a tenant in common, joint-tenant, or parcener, commit waste, he 
 shall be liable to his cotenants, jointly or severally, for damages." — Genl. St., ed. of 
 1873, p. 607. 
 
 ]\Iaine. — Any cotenant who, iu this State^ commits any waste without giving thirty 
 days' notice in writing of his intention to enter upon and improve land, forfeits 
 treble damages, for which either cotenant may sue without joining the others. (Rev. 
 St. Me., p. 732.) '-If any one or more of the joint-tenants, or tenants in common, 
 take the whole rents or income of the joint estate, or more than their share, without 
 the consent of their cotenants, and refuse, in a reasonable time after demand, to pay 
 such cotenants their share thereof, any one or more of them may have an action of 
 special assumpsit against the refusing cotenants, to recover their proportion thereof." 
 (lb., p. 734, sec. 16.) Trespass qiiare clausum f regit is a proper form of action to 
 recover treble damages under the statute — (Mills v. Richardson, 44 Me. 79; Maxwell 
 V. Maxwell, 31 Me. 184) — and the plaintiff in such action may recover treble the dam- 
 ages suffered hj the whole property, including the interest of the defendant. (Hub- 
 bard V. Hubbard, 15 Me. 198.) The above statute in reference to accounting changes 
 the rule of the common law, and makes the occupant liable for the benefits derived 
 from his occupancy as well as from rents and profits received. (Cutler v. Currier, 
 54 Me. 81.) 
 
 Massachusetts. — Cotenant committing strip or waste liable -to treble damages.— 
 Genl. St. Rev. of 1860, p. 709, sees. 7, 8, 9. 
 
 Michigan. — " One joint-tenant, or tenant in common, and his executors or admin- 
 istrators, may maintain an action for money had and received agaiast his cotenant 
 for receiving more than his just proportion of the rents or profits of the estate owned 
 by them as joint-tenants, or tenants in common." (Comp. Laws Mich., ed. of 1871, 
 p. 1366, sec. 38.) " If one joint-tenant, or tenant in common, shall commit waste of 
 the estate held in joint- tenancy or in common, he shall be subject to an action on the 
 case for such waste, at the suit of his cotenant or tenants." — lb., p. 1792, sec. 3. 
 
 Minnesota. — " One joint-tenant, or tenant in common, and his executors or ad- 
 ministrators, may maintain an action against his cotenant for receiving more than 
 his just proportion of the rents or profits of the estate owned by them as joint- 
 tenants, or tenants in common." — Rev.' St. Minn., ed. of 1873, p. 885, sec. 25. 
 
 MissouEi. — "If a tenant in common, joint-tenant, or parcener, commit waste, he 
 shall be liable to his cotenants, jointly or severally, for damages." (Grenl. St.,,ed. of 
 1865, p. 743, sec. 46; ed. of 1870, p. 884.) By sec. 49, if in any action of waste the 
 jury find that the waste was wantonly committed, judgment shall be entered for 
 three times the damages assessed. 
 
 Nevada. — Cotenants of a mining claim who have proceeded to work or develop the 
 claim, may each sue the other to recover for moneys expended in such work. See 
 sees. 91 to 98 Comp. Laws Nev. These sections also provide the means of ascertain- 
 ing the relative liability of each cotenant, and the manner of pleading and proceed- 
 ing in suits brought under the act. 
 
 New Hampshiee. — "One copartner, or joint-owner, may recover, iu an action of 
 assumpsit against another, his just share of any property received and wrongfully 
 withheld by such other." "One cotenant of real estate may recover ui such action 
 against another for his share of any trees, fixtures, or other part of the estate de- 
 stroyed, severed, or carried away by such other." (See Stone v. Aldrich, 43 N. H. 52.) 
 " One cotenant of real estate may recover in such action of another taking the income 
 thereof without his consent, and wrongfully withholding the same, all damages he 
 may sustain thereby."— Genl. St. of N. H., ed. of 1867, p. 406-7, sees. 2, 3, and 4.
 
 375 REMEDIES BETWEEN COTENANTS. g 320 
 
 New Jzksey. — The statute of this State is. in substance, like the '27th section of the 
 statute of Anne. (See Nixon's Digest, 4th ed.. p. 5.) In regard to waste, (see Nix. 
 Dig., p. 1022, sec. 5.) the statute of this State provides, "that an action shall lie by 
 writ of waste;" that when such action comes to judgment, the defendant shall choose 
 to have assigned to him, by a jury, a place certain, or else shall give securitj' not to 
 commit further waste; "and if he or she choose to take his or her part in a place 
 certain, the same shall be assigned to him or her in the part wasted, as it was before 
 he or she committed the waste; but if the defendant shall not choose to take his or 
 her part in a place certain, or if the waste exceed his or her proportion, the plaintifi 
 shall recover against such defendant such damages as shall be found by the jury or 
 inquest." 
 
 New Yoke. — "One joint-tenant, or tenant in common, and his executors or ad- 
 ministrators, may maintain an action of account, or for money had and received 
 against a cotenant for receiving more than his proportion; and the Uke action may 
 be maintained by them against the executors or administrators of such cotenant." 
 (3 Eev. St. p. 39.) "If one joint-tenant, or tenant in common, sliall commit waste 
 of the estate held in joint-tenancy or in common, ho shall be subject to an action of 
 waste, at the suit of his cotenant or tenants." (lb. 621.) "A tenant in common en- 
 tering upon land, cutting and removing timber, and converting the same to his own 
 use, is guilty of waste." (Elwell v. Burnside, 44 Barb. 447.) 
 
 NoBTH Cabolina. — " Where a jointrtenant, or tenant in common, commits waste, 
 an action shall lie against him at the instance of his cotenant or joint- tenant." (Eev. 
 Code, ed. of 1855, p. 598.) The same Code authorizes an action of account " by one 
 joint-tenant and tenant in common against the other as bailiff for receiving more 
 than comes to his just share or proportion." (lb., p. 180.) 
 
 Ohio. In this State, any cotenant may recover, "by civil action, his or her full 
 
 share of all rents andprofits which may have been received " by another cotenant, 
 " according to the justice and equity of the case." (S. & S. Eev. St. Supp. p. 578.) 
 
 Oeegon. "A tenant in common may maintain any proper action, suit, or pro- 
 ceeding against his cotenant for receiving more than his just proportion of the rents 
 or profits of the estate held by them in common." (Genl. Laws, p. 718-9.) If any 
 tenant in severalty or in common, for life or for years, commit waste, he is liable to 
 the party injured in an action at law for damages, in which action treble damages 
 may be recovered. (lb., p. 231-2.) 
 
 Pejjnsylvauia. — In this State, it is imlawful for the owner of any unthvided in- 
 terest to cut any timber trees without the consent of the other owners. No sale of 
 rimber so cut by one part owner shall pass any title. The party injured has the same 
 remedy as though the cutting were done by an entire stranger, and may also sue out 
 a writ of estrefment to prevent any further cutting or removing. (Brightly's Pur- 
 don's Digest, 1467-8.) 
 
 Bhode Islaiid.— Any joint-tenant, tenant in common, or coparcener, committing 
 waste forfeits double the amount of the waste so done; for which double amomit any 
 of the cotenants may maintain an action in the name of all. (Genl. St., ed. of 1872, 
 p. 524.) " Whenever two or more persons have and hold any estate, interest, or prop- 
 erty, whether real or personal, in common, as joint-tenants, tenants in common, co- 
 parceners, or joint^owners, and one or more of the owners of such common property 
 shall take, receive, use, or have benefit thereof, in greater proportion than liis or their 
 interest therein, such owner or owners, his or their executors and administrators, shall 
 be liable to render his or their account of the use and profit of such common projxTty 
 to his or their fellow-commoner or commoners, jointly or severally; and such the 
 fellow-commoner or commoners, or any or either of tliem, their executors or udmin-
 
 §320 
 
 REMEDIES BETWEEN COTENANTS. 376 
 
 istrators, may and are hereby authorized to have his or theii" action of account -against 
 such receiver or receivers, or either of them, as his or their bailifif or bailiffs, for re- 
 ceiving more than his or their part or proportion as aforesaid." (lb., 532.) 
 
 Vekmont. — "The action of account maybe brought and maintained by one or more 
 parceners or coparceners or tenants in common, to settle and adjust their accounts 
 and dealings in the same manner as is provided in actions between copartners." — 
 Genl. St., p. 344, sec. 17. 
 
 ViEGiNiA. — "If a tenant in common, joint-tenant, or parcener, commit waste, he 
 shall be liable to his cotenants, jointly or severally, for damages." — Code of 1873, p. 
 967, sec. 2. 
 
 An action of account is also maintainable against a cotenant or his personal re- 
 presentative, "as bailiff, for receiving more than comes to his just share or propor- 
 tion." — lb., p. 994, sec. 14. 
 
 West Vieginia. — " If a tenant in common, joint-tenant, or parcener, commit waste, 
 he shall be liable to his cotenants, jointly or severally, for damages." — Code of West. 
 Va., ed. 1868, p. 525. 
 
 "An action of account may be maintained by one joint-tenant, or tenant in com- 
 mon, or his personal representative, against the other for receiving more than comes 
 to his just share or proportion, and against the personal representative of any such 
 joint-tenant or tenant in common." — lb., p. 541. 
 
 Wisconsin. — " One joint-tenant or tenant in common, and his executors or admin- 
 istrators, may maintain an action for money had and received against his cotenant, 
 for receiving more than his just proportion of the rents or profits of the estate owned 
 by them as joint-tenants, or tenants in common." — Taylor's Genl. Sts. 1163, sec. 38. 
 
 When divisible property is owned in common, and one of the cotenants is in pos- 
 session of more than his share, the other cotenant may make a demand in writing; 
 and if such demand is not acceded to, may recover his share, or the value thereof. — 
 lb., p. 1659, sec. 56. 
 
 '•If one joint-tenant, or tenant in common, shall commit waste of the estate held 
 in joint-tenancy or in common, he shall be siibject to an action for such waste, at the 
 suit of his cotenant or cotenants." — lb., 1695.
 
 CHAPTER XIV. 
 
 EQUITABLE REMEDIES BETWEEN -COTENA^'TS. 
 
 Accovmting, >> 321. 
 
 Contribution, ^ 322. 
 
 Injunctions, generally, vS 323. 
 
 Injunction -when Defendant is Insolvent, $ 324. 
 
 Injunction when one Cotenant is Tiaistee or Lessee-of the other, ^ 325, 
 
 Quieting Title, v^ 326. 
 
 Keceivers, appointment of, va 327. 
 
 § 321. Accounting. — Courts of equity have concuiTent 
 jurisdiction ^vitll courts of law of all matters of account be- 
 tween tenants in common, or other cotenants. Either cotenant 
 may invoke the assistance of equity to compel an accounting, 
 upon showing a necessity therefor, and cannot be deprived of 
 this assistance merely because he has an adequate legal remedy 
 by an action of account. In fact, the superior facilities of- 
 fered by courts of equity when an accounting has become 
 necessary, are such that these courts are almost universally 
 resorted to in preference to the tribunals of the law.' But it 
 has been determined that where the accounts are all on one 
 side and are very simple, and no discovery is sought, courts 
 of equity will decline taking jurisdiction of the case.'^ 
 
 § 322. " The liability to contribute is the result of a 
 
 general equity, founded on the equality of burthens and ben- 
 efits. To establish the right of contribution, the plaintiff 
 must show that his payment has removed a common burthen 
 from the shoulders of himself and the defendant, and that 
 they are each benefited by it. This occurs in all cases of 
 
 ' Leach v. Beatties, 33 Vt. 199; llozier v. Griffith, 31 Mo. 173; Root v. Btow, 13 Met 
 5; Field v. Craig, 8 Allen, 357; Story'H Eq. Jur. sec. 4CG. 
 * Gloninger i'. Hazard. 42 Pa. St. 401. 
 
 377
 
 § 322 REMEDIES BETWEEN COTENANTS. 378 
 
 payments made by one surety, on the debt for which several 
 are bound — a common burthen is removed and a common 
 benefit received. But the doctrine of contribution is not at all 
 founded on contract : it applies to cases where the liability, it 
 is true, arises out of a contract to which the plaintiff and de- 
 fendant were parties. It is not, however, necessary that they 
 should be bound by one contract : it may arise out of several, 
 if they have thereby incurred a common liability. So, too, 
 it applies to cases where the liability does not, in any shape, 
 arise out of a contract, as when a common property, held by 
 purchase, descent, or devise, is liable to the payment of a sum 
 of money, and one is compelled to pay the whole, he shall 
 have contribution from his cotenant. " ^ " So in the case of land 
 descending to coparceners, subject to a debt: if the creditor 
 proceed against one of the coparceners, the others must con- 
 tribute. If the creditor discharges one of the coparceners, 
 he cannot proceed for the whole debt against the others : at 
 most, they are only bound to pay their proportions."^ The 
 enforcement of contribution between cotenants seems to de- 
 pend upon the same circumstances, and to be governed by 
 the same principles, as when contribution is sought between 
 persons who are not cotenants. If contribution be exacted 
 from a cotenant for money expended in removing a paramount 
 title or incumbrance from the common property, this is be- 
 cause a common burden has been removed and a common 
 benefit received, and not because the complainant and defend- 
 ant were seized of a common or joint estate. Precisely the 
 same right of contribution would have arisen if the parties, 
 instead of being cotenants, had been owners in severalty of 
 lands embraced in and subject to the same mortgage or other 
 lien. Therefore, Judge Story concludes his very brief notice 
 of the subject of contribution between cotenants by saying: 
 ' ' It seems unnecessary to dwell upon these cases and others 
 of like nature, as they embrace nothing more than a plain 
 application of principles already fully expounded. We may 
 conclude this head with the remark, that the remedial justice 
 
 1 Screven v. Joyner, 1 Hill Ch. 260; Harris v. Ferguson, 2 Bai. 397: Campbell v. 
 Mesier. 4 Johns. Ch. 337; Thomas i'. Hearn, 2 Porter, 270; Deering v. Earl of Win- 
 Chelsea. 1 Cox, 318; S. C. 2 Bos. & Pull. 270. 
 
 "■ Stirling v. Forrester, 3 Bligh O. S. 591.
 
 379 EEMEDIES BETWEEN COTENANTS. § 323 
 
 of courts of equity, in all cases of apportionment and con- 
 tribution, is so complete and so flexible in its adaption to all 
 the particular cii'cumstances and equities, that it has, in a 
 gi-eat measure, superseded all efforts to obtain redress in any 
 other tribunals."^ 
 
 § 323. Injunctions are but rarely granted to restrain a 
 cotenant from exercising control over the joint property. To 
 authorize an injunction, it must appear either that the defend- 
 ant is insolvent, and will therefore be unable to indemnify the 
 complaining cotenant, or that the act sought to be enjoined 
 will effect a partial or entire destruction of the estate.^ A 
 coui-t of equity will not interpose to stay waste unless it be of 
 a malicious character, or of so unusual and imreasonable a 
 nature as to savor of a wanton destruction of the estate.^ If 
 trees be of proper size and condition for market, neither co- 
 tenant will be enjoined from cutting and selling them,* while 
 no valid objection to an injunction w^ould exist if the timber 
 consisted of sapling trees or underwood, not in a marketable 
 condition; for in such a case, the cutting would be incon- 
 sistent mth a prudent and legitimate enjojTnent of the estate 
 by a sole owner. '^ The digging of the soil and its conversion 
 into bricks for purposes of sale may be enjoined.^ If either 
 cotenant sell, or attempt to sell, the entire subject of the co- 
 tenancy, he cannot thereby transfer any interest but his o^\ti. 
 The cotenant not participating in the sale has an adequate 
 remedy at law for the unauthorized assumption of authority 
 over his interest. He may affirm the sale, and recover his 
 share of the proceeds; or may disaffirm it, and hold the prop- 
 erty as tenant in common with the vendee. Ha\dng these 
 ample legal remedies, he cannot obtain an injunction to pre- 
 vent the sale.'' A partition at law will be enjoined in equity, 
 
 ' story Eq. Jur. Bee. 505. 
 
 - Obert V. Obert, 1 Halst. Ch. 409; Hole v. Thomas, 7 Ves. 589; Twort v. Twoit, IC 
 Ves. 128. 
 
 ^ Kennedy v. Scovil, 12 Conn. 327; Bailey v. Hobson L. R. 5 Cb. 180; 39 L. J. K. 
 (N. 8.) Ch. 270; Goodwyii t. Spray, 2 Dick, 067; D. & S. R. R. Co. v. Wawn, 3 Beav. 
 119; Ackroyd v. Briggs, 14 W. E. 25. 
 
 < Arthur v. Lamb, 2 Dr. and Sm. 430; Martin v. KnowUyn. 8 T. R. 145. 
 
 5 Hole L-. Thomas, 7 Ve». 589; Twort i'. Twort, IG Vcb. 128; Hawlcy v. Clowes, 2 
 Johns. Ch. 122. 
 
 •" Dougall V. Foster, 4 Grant's Ch. 325. 
 
 ' M&aoji c. NorriH, 18 Grant's Ch. .500.
 
 gg 324-25 EEMEDIES BETWEEN COTENANTS. 380 
 
 and a sale of the property ordered, when it appears that a 
 division cannot be made without a great sacrifice of the in- 
 terest of some of the cotenants.^ "WTiere the cotenancy em- 
 braces a water power or other valuable water privilege, equity 
 will interpose to stay any destruction or invasion of the rights 
 of either of the cotenants at the hands of the others. Thus, 
 if either divert the water so as to prevent its employment in 
 the uses for which it was designed, an injunction will be is- 
 sued to restrain him,- unless it be proved that the diversion 
 occasions no damage to the complainant.^ Nor will a union 
 of the majority in number or in interest of the joint owners 
 of a water right authorize them to prosecute a plan or scheme 
 in which they are agreed, if it involves any destruction of 
 the common reservoir, or in any other way leads to a practi- 
 cal annihilation of the rights and interests of the minority.* 
 
 2 324. Where the defendant was insolvent, or so near 
 
 insolvency as to be unable to pay the excess of value beyond 
 his own share, he has been restrained from committing waste. ^ 
 In one instance a cotenant of crops was enjoined from remov- 
 ing his share, until damages alleged to have arisen from his 
 non-compliance with the terms of the contract under which 
 the land was let and the crops made, could be ascertained and 
 decreed to be paid.*^ The execution of a judgment in favor 
 of one cotenant and against the other cannot be stayed until 
 an account is taken between them, unless it appears that the 
 ■judgment-creditor is insolvent.'' 
 
 3 325. If one cotenant be trustee or lessee of the other, 
 
 he may be restrained from committing any acts in reference 
 to the common estate, for the prevention of which an injunc- 
 tion could issue, if he were trustee or lessee only. An in- 
 junction against an occupying tenant will not be denied be- 
 cause he is lessee of one moiety only and owner in fee of the 
 
 1 Gash V. Ledbetter, 6 Ired. Eq. 183. 
 
 •^ Bliss V. Rice, 17 Pick. 23; Kennedy t). ScotU, 12 Conn. -327. 
 
 3 Norris v. Hill, 1 Mich. 210. 
 
 " Ballou V. Wood, 8 Cush. 48. 
 
 5 Smallman v. Onions, 3 Bro. C. C. 621. 
 
 « Lewis V. Christian, 40 Geo. 188. 
 
 ■ MeLendon v. Hooks, 15 Geo. 533.
 
 381 REMEDIES BETWEEN COTENANTS. g 326 
 
 other moietj.' Nor will a trustee be permitted to violate his 
 duties, nor to act contrary to equity and good conscience 
 towards his cestui que trust, because lie holds one moiety of 
 the estate in his own right.- Ordinarily, no injunction will 
 lie to prevent the removal of crops by a cotenant, though such 
 removal be contrary to the custom of the country;^ but where 
 the defendant was the mother and natural guardian of com- 
 plainants who were minors, it was held that her relation to 
 them was that of trustee, and she was therefore enjoined 
 from taking the whole crops. ^ 
 
 § 326. Quieting Title. — Some of the authorities tend to 
 establish the general proposition that a cotenant, whose right 
 to possession with the other part owners is not denied, cannot 
 sustain any adverse action against them, or either of them, to 
 determine his and their, or either of their, respective interests 
 in the joint property.'^ The 254th section of the California 
 Practice Act authorized an action by any person in possession 
 of real property against any other person claiming an adverse 
 interest, for the purpose of determining such adverse claim. 
 An action was brought, under this section, in which the jjlain- 
 tiff alleged that he was in possession of an undivided two- 
 thirds of certain real estate, in Avhich two-thirds the defend- 
 ant wrongfully claimed an interest adversely to plaintiff. The 
 defendant, answering, denied the interest of plaintiff, and 
 claimed ownership in severalty. After the trial, the Court 
 found that plaintiff' Avas owner of two-thirds and defendant of 
 one-third. Upon this state of istcts, the Court said: "We 
 can discover no valid reason why one tenant in common of 
 real estate, in the actual possession thereof, may not maintain 
 an action to determine the validity of an adverse claim of title 
 by a cotenant, and no authority has been called to our notice 
 which sustains a contraiy view."*' A conveyance or mortgage 
 by one cotenant, which purports to affect the entire estate, 
 
 ' Twort V. Twort, IG Ves. 128; Dougall v. Foster, 4 Grunt'a Ch. 324; Christio v. 
 Saunders, 2 Grant's Ch. G70. 
 ^ Same as alx>ve. 
 
 » Bailey v. Hobson L. II. 5 Ch. 180. 
 * Bates V. Martin, 12 Grant's Cli. 491. 
 
 i Lord V. Tyler, 14 Pick. 103; Martin v, Quattlebam, 3 McCord, 205. 
 •- Il088 V. Heintzen, 3G C'al. 321.
 
 g 327 KEMEDIES BETWEEN COTENANTS. 382 
 
 does not create such a cloud upon the title of the other co- 
 tenants as a court of equity will interfere to remove.^ 
 
 § 327. A receiver has, in a few instances, been ap- 
 pointed on the application of one of the cotenants. In most 
 of the early cases, the circumstances inducing the action of 
 the Court cannot be ascertained from the reports.- No con- 
 clusion can, therefore, be drawn from these cases as to the 
 grounds which warrant the interposition of the Court. Most 
 of the more recent cases were so curtly disposed of as to 
 leave us without any knowledge of the reasons which, in their 
 own minds, justified the action of the Judges. We therefore 
 find it impossible to state with precision the general prin- 
 ciples upon which the action of courts of equity have been 
 or will be predicated in disposing of applications for the ap- 
 pointment of receivers of undivided estates. It is certain, 
 however, that the application will be denied, except in ex- 
 treme cases. ^ In the case of Holmes v. Bell,'* a receiver was 
 appointed when one of the cotenants was in possession of the 
 whole rents. This application was not made by nor on behalf 
 of either cotenant, but by a third party, in a proceeding to 
 foreclose a mortgage against both cotenants. In Hargrave v. 
 Hargrave,"' the plaintiflf, an infant, insisted that he and de- 
 fendant were co-heirs, entitled to the estate, and that out- 
 standing terms existed which prevented the plaintiff from 
 proceeding at law. The defendant was in possession of the 
 whole. The prayer of the bill was for partition and account- 
 ing, and for a receiver. The defendant denied the plaintiff's 
 legitimacy. The motion for a receiver was argued, and the 
 Master of the Eolls said he would examine the cases and give 
 judgment at a future day. He afterwards granted the order, 
 but gave no reasons therefor. In a subsequent case, the 
 parties were tenants in common of copyhold property, the 
 legal estate being in a trustee for them. The defendant was 
 
 I Ward V. Dewey, 16 N. Y. 519. 
 
 '-' Calvert v. Adams, 2 Dick. 478; Evelyn v. Evelyn, 2 Dick. 800; Street v. Anderson, 
 4 Bro. C. C. 414. 
 
 3 Scm-rah v. Scurrah, 14 Jur. 874; Norway v. Eowe, 19 Yes. 159; Milbank v. Eevett, 
 2 Meriv. 405; Spratt v. Ahearne, 1 Jones Ir. Exc. 50. 
 
 •* 2 Beav. 298. 
 
 ■> Beav. 549.
 
 383 REMEDIES BETWEEN COTENANTS. {^ 327 
 
 in possession, but there was no proof of exclusion. The 
 plaintiff was allowed a receiver of his moietj.' Subsequently, 
 it appeared that the conduct of the defendant amounted to 
 an exclusion. A receiver was, therefore, appointed over the 
 whole property.- From this last decision, it would seem that 
 an exclusion is a prerequisite to the appointment of a receiver. 
 But Sir John Leach, in another and earlier case, said : "I 
 may observe that, even in the case of any actual exclusion of 
 one Tenant in Common by another, I doubt whether this 
 Court wovdd appoint a Keceiver. If it were an exclusion 
 which amounted to an ouster at law, the party complaining 
 must assert at law his legal title. If it were not such an ex- 
 clusion, this Coiu't would compel the Tenant in Common in 
 Rent to account to his Companion; but would not, I think, 
 act against his legal title to Possession; and the reason is, 
 because the party complaining may at Law relieve himself by 
 the Writ of Pai-titiou."^ When the interest which the parties 
 have in the land is held for the purj)Oses of trade, and tlieii' 
 relation to each other resembles that of partners, a receiver 
 may be appointed, though the facts would not justify that 
 action if the parties were ordinary tenants in common. A 
 colliery or mine is in the nature of a trade, and where persons 
 have different interests in it, it is to be regarded as a partner- 
 ehix). Therefore, where there are several shares, as each 
 owner cannot employ a separate manager or set of workmen, 
 the Coui't will appoint a manager or receiver for them all, 
 under the same circumstances which would justify such ap- 
 pointment, in the case of a regular copartnership.'* In Georgia, 
 the proposition is maintained ' ' that a covu't of equity has 
 jurisdiction to appoint a receiver, at the instance of one ten- 
 ant in common against his cotenants, who are in possession 
 of undivided valuable property, receiving the Avhole of the 
 rents and profits, and excluding their companion from the 
 receipt of any portion thereof, when such tenants are in- 
 solvent.'"' A receiver will never be appointed unless it is 
 
 ' Sandford v. BuUard, .30 Buav. 109. 
 ■' Sandford r. Jiallard, ;j:j Biav. 402. 
 ^ TyKon V. Fairclough. 2 Sim. & Stu. 143. 
 
 ♦ .Jeflervs r. Smith. 1 .Jacob &. W. ."302; Hill v. Tavlor, 22 Cul. 194; FoR-dav v. Wiglit- 
 wick, 1 Itus.-i. ,t M. 4C. 
 '•> Willianu v. Jeukins, 11 Gt-o. 598.
 
 § 327 REMEDIES BETWEEN COTENANTS. 384 
 
 necessary for the protection of complainant's rights. But 
 where personal property is in the exclusive possession of one 
 of the cotenants who refuses to divide or sell it, or to allow 
 his cotenant to participate in its enjoyment, a receiver may be 
 appointed, unless the defendant gives adequate security to 
 reimburse the complainant for the deterioration or destruction 
 of the property by use, and compensates him for the value of 
 the beneficial enjoyment of such property.^ In partition, the 
 Court will appoint a receiver during the pendency of the 
 action, to preserve the complainants from serious loss, where 
 it is shown that they are unable to rent portions of the prop- 
 erty, or to collect rent of other portions rented, in consequence 
 of the conduct of the defendant.^ 
 
 ' Low V. Holmes, 17 N. J. Eq. 150. 
 * Pignolet V. Bushe, 28 How. Pr. 9.
 
 CHAPTEE XV. 
 
 ACTIONS BY COTENANTS AGAINST STRANGERS TO THE -COTENANCY. 
 
 ACTIONS AT LAW. 
 
 General Vi#w of the Eights and Kemedies of Cotenants, $ 328. 
 
 Joinder of Joint-Tenants, ^ 329. 
 
 Joinder of Coparceners, § 330. 
 
 Joinder of Tenants in Common, ^ 331. 
 
 Joinder in case of Mixed Cotenancy, $ 332. 
 
 Assumpsit, $ 333. 
 
 Avowiies, § 334. 
 
 Case, $ 335. 
 
 Covenants, 6 336. 
 
 Detinue and Replevin, $ 337. 
 
 Detinue and Eeplevin of Severable Chattels, § 338. 
 
 Ejectment by Joint-Tenants, Q 339. 
 
 Ejectment by Coparceners, 340. 
 
 Ejectment by Tenants in Common, $ 341. 
 
 Ejectment where interest of Plaintiff is improperly described, $ 3i2. 
 
 Ejectment, whether one can recover the whole, $ 343. 
 
 Forcible Entry and Unlawful Detainer, $ 344. 
 
 For Insurance, $ 345. 
 
 For Eent, $ 346. 
 
 Trespass, j 347. * 
 
 Trespass to Try Titles, § 348. 
 
 Trover, $ 349. 
 
 Waste, $ 350. 
 
 Proceedings to Restrain or Abate a Nuisance, ^ 351. 
 
 Proceedings to obtain Damages for Location of Highway, ^ 352. 
 
 Failure to object to Non-Joinder of Cotenant, ^ 353. 
 
 Failure to object to Non- Joinder of Cotenant in Actions on Contracts, ^ 354. 
 
 Failure to object to Non-Joinder of Cotenant in Replevin, ^ 355. 
 
 Failure to object to Non-Joinder, whether entitles Plaintiff to recover the 
 
 whole, $ 35G. 
 Failure to object to Non- Joinder of Joint-Tenant, ^ 357. 
 Failure to object to Nor-Joinder is waiver in future cases, <J 358. 
 Joining Persons who mo not Cotenants, ^ 359. 
 Misjoinder, how taken advantage of, ^ 3G0. 
 
 C. & p.— 25 385
 
 § 328 ACTIONS AGAINST STRANGERS. 386 
 
 Misjoinder, how taken advantage of under tte Codes, $ 361. 
 
 Death of one Cotenant before suit, § 362. 
 
 Death of all the Cotenants before suit, § 363. 
 
 Death of a Cotenant pendente lite, § 364. 
 
 Survivorship of Actions prevails notwithstanding Statute^ § 365. 
 
 Joinder of Actions against Cotenants, § 366. 
 
 PROCEEDINGS IN EQUITY. 
 
 General principles as to Joinder of CotenantS;, § 367, 
 Joinder of Joint-Tenants, $ 368. 
 Joinder of Tenants in Common, § 369. 
 Joinder of Co-Legatees, § 370. 
 Foreclosm-e against Co-Mortgagors, § 371. 
 Foreclosure by Co-Mortgagees, § 372. 
 
 § 328. General view of the Rights and Remedies of 
 Cotenants as against Strangers. — The rights of cotenants as 
 against strangers to the cotenancy do not require any further 
 consideration in this work than such as will be given in treat- 
 ing of the actions by which those rights are enforced. Co- 
 tenants are protected in their rights of property as against 
 third persons by the same general rules of law which are pro- 
 vided for the protection of owners in severalty. Rights of 
 property vested in two or more in moieties are as absolute and 
 as sacred as though vested in one alone; and these rights are 
 by law as amply secured from invasion by strangers as are 
 rights held in severalty. The mere recognition or declaration 
 of a right adds little or nothing to the security of the person 
 declared to be entitled to its enjoyment. Adequate legal 
 ^eans must be furnished to compel strangers to respect the 
 right, or if not to compel respect, at least to indemnify the 
 injured party for all invasions of the right. And the legal 
 means provided for protecting the rights and redressing the 
 wrongs of cotenants are in general identical with those avail- 
 able for like purposes to owners in severalty. If a particular 
 form of action be i^roper in the case of a sole owner, it will, 
 under like circumstances, be equally proper in the case of part 
 owners. If, under any given state of circumstances, co- 
 owners are without any legal or equitable means of redress 
 as against a third person, it may be taken for granted that a 
 sole owner would, in like circumstances, be equally without 
 the reach both of legal and of equitable aid. We need not,
 
 387 ACTIONS AGAINST STRANGERS. g§ 329-30 
 
 therefore, in this chapter, pmsue any investigation either as 
 to what facts constitute a cause of action, nor as to what /o;v/t 
 of action should be selected when a good cause is discovered ; 
 for such investigations have been sufficiently pursued in many 
 treatises relating to ownership in severalty. The only ques- 
 tion which it is necessary to discuss in this chapter is, must 
 cotenants join or sever in employing the legal and equitable 
 remedies with which they, in common with owners in sev- 
 eralty, have been pro-sdded by law? 
 
 ^ 329. Joinder — General Rule as to Joint-Tenants. — In 
 
 considering the actions which cotenants may sustain against 
 third persons, the first question which thrusts itself upon our 
 attention is this, can each of the cotenants seek redress in an 
 independent suit, or must all of them join to obtain the en- 
 forcement of their rights and the redress of their wrongs? 
 So far as real actions are concerned, the answer to this ques- 
 tion corresponds with the nature of the cotenancy. When- 
 ever the title of the cotenants, as in case of joint-tenancy 
 and coparcenary, is joint, the action must also be joint; and 
 whenever, as in tenancy in common, such tenant is deemed 
 to possess a separate and distinct estate, the remedy of each 
 must be distinctly and separately pursued. " Jointenauts 
 being seized per mie et per tout, and deriving by one and the 
 same title, must jointly implead and be impleaded."' "If 
 twenty jointenants be, and they be disseized, they shall have 
 in all their names but one assize, because they have but one 
 joynt title. "^ "Where one of two jointenants, demandants 
 in a real action, refuses to prosecute the suit, he may be 
 summonded and severed, and the other jointenant may re- 
 cover his moiety without him."^ 
 
 g 330. Joinder — General Rule, as to Coparceners. — As a 
 general rule, the statements made in the preceding section in 
 reference to the joinder of joint-tenants are equally applicable 
 to coparceners.'* "Coparceners, though several persons, are 
 
 ' Roscoe on Actions, C; Co. Litt. 180 h; ',i Rob. Pr. 158; Barbour on Purtie«, 187; 
 Bac. Ab. Joint-Tenants K. 
 ■^ Litt. sec. 311. 
 
 •' Roscoo on Actions, G-7; Co. Litt. 188 a; Bac. Al). Juint-TrnanN K. 
 * Co. Litt. IGl (I and 180 b.
 
 ^ 331 ACTIONS AGAINST STRANGERS. 388 
 
 but one lieir, and have one^entire freehold in tlie land as long 
 as it remains undivided, and must, therefore, in general, join 
 in a real action. Where x^arceners sue in a real action ances- 
 tral, and the right descends to them from one and the same 
 ancestor, then, though they be in several degrees from the 
 common ancestor, they may join; but the issue of several co- 
 parceners cannot join as heirs to their mothers, because sev- 
 eral rights descend. Thus, if a man hath issue two daughters, 
 and is disseized and dies, and the daughters have issue and 
 die, the issues shall join in a proecipe, because one right de- 
 scends from the ancestor; but if the two daughters had been 
 actually seized and subsequently disseized, then, after iheir 
 decease, the issues shall not join, because several rights de- 
 scended to them from several ancestors. If coparceners are 
 disseized before partition, their possessory action must be 
 joint, for their remedy must follow the nature of their pos- 
 session ; and that being joint, the remedy must be joint 
 also."i 
 
 g 331. Joinder, of Tenants in Common. — As tenants in 
 common have no joint interest, but hold several and distinct 
 estates, and have several freeholds, they could not at common 
 law sustain a joint real action. It was necessary for each to 
 sue separately in reference of his own moiety of the lands of 
 the cotenancy.'^ But "where the thing to be recovered in a 
 real or mixed action is entire, there, of necessity, tenants in 
 common must join, as in quare impedit, or writ of right of 
 ward by tenants in common of a seignory.''^* "The general 
 rule in relation to suits by tenants in common, against third 
 persons, is this : When the action is in the realty, they must 
 sue separately; when it is in the personalty, they must join.""' 
 "As to actions personals tenants in common may have such 
 actions personals jointly i^ all their names, as of trespasse, 
 or of offences which concerne their tenements in common, as 
 for breaking their houses, breaking their closes, feeding 
 
 ' Roscoe on Actions, 7-8; Litt. sec. 313. 
 
 - Roscoe on Actions, 7-9; 3 Rob. Pr. 159; Bac. Ab. JointrTenants K; May v. Slade, 
 24 Tex. 207; Briscoe v. McKee, 2 J. J. Marsh. 372; Rand v. Dodge, 12 N. H. 68; Ste- 
 venson V. Cofferin, 20 N. H. 150, 
 
 •* Roscoe on Actions, 8. ""^ 
 
 '> Hill V. Gibbs, 5 Hill, 58.
 
 389 ACTIONS AGAINST STRANGERS. § 331 
 
 wasting and defowling their gi-asse, cutting their woods, for 
 fishing in their pischarj, and such like. In this case, tenants 
 in common shall have an action jointly, and shall recover 
 jointly their damages, because the action is in the personalty 
 and not in the realtie.'" Mixed actions by tenants in com- 
 mon are subject to the same rule as real actions, in this, that 
 the cotenants must sever, except in cases where their joinder 
 would be justified if the action were in the realty.^ The dif- 
 ference between the rules apj)licable to the joinder of tenants 
 in common and to the joinder of coparceners, and the reasons 
 upon which those rules were based, were thus stated by Chief 
 Justice Gilchrist, of New Hampshire: " By the common law, 
 there were certain serious embarrassments which Avould have 
 attended the joinder of tenants in common in real actions. 
 Although their possession was joint, their estates and titles 
 might have been wholly different; and as these were in many 
 cases required to be stated, and might have been traversed 
 or avoided by plea, it is easy to perceive that numerous issues 
 might have been joined in a single action, to some of which 
 some of the parties to the suit might have been strangers, 
 and yet bound to maintain them, under pain of failing in the 
 action. This afforded sufficient ground for the rule which 
 not only permitted but required tenants in common to sever 
 in such actions. With respect to coparceners, the case was 
 otherwise. The manner in which such estates originated, 
 which was always by descent, rendered it practically more 
 convenient for them to join, and their estate being the same, 
 one issue only, of course, could be made. These, therefore, 
 the common law rigidly required to join in real actions for 
 the recovery of their estate. But because it sometimes be- 
 came impracticable, either from the refusal of some of the 
 parties, or from other causes, for all to prosecute a joint 
 action, 'provision was made by summons and severance for 
 such as chose to prosecute, by which they were enabled to 
 proceed without the defaulted parcener."'* 
 
 i Coke on Litt. hoc. 315; AuHtin v. Hull, 13 Johns. 28G; Roscoo on Actions. 7; White 
 r Prooks 43 N H 402; Irwiu'H A.lmr. .-. Brown's Exr., 35 Pu. St. 332; Gilnioio v. 
 Wilbur,12Pick.l24;Lauot'.Dobyns, UMo. 107. , v , . r -rr. 
 
 •i Itoscoe on Aotionn, 7; Littlcdalf, J., in Doc d. Poole v. Lnington, 1 Ad. & L. loo, 
 7 Property Lawyer, 73. 
 
 ■■> Ht<;vcnHon r. Cofferiu, 20 N. Jl. 151.
 
 gg 332-33 ACTIONS AGAINST STRANGERS. 390 
 
 § 332. Mixed Cotenancy. — We have now given tlie general 
 rules established and enforced by the common law, in refer- 
 ence to the joinder of joint-tenants, coparceners, and tenants 
 in common. But it often happens that lands are held by a 
 mixed cotenancy, as where one-third is held by tenancy in 
 common and the residue in joint-tenancy. In such case, no 
 single real action can be sustained in reference to the entire 
 lands. The joint-tenants must join in the action so far as it 
 refers to their moiety, and the tenant in common must bring 
 a separate action in reference to his moiety. This is equally 
 true whether the moiety held as a tenancy in common is vested 
 in one of the joint^enants or in a third person.^ "Also, if 
 three joyntenants be, and one release to one of his fellowes 
 all the right which he hath, &c., and after the other two be 
 disseized of the whole, &c., in this case the two others shall 
 have several assise, &c., in this manner, viz., they shall have 
 in both their names an assise of the two parts, &c., because 
 the two parts they held jointly at the time of the disseizin. 
 And as to the third part, he to whom the release was made, 
 ought to have of that an assise in his own name, for that he 
 (as to the same third part) is thereof tenant in common, &c., 
 because he commeth to this third by force of the release, and 
 not only by force of the joynture."^ 
 
 g 333. In actions of assumpsit cotenants may properly 
 
 be joined,* according to expressions contained in some of the 
 decisions; but it is maintained by the great majority of the 
 authorities that cotenants not only may but must join in as- 
 sumpsit, unless the non-joinder be waived by the defendant.'* 
 In Alabama, this question has been considered on several oc- 
 casions. The Judges there arrived at a conclusion which they 
 announce to be "the result of sound reason and the best 
 authorities, that when a conversion has been committed against 
 several, all the parties in interest waiving the tort may join, 
 if they like, in an action of assumpsit; but that they are under 
 
 ' Roscoe on Actions, 6. 
 ■^ Litt. sec. 312. 
 
 3 Price V. Pickett, 21 Ala. 741. 
 
 ■" GUmore v. Wilbur, 12 Pick. 124; Irwin's Admr. v. Brown's Exr. 35 Pa. St. 332; 
 Mooers v. Bunker, 9 Foster, 427; Putnam v. Wise, 1 Hill, 234.
 
 391 ACTIONS AGAINST STRANGERS. §g 334-35 
 
 no legal compulsion to do so, for that any number less than 
 all, or any separate one, may bring assumpsit for his or then- 
 share or interest without joining the rest."' 
 
 §334. Avowries.— " Originally those making avowries 
 in distress for rent were obliged to set out tlieir title in the 
 avowr)% and then prove that title as set out, and great nicety 
 was required in this part of the case, and gi-eat difficulty in 
 hunting up and proving old deeds. "^ Co-owners makmg an 
 avowry were subjected, as to joinder, to the rules applicable 
 to them when they were prosecuting real actions. Where their 
 title was joint, as in case of parceners and joint-tenants, all 
 were required to join in the avowry; or if one alone had dis- 
 trained, he might avow in his own right and as bailiff to the 
 other, in which case the return was adjudged to him in his 
 own right and as bailiff to the other.'' Tenants in common, 
 on the other hand, as they held separate and distinct estates, 
 were required to sever in makirtg an avowry. '' "If two ten- 
 ants in common make a lease o^ their tenement, for a term of 
 years rendering rent, if the rent be behind, they shall have 
 an action of debt against the lessee, and not divers actions, 
 for the action is in the personalty. But in an avowry for rent, 
 they ought not to be joined, for this is in the realty; and this 
 distinction between debt for rent and avowry appears to have 
 been uniformly recognized. The reason is, that the avowry 
 savors of the realty; but until distress and avowry, the rent 
 is in the personalty, and then it can be released by one of the 
 tenants in common. It is the distress on the land which 
 makes the rent partake of the realty."*^ 
 
 ^ 335. In the prosecution of an action on the case 
 to recover for damages arising from a tort, as where tenants 
 in common or other cotenants of a mill sue to recover for 
 
 1 Tankersley v. Childers, 23 Ala. 783; Smitli's Exr. v. Wiley, 2'2 Ala. 405. 
 
 ■' Jones V. Gundrim, 3 Watts & S. 534. 
 
 3 Pullen V. Palmer, 5 Mod. 73; 8. C. 3 Salk. 207; Leigh v. Sheppard, 2 Bro. & B. 
 465; Stedman v. Bates, 1 Ld. Raym. 04; Osmer t-. Sheafe, Lutw. 1210; Culley o. 
 Spearman, 2 H. Bla. 388. . 
 
 * Litt. sec. 317; 3 Rob. Pr. 157-8; GuUey i-. Siiearmau, 2 H. Blaok, 388; Harrison 
 V. Bamby, 5 T. R. 249; Dalson v. Tyson, 3 Salk. 204; Wilkinson v. Hall, 1 Bing. N. C. 
 
 718. 
 !> Decker v. Livingston, 15 Johns. 481.
 
 § 336 ACTIONS AGAINST STRANGEES. 392 
 
 diverting and withholding water from their mill, or where 
 cotenants of a reversion seek to recover for injuries to their 
 reversionary interest, all the cotenants may and ought to 
 join.' So tenants in common must join in an action on the 
 case for destroying their charter or their title deeds. ^ 
 
 § 336. In regard to covenants, it is said to have " been 
 
 settled from an early day that all covenants, including cove- 
 nants for title, are to be construed as joint or several, accord- 
 ing to the interest taken by the parties to whom they are made, 
 or in whom the right to take advantage of them has vested. 
 Thus, in Slingsby's case,^ which is generally cited as the lead- 
 ing authority, where the defendant granted to four, although 
 he covenanted ' with each and every of them ' that he was 
 seized in fee, yet it was held that all must join in an action on 
 the covenant, and this principle has since been recognized in 
 many other cases."'' Covenants for title may be personal 
 merely, or they may run with the land. Actions on the 
 former are regarded as personal. Therefore, the several cov- 
 enantees must join in pursuing their remedy against the cove- 
 nantor.^ In reference to covenants running with the land, the 
 general rule is that if the covenantees "have a joint interest 
 in, and are jointly entitled to, the estate to which the cove- 
 nants are annexed, they must bring a joint action upon the 
 covenants; and separate actions when they have several 
 estates, and a separate and distinct damage has accrued to 
 each. Joint -tenants must sue jointly in respect of their 
 joint estate."" " Upon covenants running with the land, and 
 coming to parties either as tenants in common or joint- 
 tenants, the action must be joint or several, according as a 
 joint duty arises in favor of all, or separate duties to each.^ 
 If a covenant of general warranty be broken by the eviction 
 of the heirs of the covenantee, they must jointly sue the 
 
 i Eich V. Penfield, 1 Wend. 385; Putney v. Lapliam, 10 Gush. 232; Addison on 
 Torts, 67. 
 2 Daniels v. Daniels, 7 Mass. 135. 
 s 5 Coke, 18. 
 
 * Eawle on Covenants, 557. 
 
 * Lawrence v. Montgomery, 37 Cal. 189. 
 <> Addison on Contracts, 784. 
 
 ' Addison on Contracts, 785; Maguay i-. Edwards, 13 C. B. 479; S. C. 22 L. J. C. P 
 170.
 
 393 ACTIONS AGAINST STRANGERS. ^ 336 
 
 coYenantor. He is uot liable to as many suits as there are 
 lieirs of his grantee.^ But if a deed containing covenants of 
 general warranty be made to several as tenants in common, 
 eaK3h thereby acquires a several freehold, and, in the event 
 of his subsequent e^•iction by title paramount, may sustain a 
 separate action against the -warrautov.- " If lands are granted 
 to three as tenants in common, with warranty to all jointly, it 
 is nevertheless several to each. Here, it will be noticed, that 
 the warranty has relation to the right, (as all covenants for 
 title have,) uot the possession; and also, that the advantage 
 it promises one is nothing to the other, no community of right 
 or title subsisting between them. But where a covenant with 
 tenants in common respects their possession, the case is 
 changed, and all are jointly concerned, since their possession 
 to which it is accessory is joint, and the benefit proposed the 
 same to each."^ A covenant made by a lessee in favor of his 
 lessors, who are tenants in common, that he will keep the 
 premises in repair, is a covenant in which all the lessors have 
 a joint interest. They are therefore required to bring a joint 
 action for damages occasioned by a breach of such covenant. 
 This is true although the lease iu which the covenant was in- 
 serted reserves rent payable to the several owners in propor- 
 tion to their respective interests. In discussing this question, 
 the Supreme Court of the United States said: "The instni- 
 ment on which the plaintiffs instituted their suit was a lease 
 from the plaintiffs and vai'ious other persons interested iu 
 different proportions in the property demised, and by the 
 terms of which lease rent was reserved and made payable to 
 the several owners in the proportion of their respective in- 
 terests. So far as the reservation and payment of rent to the 
 covenantees, according to their several interests, made a part 
 of the lease, the contract was several, and each of the cove- 
 nantees could sue separately for his portion of the rent ex- 
 pressly reserved to him. But in this same lease, there is a 
 covenant between the proprietors and the lessee, that the latter 
 
 ' Paul r. Witman, 3 Watts & S. 408; Tapscott i'. Williams, 10 Ohio, 443; Dccliarms 
 V. Ilorwood, 10 13iug. 52G. 
 
 •^ Swctt V. Patrick, 11 Maine, 170; Lamb r. Danfortli, 5!) Maine, 321. 
 
 ^ Uainmond on Parties, 30. But in Main<-, tenants in common need not join in an 
 action tganst their grantor for a breach of the coveuauts of warranty in his deed. 
 Lamb v. Danfortli, 51) Me. 321.
 
 § 337 ACTIONS AGAINST STRANGERS. 394 
 
 shall keep the premises in good and tenantable repair, and 
 shall return the same to the proprietors in the like condition, 
 and it is upon this covenant, or for the breach thereof, that 
 the action of the plaintiffs has been brought. Is this a joint 
 or several covenant? It has been contended that it is not 
 joint, because its stipulations are with the several covenantees 
 jointly and severally. But the answer to this position is this: 
 Are not all the covenantees interested in the preservation of 
 the property demised, and is any one, or a greater portion of 
 them, exclusively and separately interested in its preserva- 
 tion? And would not the dilapidation or destruction of that 
 property inevitably affect and impair the interests of all, how- 
 ever it might and necessarily would so affect them in unequal 
 amounts? It would seem difficult to imagine a condition of 
 parties from which an instance of joint interests could stand 
 out in more prominent relief. This conclusion, so obvious 
 upon the authority of reason, is sustained by express adjudi- 
 cations upon covenants essentially the same with that on 
 which the plaintiffs in the case have sued."* 
 
 g 337. Replevin and Detinue. — Each cotenant has a right 
 to the possession of all the chattels of the cotenancy equal to 
 the right of each of liis companions in interest, and superior 
 to that of all other persons. In a contest carried on at law 
 to recover the possession of a chattel from a person having no 
 right to such possession, and in behalf of a cotenant having 
 such right, it would seem that such contest ought to result in 
 favor of the cotenant, and against the third person. Clearly 
 the cotenant is entitled to the possession, and as clearly the 
 stranger to the cotenancy is not. Notwithstanding this clear 
 right in the cotenant, it is certain that, by the common law, 
 the possession of a chattel could not be recovered from a 
 stranger, in an action brought by less than all the owners 
 thereof, if he thought proper to avail himself of the non-joinder 
 of the others.^ This rule was equally applicable whether the 
 
 ' Calvert v. Bradley, 16 How. U. S. 596. See also Foley v. Addenbrooke, 4 Ad. & 
 El. 197; Kitchen v. Buckley, 1 Lev. 109; S. C. 1 Sid. 157; Bradburne v. Botfield, 14 
 Mees. & W. 559; Thompson v. Hakewell, 19 C. B. (N. S.) 713; S. C. 35 L. J. (N. S.) 
 C. P. 18; 3 Rob. Pr. 159; Servante v. James, 10 Barn. & C. 410. 
 
 ^ Bell V. Hogan, 1 Stew. 537; D'Wolf d. Harris, 4 3Iason, 538; Hart v. Fitzgerald, 2 
 Mass. 511; Gardner «. Dutch, 9 Mass. 426; May i'. Parker, 12 Pick. 38; Rogers v.
 
 395 ACTIONS AGAINST STRANGERS. § 337 
 
 owners were joint-tenants, coparceners, or tenants in common. 
 In the vast majority of the decisions npon this subject, no 
 other reason is given than that, by the general rule of the 
 common law, all cotenants must join in actions personal. No 
 doubt this is the best reason that can be given, and is the 
 only one upon which the decisions can be clearly justified. 
 Judges have, however, occasionally undertaken to ground 
 their decisions upon this subject upon something in addition 
 to a mere technical rule of the common law. Thus, Black, 
 Justice, in the case of Prichard's Admr. v. Culver/ said: 
 " The ^nmar^ object of the action is to recover back the 
 chattel itself, and damages for taking and detaining it follow 
 such recovery. The secondary object of the action is to re- 
 cover a sum of money equivalent to the value of the property 
 claimed, and likewise a compensation for the injury sustained 
 by the plaintiff, if the defendant will not yield possession of 
 the property for the recovery of which the suit has been in- 
 stituted. Where the chattel is held in joint-tenancy or in 
 common, the right of possession is in all the tenants or part 
 owners, and not of any one of them. Until there is a sever- 
 ance, no one of the owners can by law sustain a claim to the 
 exclusive possession of the chattel. His right to the posses- 
 sion is no stronger than that of his cotenant. If such were 
 not the rule of law, and there were six OA\Tiers in joint- 
 tenancy or in common, five of these owners might institute 
 their separate actions of replevin against the sixth cotenant, 
 each claiming the possession by his suit, and each might ob- 
 tain a judgment for the restoration of the property, or dam- 
 ages to its value. To which of the five should the sheriff 
 deliver the property, if the defendant should not give security 
 on the %vrit being served? * * * In our judgment, therefore, 
 a joint-tenant or tenant in common cannot maintain replevin 
 for his share of an undivided chattel against his cotenant, 
 nor, as we conceive, against a third person who may happen 
 to have possession of it. The right to the possession is an 
 
 Arnold, 12 Wend. 30; Reiniheimer v. Hemingway, 35 Pa. 8fc. 438; Cain v. Wriglit, 5 
 Jones Law, 283; Coster v. N. Y. and Erie II. R. Co., G Duer, 4G; 8. 0. 3 Abb. Pr. 340; 
 Price i>. TaMey'H Admr. 18 Ala. 25; Parsons i'. Boyd, 20 Ala. 117; 1 Cbitty PI. 103; 
 McArthur v. Lane, 15 Me. 240. 
 i2Harr. Del. 129.
 
 § 338 ACTIONS AGAINST STRANGERS. 396 
 
 entire right, and all the owners must unite in the action." 
 The rule that an action of detinue cannot be maintained 
 unless the plaintiff has the entire interest in the thing sued 
 for, seems to admit of no exception and to yield to no con- 
 siderations of hardship or inconvenience. In Alabama, an 
 infant owning one-fourth of certain slaves died. By the law 
 in force in that State, the personal property of a deceased 
 person did not on his death vest in his heirs, and they could 
 maintain no action for its recovery until they could deduce 
 title through an administrator in virtue of the statute of dis- 
 tributions. After the death of the infant, the other part 
 owners, w^ho were also the infant's heirs at law, brought an 
 action of detinue to recover the slaves. No administrator 
 had ever been appointed on the infant's estate. The plain- 
 tiffs in the action were met and overcome with the objection 
 that they did not have an entire interest in the property 
 sought to be recovered. ^ In an action of detinue for a horse, 
 the evidence adduced established that the plaintiffs father 
 gave him one-half of the horse for raising it; that plaintiff 
 had been in possession of the horse several years when the 
 father gave his half to the daughter of the plaintiff, then an 
 infant three or four years of age. The terms of this gift 
 were that plaintiff should do as he pleased A^dth the horse, 
 but should let the daughter have one-half of him. Soon 
 after this gift to the daughter, the horse came into the pos- 
 session of a third person. The father of the infant then 
 owning one-half of the horse, in his own right brought an 
 action of detinue without Joining his daughter. The Court 
 held that, under the circumstances, the plaintiff should be 
 treated either as bailee or as trustee of his daughter; and 
 that whether considered as bailee or trustee, he could sustain 
 this action as against a stranger to the title. ^ 
 
 § 338. Replevin of Severable Chattels.— When the 
 
 property of a cotenancy is in its nature severable, so as to 
 authorize either of the parties to make a division thereof, or 
 to authorize an officer to make a severance thereof upon levy- 
 ing upon the interest of the cotenant, the part severed be- 
 
 ' Miller v. Eatman, 11 Ala. 614. 
 ^ Kirk V. Kirk, 3 Dana, 54.
 
 397 ACTIONS AGAINST STRANGERS. §§ 339-41 
 
 comes the sole property of him in whose behalf the sever- 
 ance was effected. Hence, if an officer le\\ upon severable 
 chattels exempt from execution, and make a severance there- 
 of, the cotenant upon whose interest the levy was made may, 
 without joining his companion, sustain an action against tho 
 officer, and recover from him the chattels which he has sev- 
 ered and has undertaken to appropriate to the satisfaction of 
 his writ.' 
 
 ^ 339. Ejectment by Joint - Tenants. — Joint - tenants 
 should join in actions to recover possession of their realty. - 
 But joint-tenants may make separate demises. Each may 
 therefore recover in ejectment on his separate demise, for 
 such demise operates as a severance of tho joint-tenancy.^ 
 
 § 340. Eijeetnient by Coparceners. — Parceners may de- 
 clare on a joint demise,^ or each may declare on her several 
 demise.^ They may therefore sue jointly for the possession 
 of their real estate, or each may sue for her moiety. 
 
 g 341. — Ejectment by Tenants in Common. — According 
 to the rules of the common law, tenants in common could 
 not join in ejectment.*^ " From the character of ihe estate in 
 common, tenants in common cannot join in an action for the 
 recovery of the estate. The interest of each is separate and 
 distinct. The subject of the action iu such case would be the 
 whole estate, and it cannot be said that either of the parties 
 is interested in the whole estate, but only iu an undivided 
 moiety."'' The reason for this rule of the common law Avas 
 well explained by Tilghman, C. J., iu White v. Pickering,* by 
 the use of the following language: " In making out the plaiu- 
 tifis' title, it appeared that they were tenants iu common, and 
 
 ' Newton v. Howe, 29 Wis. 534. 
 
 '■' Dewey v. Lambier, 7 Cal. 347. 
 
 3 Roe I). Lonsdale, 12 East, 39; Doe v. Rccd, 12 East, 57; Doe v. Fenn, 3 Camp, 190. 
 
 * Boner r. Juner, Ld. Raym. 72G. 
 
 s Doe V. Pearson, C East, 179; Roe r. Lonsdale, 12 lb. 39. 
 
 « Mantler v. Wollington, Cro. Jac. ICC; Hillhou«e r. Mix, 1 Root, 247; Rogers r. 
 Turley, 4 Bibb. 355; DcJohnson v. Sepulboda, 5 Cal. 150; Uou v. PottH. 1 IIhwUk, 4C9; 
 Wathen v. English, 1 Mo. 74C; Innis r. Crawford, 4 Bibb. 241; Dube i<. Smith, 1 Mo. 
 .313; Gaines r. Buford, 1 Dana, 481; Doe c. Erriugtou, 1 Ad. & El. 750: Moore i'. 
 Funsden, 1 Show, 342; Heatherby v. Weston, 2 Wils. 233. 
 
 ' Thockmorton v. Burr, 5 Cal. 400. 
 
 '^ 12 Serg. & R. 435.
 
 § 342 ACTIONS AGAINST STRANGERS. 398 
 
 the declaration setting forth a joint demise from all the plain- 
 tiffs, the defendants' counsel insisted that the plaintiffs ought 
 not to recover, because the title given in evidence was incon- 
 sistent with the declaration. Although the action of eject- 
 ment is founded on a fiction, contrived for the convenience of 
 suitors, yet there is a certain point where fiction ends and 
 truth begins. The lease by the lessor of the plaintiff is a 
 fiction : he is therefore not required to prove that such a lease 
 was actually made. But it is necessary to show such an estate 
 as would have given him a right to make the lease set forth 
 in the declaration. Therefore, if it appear that the title of 
 the lessor of the plaintiff was not vested in him till after the 
 commencement of the lease he cannot recover. This is a 
 principle which cannot be denied; so that the question simply 
 is, whether the title set forth in the declaration accords with 
 the title given in evidence. The declaration states that all the 
 plaintiffs jointly demised the land: the evidence proved that 
 the plaintiffs had separate interests in the land, and that each 
 had only an undivided part; consequently, neither of them 
 had a right to demise the ivhole. There is no privity between 
 the plaintiffs: the estate of each is distinct from the other; 
 and they cannot join in a demise, such as is set forth in the 
 declaration." But the rules of the common law in regard to 
 tenants in common suing for possession of the lands of the 
 cotenancy have been so modified in most of the States of the 
 American Union, as to permit the tenants in common to sue 
 jointly whenever they choose so to do.^ This modification 
 has generally resulted from statutory enactments. This, how- 
 ever, has not been universally the case, for there are decisions 
 in which, independent of statutory considerations, the right 
 of tenants in common to make a joint demise, and the con- 
 sequent right of their lessor to maintain ejectment, have been 
 vigorously sustained." 
 
 § 342. Whether Cotenant can recover diflferent interest 
 than one sued for. — The general proposition of law that the 
 plaintiff may recover less but never more than he sues for, 
 
 ' Poole V. Fleeger, 11 Pet. 212; Gray v. Givens, 2G Mo. 303; Hicks v. Eogers, 4 
 Cranch, 165; Hillhouse v. Mix, 1 Pioot, 247; Swett v. Patrick, 11 Me. 180. 
 
 •^ Jackson v. Bradt, 2 Cai. 173; Alford v. Dewin, 1 Nev. 211; Nixou v. Potts, 1 
 Huwks, 470; Hoyle v. Stow, 2 Dev. 321; Burrow's Lessee v. Nave, 2 Yerg. 228.
 
 399 ACTIONS AGAINST STRANGERS. § 343 
 
 applies to actions brought by a tenant in common to recover 
 possession of real estate. It has sometimes been held that 
 to permit a plaintiff suing for the whole to recover on proof 
 of right to a moiety, or when suing for a specified moiety to 
 recover upon showing his right to a smaller moiety, would 
 involve the Court in the technical difficulty of having a judg- 
 ment and verdict not corresponding to the complaint, ' ' in- 
 asmuch as a different title is established in the former from 
 that which is described in the latter." On this account, there 
 have been instances in which plaintiff's, though showing a 
 clear right to a lesser interest than that alleged to have been 
 demised to them, were not allowed to recover anything.' But 
 the weight of the authorities now bears in an opposite direc- 
 tion, and in favor of the rule that plaintiff claiming the whole 
 may recover a part; or claiming a specific part, may recover 
 a smaller portion.'^ 
 
 § 343. Whether one can recover possession of the 
 ■whole. — A tenant in common is, as against every person but 
 his cotenants, entitled to the possession of every part of the 
 common lands. He may therefore, in most of the States, re- 
 cover the possession of all such lands in an action of eject- 
 ment brought against a stranger to the common title. ^ In 
 one instance where it was insisted that a tenant in common 
 could recover only to the extent of his interest, the Court 
 said : "It has been so often held that one tenant in common 
 can recover the entire premises as against a mere trespasser 
 without joining his cotenants as plaintiffs, we are surj^rised 
 that counsel should make the last point presented in their 
 brief."* Notwithstanding the surprise expressed by the Court 
 
 ' Cole V. Irvine, 6 Hill, 639; Holmes v. Seely, 17 Wend. 75; Gillettv. Stanley, 1 
 Hill, 121; Carroll v. Norwood, 5 Har. & J. 155. 
 
 '■' Dewey v. Brown, 2 Pick. 388; Burgess v. Purvis, 1 Burr. 326; Ablett v. Skinner, 1 
 Siderf. 229; Davis' Lessee v. Whitosides, 1 Bibb. 513; Ward's Heirs v. Harrison, 3 
 Bibb. 305; Kellogg v. Kellogg, G Barb. 131; Gray v. Givens, 2G Mo. 303; McFadden v. 
 Haley, 2 Bay. 457; Middleton v. Perry, Id. 541; Perry v. Walker, Id. 4G1; Boyleston 
 V. Cordes, 4 McCord, 144; Stark v. Barrett, 15 Cal. 371; Touchard v. Crow, 20 Cal. 
 1C2; Smith v. Starkweather, 5 Day, 209; Baker v. Chastang, 18 Ala. 417. 
 
 * Robinson v. Roberts, 31 Coun. 145: Clark v. Vaughau, 3 Conn. 193; Philhps v. 
 Medburj-, 7 Conn. 572; Sharon r. Davidson, 4 Nov. 419; Collier v. Corbett, 15 Cal. 185; 
 Clark V. Huber, 20 Cal. 197; Hart v. Robertson, 21 Cal. 348; Rowe v. Bacigalluppi, 21 
 Cal. G35; Hibbard v. Foster, 24 Vt. 54G. See also the authorities cited to see. 344. 
 
 * Treat v. Reilly, 35 Cal. 131.
 
 g 344 ACTIONS AGAINST STRANGERS. 400 
 
 in this case, the counsel who insisted on this point were not 
 without respectable authorities to sustain them. Thus, in an 
 early case in Massachusetts, the Court said: "The demand- 
 ant, upon production of her title, shows that she is coheir 
 with five others : she will therefore have justice done to her, 
 if she is allowed to recover an undivided sixth part. The 
 tenant, being in possession, ought not to be disturbed, except 
 by those who have the right. Non constat that the other co- 
 heirs are not as willing that the tenant should occupy the land, 
 as that the demandant should."^ So in Missouri, it is still 
 maintained that "as the right of possession, which depends 
 on title, is several, a recovery by one will restore him only a 
 moiety of the disseizor, who will hold the other moiety with 
 him in common."^ A like doctrine is established in Pennsyl- 
 vania.^ 
 
 ^ 344. Actions of forcible entry and detainer may be 
 
 brought by each tenant in common separately. Thus, where 
 L and B, tenants in common, were forcibly dispossessed, L 
 alone brought his action, and the defendant insisted that B 
 also should have been joined as plaintiff. But the Court said : 
 "This objection cannot be sustained. Any one tenant in 
 common may sue though his cotenants do not join in the 
 action. And this may be done either in ejectment or in 
 forcible entry and detainer. L had been put out of posses- 
 sion, and he might well maintain his action to regain it, with- 
 out joining his cotenant B. Actions for personal property 
 must be in the names of all the joint owners, but not so in 
 real actions."^ So, it is said, one coparcener or joint-tenant 
 may, without joining his or her companion in interest, re- 
 cover possession of the whole premises, in an action of 
 forcible entry and detainer, against a stranger to the title; 
 because, 1st: "The possession of one is the possession of 
 both, in contemplation of law. Hence, a recovery in this 
 form of action by one would enure to the benefit of both, 
 and the pendency of the judgment might be pleaded to a. 
 
 1 Dewey v. Brown, 2 Pick. 387. 
 
 '■^ Gray v. Givens, 26 Mo. 303. 
 
 ^ Dawson v. Mills, 32 Pa. St. 302. 
 
 * Turner v. Lumbrich, Meigs, 11; Allen v. Gibson, 4 Rand. 477.
 
 401 ACTIONS AGAINST STRANGERS. §§ 345-46 
 
 proceeding of the other for the same cause."' 2d, because: 
 ' ' The onlj question is whether plaintiff is entitled to posses- 
 sion as against the defendant; and as against all others than 
 his companions, a joint-tenant, tenant in common, or copar- 
 cener, is entitled to the possession of the whole. "'^ 
 
 § 345. For Insurance. — If two cotenants effect an insur- 
 ance upon their common property in their joint names, "upon 
 familiar principles, both the joint contractors should join in 
 bringing an action for a breach of the contract, and the 
 omission to join them is a good defence."^ 
 
 § 346. For Rents. — "If two tenants in common make a 
 lease of their tenements to another for terme of years, reu- 
 dring to them a certaine rent yearely during the terme, if the 
 rent be behind, &c., the tenants in common shall have an 
 action of debt against the lessee, and not divers actions, for 
 that the action is in the personalty."* This rule is confined 
 to a joint lease made by the tenants in common, in which 
 there is a joint reservation of rent. "If there bo separate 
 reservations to each, then there must be separate actions."^ 
 So if the original lease be made resei-ving an entire rent, 
 and afterwards the lessee has notice to pay a moiety of the 
 rent to each of the cotenants, and the rent is so paid and re- 
 ceipts given accordingly, it becomes "a question of fact, upon 
 the whole evidence, whether the parties thereby meant to enter 
 into a new contract, with a separate reservation of rent to 
 each, or whether they meant to continue the old reservation 
 of rent, each receiving his own moiety."^ Where a joint 
 lease was made by two tenants in common, and a memoran- 
 dum was annexed to the lease as a part thereof, stipulating 
 that one-half of the rent reserved should bo paid to each of 
 the lessors, and all the covenants in the lease were to and with 
 both lessors, the Court held that: "The effect of the memor- 
 andum was not to abrogate that covenant in the lease," (i e. 
 
 ' Rabe v. Fyler, 10 Smcdcs & M. 44G. 
 
 ■^ Allen V. Gibson, 4 Rand. 477. 
 
 ■' Tato V. Citizens' Mutual Firo Ins. Co. 13 Gray, 81. 
 
 ^ Litt. sec. 31G; Wilkinson v. Hall, 1 Ring. N. C. 717; Decker v. Livingston, LI Jolms. 
 482; Sherman v. Ballou, 8 Cow. 308. 
 
 ^ Powis V. Smith, 5 Barn. & Aid. 851; S. C. 1 Dowl. & R. 490; Last v. Dinn, 28 L. 
 J. Ex. 94. 
 
 C. & p.— 26
 
 g 346 ACTIONS AGAINST STRANGERS. 402 
 
 the covenant to pay rent, ) ' ' but only to regulate the mode of 
 payment, and to prescribe the manner in which the lessee was 
 to fulfil his covenant. Instead of performing his agreement, 
 by a payment or tender of the whole rent to one of the joint 
 lessors, as he might well do in the absence of a special agree- 
 ment, he was required to pay a moiety to each. But this 
 does not make the previous contract several, so as to change 
 the remedy of the lessors for its breach into separate actions. 
 * "^ * It is not to be overlooked that all the covenants in the 
 lease are made to the plaintiffs jointly; that the demise itself 
 is joint, and the remedy of expelling the lessee in case of non- 
 payment of rent is also joint. It cannot be reasonably sup- 
 posed that it was the intention of the parties, by the memor- 
 andum, to bind the lessors to pursue each a separate remedy 
 for breach of one covenant in a lease, in which all the other 
 cotenants were made to them jointly, and for breach of which 
 they could pursue a joint remedy."^ "The owner of an un- 
 divided portion of a ground-rent may maintain a separate 
 a<3tion of covenant for his proportion of rents in arrears."" 
 ' ' Joint-tenants being seized per mie and per tout, and deriving 
 by one and the same title, must sue jointly on their joint lease, 
 and they must join in an action of debt or in an avowry for 
 rent;"^ and the same rule seems to be equally applicable to co- 
 parceners.^ A tenant in common though, as against a stranger, 
 entitled to the possession of the entire premises, cannot re- 
 cover rents for more than his moiety.* If a reversion is sev- 
 ered by the death of the lessor and the consequent descent 
 to his heir at law, the rent will thereby be apportioned, and 
 each of the heirs may separately bring actions for his propor- 
 tion.*' " On the death of the lessor, the rent has to be appor- 
 tioned among the heirs on whom the estate is cast. In all 
 cases of apportionment of rent, it is the duty of the tenant 
 to pay each party the proportion of rent to which he is en- 
 titled. This liability of the tenant forms an exception to the 
 
 ' Wall V. Hinds, 4 Gray, 268. 
 
 ^ Cook V. Brightly, 46 Pa. St. 445. See also Hennecker v. Turner, 4 Barn. & C. 157; 
 Martin v. Crompe, 1 Ld. Kaym. 340. 
 •^ Barbour on Parties, 80. 
 * Decharms v. Horwood, 4 Moore & Scott, 400. 
 a MuUer v. Boggs, 25 Cal. 175. 
 » Cole V. Patterson, 25 Wend. 457; Reed v. Ward, 22 Penn. St. 149.
 
 403 ACTIONS AGAINST STRANGERS. § 347 
 
 rule that an entire contract cannot be apportioned, and that a 
 debtor cannot be compelled to pay a single demand in parcels 
 to several persons. The exception had its origin in reason>i 
 of policy and convenience, and has been long and firmly estab- 
 lished. It is in the power of the tenant to avoid several suits 
 and distresses, by the prompt payment of the rent as it falls 
 due." ^ The authorities also generally concur in asserting that 
 the apportionment of rent may be affected by a grant or de- 
 vise of the reversion to two or more, as well as by descent to 
 several heirs. - 
 
 § 347. Trespass. — The general rule of the common law 
 that tenants in common must join in personal actions, when 
 applied to actions of trespass, requires that all the cotenants 
 must join if all were at the time of the alleged trespass en- 
 titled to the immediate possession of the property upon which 
 it was committed. Generally, but not uniformly, this rule of 
 the common law is still regarded as controlling actions of 
 trespass. " That tenants in common must join in the action 
 of trespass, qiiare dausum /regit, is well settled. There is 
 nothing in our practice to require a departure from the rule 
 of the common law, but there is great reason to adhere to it, 
 to prevent multiplicity of suits, and the inconvenience that 
 would arise from the bringing of several suits and allowing 
 several recoveries for the same trespass.^ This rule of the 
 common law has not been altered by the Code in New York.'' 
 Where the owner of land made an agreement with another 
 person under which the latter was to raise a crop on the 
 lands of the former, and the crop, when raised, was to be 
 divided between the two, it was held that as the two thereby 
 became tenants in common of the crop, they should join in 
 an action of trespass against a third person for cutting and 
 
 • CroBby v. Loop, 13 111. 027; Jones v. Fclcli, 3 Bosw. C4; Crugcr r. McClaugliry, 51 
 Barb. CM; Ards v. Watkin, Cro. Eliz. C37, C51; Eyerson v. Quuckcnbusli. 2 Dutch. 
 250; Farley v. Craig, C Halst. 273; lUvis v. Watson, 5 Mces. & W. 255. 
 
 '■' Cole V. Patterson, 25 Wend. 457; Reed v. Ward, 22 Penn. St. 119. Same author- 
 ities as note 1. 
 
 " May V. Slade, 24 Tex. 208; Austin v. llall, 13 Johns. 237; Winters v. McGhee, 3 
 Snced, 128; Selwyn's Nisi Prius, 13th cd. 1248; Com. Dig. Abatement (E 10); May v. 
 Parker, 12 Pick. 39. 
 
 * Do Puyt'. Strong. 37 N. Y. 373: S. C. 4 Abb. Pi. N. S. 344.
 
 § 348 ACTIONS AGAINST STEANGERS. 404 
 
 carrying it away.^ And where mills were worked on the 
 shares, the owner and occupant, it was thought, should be 
 considered quasi tenants in common of the mills as well as of 
 the profits. They were therefore, as such cotenants, entitled 
 to join in an action for injury sustained from the withholding 
 of water from the mills. ^ But where one of the cotenants is 
 in exclusive possession of the property by virtue of a contract 
 of sale with his cotenants, by which contract he is entitled 
 to be and remain in such exclusive possession, he is entitled 
 to maintain in his own name actions of trespass for injuries 
 to such property.^ "Without any permanent severance of their 
 right to possession, and without any change in their title, co- 
 tenants may, for purposes of convenience and to avoid any 
 conflict of interests, agree each to exclusively occupy a spe- 
 cific part of the common lands. Pending an occupancy taken 
 and held under such an agreement, a trespass may be com- 
 mitted on some part of the lands, and may, as when it con- 
 sists of the cutting of trees, result in damages not confined 
 to the occupant of the part trespassed upon, but equally 
 affecting all the cotenants. In such case, the question arises, 
 can an action of trespass be sustained by all the part owners, 
 or must it be prosecuted by the one then entitled to the pos- 
 session of the lands trespassed upon? The answer which has 
 been made to this question is that so long as an exclusive 
 possession of any part of the lands of the cotenancy is main- 
 tained only for purposes of mutual convenience, and is not so 
 hostile to the title of the other cotenants as that, if continued, 
 it could ripen into title in severalty by disseizin, all the co- 
 tenants may join. While the parties intend no severance of 
 their cotenancy, " it is not for the defendant, who is a stranger 
 to the title, to give to that matter a legal effect which was 
 never intended by the parties in interest."^ 
 
 I 348. In actions of trespass to try titles, the rule in 
 
 1 Foote «. Colvin, 3 Johns. 216; Monlton v. Eobinson, and Ladd v. Eobinson, 27 N. 
 H. (7 Foster) 563; Hatch u. Hart, 40 N. H. 97. 
 
 2 Rich V. Penfleld, 1 Wend. 380. 
 
 3 Sparks 1). Leavy, 1 Robt. 530. So where a tenant in common of a crop abandons 
 and relinquishes all his interest, the other cotenant, if he have exclusive possession, 
 may sustain an action against a trespasser. Hatch v. Hart, 40 N. H. 97. 
 
 * Johnson v. Goodwin, 27 Vt. 291.
 
 405 ACTIONS AGAINST STRANGERS. §§ 349-50 
 
 regard to the joinder of plaiutifls is the same as in ejectment, 
 viz. , each tenant in common may maintain a separate action 
 for his interest.^ 
 
 § 349. In trover, according to the rules of the common 
 law, all the cotenants must join,^ in actions against third 
 persons, unless some circumstance appears by force of which 
 the case is excepted from the general rule. Cotenants are 
 exempted from the operation of this rule whenever something 
 has occurred by reason of which one or more of their number 
 can no longer sustain any action. Thus, if one of them has 
 previously brought an action, and the non-joinder of his com- 
 panions in interest being waived, the action was tried upon 
 the merits and resulted in a judgment for the defendant, here, 
 as the plaintiff by the principles of res judicata is forever pre- 
 cluded from prosecuting any further proceedings based upon 
 the same alleged conversion, his cotenants must be permitted 
 to bring suit without joining him.^ And so where one co- 
 tenant has sued, and has, by failure of defendant to object 
 to the non-joinder of the others, recovered judgment, and 
 can therefore maintain no further action for the original con- 
 version, the others may sue without him.^ But there are 
 American cases directly in conflict with the general rule of 
 the common law, and which affirm the right of each cotenant 
 to bring a separate action against a third person who has 
 converted any of the personal property of the cotenancy.^ 
 
 ^ 350. Waste. — From the general rule of law that tenants 
 in common must join in personal but never in real actions, it 
 follows that "real actions of waste to recover the place 
 wasted must therefore be brought by them separately, but in 
 a personal action in the nature of waste they must all join."" 
 
 1 Hines v. Trantham, 27 Ala. 3G1; Croft v. Rains, 10 Tex. 520; Hooper v. Hall, 30 
 Tex. 154; Presley v. Holmes 33 Tex. 476. 
 
 ■' Gilmoro v. Wilbur, 12 Pick. 124; Haskell v. Jones, 24 Me. 223; Wheelwright u. 
 Depeyster, 1 Johns. 471; Putnam v. Wise, 1 Hill, 234; Hall v. Page, 4 Geo. 434; 
 Stames v. Quinn, G Geo. 87. 
 
 3 Brizendine v. Frankfort B. Co., 2 B. Monr. 33. 
 
 * Sedgworth v. Overend, 7 T. R. 279; Starnes v. Quinn, C Geo. 87. 
 
 5 Shamhurg v. Moorehead, 4 Brewster, 92; Boobier v. Boobier, 39 Me. 409; Howard 
 V. Snelling, 28 Ga. 473. 
 
 » Bullock V. Havward, 10 Alkii. 4C0. See Greenly i'. Hall's Exr. 3 Harr. Del. 9.
 
 gg 351-53 ACTIONS AGAINST STRANGERS. 406 
 
 A statute authorizing a person entitled to an action of waste 
 to bring an action of tort in the nature of waste, does not 
 change the common law rule as to joinder, by authorizing a 
 several suit on the part of each cotenant. 
 
 § 351. Nuisance. — " Where several persons have a joint 
 interest in property injured by a nuisance, they ought all to 
 be made plaintiffs in an action for the injury. Tenants in 
 common, also, should join in an action for a nuisance done 
 to their land."' So, "two or more persons having separate 
 and distinct tenements which are injured or rendered unin- 
 habitable by a common nuisance, or which are rendered less 
 valuable by a private nuisance which is a common injury to 
 the tenements of both, may join in a suit to restrain such 
 nuisance."^ Tenants in common must join in actions for in- 
 juries sustained by reason of the flowing of their lands.* 
 
 g 352. Assessment of Damages. — The general rule of 
 law that tenants in common, as well as other cotenants, must 
 join in personal actions, is applicable to proceedings to ob- 
 tain compensation for damages occasioned, or about to be 
 occasioned, to the common lands by the location of a rail- 
 road or other j)ublic highway. "The assessment of damages 
 must be joint, and cannot be severed by the jury."* 
 
 § 353. Failure to Object to Non-Joinder of a Cotenant. — 
 
 We have shown that in real actions cotenants must join or 
 sever according to the nature of their cotenancy; and that in 
 personal actions they must join irrespective of the character 
 of the cotenancy. But whatever we have said in regard to the 
 necessity of their joinder has been based upon the hypothesis 
 that the non-joinder was objected to by the defendant, and 
 that the objection was available under the pleadings at the 
 time it was sought to be interposed. We shall now consider 
 the question as to the manner in which the objection must be 
 made. The rule of law upon this subject, best sustained by 
 
 ' Addison on Torts, 67, 196; Eoscoe on Eeal Actions, 372; Daniels v. Daniels, 7 Mass. 
 135; Parke v. Kilham, 8 Cal. 79. 
 
 ■^ Barbour on Parties, 348. 
 
 » Tucker v. Campbell, 36 Me. 346. 
 
 ^ Merrill v. Inhabitants of Berkshire, 11 Pick. 274; Railroad Co. v. Bucher, 7 Watts, 
 33; Dwight v. County Commissioners, 7 Cush. 534.
 
 407 ACTIONS AGAINST STRANGERS. g 353 
 
 the authorities both English and American, is this, that al- 
 though the form of action be such that all the cotenants ought 
 to join, yet if the action be for conversion of, or injuries to 
 the common property, and if one ' ' sue alone, and the defend- 
 ant, instead of pleading the non-joinder in abatement, plead 
 to the action, the plaintiff will recover for his share of the 
 damages."^ If the defendant neglects to iutei-jDOse his plea 
 in abatement, the only purpose for which he can introduce 
 evidence of the cotenancy, is that of having the damages 
 awarded to the plaintiff reduced so as to correspond with his 
 actual interest in the subject-matter out of which the cause of 
 action has grown.- Cotenants "may sue severally for their 
 aliquot shares or proportions of interest in chattels; subject, 
 however, to be defeated in the latter case by a plea in abate- 
 ment for the non-joinder of their cotenants. And if, in the 
 latter case, the defendant fails to plead in abatement, he can- 
 not give the non-joinder in evidence, on the general issue, or 
 plead it in bar, or move in arrest, even though the matter be 
 found specially, or appear on the face of the plaintiff's plead- 
 ings. If the plaintiff sue sejaarately, and the defendant fails 
 to plead, the plaintiff may proceed and have his recovery for 
 his aliquot interest in the property, and the defendant is con- 
 fined to giving in evidence the joint interest of others, in miti- 
 gation of damages."^ "It appears to bo well fettled in the 
 books, that in actions of trover and trespass, the plaintiff may 
 sue separately for his aliquot share or proportion of interest 
 in a chattel, and that the defendant may give the joint interest 
 of others in evidence, in mitigation of damages, but that he 
 cannot avail himself of the omission of the plaintiff to unite 
 the other tenants in common with him in the suit, otherwise 
 than by ple'ading it in abatement. " ^ 
 
 ' Webber v. Merrill, 34 N. H. 208; Brown v. Hedges, 1 Salk. 290; Blackborough v. 
 Graves, 1 Mod. 102; Addison v. Overend, 6 T. E. 770; Dockwray v. Dickinson, Skin- 
 ner, 640; Sedgworth v. Ovetend, 7 T. R. 27'J; LotLrop u. Arnold, 25 Mo. 140; Frazier 
 V. Spear, 2 Bibb. 3a5; Hobbs v. Ilateh, 48 Me. 55; Converse v. Symmes, 10 Mass. 378; 
 Thompson v. Hoskins, 11 Mass. 419; Phillips r. Cummings, 11 Cush. 4C9; Bloxam v. 
 Hubbard, 5 East, 420. 
 
 ^ Holmes v. Sprowl, ,31 Me. 7C; Rolette v. Parker, Brccso, 275; Tripp v. Riley, 15 
 Barb. 333; Brancli r. Doano, 17 Conn. 415; Jones v. Low. 11, iir, Me. 540; Cabell v. 
 Vanghan, 1 Saund. 291/. 
 
 '■' Starnes v, Quinn, G Geo. 86. 
 
 •• Wheelwright v. Depeysttr, 1 John8.-486.
 
 ^§354-55 ACTIONS AGAINST STRANGERS. 408 
 
 ^ 354. Failure to Object to Non-Joinder in Actions on 
 Contracts. — The necessity of a plea in abatement does not 
 exist in actions upon joint contracts. "Wlien a contract is 
 made with two or more persons, and one only sues, the de- 
 fendant may have the advantage on the general issue without 
 pleading it, a fortiori, if it appears from the plaintiffs own 
 showing that the contract was made with himself and others 
 not named, nor any legal reason assigned for not naming 
 them; because it appears that no such contract was made 
 with the plaintiff as he has declared on."^ It seems to be 
 well established that it is not only unnecessary to plead in 
 abatement when there is a non-joinder of plaintiffs, but, 
 further, that such plea is improper. "The want of the 
 proper plaintiffs in actions on contract is an exception to the 
 merits, and is to be taken advantage of, either on demurrer, 
 in bar, or on the general issue, but not by plea in abate- 
 ment."^ "In all cases of contracts, if it appear upon the 
 face of the pleadings that there are other obligees, covenan- 
 tees, or parties to the contract, who ought to be but are not 
 joined as plaintiffs in the action, it is fatal on demurrer, or 
 on motion in arrest of judgment, or on error; and though 
 the objection may not appear on the face of the pleadings, 
 the defendant may avail himself of it, either by plea in ahate- 
 ment, or as a^ ground of nonsuit on the trial, as a variance 
 upon non est factum, if the action be upon a specialty, or if 
 it be upon any other contract, upon the plea of the general 
 issue. "^ 
 
 § 355. Detinue and Replevin. — In respect to actions of 
 replevin, doubt exists as to whether the non-joinder of a co- 
 tenant should be objected to by plea in abatement, or 
 whether, as in actions on contracts, the non-joinder is avail- 
 able without such plea. The opinion on one side was thus 
 expressed by Chief Justice Parsons, in an early Massachus- 
 etts case decided by him : "In this action, this irregularity 
 is not pleaded in abatement or in bar, but it appears from 
 the plaintiffs own showing in the writ, in which he claims an 
 undivided moiety of the chattels said to be unjustly taken 
 
 i Hart V. Fitzgerald, 2 Mass. 510. ^ Baker v. Jewell, 6 Mass. 462. 
 » Chitty s PI. 13.
 
 409 ACTIONS AGAINST STRANGERS. ^ 355 
 
 and detained; and it is a question ■whether the defendant can 
 take advantage of this defect thus appearing, or whether he 
 must have pleaded it in abatement. If there is an analogy 
 in the principles of law regidating the forms of actions for 
 injuries to chattels, and of actions of replevin, it would seem 
 that the defendant should have pleaded in abatement that 
 there was another part owner not named, in order to have the 
 advantage of the omission. But is there such an analogy? 
 In trespass or case for injury done to a chattel, each part 
 owner in fact is injured, and the damages, if not severed by 
 the form of the action, must be divided among the plaintifls 
 after recovery. In these actions, also, there are cases in 
 which one part owner may legally sue alone, without joining 
 his partners. In replevin which is founded on property, the 
 chattel is to be delivered to the plaintiff, as well as damages 
 to be recovered. This chattel is not capable in law of sever- 
 ance, and the whole or none of it can be delivered to the 
 plaintiff; and if it be delivered to the plaintiff being but a 
 part owner, he must receive an undivided part, in which he 
 claims no property. In replevin, also, we do not recollect 
 any case in which a part owner can sue for his undivided part 
 only. If property in him and another be pleaded in abate- 
 ment, such plea cannot be confessed and avoided by any 
 matter which the plaintiff can reply to it. These are very 
 strong distinctions between the principles applying to actions 
 of trespass and of the case for an injury done to chattels, in 
 which damages only are demanded, and actions of replenn, 
 in which the property said to be unjustly taken and detained 
 is to be delivered to the plaintiff. We therefore think that 
 the general rule of law must govern, that when a substantial 
 defect in the writ appears on the record, the Court ought, ex 
 officio, to abate it. " ^ It appears from the foregoing extract 
 that in the case then before the Court the fact that the plain- 
 tiff was a part owner only was apparent from an inspection 
 of the writ; but the language of the Court, and the reasoning 
 upon which the Court based its decision, both, as it seems 
 to us, tend to establish the proposition that in replevin, as in 
 assumpsit, the non-joinder of a cotenant is available to the 
 
 ' Hart V. Fitzgerald, 2 Mass. 511.
 
 § 356 ACTIONS AGAINST STRANGERS. 410 
 
 defendant without a plea in abatement, even when such non- 
 joinder is not evident from an inspection of the writ. There 
 are other cases which favor the same proposition, and indi- 
 cate that, under the plea of non cepit, the plaintiff must show 
 that he has an exclusive right to the possession of the prop- 
 erty.^ But, on the other hand, Judge Story was clearly of 
 the opinion that when the plaintiff sues for the whole and 
 not for his moiety, the non-joinder of the plaintiff's cotenant 
 ''is pleadable in abatement only, and is not a plea to the 
 merits; and that pleading over to the merits is a waiver of 
 it."- It is self-evident that in reference to the point now 
 under consideration the rule of law must be the same in re- 
 plevin as in detinue. In considering the last named action, 
 the Supreme Court of North Carolina, after referring to the 
 rule applicable to actions ex delicto for the recovery of dam- 
 ages, said: "It is otherwise in the action of 'detinue.' 
 Treating it as an action ex contractu, it falls under a weU set- 
 tled general rule, and treating it as an action ex delicto, we 
 think it cannot be maintained by one of several tenants in 
 common, and the objection may be taken advantage of, upon 
 the general issue, or by demurrer, or motion in arrest; for in 
 detinue the specific thing is recovered which is not divisible; 
 so the plaintiff cannot recover his aliquot part, and if allowed 
 to recover at all, must get the whole, which would be more 
 than he is entitled to."^ 
 
 § 356. Whether one can Recover the -whole Damages. — 
 We have seen that, under the general issue, the defendant 
 may show that the plaintiff owns but an undivided interest, 
 and upon making suCh showing, may have the damages appor- 
 tioned so as to correspond with that interest. WeU as this 
 general rule is established, there are cases in which it has 
 been sought to create exceptions to the rule; and in some of 
 these cases, some very novel propositions have been assumed 
 to be familiar and long established. One of these cases had 
 direct reference to actions of trespass qiiare clausum /regit, 
 and in the course of the opinion of the Court, an illustration 
 
 1 Eeinheimer v. Hemingway, 35 Pa. St. 438. 
 - D'Wolf V. Harris, 4 Mason, 539. 
 3 Cain V. Wright, 5 Jones Law, 283.
 
 411 ACTIONS AGAINST STRANGERS. § 357 
 
 was drawn from what was supposed to be the law governing 
 the recovery in an action for mesne profits. The case referred 
 to was an action for breaking and entering the plaintiff's close. 
 The plea was the general issue. On the trial, the plaintiff 
 was shown to be the owner of a moiety of the lands on which 
 the alleged trespass was made. The Court felt no hesitation 
 in permitting the plaintiff to recover the whole damages, and 
 justified its decision as follows : ' ' Having title to one-half, the 
 plaintiff' must recover the whole land in ejectment, and the 
 whole damage, we think, in trespass quare clausum fregit. 
 That was certainly so at common law-, when trespass is brought 
 merely for mesne profits, and equally in an action of eject- 
 ment, the plaintiff, who recovered the land, would recover 
 damages for his own portion of the land, and also for his co- 
 tenant. The case of Chandler v. Spear ^ was trespass de bonis, 
 and in that action, which is merely personal, one tenant in 
 common can only recover his poi*tion of the common chattel, 
 and the same rule was thought applicable when the action 
 was in that form, notwithstanding the damage grew^ out of an 
 injury to the land. But we are not aware that any question 
 has ever been made, but that in real and possessory actions, 
 one tenant in common may always recover the damage due 
 his cotenant as against a mere stranger."^ 
 
 g 357. Failure to Object to Non- Joinder of Joint - 
 Tenant. — The general rule of law that the failure to plead 
 the non-joinder of plaintiff's cotenant does not preclude the 
 defendant from giving evidence of the cotenancy for the pur- 
 pose of procuring an apportionment of the damages, has been 
 held to be inapplicable to joint-tenants. "In the case of 
 tenants in common, the rule allowing the interest of the party 
 not joined to be proved in diminution of damages, is put upon 
 the gi-ound that he may still sue for the value of his share. 
 But joint -tenants are not the owners of separate shares. 
 Each joint-owner has title to the entirety. I am, therefore, 
 of opinion that where the defendant permits one or more of 
 several joint-tenants to sue alone in action of tort, by not 
 
 ' 22 Vt. 388. - Hibbard v. Fobtor, 24 Vt. 54«.
 
 §§ 358-59 ACTIONS AGAINST STRANGERS. 412 
 
 pleading the joint-tenancy in abatement, that the recovery 
 should be for the damages sustained by all the cotenants."' 
 
 g 358. The failure to interpose a plea in abatement 
 
 when sued by one part owner is a waiver of the right to such 
 plea in a subsequent action brought by the other part owner 
 for the same cause and against the same defendant. The 
 plaintiff in the first action having recovered therein on his 
 part of the demand can no longer sustain any further action 
 thereon, either separately or in conjunction with his former 
 companions in interest. In order that the part owner who 
 has not as yet obtained redress may have some remedy, it is 
 necessary that he should be permitted to sue alone. If the 
 defendant wishes to avoid the costs and annoyance of several 
 suits, he must interpose his objection at the earliest oppor- 
 tunity.^ 
 
 § 359. Joinder with Strangers to the Cotenancy. — An 
 action may be prosecuted by two or more persons as coten- 
 ants, and upon the trial it may appear that one of them is 
 not a cotenant — has no interest in the property— and is there- 
 fore a superfluous party. In such case, it is clear upon the 
 authorities that judgment must be entered for the defendant. 
 It makes no difference that the other plaintiffs have a perfect 
 cause of action— one upon which, had they sued alone, they 
 must have recovered against the defendant. " It is an estab- 
 lished principle that only those whose legal rights are invaded 
 should unite in an action for the injury."^ Therefore, if an 
 action of detinue be brought by several heirs, and it appears 
 on the trial that one of them was divested of his interest be- 
 fore the suit was brought, judgment must be entered for the 
 defendant." So, when two or more persons unite as petition- 
 ers in a bill in equity, if either of them is not entitled to re- 
 relief, the bill must be dismissed as to all.^ If several join 
 
 ' Zabrisbie v. Smith, 13 N. Y. 337. 
 
 •■' Sedgeworth v. Overend, 7 T. E. 279; Starnes v. Quinn, 6 Geo. 86. 
 
 » Lewis V. Knight, 3 Litt. 225; Ulmer v. Cunningham, 2 Greenl. 117; Co. Litt. 1456; 
 Glover v. Hunnewell, 6 Pick. 224; Rhoads v. Booth, 14 Iowa, 576; Barratt v. Collins, 
 10 J. B. Moore, 446. 
 
 * Lewis V. Knight, 3 Litt. 225. 
 
 ^ Jones V. Quinnipiack Bank, 29 Conn. 45.
 
 413 ACTIONS AGAINST STRANGERS. g 359 
 
 in an action of trover, " it is incumbent upon them to prove 
 the property in all, not a part only, of the plaintiffs. And it 
 makes no difference in what manner the title of one fails, 
 whether in consequence of no conveyance from the owner, 
 or of a conveyance void by reason of fraud. If all the plain- 
 tiffs have not an interest in the goods, they fail to establish a 
 material allegation in their declaration that they were pos- 
 sessed of \\xem. a^ their own property."^ So, if in any form 
 of action it appear that all the plaintiffs once had a good 
 cause of action, and that some of them are barred by the 
 statute of limitations, while others, from having labored 
 imder some disability, are not so barred, those who were 
 under the disability cannot recover, but judgment must be 
 entered in favor of the defendant.^ "It is well settled that 
 on a joint demise of two or more plaintiffs, if any of them 
 fail to show title on the day of the demise, the plaintiffs can- 
 not recover."^ In ejectment, "it is admitted that, if any 
 one of the plaintiffs has no title to the land in question, 
 though the other plaintiffs may have the whole title, no re- 
 covery can be had. To entitle the plaintiffs to a verdict, all 
 the plaintiffs must have a right to demand the possession."^ 
 "If one who has a good cause of action join, in trespass 
 quare dausum /regit, with one who has no cause of action, 
 the suit cannot be sustained."^ The rule that all the plain- 
 tiffs must have a right of recovery or else the action will en- 
 tirely fail, is applicable where the plaintiffs are husband and 
 wife.*^ If a personal injury be done to two or more persons, 
 a joint cause of action does not accrue to them, although the 
 injury to each may result from the same act.^ An early 
 statute in Connecticut authorized an action to be brought 
 by a defendant against the plaintiff for bringing a suit Avith 
 intent "unjustly to trouble and vex such defendant." It was 
 
 ' Pettibonc v. Thelps, 13 Conn. 449; Gerry v. Gerry, 11 Gray, 381. 
 ^ Sanford v. Button, 4 Day, 312; Hardoman v. Simn, 3 Ala. 747; Diclav r Arm- 
 strong's Devisees, 1 A. K. Marsh. 41. 
 
 " Skyles' Heirs v. King's Ilcirs, 2 A. K. Marsli. 387. 
 
 *DeMill V. Lopkwood, 3 Blatflif. (il; Tornoy r. Pierce, 42 Cal. 338; Chvuvy v 
 Cheney, 20 Vt. (JOG; Jackson v. Ilichniond, 4 Johns. 483. 
 •' May V. Blade, 24 Tex. 208; Mni-ray i\ Wdjster, 5 N. 11. 302. 
 
 ,.l?^!'^J^^**y- Carter, Hempst. 04; Itawliiis r. Itounds, 27 Vt. 17; Van Arsdiile r. Di.xon. 
 Hill & Demo, 358; Gerry v. (Jerry, 11 Gray, 381. 
 ~ Leavet v. Sherman, 1 Root, 150.
 
 § 360 ACTIONS AGAINST STRANGERS. 414 
 
 held that three persons who had been parties defendant in 
 the same suit could not join in an action under this statute, 
 because such action was "not for a joint wrong, or an injury 
 to joint property, or the violation of a joint right, but for 
 separate personal wrongs to each, for which the law will not 
 sustain a joint action."^ 
 
 § 360. Misjoinder, how taken advantage of. — In regard 
 to the non-joinder of cotenants, in actions arising out of their 
 common property, and the manner in which defendant should 
 take advantage of such non-joinder, we have seen that a dis- 
 tinction has been made between actions sounding in tort and 
 those based upon contract; and also that some of the author- 
 ities make a further distinction between different forms of 
 actions ex delicto, contending that while, if the action be for 
 damages, the non-joinder must be pleaded in abatement, and 
 if it be for the recovery of possession of chattels alleged to 
 be wrongfully withheld from the plaintiff, then the non-joinder 
 is available without such plea. Concerning the misjoinder of 
 persons as cotenants when they have no interest in the subject- 
 matter in controversy, no such distinctions have ever been 
 made; and the same rule which applies to actions ex contractu, 
 is equally applicable to actions ex delicto. The objection that 
 one of the plaintiffs has no interest in the cause of action 
 ' ' may be taken on the trial in arrest, or by appeal, or writ of 
 error, and especially when such misjoinder of parties does 
 not appear from the plaintiff's petition. The counts of a 
 petition may be ever so perfect in showing a just right, or 
 that there is a proper joinder of parties, and yet if, upon the 
 trial, or in any stage of the case the misjoinder appears, de- 
 fendant may avail himself of the defect."^ " The rule of the 
 common law was that the objection, if it appear on the record, 
 may be taken advantage of by demurrer, in arrest of judg- 
 ment, or a writ of error; or if the objection do not appear on 
 the face of the proceedings, it would be a ground of nonsuit 
 on the trial. "^ "If too many ■pemons be made coplaintiffs, 
 the objection, if it appear on the record, may be taken advau- 
 
 ' Ainsworth v. Allen, Kirby, 146. 
 
 '^ Ehoods V. Booth, 14 Iowa, 577; Gerry v. Gerry, 11 Gray, 381; Ulmer v. Cunning- 
 ham, 2 Greenl. 118. 
 •' Gillam v. Sigman. 29 Cal. 639.
 
 415 ACTIONS AGAINST STRANGERS. §§ 361-62 
 
 tage of either by demurrer, in arrest of judgment, or by writ 
 of eiTor; or if the objection do not appear on the face of the 
 pleadings, it would be a ground of nonsuit on the trial.' ' 
 
 ^ 361. Mi^oinder— Rule under the Codes.— The rule of 
 the common law under which the defendant was permitted to 
 object to the misjoinder of parties plaintiff whenever the same 
 was made to appear, and was relieved from tlie necessity of 
 interposing a plea in abatement, has been abolished by the 
 Codes of New York and of California. In each of these States 
 the misjoinder of plaintiffs, if apparent upon the face of the 
 comjDlaint, must be taken advantage of by demuiTer; if not 
 apparent upon the face of the complaint, the defendant must 
 set it up in his answer. The failure to demur in the one case, 
 and the failure to object to the misjoinder in the answer in 
 the other, are each alike an irrevocable waiver of the defend- 
 ant's right to take advantage of the misjoinder.'' The same 
 Codes also contain similar provisions specifying the manner 
 in which the defendant may object to the want of proper 
 parties plaintiff. Under these Codes, "a defect of parties 
 when apparent upon the face of the complaint, is good ground 
 for demurrer; and when not apparent upon the face of the 
 complaint, may be taken by answer, and if not taken either 
 by demurrer or answer, the defendant shall be deemed to have 
 waived the same."^ It has also been held that the objection 
 must be made at the earliest opportunity; and therefore that 
 if the non-joinder be apparent on the face of the complaint, 
 the defendant by not demurring on that gi-ound, waives his 
 rights, and cannot in his answer take advantage of the non- 
 joinder.^ 
 
 g 362. Death of one Cotenant before Suit.— V/hen the 
 cause of action is joint, it survives to the remaining coteu- 
 ants on the death of either of them. This is true in every 
 form of cotenancy. " It is to be observed that where dam- 
 
 ' 1 Chitty PI. 66. 
 
 ■' FoHgato V. Herkimer Mauf. Co. 12 N. Y. 584; Gillam v. Higmaii, 2'.» Cal. 630; Has- 
 
 tingH V. stark, .% Cal. 120. 
 
 ^ Alvarez v. Brauuan. 7 Cal. 510; Dunn v. Tozer, 10 Cal. 170; Wernlt r. Ross. 33 Cal. 
 656; Scrantou r. F. A M. Bank, 33 Bail). 527; Couklin .-. Barton. 43 Barb. 435; Mor- 
 ritt V. Walsh, 32 N. Y. 685. 
 
 < ZabriHkie v. Smith, 13 N. Y. .'{30.
 
 § 362 ACTIONS AGAINST STRANGERS. 416 
 
 ages are to be recovered for a wrong done to tenants in com- 
 mon, or parceners in a personall action, and one of them die, 
 the survivor of them shall have the action; for albeit the 
 property or estate be severall between them, jet (as it ap- 
 peareth here by Littleton) the personal action is joynt."^ 
 "When one or more of several obligees, covenantees, or 
 others having a joint legal interest in the contract, dies, the 
 action must be brought in the name of the survivor, and the 
 executor or administrator of the deceased cannot be Joined, 
 nor can he sue separately, though the deceased alone might 
 be entitled to the beneficial interest in the contract."^ "When 
 one of several parties jointly interested in the property at 
 the time the injury was committed is dead, the action should 
 be in the name of the survivor, and the executor or adminis- 
 trator of the deceased cannot be joined, nor can he sue sepa- 
 rately; and therefore to an action of trover brought by the 
 sursdvor of three partners in trade, it cannot be objected that 
 the two deceased partners and the plaintiff were joint mer- 
 chants, and that in respect of the lex mercatoria the right of 
 survivorship did not exist, for the legal right of action sur- 
 vives, though the beneficial interest may not."^ As tenants 
 in common ought to join in all personal actions, it follows, 
 according to the principles stated in the above quotations, 
 that upon the death of either, the cause of action which was 
 before in the cotenants jointly passed to the survivor, and may 
 be by him prosecuted to judgment. Therefore, if a deed be 
 made to two with a covenant of warranty, and the grantees 
 are ' ' evicted in their lifetime, the action is well brought by 
 the survivor."* So, if there be two cotenants of a patent 
 right, and damages be suffered by them from an infringement 
 of such right, the survivor of them may recover the entire 
 amount of such damages.^ The same rule is applicable to 
 actions for the recovery of indivisible chattels. Thus, where 
 an action of detinue was brought by a sole plaintiff for a 
 slave alleged to have been devised to himself and his brother, 
 
 i Co. Litt. 198 a; 3 Eob. Pr. 164. 
 
 - 1 Chitty PI. 19; Addison on Contracts, 1048. 
 
 ^ 1 Chitty PI. 67. 
 
 ^ Townsend v. Morris, 6 Cow. 127; Codman v. Hail, 9 Allen, 337. 
 
 5 Smith V. London & N. W. B. W. Co., 2 El. & Bl. 69.
 
 417 ACTIONS AGAIN8T STRANGERS. g§ 363-64 
 
 and the brother was alleged to have died prior to the suit, 
 the defendant objected that the plaintiff was "incapable of 
 maintaining a suit alone for the entirety of the thing devised;" 
 but the Court overruled the objection, because "in suits for 
 an indivisible thing, a right of action survives to a tenant in 
 common; and this, from the necessity of the case, as we con- 
 ceive the authorities sufficiently maintain."' "In actions ex 
 delicto, in case of the decease of the sole plaintiff, not only 
 did the suit abate, but the right was forever gone. Not so in 
 the case of the decease of two or more plaintiffs: the suit 
 abated, but the right survived. It is a general rule that where 
 two are entitled to a right ex delicto, and one dies, it remains 
 wholly to the survivor."^ 
 
 g 363. Death of all Cotenants before Suit. — Upon the 
 death of one of the parties entitled to a joint action, the whole 
 right of action not only accrues to the survivor during his 
 lifetime, but if not prosecuted to judgment by him, vests, at 
 his death, in his executor or administrator. The executor of 
 the party first deceased need not, in fact he must not, join as 
 coplaintiff with the executor of the last survivor. If the two 
 join, the case is as clearly a misjoinder of parties plaintiff' as 
 if the testator of one of them never had any interest in the 
 cause of action.^ 
 
 g 364. Death of a Cotenant pendente lite. — In the two 
 preceding sections, we have considered the effect of the death 
 of one cotenant after the accruing of a joint cause of action 
 and he/ore the commencement of a suit thereon; and have 
 found the rule to be universal that all joint causes of action 
 survive to the last survivor, irrespective of the nature of the 
 cotenancy; and further, that Avhen the cause of action sur- 
 vives after the decease of all the cotenants, it vests in the 
 personal representative of the last survivor. Wo shall now 
 consider the effect of the death of one of the cotenants poi- 
 dente lite, for the purpose of ascertaining whether such death 
 operates as an abatement of the suit. The general rule upon 
 
 ' Shelby u. Guy, 11 Wheat. 365. 
 •^ Wright V. Eldml, 2 Chip. 41. 
 ^ Stowell'H Adnir. u. Drake, a Zabr. 310; 1 Cliitty PI. 21. 
 
 C. & p.— 27
 
 § 365 ACTIONS AGAINST STRANGERS. 418 
 
 this subject is thus stated by Mr. Jickling: "If the whole in- 
 terest of a party dying survive to the other party, so that no 
 claim can be made by or against the representatives of the 
 party so dying, the proceedings do not abate. Survivorship 
 is a characteristic of joint-tenancy, and hence, on the death 
 of a joint-tenant, party to a suit, either as plaintiff or de- 
 fendant, the suit does not abate. "^ It is therefore certain 
 that if the plaintiffs are joint-tenants, the death of one does 
 not occasion an abatement of the action.^ But the rule of 
 law preventing the abatement of a suit upon the decease of 
 either plaintiff therein, is the result of statutory enactment. 
 "At the common law in all actions, where there are two or 
 more plaintiffs or demandants, the death of one of them 
 pending the suit, that is, before final judgment, is an abate- 
 ment of the action, though the property survives to the other, 
 except in a few cases, such as a quare impedlt by two, where, 
 out of necessity, the death of one does not abate the suit, 
 for the six months may pass, or a lapse incur, before the sur- 
 vivor can bring another action, and therefore if the writ 
 abates the action will fail; or in an audita querela by two, for 
 it is only in discharge; or in debt by two executors, where 
 one was summoned and severed, and dies, the writ does not 
 abate. "^ By statute 8 and 9 W. 3. c. 11, sec. 7, it was en- 
 acted ' ' that if there be two or more plaintiffs or defendants, 
 and one or more of them should die, if the cause of such ac- 
 tion shall survive to the surviving plaintiff or plaintiffs, or 
 against the surviving defendant or defendants, the writ or ac- 
 tion shall not be thereby abated; but such death being sug- 
 gested on the record, the action shall proceed at the suit of 
 tlio surviving plaintiff or plaintiffs against the surviving de- 
 fendant or defendants."* 
 
 § 365. Survivorship of Actions, not affected by Statute. — . 
 
 A statute of Arkansas declared that ' ' all survivorships of real 
 and personal estate are forever abolished." Subsequently to 
 the enactment of this statute, a surviving obligee of a bond 
 
 ' Analogy between Legal and Equitable Estates, 244. 
 
 ■■' Fallowes v. Williamson, 11 Ves. 306; Boddy v. Kent, 1 Mer. 364. 
 
 ^ 2 Saunders, 72 i. 
 
 "' The practice as designated by this statute was followed in Anderson v. KuiErht, 
 Geo. Decis., part 2, p. 123.
 
 419 ACTIONS AGAINST STRANGERS. § 366 
 
 brought an action as such survivor against the obligor in the 
 bond, and was met by the objection that this statute had 
 abolished survivorship in joint causes of action, and therefore 
 that the plaintiff could not alone maintain an action on the 
 bond. The Court, in order to reach a proper construction of 
 the statute, referred to the old law, and the mischief therein 
 ■which the act was intended to avert; and concluded from such 
 reference, that the only object of the statute was to abolish 
 that incident of joint estates under which both the legal and 
 the beneficial title vested in the longest liver; and that " the 
 general words of the act must be taken in a qualified sense; 
 for, unless that be done, they will defeat the very object and 
 intention of the statute. Instead of remedying the e-vil, it 
 would operate to produce the very mischief intended to be 
 cured. It would operate to the prejudice of trade and com- 
 merce, by incumbering the remedies by which rights would 
 be asserted. Such a construction put upon the act would be 
 in direct derogation of all the principles of commerce which 
 are now so firmly and beneficially established among all civi- 
 lized nations. And men, instead of being encouraged to join 
 their means and eftbrts together, for important objects and 
 ends, for trade and other purposes, would stand aloof from 
 each other, if, upon the decease of one partner, the other 
 had no right to wind up the business. We think this prin- 
 ciple, so completely and intimately blended as it is in our 
 commercial relations, too plain to require further illustration 
 or argument."' 
 
 j;/ 366. Joinder of Actions against Cotenants. — The ac- 
 tions which may be brought against cotenants based upon the 
 mere fact of their ownership of the common property are but 
 few in number. Persons occupying toward each other the 
 relation of cotenants frequently make joint contracts with 
 strangers to the cotenancy, and they are sometimes guilty of 
 jointly committing torts against such strangers, but in these 
 cases the liability of the cotenants is based, in the first in- 
 stance, on their joint contract, and in the second, on their 
 joint act; and in both cases the liability in nowise results from 
 the subject-matter of the cotenancy; and is therefore, through- 
 
 ' Trumiacll r. Hairell, 4 Pike, C05.
 
 § 367 ACTIONS AGAINST STRANGERS. 420 
 
 oat, regulated and to be enforced by precisely the same rules 
 of law as though the contractors on one hand and the tort- 
 feasors on the other, instead of being cotenants, had between 
 one another no property relations whatever. But damages 
 may be suffered by strangers to the cotenancy, and which, 
 though not occasioned by the act of any of the cotenants, may 
 nevertheless confer a right of action on the person damaged. 
 In the case of a tort committed by the concurrent act of two 
 or more persons, it is well understood that the liability of the 
 tort-feasors is both joint and several. But for injuries occa- 
 sioned by property and chargeable to the negligence or non- 
 feasance of the owners thereof disconnected from any affirm- 
 ative act done or caused by them, the consequent liability is 
 joint, and all the cotenants must be made defendants in an 
 action based iipon such liability, for their title comes in ques- 
 tion as the foundation of the claim.' " If one tenant in com- 
 mon only be sued in trespass, trover, or case, for anything 
 respecting the land, he may plead the tenancy in common in 
 abatement."^ In order to invoke the benefit of this rule, it 
 must appear that the cause of action against the defendants 
 is necessarily dependent upon their joint or common owner- 
 ship of lands or other property. Hence, if it be shown that 
 the injury complained of resulted from the erection of a dam 
 by the defendants, here, as this is an act of malfeasance for 
 which they are responsible irrespective of their cotenancy, the 
 action will be treated as merely ex delicto, and the tort-feasors 
 may be pursued either jointly or separately as the plaintiff 
 may elect.^ 
 
 PROCEEDINGS IN EQUITY. 
 
 g 367. General Principles as to Joinder of Cotenants. — 
 
 It is said to be the constant aim of courts of equity to do 
 complete justice, and to settle the rights of all persons in- 
 terested in the subject-matter of the litigation in one suit; 
 in order that litigation may not be conducted by halves, and 
 that the same persons may not be harassed by a multiplicity 
 
 ' Low V. Mumford, 14 Johns. 426. 
 
 ^ Note to Cabell «. Vaughan, 1 Saund. 291 e; Mitchell v. Tarbutt, 5 Durnf. & E. 
 651; Converse v. Symmes, 10 Mass. 3?8. 
 * Sumner v. Tileston, 4 Pick. 308; Southard v. Hill, 44 Me. 96.
 
 421 ACTIONS AGAINST STRANGERS. § 367 
 
 of suits in reference to the same subject-matter. Conceding 
 that this aim is steadily pursued in these coui'ts, and that 
 their rules of procedure are moulded to assist in the accom- 
 plishment of the end sought, we should naturally expect to 
 find here rules regulating the conduct of suits by persons 
 having a union of interest, and prescribing that those persons 
 should unite in the prosecution of a common claim. But in- 
 stead of discovering invariable niles, v.e are compelled to 
 concur in the following language of Judge Story, in which he 
 reminds his readers of the imjDOSsibility of stating any rules 
 which shall be of universal application to the joinder of par- 
 ties in equity : ' ' The truth is, that the general rule in relation 
 to parties does not seem to be founded on any positive and 
 uniform principle ; and therefore it does not admit of being 
 expounded by the application of any universal theorem, as a 
 test. It is a rule founded partly in artificial reasoning, partly 
 in considerations of convenience, partly in the solicitude of 
 Coui'ts of Equity to suppress multifarious litigation, and 
 partly in dictates of natural justice, that the rights of persons 
 ought not to be afi'ected in any suit, without giving them an 
 opportunity to defend them. Whether, therefore, the com- 
 mon formulary be adopted that all persons materially inter- 
 ested in the suit, or in the subject of the suit, ought to be 
 made parties, or that all persons materially interested in the 
 object of the suit ought to be made parties, we express but 
 a general truth in the application of the doctrine, which is 
 useful and valuable indeed as a practical guide, but is stUl 
 open to exceptions, and qualifications, and limitations, the 
 nature and extent and application of which are not, and 
 cannot, independently of judicial decision, be always clearly 
 defined."^ But while rules, thus uncertain in their general 
 application, have not been made definite nor uniform in 
 their application to the law of cotenancy, yet the general 
 tendency of the decisions is such as to justify the remark 
 of Sir William Grant that, "as far as it is possible, the 
 Court endeavors to make a complete decree, that shall em- 
 brace the whole subject, and determine upon the rights of 
 all parties interested in the estate."^ 
 
 ' story's Eq. PI. sec. 76 c. '' Palk v. Clinton, 12 Vc8. 58.
 
 §§ 368-69 ACTIONS AGAINST STRANGERS. 422 
 
 g 368. In respect to joint-tenants, ^ve find the rule thus 
 cautiously expressed: "One joint-tenant cannot ordinarily 
 sue or be sued without joining the other joint-tenants."^ One 
 of two joint-tenants cannot alone maintain an action for an 
 account of the rents of the joint estate.^ So where A and B 
 brought a bill to be relieved against the City of London, be- 
 cause while they and C were joint lessees from the city of 
 certain water springs at a specified rent, they were evicted 
 from some of the springs and disturbed in the enjoyment of 
 others ; and the bill prayed that they might have several al- 
 lowances out of the rent by reason of such eviction and dis- 
 turbance, it was conceded that the action could not proceed 
 without the presence of C, because if it were allowed to so 
 proceed, C might come in and compel the defendants to reliti- 
 gate the whole matter.^ Upon a bill being filed to have an 
 account of a trust, th« defendant pleaded that he was trustee 
 for the plaintiff and two others; " and that the other two not 
 being parties to the suit, he was not bound to answer; for 
 otherwise he might be thrice called to account for the same 
 matter;" and the plea was allowed.^ 
 
 § 369. Joinder of Tenants in Common. — The rules gov- 
 erning the joinder of joint-tenants in equitable proceedings 
 seem to be equally applicable to the joinder of other cotenants. 
 Thus, where one of two tenants in common brought an action 
 of ejectment to recover possession of real estate, but dis- 
 covering that there was an outstanding term which the de- 
 fendant intended to set up, he filed a bill praying a declaration 
 of his right to a moiety of the estate, and for the delivery of 
 the estate and title deeds, and for an account of the rents, it 
 was held upon demurrer that the other cotenant was a neces- 
 sary party, because the deeds could not be delivered up in the 
 absence of a party interested.^ If any one of the heirs seek 
 to set aside a deed of their ancestor on the ground of fraud 
 in its procurement, all the heirs must be brought before the 
 
 ' story's Eq. PI. sec. 159. 
 
 2 Weston V. Keighley, Finch, 82. 
 
 ^ Stafford v. City of London. 1 P. Wms. 4fi8. 
 
 * Hamm v. Stevens, 1 Vern. 110; Kirk v. Clark, Pre. Ch. 275. 
 
 * Brookes v. Burt, 1 Beav. 106. See also Munoz v. De Tastet, lb. p. 109; Baker v. 
 Harwood, 7 Sim. 37G.
 
 423 ACTIONS AGAINST STRANGERS. § 369 
 
 Court. The deed, if set aside, affects the whole property. 
 The Court, therefore, will not act until all persons interested 
 are brought before it.' A assigned a certain fund, deposited 
 in a house of agency in India, to tnistees under certain tnists, 
 under which his daughters, B and C, became entitled to the 
 fund equally. A suit was instituted, in which C's moiety of 
 the fund was ordered to be paid to her, and B's moiety was 
 ordered to remain in Court. The trustees suffered the fund 
 to remain in the house of agency xmiii it failed. C then filed 
 a bill against the trustees, to make them responsible for her 
 moiety of the fund; whereupon it was held that, notwithstand- 
 ing the prior decree, B was a necessary party to the new suit; 
 and for so holding, the Vice-Chancellor gave the following 
 reasons: "In this case there is a trust-fund, one moiety of 
 which belongs to A, and the other moiety belongs to B; and 
 a suit has been instituted by A, in w^hich the allegation is 
 that the whole fund has been improperly dealt with by the 
 trustees. As it is not represented that B has been satisfied 
 in respect of his share, it follows, unless B is made a party 
 to the suit, the defendants will be subject to a second suit, 
 as to what constitutes misfeasance of the whole fund. The 
 whole matter must be settled in one suit; and therefore, if 
 one of the parties interested in the fund is not a party to the 
 suit, the Court will not give any relief as to the fund."'' The 
 trustees of a turnpike road borrowed money of A. B., giving 
 him security on the tolls, and assigning to him such propor- 
 tion of the tolls as the sum advanced by him bore to the 
 whole sum of money advanced by himself and others on the 
 credit of the tolls. A bill was subsequently filed by A. B. 
 to recover what was due him under his mortgage. The Court 
 held that as he was only one of several entitled to share in 
 the benefit of the tolls, he could not, in the absence of the 
 other mortgagees, sue alone for his share. " He a^s to be 
 paid what is due to him out of the moneys received or to be 
 received under the acts of parliament, and that a receiver of 
 the same may bo appointed; but the other mortgagees are 
 interested in those moneys, and the plaintifl" cannot bo paid 
 
 ' Young V. Bilderback, 2 Green's Ch. 200; Uarcling v. Handy, 11 Wheat. lO.S. 
 ■^ Mnnch v. Cockerell, 8 Sim. 231.
 
 §§ 370-71 ACTIONS AGAINST STRANGERS. 424 
 
 in full without diminishing the fund out of which they are 
 entitled to be paid; and under these circumstances, I am of 
 opinion, that in this form of suit the plaintiff is not entitled 
 to the general relief which he prays." ^ 
 
 § 370. Joint Legatees. — It seems to be conceded that 
 legatees entitled to a legacy as joint-tenants thereof must file 
 their joint bill therefor.^ But if the legacy be bequeathed 
 to them as tenants in common, a different rule prevails, at 
 least where the legacy is ascertained and has been set apart 
 from the residue of the testator's estate. Thus, in Hutchin- 
 son V. Townsend,* it was held that parties who, by virtue of 
 the provisions of a certain will, had become entitled to one- 
 fourth of an ascertained fund, were entitled to sue for their 
 share without making the parties entitled to the other three- 
 fourths parties to the suit. In a subsequent case, it appeared 
 that a legacy of X150 had been bequeathed to B and H, and 
 that H had filed a bill against the executor and the residuary 
 legatee for the payment of a moiety of the X150. An objec- 
 tion was made that the other legatee ought to have been made 
 a party, but it was overruled.'* 
 
 g 371. Foreclosure against Joint Mortgagors. — If ten- 
 ants in common, or other cotenants, jointly execute a mort- 
 gage, or otherwise create a joint lien on their lands, the 
 mortgagee, or other lien-holder, cannot be compelled to re- 
 ceive payment of a moiety on behalf of either cotenant.* He 
 is entitled to have his whole demand continue secured by a 
 lien on the entire property until payment is made in full. 
 One mortgagor cannot, therefore, compel the mortgagee to 
 receive half the debt, and to proceed against his cotenant's 
 moiety for the other half, although he tender a sufficient 
 bond of indemnity against eventual loss.^ In effecting a re- 
 demption of their lands, after the sale thereof under an exe- 
 cution or order of sale, it is not necessary that all the co- 
 
 ' Mellish V. Brooks, 3 Beav. 27. 
 
 ^ Haycock v. Haycock, 2 Ch. Ca. 124. 
 
 a 2 Keen, 675. 
 
 * Hughson V. Cookson, 3 Younge & G. 578. 
 
 * Fisher on Mortg. sec. 526; Sanders v. Richards, 2 Coll. 568. 
 » Frost I'. Bevins, 3 Sandf. Ch. 188.
 
 425 ACTIONS AGAINST STRANGERS. § 372 
 
 tenants should be present/ nor that those who are not present 
 should have previously authorized a redemption to be made 
 on their behalf. The pai-ties have sucli a common interest, 
 that no previous express authority is necessarj- to make a ten- 
 der by one valid for all. An agency is implied by law, from 
 the relation of cotenancy, by which either cotenant is author- 
 ized to act for all in making a tender for the pui-pose of se- 
 curing a title and possession in which all have a common in- 
 terest." If, after a tender made by one cotenant for the 
 pm-pose of redeeming the lands of the cotenancy, it becomes 
 necessaiy to proceed against the purchaser to compel an ac- 
 ceptance of the tender, and the other cotenant refuses to 
 participate in such proceedings, the cotenant wishing to re- 
 deem may bring his bill to enforce his equity of redemption, 
 making his cotenant a party defendant. In such case, it 
 seems that the cotenant so made a defendant may, notwith- 
 standing his refusal to join in the suit, insist upon the ben- 
 efit of the redemption. "His refusal to join in the suit, or 
 his position in the suit, is of no consequence."^ A judgment 
 creditor of one tenant in common may redeem the interest of 
 such cotenant, but he must pay the entire sum which would 
 be necessary to effect a redemption of the whole property, 
 while by such redemption he can acquire nothing beyond the 
 moiety of his judgment debtor.^ In foreclosing a mortgage, 
 all the mortgagors must be made parties defendant." 
 
 § 372. Foreclosure by Joint Mortgagees. —" There can 
 be no foreclosure or redemption, unless the parties entitled 
 to the whole mortgage money are before the Court."" There- 
 fore, one of the mortgagees cannot alone bring a bill to fore- 
 close for his moiety of the mortgage." The rule that all the 
 
 ' Beekman v. Bunn, Hill & Denio, Supp. 265. 
 
 ■■^ Gentry v. Gentry, 1 Snecd, 88. 
 
 •• Gentry v. Gentry, 1 Sneed, 90. 
 
 * Neilson v. Nellflon, Ty Barb. 565. 
 
 '■> Stucker v. Htuckcr, 3 J. J. Marsh. 301. But in Georgia it has Ijoen lu'M that a 
 mortgage executed by two tenaiita in common may bo separately foreclosed againat 
 each. Baker v. Shepherd, 30 Ga. 706; 8. C. 37, XL. 15. 
 
 « Palmer v. Earl of Carlisle, 1 Him. A; St. 125; Woodward v. Wood, 10 Ala. 213. 
 
 ' Same as 4; also Lowe v. Morgan, 1 Bro. C. 0. 308; Forsyth i'. Drake, 1 Grant's Ch. 
 223; Johnson v. Brown, 11 Foster, 410; Tyler v. Yreka Wat<.r Co. 14 Cal. 218; Cock- 
 burn V. Thompson, 16 Ves. 324. The case of Montgomcrio v. Bath, 3 Yes. Jr. 560 is 
 contra.
 
 § 372 ACTIONS AGAINST STRANGERS. 426 
 
 joint mortgagees must be parties seems to be applicable, 
 although the mortgage was taken in the name of but one, the 
 debt secured being the joint property of all. Thus, where 
 N, H, and J, were partners in trade, and as such had received 
 several promissory notes from W; and thereafter W, to secure 
 the payment of such notes, executed a mortgage to N alone, 
 it was held that N could not, in his own name, bring a bill to 
 foreclose, and that H and J were necessary parties, because, 
 although the mortgage was made to N, "it was taken for the 
 benefit of all, and the money ought to be decreed to all."^ In 
 each of the cases to which we have referred, the debt secured 
 by the mortgage was joint. It occasionally happens that a 
 joint mortgage is given to secure separate and distinct debts 
 due to the mortgagees separately. In such case, there is no 
 joint interest in the money to be decreed; and having separate 
 debts, the mortgagees seem to occupy the same relation be- 
 tween each other and towards the mortgagor as though they 
 held separate mortgages simultaneously executed. It would 
 seem, therefore, that they could and ought to pursue separate 
 remedies of foreclosure. In one instance, it has been deter- 
 mined that they may join in proceedings to foreclose, and the 
 reasons assigned by the Court for its decision were such as to 
 indicate that, in the opinion of the Court, their joinder was 
 not optional.^ On the other hand, are at least two decisions 
 determining that the mortgagees may sue separately, and the 
 language employed in these cases is such as to sustain the 
 conclusion that the non-joinder is as compulsory as if separate 
 mortgages had been executed for each separate debt." A 
 mortgage given to secure separate debts may, after its fore- 
 closure, result in a tenancy in common of the land mortgaged. 
 But ' ' until a foreclosure is had upon a mortgage, or the title 
 to the land has, by process of law, become vested in thfe mort- 
 gagee or mortgagees, or their assignees, their interest is one 
 of security, and not such as to make them tenants in common 
 of the land. The mortgage is upon the whole premises, for 
 the security of every part of the debt named in the condition, 
 and the judgment must go upon the whole. If there are sev- 
 
 ' Noyes v. Sawyer, 3 Vt. 160. 
 
 - Shirkey v. Hanna, 3 Blackf. 403. 
 
 3 Thayer v. Campbell, 9 Mo. 283; Burnett i'. Pratt, 22 Pick. 557.
 
 427 ACTIONS AGAINST STRANGERS. § 372 
 
 eral demands, each demand is a claim upon the entire prop- 
 erty as against the mortgagor. He has mortgaged the whole 
 premises to secm-e the payment of all the notes and of each 
 note; but after the title of the property has passed from him 
 by due process of law, the assignees become the owners of 
 the land in proportion to their respective debts, and must 
 adjust the matter between themselves accordingly."' 
 
 Note. — The Legislatures of the several States have interfered with the rules of tlie 
 common law in regard to actions hy cotenants against third persons, with much less 
 frequency than with the nales relating to actions by cotenants between one another. 
 The chief statutorj- innovations on the common law have been: 1st, the allowance of 
 the joinder of tenants in common in actions to recover the possession of the com- 
 mon property; and 2d, authorizing the entry of judgment in favor of those entitled 
 thereto, notwithstanding their misjoinder with persons having no interest in the 
 property sued for. We give below extracts from such of the statutes as wo have been 
 able to discover among the compiled laws of the several States; but as the indices to 
 these compilations are manifestly very imperfect on this subject, we have, no doubt, 
 been unable to find many of the statutor>' provisions concerning actions by cotenants 
 against strangers to the cotenancy. 
 
 CvLiFOBNiA.— "All persons holding as tenants in common, joint-tenants, or copai"- 
 ceners, or any number less than all, may jointly or severally commence or defend any 
 civil action or proceeding for the enforcement or protection of the rights of such 
 party."— Sec. 384 Code of Civil Procedure. 
 
 Geobgia. — "A tenant in common need not join his cotenant, but may sue separately 
 for his interest, and the judgment in such case affects only himself."— Sec. 3259 Code 
 of Georgia, ed. of 1871. 
 
 Illinois. — In actions of ejectment, if any of the plaintiffs is entitled to judgment, 
 he may recover notwithstanding his joinder with a plaintiff not entitled to judg- 
 ment.— Gross Statutes of 111. p. 246, sec. 26. 
 
 Indiana. — In this State, in actions to recover possession of real estate, "Where 
 there are two or more plaintiffs or defendants, any one or more of the plaintiffs may 
 recover against any one or more of the defendants, the premises or any part thereof, 
 or any interest therein, or damages according to the right of the parties; but the re- 
 covery shall not be for a gi'eater interest than is claimed." (Rev. St. vol. 2, p. 167, 
 sec. 600, vol. 2 Gavin & Herd, p. 283.) Actions for nuisance "may bo brought by any 
 person whose property is injuriously affected, or whose personal enjoyment is lessened 
 by the nuisance."— Sec. 629, lb. p. 289. 
 
 See $ 614, p. 285, as to action against his cotenant. 
 
 Maine.— " Persons claiming as tenants in common, joint-tenants, or coparceners, 
 may all, or any tvio or more, join in a suit for recovery of lands; or dno may sue 
 alone. 
 
 " The demandant may recover a specific part or imdividud portion of tlu' premises 
 to which ho proves a title, though less than he demanded." — Rev. St. Mo. p. 762, sees. 
 9, 10, ed. 1871. 
 
 "All or any of the tenants in common, coparceners, or jointrtenantu of any landB, 
 
 ' 1 Johnson r. Bro^vn, 11 Foster, 412.
 
 §372 
 
 ACTIONS AGAINST STRANGERS. 428 
 
 may join or sever in personal actions for injuries done thereto, setting forth in the 
 declaration the names of all the cotenants, if known, and the Court may order notice 
 to be given in such actions to all other cotenants known, and all or any of them, at 
 any time before final judgment, may become plaintiffs in the action, and prosecute 
 the suit for the benefit of all concerned. 
 
 "The Court shall enter judgment for the whole amount of the injury proved, but 
 award execution only for the proportion thereof sustained by the plaintiffs; and the 
 remaining cotenants may afterwards jointly or severally sue out a scire facias on 
 such judgment, and execution shall be thereupon awarded for their proportion of 
 the damages adjudged in the original suit." — lb. p. 733, sees. 14, 15. 
 
 Massachusetts.— "Any two or more persons claiming the same premises as joint- 
 tenants, tenants in common, or coparceners, may join in a suit for the recovery there- 
 of, or any one may sue alone for his share. 
 
 " The demandant may recover any specfiic part of the premises, or any imdivided 
 portion thereof to which he proves a sufiacient title, though such part or portion is 
 less than that demanded in the wi-it."— Genl. St. of Mass. p. 692, sees. 9, 10, ed. of 
 1860. 
 
 Michigan.— " When any person shall die, leaving heirs, either in the same or in 
 different degrees, and where several persons shall be, in any other way, entitled to real 
 estate as tenants in common, or as joint- tenants, they may bring a joint action for the 
 recovery thereof, or may bring several actions for their respective shares or in- 
 terests."— Comp. Laws, sec. 6386, ed. of 1871. 
 
 Mississippi.— In this State, cotenants may sue jointly or severally in ejectment; and 
 if they sue jointly, and but one be entitled to judgment, he may recover.— Rev. Code 
 of Miss. sees. 1552 to 1554, ed. of 1871. 
 
 Missouki.— Sec. 3 of chapter 151 of the Revised Statutes of this State, (Wagner's 
 Stats. 558,) relating to ejectment, provides that "two or more tenants in common 
 may join in the action, and jointly prosecute and sustain such action for the recovery 
 of the estate by them owned in common." 
 
 Sec. 10 of the same chapter provides that "where there are two or more plaintiffs, 
 any one or more may recover any interest they may be entitled to, in the same man- 
 ner as if they had brought separate actions; and it shall not be any objection to a re- 
 covery in such action that any one or several of the plaintiffs do not prove any interest 
 in the premises claimed, but those entitled shall have judgment, according to their 
 rights, for the whole, or such part or portion as he, she, or they might have recovered 
 if they had brought separate suits."— Wagner's Stats, 559, sec. 10. 
 
 Rhode Island. — "In actions of ejectment, or other actions concerning any estate 
 holden or claimed in coparcenai-y, common or joint tenancy, where the possession of 
 such estate claimed is the object of the suit, the same may be commenced by aU or 
 any two or more of the coparceners, tenants in common, or joint-tenants, or the 
 same may be brought by each one for his particular share of such estate; and the 
 same rules shall prevail in actions of trespass for mesne profits."— Genl. St. ed. 
 of 1873, p. 519, sec. 1. 
 
 Virginia.— " Tenants in common may join or be joiDed as plaintiffs or defend- 
 ants."— Code of Va. chap. 164, sec. 2, ed. of 1873, p. 1081. 
 
 Wisconsin.— "When any person shall die, leaving heirs, either in the same or in 
 different degi-ees, and where several persons shall be in any other way entitled to real 
 estate as tenants in common, or as joint-tenants, they may bring a joint action for 
 the recovery thereof, or may bring several actions for their respective shares or in- 
 terests."— Taylor's St. of Wis. vol. 2, p. 1713, sec. 9.
 
 CHAPTEK XVI. 
 
 EFFECT OF STATUTE OF LIMITATIONS ON ACTIONS BY AND BETWEEN 
 
 COTENANTS. 
 
 Actions between Cotenants, § 373. 
 
 Actions against third persons, ^ 374. 
 
 Disability of one Cotenant in Joint Action, $ 375. 
 
 Statutes construed to allow all the benefit of one's disability, ^ 376. 
 
 Snit by Cotenant under disabihty, without joining the others, $ 377. 
 
 Joinder of barred Cotenant, when fatal, ^ 378. 
 
 § 373. Actions bet-ween Cotenants. — The statute of lim- 
 itations operates upon causes of action existing in favor of 
 one cotenant and against another, to the same extent that it 
 operates in actions between persons not within the relation of 
 cotenancy. The only peculiar difficulty in the application of 
 the statute to actions between cotenants is in determining at 
 what period it began to run. This difficulty arises only in 
 actions growing out of the cotenancy; for if the suit be 
 based upon some cause of action disconnected from the co- 
 tenancy, the accidental circumstance that the parties are 
 cotenants neither affects the cause of action nor the opera- 
 tion of the statute thereon. Nearly all actions, arising 
 out of the cotenancy, which may be successfully prose- 
 cuted by one cotenant against another must be preceded 
 by and grounded upon some act done by the latter, and 
 which the law regards as an ouster of the former. In all 
 such cases, the ouster or act of exclusion at once creates 
 a cause of action, and the statute commences to run simul- 
 taneously with the creation of this cause. But a cotenant 
 may be called upon to account for rents and profits 
 received by him; and a difference of opinion exists as to 
 whether the statute commences to run in his favor from tho 
 
 420
 
 g 373 STATUTE OF LIMITATIONS. 430 
 
 date of his reception of the moneys for which he is liable to 
 account, or not until he has shown an intention of holding 
 such moneys adversely to his cotenants. According to one of 
 the authorities: "The statute of limitations does not com- 
 mence running, in the case of tenants in common, until the 
 relation is determined by partition, or there is a demand to be 
 let into possession and an actual ouster; or a demand for an 
 account, and the right is denied. There cannot be such an 
 adversary possession as to make the statute run, in reference 
 to the right to an account of the profits, when it does not also 
 run in reference to the right of possession, which can only be 
 when there is an ouster, really made or presumed from lapse 
 of time."^ So in Georgia, it has been held that as the statute 
 creating the liability of a cotenant to account professed to 
 make him chargeable as "bailiff," he can only assert the 
 statute of limitations in circumstances which would enable a 
 bailiff to assert it; and this being so, that there is necessarily 
 the same relation between the cotenants as there is between 
 trustee and cestui que trust, executor and legatee, administrator 
 and heir, guardian and ward; and that " the relation between 
 these is such that it prevents the statute of limitations from 
 running until the executor, the administrator, or the guardian 
 as the case may be, has begun to hold adversely to his cor- 
 relative, and knowledge of that fact has come to the correla- 
 tive."^ But a majority of the American cases are not in har- 
 mony with those just cited. In Alabama, it is said that con- 
 ceding that a cotenant receiving rents or profits holds a moiety 
 as trustee, yet his is an implied and not an express trust, and 
 therefore the statute runs in his favor.^^ In another case, the 
 Court based its decision on the ground that as the receipt of 
 rents and profits by one tenant in common " imposes on him 
 who receives an immediate accountability to the other, for the 
 part of the profits to which he is entitled," and as the pre- 
 cedents in declarations for accounting show that no allegation 
 of a demand is necessary, it follows that when one cotenant 
 receives more than his share of the rents and profits, he is at 
 
 1 Northcot V. Casper, 6 Ired. Eq. 306, overruling Wagstaft" v. Smith, 4 Ired. Eq. 1, 
 and reinstating Wagstaff v. Smith, 2 Dev. Eq. 264. 
 '-= Huff V. McDonald, 22 Geo. 164. 
 =* Tarleton v. Goldthwaite's Heirs, 23 Ala. 358.
 
 431 STATUTE OF LIMITATIONS. gg 374-75 
 
 once and without a demand liable therefore, and that the 
 statute commences running as soon as the liability is com- 
 plete.' In England, it has been said that "in the case of 
 joint-tenants or parceners, there is a mutual trust between 
 them, and thej are accountable to each other, without regard 
 to lapse of time;" but that "it is otherwise in the case of 
 tenants in common. "- 
 
 § 374. Actions against Third Persons. — It is obvious 
 that the operation of the statute of limitations upon a cause 
 of action accruing in favor of two or more as eotenants, must 
 be identical with its operation upon a similar cause of action 
 accruing to one person in severalty, provided that all the co- 
 tenants are free from those disabilities which exonerate 
 parties from prosecuting their causes of action, and there- 
 fore prevent the running of the statute of limitations. 
 
 § 375. Disability of one Cotenant in Joint Actions. — 
 
 But some of the eotenants may be adults and other.s minors, 
 or if all be adults, some of them may be under the disability, 
 and therefore within the privileges of coverture. In case 
 one of the eotenants has been under some disability, and 
 therefore is exempt from the operation of the statute, the 
 effect of his exemption may be brought in question : 1st, in 
 actions in which he has joined with the other eotenants; 2d, 
 in actions brought by himself alone. Actions of the first 
 class may be considered with reference : 1st, to joint causes 
 of action which, by the common law, were required to be 
 jointly prosecuted; 2d, to causes of action Avhich, by common 
 law or by statutory provisions, the eotenants were not re- 
 quired to join in prosecuting. A preponderance of the au- 
 thorities, we think, sustains the general proposition that 
 whenever a joint cause of action exists, and the statute of 
 limitations is a bar to any of the plaintifls, it is a bar to all.^ 
 "It is now well settled that where several persons are en- 
 titled to an action, in order to avoid the effect of the statute 
 
 ' WagHtaff 1-. Smith, 4 Ired. Eq. 3, overruled iu (i Ired. Eq. 300; but followed iiud 
 fiupported by decLiiouH iu other States. See Corbett r. Liiureus. 5 Rich. Eq. 301; 
 Coleman v. Hutchensou, 3 Bibb, 214. 
 
 ■' Priuce r. Heyliu, 1 Atk. 493. 
 
 : Hardeman v. Sinn. 3 Ala. 747; I'errv v. Jack.-*on, 4 T. H. 510.
 
 § 375 STATUTE OF LIMITATIONS. 432 
 
 of limitations, the whole of them must labor nnder the same 
 disability."^ "It seems to be a settled rule that all the 
 plaintiffs in a suit must be competent to sue, otherwise the 
 action cannot be supported. When once the statute runs 
 against one of two parties entitled to a joint action, it ope- 
 rates as a bar to such joint action."^ "Whenever the statute 
 of limitations is a bar to the recovery of one of the parties 
 in such action, it operates against the whole, because the dis- 
 ability of one does not save the right of the others. The 
 statute protects the rights of those who are incompetent to 
 protect themselves; but, where some of the parties are com- 
 petent, they ought to take care of the interests of all, by pro- 
 secuting the suit within time."^ In this respect, the common 
 is in striking contrast with the civil law. According to 
 Domat: "If one that is major happens to have a right un- 
 divided with a minor, the prescription which could not run 
 against the minor will have no effect against the major. 
 Thus, for example, if a service of passage is due to a major 
 and to a minor, for a ground which is common to them both, 
 the one and the other having ceased to make use of this right 
 during time sufficient to prescribe, the service which the 
 minor could not lose by prescription will be preserved like- 
 wise for the major. "^ While the civil law is lenient towards 
 the major in circumstances which do not seem to entitle him 
 to any special consideration, and solely because of an asso- 
 ciation which on his part is accidental rather than meritor- 
 ious, the common law, on the other hand, is unjust to a minor 
 in circumstances which do not seem to justify unusual harsh- 
 ness, and solely on account of an association which, on his 
 part, is fortuitous rather than culpable. But there are a 
 number of American pases in full harmony with the civil law 
 as stated in foregoing quotation from Domat. 
 
 Mr. Justice Cheves, in the case of Faysoux v. Prather,'^ de- 
 cided in 1818, stated that " according to the decisions of our 
 
 ' Milner v. Davis, Litt. Select Cases, 436. 
 
 '■^ Marsteller v. McClean, 7 Cranch, 158; Allen v. Seal's Heirs, 3 A. K. Marsh. 554; 
 Jordan v. McKenzie, 30 Miss. 32; Dickey v. Armstrong, 1 A. K. Marsh. 39; Wells v,. 
 Ragland, 1 Swan, 501; Barrow's Lessee v. Nave, 2 Yerg. 229. 
 
 2 Riden v. Frior, 3 Murph. 577. 
 
 * Domat's Civil Law by Strahan, Part I. B. III. Tit. VII. Sec. V. Art. V. 
 
 = 1 Nott & McC. 298, followed in Lahiffee v. Smart, 1 Bailey, 192.
 
 433 BTATFTE OF LIMITATIONS. § 375 
 
 Courts, Tvhere hvo or more are interested as coparceners, or 
 joint-tenants, or tenants in common, if one be under the dis- 
 ability of infancy, it saves the rights of others from the effect 
 of the statute." In an early case in Connecticut, it is said 
 that ' ' there can be no question but the rule of the common 
 law on a joint suit is, that the minority of one will save the 
 rights of those of full age; for the recovery must be joint, 
 and no one without the other can recover."^ There are also 
 quite a number of decisions to the effect that where several 
 parties to an action are required within a specified time to 
 jointly prosecute some proceeding to obtain a review of a judg- 
 ment or decree, and one of these parties is exempted from this 
 requirement on account of certain disabilities, then all are so 
 exempted.- The authorities thus opposed to one another are 
 all based upon the assumption that a joint right or a joint 
 cause of action cannot be severed. Eeasoning from this as- 
 sumption, different Courts have attained diametrically opposite 
 conclusions. On one hand, it is said that because the action 
 is necessarily joint, it must follow that whenever the statute 
 extinguishes the cause of action as to one cotenant it ex- 
 tinguishes it as to all. On the other hand, it is said, with 
 equal force, that whenever a cause of action is necessarily 
 joint, it must follow that the keeping of such cause alive as 
 to one cotenant is keeping it alive as to all. And as con- 
 siderations of inconvenience and hardship are apt to prevail 
 over those general rules by which all systems of jurisprudence 
 ought to be distinguished, it is natural that we should find 
 decisions which, though emanating from Courts professedly 
 engaged in administering the common law, are totally irrecon- 
 cilable with both the theories referred to in this section. 
 These decisions are attempts to obtain a middle ground which 
 shall be free on the one side from the manifest hardship of 
 invohdng the minors in a common ruin with the majors, and 
 on the other side, of the equal injustice of conceding to the 
 majors the peculiar advantages intended solely for the minors. 
 In South Carolina, several joint plaintiffs sued in trover for 
 the conversion of a slave. The defendant pleaded the statute 
 
 ' Stanford v. Button, 4 Day, 311. 
 
 - Kennedy'H HeirK v. Duncan, Hardin, .305; Wilkins v. Phillips, 3 Ohio, 50; Meese 
 r. Kecle, 10 Ohio, 302; Sturges v. Lo^g^vorth, 1 Ohio St. 501. 
 
 C. & p.— 28
 
 g 376 STATUTE OF LIMITATIONS. 434 
 
 of limitations; and the replication showed that one of the 
 plaintiffs had been under some disability, and was not there- 
 fore barred by the statute. O'Neall, Justice, delivered the 
 opinion of the Court of Appeals, saying: " I apprehend, too, 
 that notwithstanding the plaintiffs are joint, that one may in 
 trover recover, and the others fail, under the plea of the 
 statute of limitations. The party having the benefit of the 
 disability would be entitled to judgment for damages found 
 for the conversion of his title. For the defendant who relies 
 upon the statute, and thus succeeds in cutting off two out of 
 three plaintiffs, is properly only a wrongdoer against the one 
 to whom the statute does not apply. If the defendant and 
 the plaintiff not barred by the statute, after the allowance of 
 its bar against the adult plaintiffs, were even to be regarded 
 as tenants in common, the defendant's plea of the statute of 
 limitations would be such evidence of the assertion of an 
 adverse claim as would amount to an ouster, upon which the 
 minor would be entitled to recover."^ 
 
 § 376. Statutes alloAving to all the benefit of one's Dis- 
 ability. — A distinction has been claimed and allowed in sev- 
 eral of the State Courts between cases in which, when the 
 cause of action accrued, some of the cotenants were free from 
 disabilities, and cases in which all the cotenants were under 
 disability when the cause of action accrued to them; and it 
 has been held that in the last named cases the statute does 
 not commence running against any until all are freed from 
 their disability. These decisions rest for their justification 
 upon the peculiar language of the statutes of limitations under 
 which they were made.^ These statutes so employ the plural 
 
 1 Henry v. Means, 2 Hill, S. C. 332. See to the same effect Jordon v. Thornton, 7 
 Geo. 520. 
 
 '^ The statute of Mississippi, which is said to be substantially identical with that of 
 the other States in which the decisions referred to in the test have been made, is as 
 follows: " If any person or persons, who is, or are, or shaU be entitled to any of the 
 actions specified in the three preceding sectfons of this act, is, or are, or shall be at 
 the time of any such action accruing: within the age of twenty-one years, feme covert, 
 or insane, then such person or persons shall be at liberty to bring such action, so as 
 he, she, or they institute or take the same within such time as is before limited, after 
 his, or her, or their coming to or being of full age, discovert, or of sane memory, as 
 by other person or persons having no such impediment, might have done."— Howard 
 A Hutchinson's Stats, p. 569, sec. 94.
 
 435 STATUTE OF LIMITATIONS. § 377 
 
 word ' ' they" as to give much force to the idea that the legis- 
 lators intended by the use of that word that a statute pre- 
 vented from running by the joint or common disability of all, 
 should continue in abeyance until such disability was re- 
 moved from all. The construction of one of these statutes, 
 and the reasoning therefor, were thus given by the Supreme 
 Court of Tennessee: "If one of several, entitled to a joint 
 action, be over the age of twenty-one years at the time the 
 action accrues, the statute runs against all, although the 
 others are infants ; because ' they' who are entitled to the ac- 
 tion were not imder the age of twenty-one years, seeing one 
 of them was not, and therefore none of them are within the 
 saving. But if all the persons entitled to a joint action are 
 within the age of twenty-one years at the time such action 
 accinies, then the action is within the saving, until ' they' who 
 are entitled to it shall become of full age. As the word 
 'they' in the former case includes all those entitled to the 
 joint action, and one of them not being within the age of 
 twenty-one, all of them are excluded by the saving; so in 
 the latter case, if all are within the age of twenty-one when 
 the action accrues, and so are within the saving, all must 
 continue within the saving so long as one of them remains 
 under the age of twenty- one, for until then, ' they' have not 
 attained 'their' full age."' 
 
 g 377. Suit by a Cotenant under Disability. — We shall 
 now consider actions of the second class, namely, those 
 brought by the person under disability, without joining any 
 of his cotenants. It appears from the authorities already con- 
 sidered that if the cause of action bo a joint one — such a one 
 that the failure to unite all the cotenants would prove fatal, 
 if taken advantage of by proper plea — then such cause is 
 either entirely barred by or entirely saved from the ojjcration 
 of the statute. In such cases therefore the cotenant under 
 disability has nothing to gain b}- suing alone; for unless he 
 can recover in conjunction with his cotenants he cannot re- 
 cover at all.'' But in some States, a cotenant entitled to sue 
 
 ' Shute V. Wade, 5 Yerg. 9; Mastcrri ii. Duuii, 30 MisM. 2G8; IIltoii v. Mar.-*lmll, 5 
 Humph. 443; WellH v. llaglan, 1 Hwau, .Wl; Jones v. Ileury, :) Litt. 48; HjggH v. Doo- 
 ley, 7 B. Mour. 240; Clay's Heii'H i'. Miller. 3 Mour. 140; Seuy i\ liacou, 4 Suecd, 102. 
 
 ^ See sec. 375.
 
 g 377 STATUTE OF LIMITATIONS. 436 
 
 without joining his cotenants, may ordinarily, as against a 
 stranger to the cotenancy, recover possession of the whole of 
 the common property. The question frequently arises, does 
 the disability under which a cotenant has labored protect him 
 from the statute as to his moiety alone, or does it secure him 
 in the right which he ordinarily has to recover from a stranger 
 the possession of all the lands of the cotenancy? The answer 
 must be that except as to his own moiety his cause of action 
 is lost. So far, the effect of the statute upon his cotenants 
 operates also against him.^ Where one of two coparceners 
 was under a disability, and entered within twenty years after 
 the removal of such disability, it was held that her entry 
 could not operate in favor of the other coparcener who had 
 not been under any disability.^ The rale that a cotenant saved 
 from the operation of the statute cannot recover the whole of 
 the lands of the cotenancy "is founded on the proposition 
 that when the statute has fully run, and has become effectual 
 to bar and adverse title, the disseizor acquires a new title 
 founded on disseizin. He does not acquire or succeed to the 
 title and estate of the disseizee, but is vested with a new title 
 and estate, founded on and springing from the disseizin; and 
 the title of the disseizee, if not wholly extinguished, has at 
 least become inoperative in law, and is without a remedy to 
 enforce it. The new title thus acquired by the disseizor must 
 of necessity correspond with that on which the disseizin ope- 
 rated, as he could not acquire by disseizin a greater estate 
 than that held by the disseizee. If the latter held only an 
 undivided interest as tenant in common with another, the dis- 
 seizor would acquire by disseizin a similar undivided interest; 
 for it was only that on which the disseizin operated and took 
 effect. The disseizor of one of several tenants in common 
 acquiring a title by disseizin, therefore, becomes himself a 
 tenant in common with the other cotenants; and hence in an 
 action by one or more of them against him for the possession, 
 the recovery is limited to the particular interest of the plain- 
 tiff, and does not include the whole property."^ As the title 
 
 1 Pendergrast v. Gullatt, 10 Geo. 224; Bowyer v. Judge, 11 East, 287; Bryan v. Hin- 
 man, 5 Day, 218. 
 ■^ Eoe on dem. Langdon v. Kowlston, 2 Taunt. 445. 
 a Williams v. Sutton, 43 Cal, 73.
 
 437 STATUTE OF LIMITATIONS. § 378 
 
 of the cotenants not under any disability is extinguished by 
 tlie operation of the statute, it follows that the cotenant not 
 under disability cannot obtain any rights by a deed from them, 
 nor through a partition to which they are parties. In some 
 instances, an attempt has been made to evade the force of the 
 statute by means of a suit in partition m which lands adversely 
 held for a period sufficient for the acquisition of title by pre- 
 scription were set off to a cotenant whose minority saved him 
 from the bar of the statute. But these attempts proved futile; 
 and the cotenant was, in his recovery, confined to the moiety 
 to which he was entitled independent of the partition.' 
 
 § 378. Joinder of Cotenant barred by the Statutes, 
 when fatal. — While the state of the authorities is such as 
 to admit of grave doubt as to whether in case of joint actions 
 the disability of one cotenant operates for the benefit of all, 
 or whether the want of disability in one operates to the det- 
 riment of all, yet this seems certain : that, in the absence of 
 peculiar statutory provisions, whenever the rights of coten- 
 ants may be secured by separate actions, and adequate means 
 of redress are therefore within the reach of each, a cotenant not 
 under any disability cannot avail himself of the disability of 
 any of his cotenants.- But the cause of action or the nature 
 of the cotenancy may be such that the cotenants could have 
 either joined or severed in tlie prosecution of their remedies. 
 In such case, while it is generally and we believe universally 
 conceded that the cotenants not under disability shall not de- 
 rive any benefit from the disability of the minor cotenants, 
 more doubt must be felt, after an examination of the author- 
 ities, upon the question whether, if a joint action be brought, 
 a judgment may be entered against those barred by the stat- 
 ute and in favor of those against whom the statute has not run. 
 But we think that a considerable majority of the authorities 
 upon this question assert that, by electing to participate in a 
 joint action, the plaintiff' not barred by the statute has in- 
 volved himself in a common fate with his coplaiutifls; and 
 
 ' Wade V. Johnaoii, 5 Humph. 118; Bronson v. Adams, 10 Ohio, 135. 
 ■^ Williama v. First Presbyterian Church, 1 Ohio St. 495; BrouBOU v. Adams, 10 Ohio, 
 136.
 
 g 378 STATUTE OF LIMITATIONS. 438 
 
 therefore that a Judgment must be entered against alL^ But 
 in Tennessee, upon a joint demise by tenants in common^ 
 although some of them are barred by the statute, the others 
 may recover judgment for their moieties.^ In Yermont, an 
 administrator brought an action of ejectment for the benefit 
 of several heirs. It appeared that some of these heirs were 
 barred by the statute and others were not. And thereupon 
 the Court said that "as this is not a case of joint-tenancy — in 
 which all must join in bringing suit — the rights of some may 
 be barred and not those of others : as some might have con- 
 veyed their interests by deed, or be barred by estoppel; so 
 also by the statute of limitations."'' 
 
 ' Sanford v. Button, 4 Day, 312; Keeton v. Keeton, 20 Mo. 544; Walker d. Bacon, 32 
 Mo. 159; Thomas v. Machir, 4 Bibb, 412; Dickey v. Armstrong, 1 A.- K. Marsh- 39;^ 
 Moore v. Armstrong, 10 Ohio, 17. 
 
 -' Barrow's Lessee v. Navee, 2 Yerg. 227. 
 
 a McFarland v. Stone, 17 Vt. 175.
 
 CHAPTEK Xyil. 
 
 PART OWNERS OF SHIPS. 
 
 Part Owners are Tenants in Common, vn 379. 
 
 Niimber of Shares into which a Ship may be divided, ^ 380. 
 
 Difference between Part Owners and other Tenants in Common, ^ 381. 
 
 Cause of this difference, § 382. 
 
 Relations of Part Owners, inter sese, § 383. 
 
 Power of Part Owner to bind his Co-owners, ^ 384. 
 
 nights, Kemedies, and Liabilities, inter sese, § 385. 
 
 Lien of Part Owner, ^ 386. 
 
 Actions against Third Persons, $ 387. 
 
 Liability to Thii-d Persons, $ 388. 
 
 Disagreement as to employment of Ship, § 389. 
 
 Security for Safe Return of Ship, ^ 390. 
 
 Compulsoi-y Sale, denied in England, § 391. 
 
 Compulsory Sale, when ordered in United States, § 392 
 
 § 379. Part O-wners are Tenants in Common. — Property 
 in a ship, whether acquired by two or more persons by a joint 
 building, or by a joint purchase, or by whatsoever means ac- 
 quired, is, unless the acquisition was made by them as part- 
 ners or with the intention of holding it as partnershij:) property, 
 held by a tenancy in common. Notwithstanding the early 
 preference of the common law for joint-tenancies, the case of 
 property acquired in merchandizing or in the business of com- 
 merce and navigation always formed an exception to the gen- 
 eral rale; and if, for any purpose whatever, part owners of 
 ships w^ere ever regarded as joint-tenants, no instance has 
 ever been brought to our attention in which tho Jus accrescendi 
 was allo^vired between them.' So while part owners may fre- 
 
 ' Flanders on Shipping, sec. 363; Montcll v. The Rntan. 1 Int. R. Rcc. 125; Mum- 
 ford V. NicoU, 20 Johns. C21; Maude <t Polluck ou Mercliant Shipping, 72; Rcvans v. 
 Lewis, 2 Paine C. C. 202; Buckman v. Brett, 22 How. Pr. 233; Wright i\ MarHhall, 3 
 Daly, 331; Leo's Law of Shipping, 12; Bulkley v. Barlxr, Exch. 104; S. C. 1 Eng. L. 
 & E. 50C; Sheehan v. Dalrymple, 10 Mich. 211; Magrudcr c. Bowie, 2 Cr. C. C. 577. 
 The law as Btated in the t(;xt, and Kupportcd by tho foregoing uuthoritioK, is not nui- 
 versallv admitted. The most unquuliiied denial of tlio rule that part owuern of nliipK
 
 g 379 PART OWNEES OF SHIPS. 440 
 
 quently be partners, yet it is certain that the mere fact of the 
 part ownership does not raise a presumption of partnership.^ 
 "To hold part owners to be partners, without an express 
 contract to that effect, would not only violate the legal prin- 
 ciples which govern tenancies in common, but enable one part 
 owner — though of only one-hundredth part — to sell the whole 
 ship or whole property owned in common, which is neither in 
 conformity to usage or the fitness of things in such adven- 
 tures."^ While part owners by virtue of their common own- 
 ership of a ship are not made partners, yet they are frequently 
 partners in its employment, and therefore often occupy a very 
 different relation towards the vessel itself from that which 
 they occupy towards the proceeds derived from its use. It 
 seems to be conceded that two part owners employing their 
 ship in any adventure to the cost of which they jointly con- 
 tribute, and in the loss or profit of which they are Jointly to 
 
 are tenants in common is that made by Mr. Maclachlan in his Treatise on the Law of 
 Merchant Shipping, p. 87, where he states that " if a ship, or shares therein, are vested 
 in several persons jointly vrith unity of title and no distinction of interest, they are 
 joint^tenants of the property so held." The position here assumed without any quali- 
 fication would, if sustainable, make the part owners joint-tenants both in law and in 
 equity, and vest the entu-e ship in the survivor. A less advanced position is that as- 
 sumed in a note which first appeared in the 4th edition of Abbott on Shipping, in 
 which, if we iinderstand it, the view is maintained that part owners of ships may be 
 joint-tenants at law, and that the interposition of equity is necessary to prevent the 
 operation of the law of survivorship. This note is as follows: "If the interests are 
 not sevei-ed and distinguished, but the entire ship is granted to a number of persons 
 generally, it is apprehended that they become joint-tenants at law, and that the rale 
 jus aca^escendi inter mercatores locum non habet, which is applicable to a ship, is to 
 be enforced only in a court of equity." (Abb. on Shipping, p. 97, note.) The posi- 
 tion of Mr. Maclachlan, and that of the note to Abbott, are equally, so far as we have 
 been able to ascertain, without support in the reported adjudications. But, on the 
 other hand, the cases treating part owners as invariably tenants in common have usu- 
 ally been based upon the assumption that the law was as stated, rather than upon any 
 consideration of the precise point suggested in the note to Abbott. In America, the 
 specification of the shares of each part owner has frequently been omitted, both in 
 the register and in the bill of sale; and this omission has never occasioned them to be 
 regarded other than as tenants in common. (MerrUl v. Bartlett, 6 Pick. 46; Thorn- 
 dike V. De Wolf, 6 Pick. 120; Glover v. Austin, Id. 209; Ohl v. Eagle Ins. Co. 4 Mason, 
 172, 390.) The American text-writers generally repudiate, with considerable empha- 
 sis, the distinction sought to be introduced by the note to Abbott. See Parsons on 
 Shipping, p. 90; Story on Partnership, sec. 417; note to p. 97 of 6th Am. ed. of Ab- 
 bott on Shipping. 
 
 ' Maude & Pollock on Merchant Shipping, 72; Hopkins v. Forsyth, 14 Penn. St. 34; 
 Holderness v. Shackels, 8 Barn. & C. 612; Knowlton v. Eeed, 38 Me. 246; Williams v. 
 Sheppart, 1 Green, 76; Patterson v. Chalmers, 7 B. Mon. 595. 
 
 •' Macv i^ De Wolf, 3 Wood. & M. 193,
 
 441 PART OWNERS OF SHIPS. §§ 380-81 
 
 participate, become partners as to that adventure, and hold 
 the proceeds thereof subject to the law of copartnership.' 
 
 ^ 380. Number of Shares into which Ships are di- 
 vided. — Section 37 of the English Merchant Shipping Act 
 prescribes that: 
 
 (1.) "The property in a ship must be divided into sixt}'- 
 four shares. 
 
 (2.) " Subject to the provision with respect to joint own- 
 ers or owners by transmission, not more than thirty-two in- 
 dividuals may be registered at the same time as owners of 
 one ship. This rule does not, however, affect the beneficial 
 title of any number of persons, or of a company represented 
 by or claiming under or through a registered joint owner. 
 
 (3.) "No person maybe registered as owner of a frac- 
 tional part of a share; but any number of persons not ex- 
 ceeding five may be registered as joint owners of a ship or 
 of a share or shares therein."^ 
 
 g 381. Difference bet-ween Tenants in Common and 
 Part O-wners. — Although part owners of vessels are gene- 
 rally conceded to hold their property as tenants in common, 
 yet the nature of this species of property, the employment 
 for which it is intended, and the general interest which the 
 public has in its management, all conspire to make the relu- 
 tion of the part oviTiers, both among one another and between 
 themselves and strangers, different in many respects from 
 that of ordinary tenants in common. This difference has 
 very naturally resulted in a corresponding difference in the 
 rules of law governing ordinary tenancies in common and 
 those governing part ownership of ships. We shall therefore 
 proceed, as briefly as possible, to show in what respects part 
 owners of vessels are subject to the laAv applicable to ordi- 
 nary tenancies in common, and what rules and remedies have 
 been provided by law applicable only to part ownership of 
 ships. In emplojdng the term ships, wo intend to use it " in 
 the ancient and large sense as including all water-borne ves- 
 sels, for carriage of men or merchandise."^ 
 
 » Parsons on Shipping, 91; .Menitt r. Walcli, 32 N. Y. G8j; Duuiiell v. Walcli, 33 lb. 
 43. 
 
 ■■^ Maude & PoUnck on Morcliaut SLippiu;,', 8. 
 ■' See Paisourt on Partneinliip. 54!*.
 
 §§ 382-83 PART OWNERS OF SHIPS. 442 
 
 § 382. Cause of difference bet-ween Cotenancy and 
 Part O-wnership. — We now come to consider the differences 
 between the law of part ownership of ships and the law of 
 ordinary cotenancies; and we cannot do better than to intro- 
 duce this subject in the same language with which Mr. Ab- 
 bott (afterwards Lord Tenterden) introduced it to the readers 
 of his work on shipping : ' 'A personal chattel, vested in sev- 
 eral distinct proprietors, cannot possibly be enjoyed advan- 
 tageously by all, without a common consent and agreement 
 among them: to regulate their enjoyment in case of disagree- 
 ment is one of the hardest tasks of legislation; and it is not 
 without wisdom, that the law of England in general declines 
 to interfere in their disputes, leaving it to themselves either 
 to enjoy their common property by agreement, or to suffer it 
 to remain unenjoyed, or perish by their dissension; as the 
 best method of forcing them to a common consent for their 
 common benefit. But of ships, ' which are built to plough 
 the sea, and not to lie by the walls,' commercial nations con- 
 sider the actual employment as a matter, not merely of private 
 advantage to their owners, but of public benefit to the State, 
 and therefore have laid down certain positive rules in order 
 to favor this employment, and to prevent the obstinacy of 
 some of the part owners from condemning the ship to rot in 
 idleness."' 
 
 § 383. The relations of part owners of ships among^ 
 
 one another are, in nearly all respects, subject to the rules ap- 
 plicable to ordinary tenancies in common. Owning separate 
 and distinct moieties, and having no joint interest, there is 
 no privity between them, and neither is bound by the acts 
 or admissions of the other.- " When contraband goods belong 
 to a part owner of the ship, the contraband penalty, or rather 
 the penalty of contraband, affects only the interest of the part 
 owner in the ship. His cotenants are not affected."^ If one 
 part owner assume to act as the agent of the others, his author- 
 ity must first be established before his acts will be regarded 
 
 ' Abbott on Shipping, 98. 
 
 - Flanders on Shipping, sec. 386; Maude & Pollock on Shipping, 77; McLellan v. 
 Cox, 36 Me. 95; Jaggers v. Binnings, 1 Stark. 64. 
 •* Flanders on Shipping, sec. 211; The Jonge Tobias, 1 Eob. Ad. R. 329.
 
 443 PART OWNERS OF SHIPS. § 384 
 
 as binding on his co-owTier.' In making transfers of a ship, 
 or of any interest therein, each part owner must act for him- 
 self, or by his duly authorized agent. As in all other ten- 
 ancies in common, neither of the cotenants has any authority 
 as such to sell or transfer the interest of the other,'- but each 
 is at liberty to transfer his own moiety to whomsoever he 
 pleases.^ One part owner has no imxDlied authority to effect 
 a policy of insurance on the interest of the other.-* Part 
 owners of ships, while they have interests so distinct that 
 neither has any authority to do any act to bind or prejudice 
 the other, are, like other tenants in common, so associated in 
 interest that neither will be permitted to take undue advan- 
 tage of the other. "They are bound to deal fairly by each 
 other, and each, in the exercise of his own powers, must re- 
 spect the rights of all the rest. This would flow from the 
 principles of justice and morality; but it would seem that 
 public policy comes in aid of these principles, in relation to 
 a property of which the proper use and management are so 
 important to the public. Hence, in one interesting case, 
 where some part owners in a valuable ship sold their shares 
 by an indenture between them and the purchaser, which con- 
 tained covenants that, in the opinion of the Court, tended to 
 control the appointments of persons to be employed in the 
 management and navigation of the ship, it was held that such 
 a contract violated the rights of the other owners, and also 
 principles of public policy; and that it was therefore void."'^ 
 
 ^ 384. Power of a Part Owner to bind his Co-owners. — 
 
 In the preceding section we have stated, in general terms, 
 that an agency from one part owner to another must be 
 affirmatively established before the former can be bound by 
 the acts of the latter. The more recent decisions render it 
 doubtful whether a part owner of a ship, as such, has any 
 greater authority to represent his companions in interest than 
 
 I Maclachlan on Shipping, 101. 
 
 ■■' Parsons on Shipping, 92; Honshaw v. Clark, 2 Root, 103. 
 
 3 Maclachlan on Shipping. 07; Parsons on Shipping, 02. 
 
 ^ Hooper r. Lusbv, 4 Camp. CC; Peoria Ins. Co. v. Hall, 12 Mich. 202; Tnnier v. 
 Burrows, 8 Wend. 144; Patterson r. Chahners, 7 B. Mom-. .505; Abbott on Shipping, 
 106-7; Frencli u. Backhouse, 5 Burr. 2727; Bell r. Hninphries, 2 Starkie, 345. 
 
 * Parsons on Shipping, 124; referring to Card v. Hope, 2 Barn. & C. CGI.
 
 § 384 PART OWNERS OF SHIPS. 444 
 
 though their cotenancy embraced an ordinary chattel.^ But, 
 according to the views of Chancellor Kent, " as the law pre- 
 sumes that the common possessors of a valuable chattel will 
 desire whatever is necessary to the preservation and profit- 
 able employment of the common property, part owners, on 
 the spot, have an implied authority from the absent pai-t 
 owners to order for the common concern whatever is neces- 
 sary for the preservation and proper employment of the ship. 
 They are analogous to partners, and liable under that implied 
 authority for necessary repairs and stores ordered by one of 
 themselves; and this is the principle and limit of the liability 
 of the part owners."^ The views thus expressed were well 
 supported by the opinions of eminent text-writers and jurists. 
 Thus, Mr. Abbott stated in his treatise on shipping, that 
 ' ' with regard to the repairs of a ship and other necessaries 
 for the employment of it, one part owner may, by ordering 
 those things on credit, render his companions liable to be 
 sued for the price of them, unless their liability be expressly 
 provided against."^ It is now well settled in England, and 
 perhaps in the United States, that the rule as stated by 
 Chancellor Kent and by Mr. Abbott is too broad; and that 
 one part owner has not, merely from the fact of part owner- 
 ship, an implied authority to bind his co-owners even for 
 necessary repairs. The implied authority must be estab- 
 lished from other circumstances in addition to that of the 
 co-ownership. In the case of Brodie v. Howard,^ it was 
 sought to charge the defendant, as part OT\Tier of a ship, for 
 work done to the vessel by the plaintiff, a ship builder, which 
 repairs, it appeared, had been ordered by one Lewis, the de- 
 fendant's co-owner, and superintended by one Turner, the 
 captain, and which were necessary in order to enable the ship 
 to retain her class. On the trial, it appeared that Lewis was 
 
 ' Parsons on Shipping, 97. 
 ^ 3 Kent's Comm. 155. 
 
 * Abbott on Shipping, 105. The authorities now cited in support of this passage are 
 Wright V. Hunter, 1 East, 20; Ex parte Bland, 2 Rose, 93; Bickham v. Knight, 5 
 Scott, 629; Thompson v. Finden, 4 Carr. & P. 158. Of these only the first named had 
 been decided when Mr. Abbott's fii'st edition appeared; and none of them fully sus- 
 tain the I'ule in support of which they are cited. The case which more nearly than 
 any other English adjudication concurs in the rule of Mr. Abbott is Gleadon v. Tink- 
 ler, Holt's N. P. C. 586, decided in 1817, by Lord Chief Baron Richards. 
 
 * 17 Com. B. 109; S. C. 33 E. L. & E. 146.
 
 445 PART OWNERS OF SHIPS. § 384 
 
 the owner of 56-64ths, and the defendant of the other 8-64ths; 
 that Lewis, who had always acted as managing owner, gave 
 the order for the repairs. Twelve days after the repairs com- 
 menced, the defendant notified the plaintiff that he would not 
 be responsible for them. On the part of the defendant, it 
 was proved that immediately after the arrival of the vessel in 
 port he wrote to Lewis, informing him that he did not intend 
 to sail her again. On these facts, the plaintiff insisted that 
 the defendant, "as one of the registered owners, was, under 
 the circumstances, liable for all the expenses incurred in re- 
 pairing the ship, or, at all events, for those incurred prior to 
 the date of his notice. For the defendant, it was contended 
 that the fact of his being named as co-owner in the register 
 was no evidence of his having authorized Lewis or the cap- 
 tain to pledge his credit for repairs, and consequently that 
 he was not liable for any part thereof. Under the direction 
 of the Lord Chief Justice, a verdict was found for the de- 
 fendant — leave being reserved to the plaintiff to move that a 
 verdict be entered for him." Subsequently, a rule nisi was 
 obtained. After fuM argument, the rule was discharged, 
 separate concurring opinions being given by the Chief Justice 
 and three of the Associate Justices. From these opinions, 
 we select that of Williams, J., as expressing, in the most 
 terse form, the views in which the whole bench seemed to 
 concur: "It is well established that part owners of a ship 
 are not in the position of partners. It is true they resemble 
 partners in respect of the concerns of the ship to this extent, 
 that, generally speaking, all are liable for repairs and other 
 necessary expenses which are shown or may be presumed to 
 have been incurred with their assent. But their position 
 differs from ordinary part owners in this, that the authority 
 which one part owner gives to another to act as his agent is 
 not an authority that is necessarily incident to their relation, 
 as in the case of partners. It is in vain for a man to repud- 
 iate the authority of his partner to bind him by his con- 
 tracts, unless that repudiation is communicated to those with 
 whom the firm has dealings. There is no authority to show 
 that any such rule holds as to part owners of a ship. The 
 onus of making that out lay upon plaintiff's counsel; and 
 they have failed to do so. The only question hero is.
 
 g 385 PART OWNERS OF SHIPS. 446 
 
 whether, in point of fact, the presumption of authority in 
 Lewis to bind his co-owner by his contract with the plaintiff 
 for the repair of the vessel, which would arise from their 
 relative position, is or is not rebutted by the circumstances. 
 I had for some time entertained considerable doubt whether 
 this was so or not. But I am now satisfied that it is not. 
 I think there was no authority in point of law, and none in 
 point of fact, to make the defendant liable. Undoubtedly, 
 it might be that he had so conducted himself by previous 
 dealings that the plaintiff might be justified in presuming 
 that Lewis acted as his agent. There is no evidence at all 
 here of any previous dealings, or proof of any circumstances 
 from which it can be inferred that the defendant allowed 
 Lewis to hold himself out in any way as his agent. After 
 all, it comes to a mere question of fact; and that question, I 
 think, must be decided in favor of the defendant."^ From 
 considering the foregoing opinion, and that of the other 
 Judges given in the same case, as well as the opinion ex- 
 pressed in an American case, ^ we conclude: 1st, that "each 
 part owner of a ship has the right to expect that the other 
 part owners will concur with him in obtaining necessary sup- 
 plies and in making necessary repairs; and that if he alone 
 orders such supplies or repairs, they expressing no dissent, 
 they as well as he will be liable therefor; 2d, that if any one 
 of the part owners has notified the others that he will not 
 join in making such repairs or procuring such supplies, he 
 cannot be held responsible therefor; and 3d, that all persons 
 dealing with a part owner must ascertain, at their own peril, 
 whether the other part owners have, by a notice such as has 
 just been referred to, revoked the implied authority under 
 which each part owner is authorized to contract for all. 
 
 g 385. The rights, remedies, and liabilities of part 
 
 owners of ships among one another are, in general, identical 
 with those of other tenants in common. As in case of other 
 cotenants, the rights and remedies arising out of contracts 
 between the part owners are controlled and enforced by the 
 same rules of law which are applicable to other persons. In 
 
 <■ 17 Com. B. 120. See also Eevins v. Lewis, 2 Paine, C. C. 202. 
 ^ Stedman v. Feidler, 20 N. Y. 441.
 
 447 PART OWNERS OF SHIPS. § 386 
 
 respect to torts committed by some of the part owners against 
 the others, the law applicable to ordinary cotenancy seems to 
 conti'ol in all respects. One cannot maintain an action of re- 
 plevin against the other to recover possession of any part of 
 their common property.' Neither can have trespass or trover, 
 nor indeed any action, against the other under circumstances 
 which would not justify the maintenance of such action be- 
 tween other tenants in common.- Therefore, one part owner 
 of a ship ' ' is not responsible to the co-owners for a careless 
 use of it. The other owners, if not satisfied to leave it in his 
 care, must look themselves to the protection of their own 
 property."^ This rule has been applied even where a vessel 
 took fire and was totally consumed by the carelessness and 
 inattention of a part owner in whose control it was.^ This 
 rule of the common law is, by Mr. Parsons, considered as 
 technical rather than just; and he doubts whether it would 
 be enforced in admiralty, as it finds no support in the civil 
 law, which may be regarded "as the common law of courts 
 of admiralty."* The settlement of claims between part own- 
 ers of ships arising out of the common property must, as in 
 case of other cotenants, be by a bill for an adjustment of 
 accounts. Originally, equity had sole jurisdiction of such a 
 bill,^ and this is still true in the United States;^ but in Eng- 
 land jurisdiction has been given to courts of admiralty by 
 statute.^ 
 
 § 386. Liens of Part Owners. — " There is much reason, 
 and some authority, for giving to part owners a general lien 
 on their common property for all their just and reasonable 
 charges or balances of accounts against each other in relation 
 
 ' Parsons on Shipping, 93; Barnes v. Bartlett, 15 Pick. 71. 
 
 •^ Maude & Pollock on Shipping, 73; Heath v. Hubbard, i East, 110; Mayhew v. 
 Hcn-ick, 7 Com. B. 229; Maclachlan on Shipping, 92; Ex parte Machcll, 1 Rose, 447; 
 S. C. 2 Ves.>& B. 216; Baruarchston v. Chapman, 1 Geo. 1, now printed in 4 East, 121; 
 Parsons on Shipping, 93; Graves v. Sawcer, T. Rayni. 15; S. C. 1 Keb. 38; S. C. 1 Lev. 
 29; Strelly v. Winson, 1 Veni. 297; Milburn v. Guyther, 8 Gill, 92. 
 
 ^ Moody V. Buck, 1 Sandf. 304; Fleming on Shipping, sec. 399. 
 
 ■* Parsons on Shipping, 104. 
 
 6 The Apollo, 1 Hagg. 30G. 
 
 •^ Steamboat Orleans i'. Phoebus, 11 Pet. 175; Grant v. Poillon, 20 How. U. S. 162; 
 Kellum V. Emerson, 2 Curtis, C. C. 79; Minturn v. Maynard. 17 How. U. S. 477; 
 Ward V. Thompson, 22 Id. 330. 
 
 ' 24 Vict. ch. 10, sec. 8.
 
 g 386 PAET OWNERS OT SHIPS. 448 
 
 to their common property. Indeed, there might seem to be 
 some reason for extending such a rule to all cases of coten- 
 ancy of chattels, but there is no authority whatever for it in 
 respect to common chattels; and in regard to cotenancy in a 
 ship, we have no doubt that the prevailing authority of the 
 Courts, as well as the general usage of merchants, gives no 
 such lien. "^ The authorities on this subject are no doubt 
 conflicting; and that they are so is partly attributable to a 
 conflict of opinion among the Judges, and partly to a want 
 of attention to the distinction between part owners as such 
 and part owners who happen also to be partners. Some 
 confusion is also likely to arise from inattention to the ma- 
 terial difference in the relations which the part owners sus- 
 tain towards their ship and that which they sustain towards 
 its earnings. While the ship is held by a tenancy in com- 
 mon, the earnings are usually treated as resulting from a 
 special partnership, embracing the voyage or adventure from 
 which they were realized.^ Therefore, the freight or other 
 proceeds of a voyage or other adventure must, if required 
 by a part owner, be applied to the payment of the expenses 
 of the outfit for the voyage or adventure, and to the expenses 
 incurred in making such repairs as were necessary to enable 
 the ship to perform the voyage; and not until these expenses 
 are paid, can any of the part owners compel the payment to 
 him of his proportion of the earnings of such voyage. In 
 other words, any part owner making advances to pay such 
 expenses has a right to retain or enforce repayment thereof 
 out of the proceeds of the employment on account of which 
 such expenses were necessarily incurred.'' To this extent, a 
 part owner may be said to have a lien for advances made by 
 him. But even this lien — if such it may be called — has no 
 existence in regard to the ship itself, unless, as to it, the 
 relation and therefore the rights of copartnership exist. 
 Hence, neither of the part owners has any lien against the 
 
 1 1 Parsons on Shipping, 114. 
 
 " Holdemess v. Sliackels, 8 Bam. & C. 612; Ex parte Hill, 1 Madd. 66; Ex parta 
 Young, 2 Eose, 78, note; S. C. 2 Ves. & B. 242; Maclachlan on Shipping, 97; Bovill v. 
 Hammond, 6 Barn. & C. 149. 
 
 3 Green v. Briggs, 6 Hare Ch. 395; S. C, 12 Jur. 326; S. C. 17 L. J. Chanc. 323^ 
 Mnmford v. Nicoll, 20 Johns. 611.
 
 449 PART OWNERS OF SHIPS. § 387 
 
 interest of another part owner for advances due the former 
 from the latter on account of disbursements made in navi- 
 gating^ or in constructing- the ship. In view of all the de- 
 cisions in reference to the liens of part owners of ships, Mr. 
 Parsons concludes that ' ' no principle will go so far in recon- 
 ciling the leading cases on this subject as this : a part owner 
 merely as such, has no lien whatever; but acquires such lien 
 when any of the elements of partnership, or agency with 
 bailment, upon which a lien may rest, enter into his relation 
 with the other part owners."^ 
 
 § 387. Actions against Third Persons. — In prosecuting 
 actions against third persons, part owners of a ship are sub- 
 ject to the rules laid down in the chapter on actions by co- 
 tenants against third persons (g§ 328-372.) Whether the 
 action be in contract or in tort — for services rendered by or 
 for injuries done to their ship — all should join in its prose- 
 cution.* "The several part owners of a ship make in law but 
 one owner; and in case of any injury done, to their ship by 
 the wrong or negligence of a stranger, they ought regularly 
 to join in one action at law for the recovery of damages, 
 which are afterwards to be divided among themselves accord- 
 ing to their respective interests."'^ The cause of action ac- 
 cruing to part owners being joint, it follows that, on the 
 death of one, it vests in the survivors, and that on the death 
 of the last survivor, if the cause be capable of sl^rviving 
 further, it vests in his personal representatives.*^ But it 
 seems, without joining the other part owners, a part owner 
 
 ' Green v. Briggs, G Hare Ch. 395; S. C. 12 Jur. 326; S. C. 17 L. J. Chanc. 323; 
 Mumford v. Nicoll, 20 Johns. 611. See also Tho Larch, 2 Curt. C. C. 427; Ex parte 
 Harrison, 2 Eose, 76; Maude & Pollock on Shipping, 76; Patton v. Tho Randolph, 
 1 Gilpin, 457; Mumford v. Nicoll, 4 Johns. Ch. 522. Contra, Pragoff v. Heslcp, 1 
 Am. L. Reg. 747; Doddington v. HaUet, 1 Vea. Sr. 497; Seabrook v. Rose, 2 Hill Ch. 
 553. 
 
 ■^ Braden v. Gardner, 4 Pick. 456. 
 
 * 1 Parsons on Shipping, 115. 
 
 < Flanders on Shipping, sec. 392; Patten v. Gucrncy, 17 Mass. 182; White v. Curtis, 
 35 Mc. 534; Robinson v. Cushing, 11 Mo. 480; Parsons on Shipping, 110; Maude & 
 Pollock on Shipping, 80; Coster v. N. Y. & E. R.R. Co., 6 Duer, 43. 
 
 * Maclachlan on Shipping, 114. 
 
 « Maude & Pollock on Shipping, 72; Maclachlan on Shipping, 114; Rox v. Collector 
 of Customs, 2 Maule & S. 225; Buckley v. Barber, 6 Ex. 1C4; Wright v. Marshall, 3 
 Daly, 331. 
 
 C. & p.— 29
 
 § 388 PART OWNERS OF SHIPS. 450 
 
 may, by proceedings in admiralty, obtain possession of the 
 ship from a fraudulent possessor. The following is the 
 opinion delivered by Judge Curtis as presiding Judge of the 
 Circuit Court of the United States, in the first circuit, in the 
 case of the schooner Friendship : "Upon the proofs, it ap- 
 pears, in substance, that Haskell, the claimant, obtained his 
 apparent title to one-half the vessel through a forged bill of 
 sale; and that the libellant is the true and lawful o^Tier there- 
 of. And the question is, whether the other part owner, by 
 failing to appear, can prevent his co-owner from trying his 
 title as against a mere wrongdoer, and having established it, 
 whether the Court will not, as against that wrongdoer, decree 
 the possession to the libellant. I am of the opinion that it 
 will try the title, and dispossess the fraudulent possessor, 
 even in the absence of the other tenant in common. He has 
 no interest in this dispute, and there is no reason for requir- 
 ing him to be made a party to it. He may have no wish to 
 have the possession changed; for he may be willing that 
 whichever of these parties may be the true owner of a moiety 
 should possess and manage the vessel. But I cannot pre- 
 sume from his mere silence, that he desires a fraudulent pos- 
 session to continue, and if he did, I am not prepared to admit 
 that it ought to affect the action of the Court. If this were 
 a cause of possession, he, owning a moiety, would have an 
 equal right to the possession if he chose to assert it. But it 
 is a petitory action. The decree divests only the fraudulent 
 and unlawful possession of the claimant. The real part 
 owners will stand wholly unaffected thereby, as respects the 
 employment of the vessel."^ 
 
 g 388. Part Owners liable in solido. — When the liability 
 of part owners of ships as such to third persons "is estab- 
 lished, each owner is by the law of England, which differs 
 in this respect from the civil law, liable in solido for the 
 whole amount of the debt, without reference to the propor- 
 tion of his interest, or to any stipulations between himself 
 and the other owners. So, the owners cannot qualify their 
 
 1 2 Curtis C. C. 426. In another Americau case, it seems to have been assumed 
 that because part owners are not partners, each can sustain a separate action for liis 
 portion of the freight. Magruder's Trustee v. Bowie, 2 Cranch C. C. 577.
 
 451 PART OWNERS OF SHIPS. § 389 
 
 liability by any arrangement witli their agents. Thus, where 
 an owner agreed with his agent that the latter should pay for 
 the repairs, on having the ship transferred to him, it was 
 held that a creditor of the owner must look to him, and 
 could not sue the agent. And if persons separately inter- 
 ested in aliquot parts of a ship employ a joint agent, they 
 are, at law, liable each for the whole debt incurred. A court 
 of equity would, however, distribute the liability rateably."^ 
 This rule of the English law is generally recognized and en- 
 forced in the United States ;'- but in Louisiana, part owners 
 are not liable in solido, except where they are also partners.* 
 "Insurers who accept an abandonment of a ship become 
 thereby owners, and are liable as such, but not in solido; for 
 if there be many insurers, each is liable only for his propor- 
 tion, unless he promises to pay more. The reason of the 
 exception is, that the ownership is in this case cast upon 
 them by misfortune and necessity, and if not against their 
 will, at least is not assumed by their free choice and volun- 
 taiy action."* 
 
 § 389. Remedy where Part O-wners disagree concern- 
 ing Employment. — It has already been stated that the chief 
 difference between the law of an ordinary tenancy in common 
 and 'that of a part ownership of ships arises from the interest 
 which the public has in the advancement of commerce through 
 the employment of ships. If all the part owners unite in 
 wishing their property to remain idle instead of ploughing 
 the seas the law will not interfere. But in case of a disagree- 
 ment among them, they are not, like other cotenants, without 
 remedy. They may disagree either in reference to what em- 
 ployment is most advantageous, or in reference to the advis- 
 ability of seeking any employment whatever. In either case, 
 the law has provided remedies calculated to preserve the 
 
 » Maude & Pollock on Shipping. 07, citing Doddington v. Uallett. 1 Vcs. Sr. i98; 
 Thompson v. Finden, 4 Car. & P. 158; 2 Bell's Comni. C55; Eattcnhury v. Fcnton, 3 
 Mylnc & K. 505; Passmoi"o v. Bonsficld, 1 Stark. 297; British Empire Shipj)ing Co. v. 
 Somes, 1 E. B. & E. 353; affirmed 30 L. J. Q. B. 229. 
 
 ■* Schemerhorn v. Loines, 7 Johns. 311; Muldon v. Whitlock, 1 Cow. 290; Gallatin 
 I'. The Pilot, 2 Wall. Jr. 592; Parsons on Shipping, 100; Flanders on Shipping, 381. 
 
 " Carroll v. Waters, 9 Mart. 500; David r. Eloi, 4 La. IOC; Burke v. Clarke, 11 La. 
 206. 
 
 * Pardons on Shipping. 105; United 1ih. Co. i-. Scott, 1 Johns. lOG.
 
 § 390 PART OWNERS OF SHIPS. 452 
 
 rights and promote the interests of all the owners, and also 
 to minister to the general interests and promote the general 
 welfare of the public. These remedies are not, however, to 
 be found in the courts of the common law, nor in the tribu- 
 nals charged with the administration of the principles of 
 equity jurisprudence.^ They must be sought in the courts of 
 admiralty. In these coui-ts, "where part owners have entered 
 into no express agreement by which the employment of the 
 vessel is to be controlled, the law in favor of commerce will 
 interpose, and compel obstinate and dissenting part owners 
 to yield the property, to be employed by the majority in 
 value, upon any probable design."^ If one-half of the owners 
 in value are in favor of employing the ship and the other one- 
 half wish to have it idle, it seems that the law, as it favors 
 the interests of commerce, will decide to send the ship forth 
 in the employment.'^ If the part owners agree that the ship 
 should be employed, but are equally di\dded in regard to the 
 manner of its employment, it is doubtful whether the law has 
 provided any means to relieve them from this predicament.^ 
 If a majority in value of the part owners are unwilling to 
 employ the ship, the minority may compel its employment by 
 the same means and upon the same conditions as are available 
 to the majority when they wish to employ it and the minority 
 dissent.^ 
 
 § 390. Security for Return of Ship.— Mr. Abbott, after 
 considering the various laws and ordinances of different na- 
 tions in regard to the rights of part owners in case of their 
 disagreement as to the employment of their ship, says: "The 
 law of this country seems to possess an important advantage 
 over all the ordinances that have been cited; because, while 
 it authorizes the majority in value to employ the ship ' upon 
 any probable design,' it takes care to secure the interest of 
 the dissentient minority from being lost in the employment 
 of which they disapprove. And for this purpose, it has been 
 the practice of the Court of Admiralty from very remote 
 
 ' Parsons on Partnership, 558; Castelli v. Cook, 7 Hare, 89. 
 
 * Flanders on Shipping, sec. 365. 
 
 " story on Partnership, sec. 435; Flanders on Shipping, sec. 367. 
 
 -• Steamhoat Orleans v. Phoebus, 11 Pet. 183; Tunno v. The Betsina, 5 Am. L. R.406.
 
 453 PART OWNERS OF SHIPS. § 390 
 
 times to take a stipulation from those who desii'e to send a 
 ship on a voyage, in a sum equal to the value of the shares of 
 those who disapprove of the adventure, either to bring back 
 and restore to them the ship, or to pay them the value of their 
 shares. When this is done, the dissentient part owners bear 
 no proportion of the expenses of the outfit, and are not en- 
 titled to a share in the proceeds of the undertaking; but the 
 ship sails wholly at the charge and risk, and for the profit of 
 the others. This security may be taken upon a warrant ob- 
 tained by the minority to arrest the ship, and it is incumbent 
 on the minority to have recourse to such proceedings as the 
 best means of protecting their interests; or, if they forbear 
 to do so, at all events, they should expressly notify their dis- 
 sent to the others, and, if possible, to the merchants who 
 freight the ship. For it has been decided that one part owner 
 cannot recover damages against another by an action at law 
 upon a charge of fraudulently and deceitfully sending the ship 
 to foreign parts, where she was lost. And it has also been 
 decided in the Court of Chancery, that one part owner cannot 
 have redress in equity against another for the loss of a ship 
 sent to sea without his assent."^ The bail-bond taken for the 
 benefit of the dissenting part owners "contemplates no other 
 object than the safe return of the vessel, or, in default there- 
 of, the payment of the stipulated sum. That is the whole 
 extent of the transaction upon w^hich the parties and the 
 Court are acting in this process. No other object is pro- 
 posed, and there is no case, either within the scope of my 
 own inquiry, or which has been discovered by the diligence 
 of the advocates, upon repeated challenges given them for 
 that purpose, in which the Court has moved beyond those 
 limits."'- When, therefore, the security has been given 
 under directions of a Court of Admiralty, and it thereafter 
 appears to the Court that the vessel was sent upon the voyage 
 and was lost, the Court will enforce the immediate payment 
 of the sum stipulated in the bond, and will not consider any 
 
 ' Abbott on Shipping, 99, citing Graves v. Sawcer, T. Raym. 15; StrcUey v. Wilson, 
 1 Vem. 297. See as to authority to arrest the ship at the inst^inco of the dissenting 
 part owners, and to coniiK;! th(; majority to give security for its safe return. In the 
 Matter of Blanshard, 2 Barn. & C. 2U; The Apollo, I Hagg. Ad. 310. 
 
 ■^ Lord Stowell iu The Apollo, 1 Hagg. Ad., 312.
 
 § 391 PAET OWNERS OF SHIPS. 454 
 
 claims or offsets presented by the majority, and alleged to 
 have arisen from the misconduct or misrepresentations of the 
 minority.^ 
 
 g 391. Compulsory Sale, denied in England. — But not- 
 withstanding all the pride manifested by writers upon the 
 maritime law of England, in the superior remedies afforded by 
 that law and confided to Courts of Admiralty, designed to 
 ameliorate the condition of dissentious cotenants, it is by no 
 means certain that they are not left in a more unfortunate or 
 at least a more helpless situation than at the common law. 
 It is true that a part owner, fearful that his property is about 
 to be sent upon some dangerous employment, may arrest it 
 and rescue it from the proposed peril, or at least obtain se- 
 curity sufficient to indemnify him in case of its loss. It is 
 also certain that the majority in value may compel the pos- 
 session of the ship to be delivered to them in order that they 
 may devote it to any usual and legitimate employment. But 
 that part of the law intended to secure the interest of the 
 minority secures it very inefficiently, and is easily evaded. 
 The value of the use of the ship ought to be as much the 
 subject of legal care and solicitude as the value of the ship 
 itself. But the security exacted by the Courts of Admiralty 
 from the majority who are about to send the ship on a haz- 
 ardous adventure does not include anything but the value of 
 the interests of the dissenting part owners. If the ship 
 should ever return, or whether it returns or not, the minority 
 have no interest in its actual earnings, and no compensation 
 for what its use is reasonably worth. ^ They are thus com- 
 pelled either to assent to the hazardous employment or to 
 forego all expectation of profit from their property. So, when 
 the majority wish the vessel to remain idle, although it is said 
 that the law, acting for the advancement of commerce, will 
 allow the minority to take and employ the vessel, upon giving 
 adequate security for its safe return, yet, conceding this to be 
 true, the law is easily evaded. The majority have but to pro- 
 pose to send the vessel upon some useless or dangerous voyage, 
 
 ' Lord Stowell in The Apollo, 1 Hagg. Ad. 312. 
 
 '^ The Marengo, 1 Low. Dec. 52; S. C. 1 Am. L. R. 88; Willings v. Blight, 2 Pet. Ad. 
 288.
 
 455 PART OWNERS OF SHIPS. § 391 
 
 to which the minority would not assent. It would then ap- 
 pear that the OAvners disagi-eed in reference to the mode of 
 employment, and the minority would be -without redi'ess. 
 But it is self-evident that when several persons whose rela- 
 tions require them to have constant business intercom-se with 
 one another once become dissentious, nothing can so eflfec- 
 trvely relieve them from their embarrassment as a permanent 
 dissolution of those relations. Cotenants iTuable to agi-ee 
 upon the management of their common property may divide 
 it; and if imable to agree upon a division, they may call 
 upon some legal or equitable tribunal to divide it for th(5m. 
 A ship is incapable of partition. If dissentious part o^vn3rs 
 have any effective and permanent means of relief, it must be 
 through a sale of the vessel and a division of the proceeds. 
 But the majority may be well contented with the advantages 
 of their position, and may refuse to unite in a sale. It is 
 clear that the English Courts of Admiralty will not, in any 
 case, compel a part owner to sell his share.* The rule of 
 these Courts upon this subject, and the reasons on which it 
 is founded, were thus stated by Sir Christopher Robinson in 
 pronouncing a judgment in the High Court of Admiralty : 
 * ' The law of some countries has gone so far as to endeavor 
 to compromise all interests by compelling, in cases of dis- 
 agreement, a sale, either of the shares of the minority or of 
 the whole ship, at the application of the majority of the 
 owners, and sometimes even of a moiety of interests. Such 
 attempts appear to have been made also in this country ; but 
 the justice of such a proceeding may be questionable. Dis- 
 agreements may be fomented by it; or a forced sale at par- 
 ticular times may bo disadvantageous or ruinous to the min- 
 ority. The law of England has accordingly restrained the 
 Court of Admiralty from exercising such an authority; and 
 no other Court has assumed it. On the contrary, the Courts 
 of common law and of chancery have declined to interfere 
 between joint-tenants in respect to the possession of their 
 ship."" 
 
 ' OuBtcn 1-. Ilebden, 1 Wilw. 101; Maclacblan on Shipping, 00; The Apollo, 1 Uagg. 
 Ad. 30C; Maude & Pollock on Shipping, 78; Parsons on Partnortihip, 561. 
 ^ The Margaret, 2 llagg. Ad. 270.
 
 § 392 PART OWNERS OF SHIPS. 456 
 
 § 392. Compulsory Sale in America. — The American 
 Courts have generally dissented from those of the mother 
 country in declining to order a sale on account of a disagree- 
 ment among the part owners, and ' ' the decided weight of 
 authority," if the American cases alone were to be consulted, 
 would be "in favor of the power of admiralty to decree a 
 sale."^ This power is not, however, called in being except 
 where the maritime law has furnished no means of deciding 
 between the part owners. It is therefore only to be exercised 
 when the part owners are equally divided in regard to the 
 employment to which they shall devote their ship, or in re- 
 gard to some other matter which must be decided before the 
 ship can be employed. This question was first directly in- 
 volved and decided in the United States Courts in the year 
 1828, when Judge Hopkinson, in the District Court for the 
 Eastern District of Pennsylvania, held that he had no author- 
 ity to decree a sale, although there were but two part owners 
 and they were unable to agree. ^ But the judgment of the 
 District Court was reversed in the Circuit Court presided 
 over by Justice Washington.^ In this case the disagreement 
 of the part owners was not in regard to the employment of 
 the ship, but as to who should be master, the owner of one- 
 haK of the vessel insisting that she should sail under his 
 control as master, and the owners of the other half being 
 dissatisfied with his management, and determined that he 
 should no longer control the ship. "If we come to a closer 
 examination and summary of the maritime law upon this 
 question, we shall arrive at these results : A vessel, although 
 the subject of private ownership, is regarded as a matter also 
 of public interest. The public interest is protected in se- 
 curing the employment of the vessel. In the management of 
 a vessel, the opinion of the majority in value shall prevail, 
 unless it forbids its employment, in which case it yields to 
 the majority desiring its employment. The sale of a vessel 
 is not encouraged, because the interference of the Court in 
 aiding a discontented part owner to force a sale would, in many 
 
 * Parsons on Partnership, 561. 
 '^ Davis V. The Seneca, Gilp. 10. 
 
 3 Davis V. The Seneca, 18 Am. Jur. 486; S. C. 3 Wall. Jr. 395; S. C. 6 Penu. L. J. 
 213.
 
 457 PART OWNERS OF SHIPS. § 392 
 
 cases, serve only to gratify caprice or passion, tend to the 
 injury of other part owners, and invite frequent and injurious 
 intemiptions of commercial operations. In case of a dis- 
 agreement between part owners who have an equal interest 
 concerning the employment of the vessel, a sale will be or- 
 dered, but such disagreement must not be upon the question 
 of employment or not, for in such case they who desire to 
 employ shall prevail, but it must be a disagi'eement as to the 
 manner in which the vessel shall be employed. -^ -^ * * * 
 The power to sell, as exercised by Judge Washington, in the 
 case of the Seneca, was carried as far as the best authorities 
 in the maritime law will warrant. Nor is it easy to compre- 
 hend for what useful pui'pose the power could be exercised, 
 in any other cases than such as I have referred to, in which 
 a disagreement between the part owners cannot be determined 
 by the application of the principles of associated ownership, 
 or such as are specially provided for an ownership in vessels. 
 Of what use would be the principle which affirms the control 
 resulting to a majority from the fact of its being so, if in 
 any case in which it was to be applied, a Court would be 
 asked to decree a sale? It would soon be that the only mode 
 of preventing a dissolution would be for the majority to ren- 
 der unquestioning accord to the wishes of the minority, no 
 matter how small the minority or how unreasonable its ex- 
 actions."' The difference between the American and the 
 English decisions, in regard to the power of Courts of Ad- 
 miralt}' to decree a sale m case of a disagreement between 
 part o\vners for the settlement of which no mles of law have 
 been provided, does not result from a diverse interpretation 
 of English law, nor yet from the enactment of any American 
 statute directly controlling the question, but from the fact 
 that the American Courts conceive that their "jurisdiction, 
 and the law regulating its exercise, are to be sought for in 
 the general maritime law of nations, and are not confined to 
 that of England, or of any other particular maritime na- 
 tion."2 
 
 ' Tunno v. The Betsina, 5 Am. L. Reg. 406. 
 
 ■■' Davia v. The Seneca, 18 Am. Jur. 48G; S. C. 3 Wall. Jr. 305.
 
 PARTITION.
 
 OHAPTEK XVIII 
 
 VOLUNTARY PARTITION. 
 
 Introductory Definitions and Observations, ij 393. 
 
 Vohmtary Partition, and the Devices employed for making the Allotments 
 
 therein, ^ 39-1. 
 Partition by Ai-bitrators, § 395. 
 
 Of the necessity of Conveyances, and of Partition by Parol, $ 396. 
 Parol Partitions said to be invalidated by Statute of Frauds, § 397. 
 Parol Partitions upheld notwithstanding Statute of Frauds, § 398. 
 Parol Partition of Trust Estates, ^ 399. 
 Parol Partition, whether it can pass the legal title, § 400. 
 Parol Partition, American text-writers averse to, § 401. 
 Parol Partition, when enforced in equity, $ 402. 
 Parol Pai-tition by giantee of interest to be located, $ 403. 
 Parol Partition under Mexican law, i^ 404. 
 Parol Partition of lands of a Proprietary, ^ 405. 
 Partition by Mutual Conveyances, ^ 406. 
 Partition by Separate Conveyances in Severalty, § 407. 
 Partition, when presumed, § 408. 
 
 Warranty does not arise from Voluntary Partition,. § 409, 
 Warranty impUed in some of the States, § 410. 
 Effect on Wife's right to Dower, 411. 
 Effect on interest of Cotenant who is a feme covert, $ 412. 
 Effect of Partition between Cotenants who have intermarried, $^413. 
 Effect on Infant Cotenant, $ 414. 
 Effect on Incumbrancers, § 415. 
 
 Effect on Persons having Estates in Eemainder or Reversion, $ 416. 
 Powers delegating authority to make Partition, ^ 417. 
 Agreements to make Partitions, ^ 418. 
 Agreement or Deed void as to one is void as to all, $ 419. 
 
 g 393. Introductory Definitions and Observations. — 
 
 Ordinaiy cotenants, unlike part owners of a ship, have ample 
 means of terminating their property relations with one another, 
 and of thus avoiding a continuance of that discord and irrita- 
 tion which must necessarily attend an association compelled 
 by interest, but reprobated by every other consideration. 
 Cotenants no longer content to enjoy their property in moi- 
 eties may, if it be susceptible of division, have it transformed 
 
 461
 
 § 393 VOLUNTARY PARTITION. 462 
 
 into estates in severalty, and one of such estates assigned to 
 each of the former occupants for his sole use, and as his sole 
 property. Or if one only be discontented, the others may 
 assign him a portion, equivalent to his interest, to be by him 
 thereafter held and enjoyed in severalty, leaving the other 
 cotenants to hold the residue by moieties and under the same 
 kind of cotenancy by which they had before held their moi- 
 eties of the whole. ^ If the cotenants be unable to agree 
 upon any division of their common property, or even when 
 they have made no effort to agree, any one of them may, by 
 proceedings instituted at law or in equity, compel a division, 
 or if a division be impossible or incapable of accomplishment 
 except by greatly prejudicing the interests of the cotenants, 
 a sale of the whole property may, at the present day, be com- 
 pelled, in order that the proceeds may be distributed among 
 all the cotenants according to their respective interests. By 
 whichever of these means the cotenancy is terminated and 
 the interests of some or all of the cotenants dissevered from 
 that of the others, the proceeding is, at the present day, 
 usually called a partition. Mr. Allnatt, in his introductory- 
 observations to his Treatise on the Law of Partition, says : 
 ' ' The partition of which I propose to treat, is a division of 
 lands or tenements, by coparceners, joint-tenants, or tenants 
 in common, so as to put an end to the cotenancy, and to vest 
 in each person a sole estate in a specific purparty, or allot- 
 ment of the lands or tenements. Partition, in its primitive 
 and technical import, signified such a division by coparceners 
 or coheirs of lands which had descended by common law or 
 by custom; and the books, when they speak of partition 
 generally, and without alluding to the particular species of 
 undivided estate in the parties making it, appear invariably 
 to mean a partition by coparceners — a circumstance which 
 the student will find it necessary to keep in his mind while 
 investigating the subject. But, for reasons which will appear 
 in the course of our inquiry, the term has long since become 
 equally applicable to a division of lands by joint-tenants or 
 tenants in common. "- 
 
 1 Vin. Abr, Tit. Partition (A. 2, sub. 5); Litt. sec. 276. 
 '^ Allnatt on Partition. 1.
 
 463 VOLUNTARY PARTITION. § 393 
 
 The partition of which Mr. Allnatt in fact treated, included, 
 in addition to the matters enumerated in his introductory ob- 
 seiTations, the considemtion of forms of partition in which 
 it is evident that the cotenancy was not terminated by vesting 
 in either cotenant a sole estate in any specifie pui-party. For, 
 in some instances, such an allotment was either impossible 
 or so injurious that neither of the cotenants would consent 
 to it. In such cases, while no actual division could be made 
 of the subject of the tenancy, it was possible to agree iipon 
 some plan by which the beneficial enjoyment could be shared 
 equally yet severally by the cotenants. "For instance, if an 
 agreement be made between coparceners, that the one shall 
 have and occupy the land from Easter imtil the first of August 
 only, in severalty, and that the other shall have and occupy 
 the land from the first of August until Easter, yearly, to them 
 and their heirs, this is a good partition. Also, if two copar- 
 ceners have two manors by descent, and they make partition 
 that the one shall have the one manor for one year or longer, 
 and the other the other manor for a similar period, alternis 
 vicihus, to them and their heirs, this is a good partition. In 
 this case, each coparcener has an estate of inheritance, and 
 not a mere chattel interest, although they have the occupation 
 by turns for a certain term of 3-ears."^ So "though an ad- 
 vowson is in itself entire, and a partition could not make two 
 advowsons out of one, yet it may be divided so that the par- 
 ceners may present by turns. However, such a partition by 
 coparceners was held to be only a partition of the j:)resenta- 
 tion; for the advowson continued in coparcenary, and they 
 must all have joined after such partition in a writ of right of 
 advowsons."" There were also, at the common law, many 
 other instances of indivisible inheritances, in which the only 
 partition that could be made consisted either of an enjoy- 
 ment in severalty by turns, or a division of the proceeds or 
 profits.^ The embarrassment which, at the common law, at- 
 tended the partition of indivisible inheritances has been ob- 
 viated by statutory provisions authorizing Courts to direct a 
 sale of the common property whenever it is not capable of 
 
 » AUuatt on Partition, 4; Viu. Abr. Tit. Partitiou (A. 2.) 
 ^ Allnatt ou Partitiou, 6, 7. ■^ lb. 8, 9; Co. Litt. 164 b. 165 a.
 
 g 394 VOLUNTARY PARTITION. 464 
 
 an advantageous allotment. This renders it essential that we 
 should treat of a subject not embraced in Mr. Allnatt's work, 
 viz., of the circumstances in which a sale will be preferred to 
 an allotment, the manner of conducting such sale, and its 
 effect when properly conducted. "We shall also treat of the 
 partition of personal property, a subject not embraced in Mr. 
 Allnatt's work. 
 
 g 394. Voluntary Partition, and Devices for making 
 the Allotments therein. — A partition is either voluntary or 
 compulsory. It is voluntary when accomplished by the co- 
 tenants by mutual agreement between one another; and is 
 compulsory when effected by a Court having competent jur- 
 isdiction for that j)urpose, acting at the instance of one or 
 more of the cotenants.^ Voluntary partition between copar- 
 ceners at common law was accomplished by one of four dif- 
 ferent methods. By the first method, the parceners by 
 direct agreement between one another made their partition, 
 and each took a particular part to hold in severalty. Little- 
 ton intimates that each part must be of equal value ;2 but in 
 commenting upon this Lord Coke observes: "If coparceners 
 make partition at full age and unmarried, and of sane mem- 
 orie, of lands in fee-simple, it is good and firme for ever, 
 albeit the values be unequall; but if it be of lands entailed, 
 or if any of the parceners be of non sane memorie, it shall 
 binde the parties themselves, but not their issues unlesse it 
 be equall; or if any be covert, it shall bind the husband but 
 not the wife or her heires, or if any be within age, it shall 
 not bind the infant."^ By the second method, the coparcen- 
 ers first appointed some of their friends to divide the lands 
 into equal pai-ts. After such division had been made, each 
 of the coparceners selected one of these parts to hold in sev- 
 eralty. In this selection, the eldest sister had the first 
 choice, and the others chose after her according to their 
 seniority.'' When the third method was employed, the eldest 
 sister was chosen to make division of the lands into equal 
 parts. In this case, to assure the impartial exercise of her 
 judgment, "it is said the eldest sister shall choose last for 
 
 1 AUnatt on Partition, 2; Co. Litt. 165 h. - Litt. sec. 243. 
 
 •^ Co. Litt. 166 a. * Litt, sec. 244; 2 Cruise, 394.
 
 465 VOLUNTARY PAKTITION. g 395 
 
 her part, and after every one of her sisters."' " The rule of 
 law is, cuJks est dlvisio, alferius est eledio. And the reason of 
 the law is, for avoyding partiality."- The fourth method of 
 voluntary ' ' partition or allotment is, as if there be four par- 
 ceners, and after partition of the lands be made, every part 
 of the land by itself is written in a little scrowlo and is cov- 
 ered all in waxe in manner of a little ball, so as none may 
 see the scrowle, and then the four balls of waxe are put in a 
 hat to be kept in the hands of an indifferent man, and then 
 the eldest daughter shall first put her hand into the hat, and 
 take a ball of Avaxe with the scrowle within the same ball for 
 her part, and then the second sister shall put her hand into 
 the hat and take another, the 3 sister the 3 ball, and the 4 
 sister the 4 ball, &c., and in this case every one of them 
 ought to stand to their chance and allotment."^ 
 
 g 395. Partition by Arbitration. — When the cotenants 
 appoint certain persons as arbitrators, or commissioners to 
 make pai-tition for them, it is not usually understood that 
 their award or report operates upon the legal title. "It has, 
 indeed, been said, that partition cannot be made by award, 
 since a freehold cannot pass without livery; but this position 
 
 ' Litt. sec. 245; 2 Cruise, 394. 
 
 ^ Co. Litt. 1G6 b. 
 
 •' Litt. sec. 24G; 2 Cruise, 395. The division of land by lot naturally suggests itself 
 as the most simple as well as the most impartial method which can be employed. It 
 is also likely to prove as satisfactory as any other method, because it is more likely 
 than any other to present to the parties interested the appearance of the utmost fair- 
 ness, and to leave them without evidence of intentional injustice. It was frequently 
 employed by the Israelites. Thus, when Moses on the plains of Moab had numbered 
 the children of Israel, the Lord spake unto him saying: " Unto these the land shall 
 be divided for an inheritance according to the number of names. To many thou 
 shalt give the more inheritance, and to few thou shalt give the less inheritance: to 
 every one shall his inheritance be given according to those that were numbenxl of 
 him. Notwithstanding the land shall be divided by lot: according to tlie names of the 
 tribes of their fathers lliey shall inherit. According to the lot shall the possession 
 thereof bo divided between many and few." (Numbers, ch. 2C, v. 52-56.) And wlieu 
 the Lord commanded tlie children of Israel to drive out the inhabitants of the land 
 of Canaan, he again directed that the land should be divided among the families of 
 the IsrM;lites by lot. (lb. ch. 33, v. 54.) And whenever it became necessary to ilivide 
 a new acquisition among the children of Israel, the original command to divide by 
 lot was either repeated or enforced without repetition. (Ezek. ch. 18, v. 29; ch. 47, 
 v. 22; Jos. ell. i:{, v. fi; 1 Chron. ch. 21, v. 5; cli. l(j, v. 18; Acts, cli. i:(, v. 19.) No doubt 
 the same metliod was employed in rel'er(;nce to personal pr(jperty t<j which sev(!ral were 
 equally entitled. Hence we find that the soldiers after crucifying Jesus "parted hia 
 garments, casting lots upon them, what every man sliould tuko." (Mark, ch. 15, v. 24.) 
 
 C. & p.— 30
 
 g 396 VOLUNTARY PARTITION. 466 
 
 must be understood as referring to the actual operation of 
 the award itself."^ "When several tenants in common cove- 
 nanted by deed to submit to an award to be made by certain 
 arbitrators, partitioning the lands of the cotenancy, and an 
 award was accordingly made allotting the lands in severalty 
 among the cotenants, such award was held to be incomplete 
 until confirmed by conveyances executed in accordance with 
 it.^ But it seems that when the cotenants refuse to make 
 the conveyances necessary to transfer the legal title, equity 
 will compel them to do so.^ A deed of partition may appoint 
 certain persons as commissioners to make a division of the 
 lands therein described, and to allot the same among the co- 
 tenants according to certain terms specified in the deed. If, 
 in addition to these provisions, the deed contains words of 
 release and conveyance by which the several cotenants mut- 
 ually convey and release to each other the parts which may 
 be allotted to each respectively by the commissioner — the 
 deed to take effect when the commissioners file their report 
 in the Recorder's office, with a map showing the boundaries 
 of the several allotments — such deed is a deed on condition 
 precedent, and upon the happening of the condition, namely, 
 the filing of the report and map, the deed becomes effectual 
 as a deed of partition and release, and vests in each cotenant 
 in severalty both the legal and equitable title to the premises 
 allotted to him by the commissioners.^ 
 
 g 396. Of the Necessity of Conveyances. — In the pre- 
 ceding section, we have shown that a voluntary partition 
 between coparceners was, at common law, usually accom- 
 plished by one of four different methods. But each of these 
 methods is to be regarded rather as a device resorted to for 
 the purpose of ascertaining how an allotment should be 
 made, than as a means of transforming a title held in moi- 
 eties into two or more titles to be held in severalty. We 
 have yet to consider what means are necessary, after iiie al- 
 lotment has been determined, to vest an exclusive title to 
 each purparty in the cotenant to whom it has been alloted. 
 In the case of joint-tenants, voluntary "partitions must, at 
 
 • Allnatt on Partition, 17, IS. - Johnson v. Wilson. Willes, 2i8. 
 
 » Knislit r. Burton, G Mod. 231. * Tewk-sbury r. Prorizzo, 12 Cal. 23.
 
 467 VOLUXTAKY PAKTITION. g 39G 
 
 all times, have been by deed; except where the estate was only 
 for years, for there they might make partition without deed."' 
 Between tenants in common, a voluntary partition could, by 
 the common law, be made by parol, provided it was executed 
 in severalty with livery of seisin.'- "If two tenants in com- 
 mon be, and they make partition by paroll, and execute the 
 same in severalty by livery, this is good and sufficient in 
 law."* "Partition by agreement between parceners may be 
 made by law between them, as well hy parol without deed, 
 as by deed;"" and need not be perfected by liver}'.'' These 
 distinctions are recognized in all the elementary works upon 
 the common law; but it is difficult to satisfactorily account 
 for them, or to show that they arose from corresponding 
 differences in either the origin, the character, or the objects 
 of the cotenacies to which they were attached. In attempt- 
 ing to explain and justify them, Mr. Allnatt, in his treatise 
 on Partition said : ' ' Partition between coparceners neither 
 amounts to, nor requires, an actual conveyance. It is less 
 than a grant. Its operation is not to pass the land by a fresh 
 investure of the seisin, for parceners are supposed to be al- 
 ready in possession of the whole lands. Partition, therefore, 
 makes no degree. It only adjusts the different rights of the 
 parties to the possession; each does not take her allotment by 
 purchase; but is seized of it by descent from the common 
 ancestor, as she was of her undivided share before partition. 
 At common law, therefore, a partition among parceners by 
 parol was legal and efficacious, though they might make a 
 vaKd partition by deed; and a partition by release with -svar- 
 ranty from one to the other is expressly mentioned in the 
 books as good. Sir W. Blackstone, in his Commentaries, 
 seems to attribute this efficacy of a parol partition to the 
 parceners being always, at common law, subject to coercive 
 partition by writ. But Hawkins, in his abridgement of Coke 
 upon Littleton, states the reason to be, that partitions be- 
 tween parceners were much favored and privileged, because 
 
 ' 2 Cruise, 384; Go. Litt. 187 (t; V3 Poterbdorll's Abr. 1U7, 111; Yin. Al>. Tit. I'arti- 
 tion (D.) 
 - 2 Cniiae, dlO. 
 ■■• Co. Litt. IG'J a. 
 
 ' Litt. Kcc. 250; Yiu. Ab, Tit. Partition (C.) 
 '• 2 Cruise, 395.
 
 g 396 VOLUNTARY PARTITION. 468 
 
 their undivided estate was created and cast on them merely 
 by act of law. And this, perhaps, is the more rational and 
 satisfactory way of accounting for the circumstance. * -^ -^ 
 The author of the Commentaries, after defining a partition 
 between joint-tenants, coparceners, and tenants in common, 
 says : ' Here, as in some instances there is a unity of interest, 
 and in all a unity of possession, it is necessary that they all 
 mutually convey and assure to each other the several estates 
 which they are to take and enjoy separately. By the common 
 law, parceners, being compellable to make partition, might 
 have made it by parol only; but joint-tenants, and tenants in 
 common, must have done it by deed; and in both cases, the 
 conveyance must have been perfected by livery of seisin.' 
 And he cites the above noticed section of Litt. (250,) and 
 Co. Litt. 169. However, these authorities by no means bear 
 out the learned commentator in the positions contained in 
 this paragraph; and indeed they expressly contradict him in 
 the assertion that tenants in common must have made parti- 
 tion by deed. And with respect to joint-tenants, a considera- 
 tion of the nattire of their estate will sufficiently prove that 
 the learned author must have also been mistaken in stating 
 that a partition by them must have been perfected by livery 
 of seisin. A joint-tenant is seised per mie et per toid. As far 
 as regards the enjoyment of profits, indeed, he has only a 
 share; but his possession in the eye of the law runs through 
 and pervades the whole lands. He cannot, therefore, take 
 by livery any part of the lands, because he is already in pos- 
 session of them. He and his companions all come in by the 
 same feudal contract; and a second feoffment cannot give any 
 farther title or notoriety, because every person is supposed 
 to be in by his elder title, which, in the case of joint-tenants, 
 is the original conveyance. The proper mode of assurance 
 between joint-tenants is by release, which enures by way of 
 mitter restate, and which could not have been effected without 
 deed. By such release, a fee will pass to the releasee, with- 
 out words of limitation; for the releasee is in by the original 
 conveyance, and such release is not considered as an aliena- 
 tion, nor does it make a degree. 
 
 But in regard to tenants in common, they have several and
 
 •169 VOLUNTARY PARTITION. § 397 
 
 distinct freeholds, and may enfeoff each other; because this 
 estate, being established by difterent notorieties, and each 
 moiety having passed by a distinct livery, they must convey 
 to each other by a distinguishing livery. But the same 
 reason which requires an actual conveyance between them 
 shows that a release to each other would be invalid, as a re- 
 lease assumes the j)arty to be already in possession."' 
 
 § 397. Parol Partitions said to be invalidated by Stat- 
 ute of Frauds. — A voluntary partition of lands could, as 
 we have shown, be made by parol at the common law be- 
 tween parceners and also between tenants in common. But, 
 according to a slight preponderance of American cases, and 
 to a decided majority of the English authorities," the Statute 
 of Frauds now interposes an insuperable obstacle to a valid 
 parol partition. It must not however be inferred that, even 
 under these authorities, parol evidence may not, under cer- 
 tain circumstances, be competent to establish a partition; 
 but it can only be so when its purport is such as to dtrectly 
 establish that a partition was made in some valid method, 
 the wi-itten evidence of which cannot now be produced. If a 
 jury be called upon to determine, as an issue of fact, whether 
 or not a partition of lauds once held in cotenancy had been 
 effected, and the undivided estates of the cotenants thereby 
 changed into estates in severalty, evidence might properly be 
 admitted showing a several occupation of some specified part 
 by each of the cotenants for a long period of time, and the 
 jury might be justified from such evidence in inferring that 
 a valid partition had been made. But if this long-continued 
 possession in severalty be explained, and be shown to have 
 existed in pursuance of a parol partition made by the co- 
 tenants, the inference which might otherwise be indulged is 
 rebutted, and the jury would, according to the authoruiew to 
 which we have referred, not be justified in finding that a 
 valid partition had been consummated. The cotenants would, 
 therefore, notwithstanding their several occupation, be still 
 
 ' Allnatt on Partition. 121-129. 
 
 ■■^ JohnHon v. Wilson, Willos, 248; Irtlaiid r. Rittlo, 1 Atk. 541; Whaley c. Dawsou, 
 2 Bell. <k Lf;f. .307; Browno on St. of Frauds, hcc. G8; 2 Blatrk. Comni. 323; Allnatt on 
 Partition, 130; 13 Petciridorff'n Ab. 141; 1 Chittvs Oenl. I'r. :il3.
 
 § 397 VOLUNTAEY PARTITION. 470 
 
 regarded and treated as owners of undivided moieties.^ In 
 an early case in Massachusetts, it appeared that a several 
 possession had been continuously maintained for twenty- 
 seven years; and the cotenants had been heard to declare 
 that they had made a partition, but without expressing 
 whether such partition had been made by deed or by parol. 
 Upon these facts, Chief Justice Parsons said: "Since the 
 statute of frauds, partition by parol is void. But a several 
 possession may be the consequence of a parol partition. We 
 cannot therefore infer, from the severance of the possession 
 by the tenants in common, that a partition by deed was exe- 
 cuted. Whether a deed of partition was or was not executed, 
 is a question of fact, and not of law; and it is improperly 
 submitted to us as a question of law."'^ Chief Justice Horn- 
 blower, of the Supreme Court of New Jersey, while intimat- 
 ing that he might possibly iiphold a parol partition when 
 sanctioned by long-continued possession taken and held by 
 virtue of it, denied the force of such partition when accom- 
 panied by possession for a period of. five or six years, and 
 thus portrayed the evils which, in his judgment, were likely 
 to arise from encouraging parol partitions : ' ' The peace of 
 society and the security of titles, under the existing circum- 
 stances of our country and the policy of our laws, in my 
 opinion, strongly require an adherence to the rule, that all 
 partitions of freehold estates among cotenants should be by 
 deed or Avriting. By our laws of inheritance, and the pre- 
 vailing habits of society, the land of almost every decedent, 
 whether testate or intestate, comes to be divided and sub- 
 divided among his children and grandchildren. Lands are 
 now almost as much an article of sale and transfer as mer- 
 chandize itself. It is the interest and policy of the country 
 that it should be so ; and the same interest and policy re- 
 quire certainty^ and security to be given to titles. But if 
 partitions may be made by parol, and if not only the fact of 
 
 ' Porter v. Hill, 9 Mass. 34; Dow r. Jewell, 18 N. H. 353; Wright v. Cane, 18 La. 
 An. 579; Craig v. Taylor, G B. Monr. 459; Liicy v. Overton, 2 A. K. Marsh. 442; Wood 
 V. Griffin, 46 N. H. 237; Ballon v. Hale, 47 N. H. 350; Anders v. Anders, 2 Dev. 531; 
 McPherson v. Seguine, 3 Dev. 154; Richmau v. Baldwin, 1 Zabr. 395; Goodliue v. 
 Barnwell, Rice Eq. 198. 
 
 - Porter v. Perkins, 5 Mass. 235.
 
 471 TOLUNTARY TAKTITION. § 398 
 
 such partition having been made and nnderstandingly agreed 
 to bj all the parties, bnt the time when the partition lines, 
 the metes and bounds, courses and distances of the several 
 jjarcels allotted to each, are all to rest in the frail memory of 
 man : if no records or Avi'itings are to be made of such parti- 
 tions, to which purchasers and heirs are to resort for inform- 
 ation and certainty, it will not only depreciate the value of 
 real estate derived under such partitions, by rendering titles 
 uncertain and precarious, but, in the end, be productive of 
 fruitful litigation."' In Maine, Knight and Duncan, two ten- 
 ants in common, made a parol partition of their lands. Each 
 took and held exclusive possession of the part allotted to 
 him, and each subsequently conveyed, with covenants of 
 warranty, the part assigned to him, to a stranger to the co- 
 tenancy. About fifteen years after the parol partition, Dun- 
 can petitioned the Court for a partition of part of the lands, 
 and the Court held that ' ' neither the parol partition, nor the 
 subsequent corresponding occupation, nor the conveyance by 
 each of the purparty assigned to him, operated as an effectual 
 legal partition. Knight and the petitioner were seized per 
 ml etper tout, and neither could invest the other Avith a sepa- 
 rate title to a portion of the tract, without the formality of a 
 deed. Each therefore may avoid the conveyance of the 
 other, so that it may not interpose an obstacle to a just and 
 equal partition. The tenancy in common embracing the 
 whole tract, neither can, by his own act, exclude the other 
 from any part of it. " ^ 
 
 ^ 398. Parol Partitions upheld notwithstanding Statute 
 of Frauds.— In New York, more frequently than elsewhere, 
 the validity of parol partitions, when succeeded by possession 
 taken and held thereunder, has been considered and affirmed. 
 In the first case which arose in this State directly involving 
 this question, Chancellor Kent, then Chief Justice of the 
 Supreme Court, said: "A parol division, carried into effect 
 by possessions taken according to it, will be sufficient to sever 
 the possessions, as between tenants in common whose titles 
 are distinct, and where the only object of the di\nsion is to 
 
 ' Dtnex dein. Woodliull i'. Longstrcct, 3 Ilarr. (IH N. J. Law) 4H. 
 * Duucaii V. Sylvester, IG Me. 390; CLermyf. Dale, 3'J Ac. 164.
 
 g 398 VOLUNTARY PARTITION. 472 
 
 ascertain the separate possessions of each. This was so ad- 
 mitted by the Court in the case of Jackson ex dem. Vanden- 
 bergh v. Bradt, 2 Cai. 174." ^ But the case to which the Chief 
 Justice thus referred does not, as reported, warrant the state- 
 ment which he made ; because the parol partition had been 
 confirmed by a deed in which the cotenants covenanted to 
 abide by it. A few years later, the same Court said: "There 
 is no doubt but that, where the title is admitted to have been 
 in common, a parol partition, followed up by possession will 
 be valid, and sufficient to sever the possession."^ The prin- 
 ciples thus announced have ever since been frequently and 
 consistently applied in the same State," but we have been 
 unable to discover any case in that State in which the effect 
 of the statutes of frauds upon parol partitions has been de- 
 scribed, or in which the Courts have, in any respect, viewed 
 the effect of such partition except by the light of stare decisis. 
 In Mississippi, after explaining the nature and object of cer- 
 tain testimony which had been rejected by a subordinate 
 Court, the High Court of Errors and Appeals, expressed its 
 opinion in the following brief but emphatic language: "The 
 only question, then, upon which the competency of this evi- 
 dence depends, is, whether it is competent to show a partition 
 by parol between coparceners or tenants in common. And 
 there can be no doubt but that such an agreement, when car- 
 ried out by the parties taking possession in severalty, is valid, 
 and effectual to conclude the rights of the others against the 
 respective parties so holding in severalty. " * In Pennsylvania, 
 in an action for partition, the defendant pleaded non tenent 
 insimul: and at the trial offered parol evidence to show that 
 the plaintiff and himself "before the institution of the suit, 
 had agreed to make partition, and that accordingly they met 
 upon the ground, and with the assistance of a surveyor, mu- 
 tually employed by them, they ran and distinctly marked a 
 line of partition, and actually made division of the land by 
 
 ' Jackson v. Harder, 4 Johns. 212. 
 
 - Jackson v. Vosburgli, 9 Johns. 276. 
 
 => Mount V. Morton, 20 Barb. 138; Otis v. Cusack, 43 Barb. 549; Conklingw. Brown, 
 57 Barb. 265; Kyerss v. Wheeler, 25 Wend. 434; Jackson v. Christman, 4 Wend. 277; 
 Wood V. Fleet, 36 N. Y. 499. 
 
 * Wildey v. Bonney's Lessee, 31 Miss. 652; Natchez v. Vandervelde, lb, 706.
 
 473 VOLUNTARY PARTITION. § 398 
 
 each taking possession of the part allotted to him by the 
 other, which had been so held in severalty ever since. This 
 evidence was overniled by the Court, and a Inll of exceptions 
 sealed," upon which the case was argued in the Supreme 
 Court. Tilghman, C. J., delivered the following opinion of 
 the Court : ' ' The defendant in error contends that the evi- 
 dence ought not to have been admitted — 1st, because the 
 partition was made by parol; 2d, because if it had been in 
 writing, it was not admissible on the issue joined, but ought 
 to have been specially pleaded. The first objection is 
 founded on the act of Assembly of 21st March, 1772, by 
 which a writing is made necessar}' for the jDassing of any 
 estate or interest in lands. This act of Assembly, so far as 
 respects the point under consideration, is in substance the 
 same as the English statute of frauds and perjuries; in the 
 construction of which it has been determined that specific 
 execution of a parol agreement shall be decreed in equity, 
 when the agi'eement has been carried into effect in part only. 
 This determination was founded on two principles : 1st, that 
 where the parties have acted on their agreement, there is no 
 danger of perjui-y in proving it; and 2d, because it is against 
 equity that a man should refuse to perfect an agreement from 
 which he had derived benefit by execution in part. Whether 
 the courts of chancery line gone further than they ought, in 
 thus indirectly giving efficacy to a parol agreement concern- 
 ing land, we do not think ourselves at liberty now to inquire ; 
 because the principles I have mentioned have been adopted 
 by this Court, and long considered as the law of the land; 
 and to question them now, would shake many titles acquired 
 under their authority. We therefore think ourselves bound 
 to say that the evidence ofi'ercd ought to have been received, 
 unless it was improper because not applicable to the issue 
 joined; which is the second point for consideration. 
 
 ' ' The plaintiff below declared that he and the defendant 
 held the land lorjelltcr and undivided : the defendant pleaded 
 that they did not hold it together; and this was the point of 
 the issue. Now, what was the evidence offered by the de- 
 fendant? Why, that Jie and the plaintifi" liad made partition, 
 which was in direct affirmance of his i)lea, that they did not 
 hold together; because if they held in severalty, they could
 
 ^ 398 YOLUNTAKY PARTITION. 474 
 
 not hold together. We are of opinion, therefore, that the 
 evidence offered by the defendant below onght to have been 
 received."' The principles thus announced, so far as they 
 relate to the effect of a parol partition, have been repeatedly 
 reaffirmed in the same State. "^ In South Carolina, in a case 
 where parol partition had not been consummated by posses- 
 sion taken and held in accordance therewith, the Court said: 
 "There is no doubt, that if actual possession had followed 
 the partition, it would have bound the parties."" In so say- 
 ing, the Court but confirmed the following intimation made 
 by Judge Brevard many years previously -in delivering the 
 opinion of the Constitutional Court of the same State : ' 'A 
 parol agreement and partition was good at common law. 
 And notwithstanding the statute of frauds may, perhaps, still 
 be considered valid, if the line of partition on the ground be 
 sufficiently marked and manifested by a correspondent sep- 
 arate and distinct possession, for a sufficient length oa time."* 
 In Virginia, " between parceners, deeds of partition, though 
 the better practice, are not absolutely necessary : they may 
 mark and establish the dividing line between them, and 
 prove it by any other competent evidence; and they will, 
 from the time of marking and establishing the line, be seized 
 in severalty."'' The validity of a parol partition executed by 
 taking and holding possession under it, seems to have been 
 conceded at one time in Missouri;^ but this decision, so far 
 as it implies that such partition affects the legal title, has 
 since been doubted in a case presenting the following cir- 
 cumstances: B and A, being tenants in common, made a 
 parol partition, and each took possession of the part thereby 
 allotted to him. A confirmed the partition by making a deed 
 
 ' Ebert V. Wood, 1 Binn. 218. 
 
 - Calhoun v. Hays, 8 Watts & S. 132; McMahan v. McMahau, 13 Pa. St. 376; Eider 
 V. Maul, 40 Pa. St. 378; Maul u. Eider, 51 Pa. St. 377; McConnell «. Carey, 48 Pa. St. 
 349. 
 
 » Slice f. Derrick, 2 Rich. 629. 
 
 * Haughbaugb y. Honald, 3 Brev. 98; Walker v. Bernard, 1 Cam. & Norw. N. C. 82. 
 
 ^ Coles ('. Wooding, 2 Pat. & H. 197. •• Tenants in common who have not perfected 
 their title by fifteen years' jjossession, under the stntute, may make partition by 
 parol, provided this severance is accompanied by acts of possessioa in severalty." 
 Pomeroy v. Taylor, Brayt. 174. Parol partition piotected in Illinois, Manly v. Pet- 
 tee, 38 111. 131; Tomlin v. Hilyard, 43 111. 300. 
 
 *^ Bompart v. Eoderman, 24 Mo. 398.
 
 475 VOLUNTARY PARTITION. § 399 
 
 to B; but B never made any conveyance to A, A's grantee 
 brought his petition in equity, stating these facts, and praying 
 that the partition might be confirmed by decreeing the legal 
 title. The Court in which the petition was filed decided 
 that it did not state facts sufficient to constitute a cause of 
 action. The Supreme Court reversed the decree of dismis- 
 sal, in its opinion by Adams, Judge, saying : ' 'Although it 
 is laid down that a parol partition is good as between the 
 parties, yet it seems to me that the equitable title only 
 passes, which by adverse possession may ripen into a legal 
 estate. In my opinion, the plaintiff had a right to have this 
 parol partition confirmed by a decree vesting in him what- 
 ever title the defendant had in the premises."' In Ohio, it 
 is certain that if a parol partition be consummated by pos- 
 session and be a fair division of the common property, it 
 will not be disturbed in equity after the lapse of several 
 years, although some of the parties were infants.- In Texas, 
 a parol partition is considered as valid, because there is a 
 material difference between the Statute of Frauds of that 
 State and the English statute.'* " The difference in the two 
 statutes is shown to be this : in our statute a contract for the 
 sale of lands must be in writing; the English statute goes 
 further, and embraces not only a sale of lands, but any 
 intei^st in or concerning them."'^ 
 
 g 399. Parol Partition of Trust Estates, — ^liere an 
 estate is so far exempt from the operation of the Statute of 
 Frauds that it may still be created by parol, it may also be 
 divided among the co-0"svTiers in the same manner. In con- 
 sidering the effect of a parol partition made between several 
 cestuis que trust, Chief Justice Parker of the Superior Court 
 of New Hampshire expressed his views upon this subject in 
 the following clear and convincing language : ' ' This is a case 
 where the property was held by a trust arising by implication 
 of law, and in its original inception the trust is Avithin the 
 express exception of the statute. No instrument in writing 
 is necessary in order to create the trust estate, or to show the 
 
 ' Hazen u. Bainott, 50 Mo. 507. 
 - Piatt ('. Hubbel, 5 Oliio, 215. 
 3 Stuart V. Baker, 17 Tex. 420.
 
 g 400 VOLUNTARY PARTITION. 476 
 
 right of the cestui que trust. And if the existence of the trust 
 estate may be shown by parol, because the case is not affected 
 by the statute, and the trust may be enforced without writing 
 because never within the statute, we see no good reason for 
 holding that the estate is within the statute in other respects. 
 So long as it exists as a trust, thus raised by implication of 
 law, it exists with all the incidents attached to such an estate 
 before the statute, because of the exception. And one of 
 these incidents, as we have seen, is that partition may be 
 made by parol. It would present a singular state of the law 
 were we to hold that the creation and continued existence of 
 the estate and title might be shown without any written dec- 
 laration of the trust, but that a division of the property 
 among those who thus held it must be proved by writing; 
 thus requiring a higher degree of evidence to show the par- 
 tition of the property than was required to show the existence 
 of the title to it."' 
 
 g 400. Parol Partition — Can it Transfer the Legal 
 •jTitle? — "In no case, however, has a verbal partition been 
 held sufficient for any other purpose than to ascertain the 
 limits of the respective possessions; and in a case in New 
 York, where the plaintiff in ejectment undertook to base his 
 title upon a verbal partition, though there had been separate 
 holdings for twenty-five years under it, the Court held that a 
 verbal partition could in no case operate to pass title.'"' We 
 think the foregoing quotation, if not contradicted, is well 
 calculated to lead to a misapprehension of the law upon this 
 subject. In those decisions which affirm the validity of pa- 
 rol partitions, the whole tenor of the opinion of the Courts, 
 with one or two exceptions, is to the effect that such parti- 
 tions invest each cotenant with a full perfect legal title to the 
 purparty allotted to him, and of which, by virtue of such 
 allotment, he has taken and held possession. If he is so 
 invested with the legal title, no impediment exists to prevent 
 his maintaining ejectment against any person unlawfully in 
 possession. The case in New York, referred to in the pre- 
 ceding quotation, is that of Jackson v. Vosbrugh, 9 Johns. 
 270. An inspection of the original report will show how 
 
 ' Dow V. Jewell, 18 N. H. 354. - Browue on St. of Frauds, sec. 70.
 
 477 VOLUNTARY PARTITION. g 401 
 
 wonderfully the case has been misrepresented. In the first 
 place, it was not the plaiutifl' but the defendant who under- 
 took to avail himself of a parol partition. In the second 
 -place, tlie validity of the partition was denied solely on the 
 ground that the parties never were cotenmils of the property 
 in dispute, the Court holdiug that Avhen one person was 
 owner in severalty, and he, with others, made a jDarol parti- 
 tion of his property, on the hypothesis that they were tenants 
 in common, such parol partition did not transfer the title 
 from the owner and vest it in one who never had any interest 
 in it. The Court, therefore, instead of holding as repre- 
 sented, held that "where the whole right and title of the 
 party setting up the tenancy in common is denied, and in 
 fact abandoned, the parol partition will not operate to trans- 
 fer title;"' and in what it actually held, the case has since 
 been approved in another State, ^ and is certainly unquestion- 
 able as well as imquestioned law. 
 
 ^ 401. The American text -writers have shewn a 
 
 decided preference for the rule sustained by the English 
 authorities, viz., that a parol partition is no longer capable 
 of destroying a cotenancy although fully executed by taking 
 and holding possession under it. In fact, some American 
 writers have attempted to ignore the American decisions dis- 
 senting from the English rule. Thus, Mr. Washburn, in his 
 work on real property, declares, in general terms, that ' ' no 
 parol partition can be effectual unless accompanied by deeds 
 from one cotenant to the other, inasmuch as the Statute of 
 Frauds applies to such cases.'"" Mr. Browne, in his Treatise 
 on the Statute of Frauds,^ after showing some of the decisions 
 on both sides of this question, announces, as his conclusion, 
 that "the decided weight of authority in the United States 
 seems to favor the English view of this question, and to be 
 opposed to allowing a verbal partition to be effectual even to 
 sever the possession of tenants in common." But it is 
 scarcely possible to consider the decisions cited in preceding 
 sections,'' without realizing that the authorities are much more 
 evenly divided than Mr. Browne supposes them to be; and 
 
 ' U Johns. 27C. - Bompart v. Rodermaii, 24 Mo. 398. 
 
 - 1 WaBhb. on Real Property, 430. ^ Bee. 71. '•> See aecs. 397, 398.
 
 g 402 TOLUNTARY PARTITION. 478 
 
 whether we seek to determine the question by numbering the 
 opposing decisions, or by considering the character and re- 
 spectability of the Courts whence they proceeded, we shall, 
 in either case, be unable to form any decided opinion, and 
 shall be convinced that if the weight of the American de- 
 cisions is in consonance with those of the English Courts, 
 the preponderance is so slight as to scarcely turn the scale. 
 Where so radical a difference of opinion exists in regard to 
 an important legal proposition, we naturally expect of the 
 disputants a full statement of the reasons upon which their 
 respective conclusions are based. But, in reference to the 
 question we are now considering, it is equally a matter of 
 surprise and of regret that the Judges on both sides have 
 treated the matter as too clear for argument, and have found 
 it more convenient to ignore than to refute. 
 
 g 402. Enforcing Parol Partition. — But whatever effect 
 may be conceded at law to parol partitions, we think it quite 
 ceiiain that, when executed by taking possession thereunder, 
 they will be recognized and enforced in equity, particularly 
 when such a partition and the possession based upon it have 
 been mutually acquiesced in by the parties for a considerable 
 period. " I do admit a parol agreement of long standing, ac- 
 knowledged by all the parties to have been the actual agree- 
 ment, and accordingly put in execution, will be established 
 by this Court, where it appears that the persons who made 
 such agreement had a right to contract, and I will not at 
 fifty-three years' distance, suffer either of the parties to con- 
 trovert the equality of the partition at the time it was made."^ 
 It is true that in most of the cases in which equity has pro- 
 tected rights based upon parol partitions, possession had 
 been taken and continued under such partition for a long 
 period of time, or one of the parties acting upon his faith 
 in the partition has made valuable improvements upon the 
 purparty allotted to him. But while either of these circum- 
 stances might justly be regarded as entitled to great consid- 
 eration, we conceive that neither is essential to warrant the 
 
 ' Ireland v. Rittle, 1 Atk. 542; Whaley v. Dawson, 2 Sch. & Lef. 367; Kennedy v. 
 Kennedy, 43 Pa. St. 417; Maasey v. Mcllwain, 2 Hill Ch. 424; Pope v. Henry, 24 Vt. 
 560.
 
 479 VOLUNTARY PAETITIOX. §§ 403-5 
 
 iiitei*position of the Court, and that a court of equity will 
 compel the specific performance of a parol partition, as of 
 any other parol contract relating to lands, whenever it has 
 been carried into execution by the parties.' "TMiile the 
 legal title might not, perhaps, be considered as passing by a 
 parol pai"tition, unless after a possession sufficiently long to 
 justify the presumption of a deed, yet the parol partition fol- 
 lowed by a several possession, would leave each cotenant 
 seized of the legal title to one-half of his allotment and the 
 equitable title to the other half, and by a bill in chancery he 
 could compel from his cotenant a conveyance of the legal 
 title according to the terms of the partition."^ 
 
 § 403. By Grantee of Interest to be Located. — Where 
 a specific quantity of land is conveyed to be located at the 
 election of the grantee within the limits of a larger tract of 
 which the lauds granted are a part, the grantee, though ten- 
 ant in common with his grantor until the selection is made, 
 becomes, as soon as he locates his tract, owner thereof in 
 severalty. "This location, in conformity with the provisions 
 of the deed itself, renders that certain which was before un- 
 certain," and gives a good legal title to the part selected. •"' 
 
 g 404. Parol partitions, according to the Mexican and 
 
 Spanish law, were valid. But "in order to uphold a parti- 
 tion under the Spanish law, as well as under the common 
 law, it must satisfactorily appear that there was not only an 
 agreement to make the partition, but that the same was fully 
 executed and followed by a several possession by either the 
 parties themselves or their grantees."^ 
 
 g 405. Partition of Lands of Proprietaries. — The pro- 
 prietaries which existed at an early day in the New England 
 States, and under which large tracts of land were acquired 
 and held, in undivided interests, by grants from the State, 
 seem to have exercised many of the powers now exercised 
 only by corporate bodies, and, in the general management 
 
 ' Goodhue r. Dainwell, Kico Eq. 23G; llazcn r. Burnett, iJO Mo. 507. 
 ■^ Tomlin v. Hilyard, 43 111. 302. 
 
 s Corbiii V. Jaclwon, 14 Woiid. 025; Jackson r. Livingnton, 7 lb. 130. 
 * Loug r. DoUarbidi-. 24 Cal. 222; Elias c. Vtidugo. 27 Cal. 425; Lynch v. Baxter, 
 4 Tex. 431.
 
 g 406 VOLUNTARY PARTITION. 480 
 
 and disposition of their lands, to have been exempt from 
 most of the rules applicable to ordinary tenancies in common. 
 In order to perfect a partition of their lands, it was not neces- 
 sary that any deed or other written instrument should be 
 made, nor that the partition should be consummated by a 
 corresponding possession in severalty. At a meeting of the 
 proprietors, the interest of any one of their number might, 
 by a vote, be set off to him in severalty. His title to the 
 tract allotted became thereby as perfect as though based 
 upon a conveyance from all his co-proprietors.^ 
 
 g 406. Partition by Mutual Conveyances. — The most 
 
 usual manner of accomplishing a voluntary partition of lands 
 
 is by means of conveyances or releases between the cotenants. 
 
 The forms of conveyance appropriate to the different species 
 
 of cotenancy have been treated in a previous chapter. In 
 
 this country, the most common mode of effecting partition 
 
 by conveyances is for each cotenant to take a conveyance from 
 
 all the others of the lands which have been previously agreed 
 
 upon as his purparty. But in England, it is said that "by 
 
 far the more usual and convenient mode of making partition, 
 
 whether by coparcenary. Joint-tenants, or tenants in common, 
 
 is for all the cotenants to join in conveying the entirety of the 
 
 estate to be divided to a trustee and his heirs, and on this 
 
 seisin to limit the use of each particular allotment to the 
 
 party for whom it was intended. By this arrangement, the 
 
 parties may, if they wish it, have their allotments limited to 
 
 a different set of uses from those to which their undivided 
 
 shares stood subject. It is obvious, however, that this mode 
 
 can only be resorted to where the lands are held by such a 
 
 tenure as will admit of their being conveyed to uses by force 
 
 of the statute: therefore, in the case of joint-tenants and 
 
 tenants in common of a term of years, the analogous and 
 
 equivalent mode of assignment and reassignment should be 
 
 adopted. "2 When the partition is effected by mutual deeds 
 
 between the cotenants, all these deeds "must be taken and 
 
 ■ Colbum V. EUenwood, 4 N. H. 99; Atkinson v. Bemis, 11 N. H. 47; Corbett v. 
 Norcross, 35 N. H. 114; Adams v. Frothingham, 3 Mass. 352; Springfield v. Miller, 12 
 Mass. 415; Folger v. Mitchell, 3 Pick. 399. 
 
 •^ Allnatt on Part. 131-2.
 
 481 VOLUNTARY PARTITION. g 407 
 
 construed together as one instrument, in the light of all the 
 suiTounding circumstances to which they obviously and 
 directly jjoint; for by such circumstances, not only the 
 parties to the deeds, but all persons claiming under them, 
 are bound, it being a general rule of law and of equity, that 
 ' when a purchaser cannot make out a title but by a deed 
 which leads him to another fact, he shall be presumed to 
 have knowledge of that fact.' "' If mutual deeds of partition 
 be made to the husbands of two tenants in common, the 
 estates thereby acquired by the husbands are held in trust 
 for the wives; and if the deeds appear, on their face, to be 
 deeds of partition, no doubt a vendee of one of the husbands 
 would, by force of the notice given by the deeds through 
 w'hich he must claim, be charged with notice of the wife's 
 equity.^ 
 
 g 407. Partition by Separate Conveyances to Stran- 
 gers. — According to a decision of the Supreme Court of 
 "Wisconsin, two cotenants may produce a partition of their 
 lands by virtue of separate conveyances made by them to 
 third persons: as if A, being one of the cotenants, convey 
 the north half of the lands of the cotenancy to C, by a con- 
 veyance purporting to transfer an estate in severalty; and B, 
 being the other cotenant, by a similar conveyance, afterwards 
 convey the south half of the lands to D. " Where there are 
 two tenants in common, each owning an undivided half of the 
 lands, neither can make a partition which will be binding on 
 the other, by assuming to convey either half specifically. 
 But if one does so convey, we think the other would be at 
 liberty to acquiesce, and to accept the remaining half. And 
 if he should do so, by conveying that specifically, the two 
 conveyances would operate as a complete and binding parti- 
 tion."^ We doubt the correctness of this decision, unless it 
 can be sustained upon the ground that a parol partition is 
 valid, and that the two conveyances taken together constitute 
 sufficient evidence of an agreement for partition between the 
 cotenants. If the Statute of Frauds is applicable to a parti- 
 tion executed by taking possession in accordance Avith it, thou 
 
 ' NorriH v. Hill, 1 Mich. 205. ' Weeks r. IlaaH, a Watts & S. 521. 
 
 ' Eaton V. Tallraadge, 24 Wis. 22J. 
 
 C. & p. -31
 
 g 408 VOLUNTARY PARTITION. 482 
 
 we cannot conceive how the interest of either of the cotenants 
 can be transferred from him and vested in another, except by 
 a conveyance to which he is grantor, and by which he assumes 
 to invest some one with title as his grantee. In the case 
 decided in Wisconsin, it seems to be conceded that the prop- 
 erty remained in moieties until the conveyance from B to D. 
 In order to accomplish the effect assigned to it by the Court, 
 it was necessary for that deed to dispose of the interest of A, 
 who was not a party as grantor, and to invest an interest in 
 C, who was not named as a grantee. In addition to its opera- 
 tion for and against parties not named nor referred to there- 
 in, it was necessaiy for the provisions of this deed to be ex- 
 tended to property not embraced within any description to 
 be found therein. In giving the deed so unusual an interpre- 
 tation, the Court probably sought and attained substantial 
 justice between the parties in interest, and in so doing, over- 
 looked and ignored relevant and well defined rules of law. 
 The same question has been examined and decided in Maine, 
 in a case wherein it appeared that two cotenants made a parol 
 partition, took and held possession thereunder many years, 
 and each conveyed his purparty to a stranger to the cotenancy. 
 The Court held that neither cotenant ' ' could invest the other 
 with a separate title to a portion of the tract, without the 
 formality of a deed;" and that each could therefore avoid the 
 conveyance of the other, and enforce a partition of the prop- 
 erty.'' 
 
 I 408. Presumption of Voluntary Partition. — Whether 
 we regard a voluntary partition as capable of being consum- 
 mated by virtue of possession taken in pursuance of a parol 
 ao-reement for the division of lands, or whether we regard 
 such partition as inchoate until confirmed by conveyances 
 didy executed in pursuance thereof, it may, upon either 
 hypothesis, be occasionally established by parol evidence, 
 which, though not directly proving the partition, may be of 
 such a character as to produce the conviction that a partition 
 has been made. Thus, if the cotenants had for a long period 
 of time each occupied a distinct part of the lands of the co- 
 
 1 Duncan i-. Svlvestev. IG Me. 390.
 
 483 yOLUNT.VKY PARTITION. g 409 
 
 tenancy, apparently exercising the rights of sole ownership, 
 and being recognized bj his companions in interest as en- 
 titled to possession in severalty, these facts might properly 
 be submitted to a jury as evidence tending to prove an ante- 
 cedent partition, and the jury would be justified in finding 
 either way, according to the impression which the evidence 
 happened to produce on their minds.' tSo, it has been held 
 that if one cotenant owns two-thirds, and the other one-third, 
 of three lots of land, the fact that the former conveyed two 
 of these lots by conveyances purporting to transfer the same 
 in severalty, might be submitted to the jury as evidence of a 
 previous partition. - 
 
 ^ 409. Warranty — none arising from Voluntary Parti- 
 tion. — iWe shall hereafter show, in treating of compulsory 
 partition, that, by the common law, every coparcener, in case 
 of her eviction by title paramount from her purparty, had the 
 right to call upon the other cotenants to make up the amount 
 lost by the paramount title, or to contribute pro rata accord- 
 ing to the extent of the loss ; or the cotenant so evicted might 
 reenter upon the lands of the cotenancy, and thus avoid the 
 previous partition. It is supposed that this right was ac- 
 corded to coparceners because they were by law compellable 
 to make partition. If the part allotted to either coparcener, 
 and which she could not avoid accepting, were to be taken 
 from her by a superior title, and she be without redress from 
 her coparceners, it would follow that the writ of partition 
 had operated to the extent of casting upon her the whole 
 burden of the paramount claim.' When by statute the right 
 to compel partition was extended to joint-tenants and to ten- 
 ants in common, it was thought jiroper to accompany this 
 right with means of redress in case of failure of title to any 
 part of the lauds allotted, as had before been accorded to 
 pai'ceners. But \i})on a voluntary partition, by whatever 
 method efiected, the reason usually assigned for alloAviug 
 each cotenant to recover of the others on account of his evic- 
 
 ' Alii' r. CuiiiWiilL ;; Moiir. 2*); Walkir c. Fra^tr, 2 lUch. Eij. Ill; Liviinjatoii o. 
 Kctdiiiiu, iBarlj. W.Yl; GUkspit; v. Joliiisoii, VVriylit, 232; Toiuliu r. Hilyard, 43 HI. 
 ;J02; Viwty ''. Board ol' Tiimtcort. 59 III. 1!)1. 
 
 - Slade ('. Green. Taylor, N. C. 111. 
 
 •• Itiiwlo cm (!ovcuunt« lor Tilk-, 471-3,; Co. Litt. JOJ ('; Lift. sec. 202.
 
 § 409 VOLUNTARY PARTITION. 484 
 
 tion from the whole or any part of his allotment, does not 
 exist. And where the reason does not exist, it has been very 
 logically insisted that the rule ought not to be applied.^ In 
 one instance, two cotenants, Smith and Houston, effected 
 their partition by mutual deeds of bargain, sale, and release, 
 each purporting to be for a consideration in money. Subse- 
 quently, it was ascertained that the title of Houston was 
 worthless. In the meantime, both Smith and Houston had 
 conveyed their interests acquired by virtue of the partition. 
 This partition having been declared void because one of the 
 parties to it had no title, a question arose in regard to the 
 relative claims and rights of the grantees of Houston and the 
 grantees of Smith. The grantees of Houston insisted that 
 the deeds referred to did not operate as a " simple extin- 
 guishment of interest, like a deed of partition or a mere re- 
 lease, but a positive, affirmative conveyance, by which Smith 
 sold a part of his land to Houston, and Houston sold a part 
 of his land to Smith; so that each purchaser from Houston 
 may trace a part of his title to Smith, and each purchaser 
 from Smith can trace a part of his title to Houston; and, 
 consequently, the condition of each purchaser, deriving his 
 title from the same source, is equally meritorious." But to 
 this line of argument the Supreme Court replied as follows: 
 " We cannot admit this to be the true nature of the transac- 
 tion. The parties did not intend to acquire new rights, but 
 to regulate the manner in which subsisting rights were to be 
 enjoyed. Smith did not contemplate acquiring any title from 
 Houston, nor to communicate any of his own, nor to share 
 with Houston, nor wdth Houston'^ grantees, the benefit of 
 warranties from his own grantors. But a simple partition, 
 by release, was all the parties meant, as they specified in the 
 recital, and no one is liable to be mislead by the nominal 
 money consideration, or by the use of the words 'bargain 
 and sale' in this connection. The parties to these deeds lost 
 nothing and acquired nothing, except defined boundaries to 
 the land which they previously held in common. The pur- 
 chasers from Houston, therefore, are not authorized to rely 
 
 ' Eawle on Covenants, 476; Morrice's Case, Coke, 712 h; Weiser v. Weiser, 5 Watts, 
 280; Picot v. Page, 26 Mo. 422.
 
 485 VOLUNTARY PARTITION. § 410 
 
 upon this act as anything except a partition — defining bound- 
 aries, but confen-ing no title. They derive from Houston 
 alone, and must be content with rights subordinate to such 
 equities as the pui'chasers from Smith may exact."' In New- 
 York, a parol partition of the interests of several coheirs can 
 onl}' give to each the rights and interests, either vested or 
 contingent, which the others then have in the lands set off in 
 severalty. If one of the parties to such partition subse- 
 quently acquires an additional interest as heir to one of his 
 children, such interest does not enure to the benefit of the 
 other cotenants. The subsequently acquired interest is not 
 affected by the previous partition, because it was not then a 
 vested or contingent interest, but a mere chance of succeed- 
 ing to the same as heir-at-law — a mere possibility, unaccom- 
 panied by any interest whatever in the premises.^ 
 
 ^ 410. Warranty implied in some of the States. — Some 
 of the American cases ignore the distinction mentioned in 
 the preceding section as existing between voluntary and com- 
 pulsory partitions;^ and at least concede to the former such 
 an implied warranty as will estop each of the cotenants from 
 denying the validity of the common title. In Kentucky, it 
 has been said that by " a deed of partition where there is no 
 express warranty, the parties are bound, in case of eviction 
 of either from his share, to restore a part of the residue of 
 the estate."" In California, a deed of partition was executed 
 by a large number of persons, in which they appointed com- 
 missioners to make a partition of lands according to terms 
 contained in the deed. These commissioners were to make a 
 report of their partition, and accompany it with a map show- 
 ing the different parts allotted to each cotenant. Upon the 
 filing of the map for record, the deed was to take effect. 
 Subsequently, one of the parties to this deed resisted an 
 action of ejectment brought against him to recover a tract 
 which the commissioners had allotted to another of the co- 
 tenants. The plaintiff, at the trial, rested upon the deed of 
 partition without offering any other evidence of title, con- 
 
 ' Dawson v. Lawronco, 13 Ohio, .040. 
 
 '^ Carpenter v. BcbtruK^rhorn, 2 Barb. Cb. .i'i'l. 
 
 ^ MorriH v. llarrw, !> Gill, 20. 
 
 < liofcrH I'. Turk y, 4 Bibb, '3M.
 
 § 411 TOLUNTARY PARTITION. 486 
 
 tending that the deed was a ' ' confession of titles which the 
 parties to it cannot contradict." The defendant offered to 
 show that he was in possession previous to the deed, by way 
 of proving superior title in himself; but his offer was rejected 
 by the Court, on the ground that he was estopped by the 
 deed. On appeal, the Supreme Court "apprehended that 
 when parties go into a partition of property upon certain 
 terms and conditions, each to receive a several portion of a 
 common estate, the instrument of partition, founded upon 
 mutual releases, itself is such affirmation of interest and title 
 on the part of each, as to estop him to deny that he did have 
 interest and ownership in the premises ; and the release and 
 conveyance of his interest to his parceners is evidence of title 
 in his grantees which he cannot dispute. He takes, by virtue 
 of the deed, all tlie'ir interest, and cannot be allowed to say 
 that he holds possession by title paramount to that which he 
 conveyed."' In those States where a covenant of warranty 
 is, in the absence of a stipulation to the contrary, implied 
 from a voluntary partition, a covenant inserted in his deed 
 by which the cotenant warrants against all persons claiming 
 through or under him, or warrants against any specified claim 
 or interest, is understood to displace the implied covenant of 
 warranty, and to restrict the grantee's remedy to the express 
 covenants contained in the deed.- 
 
 l 411. Effect on Wife's Right to Dower.— When the in- 
 terest which a married woman has in the lands of a cotenancy 
 is not that of a cotenant, but only a right of dower arising 
 from the fact that her husband is a cotenant, his power to 
 affect her rights by a voluntary partition is greater than in the 
 case where she has title as owner of one of the moieties. If 
 her husband be a joint-tenant, he has not such a seisin that 
 she can acquire any right io dower, unless the joint-tenancy 
 should be in some manner converted into a tenancy in com- 
 mon. If the joint-tenants partition their property, the hus- 
 band thereby acquires a sole seisin of the part allotted to him, 
 and the wife's right to dower immediately attaches to such al- 
 lotment; but she has no right to dower in any other part of 
 
 ' Tewksbuiy u. Provizzo. 12 Cal. 25. 
 
 ^ Morris o. karris. !) Gill. 26; Rogers i'. Turley, 4 Bibb, 356.
 
 487 VOLUNTARY PARTITION. j^ 411 
 
 the lands of the joint-tenancy. But if the husband's intei-est 
 be that of a parcener or tenant in common, tlio right of the 
 wife to dower does not depend on the making of a i)artition 
 of the premises — it exists antecedent to such partition.' But 
 it is not paramount to the right of the coteuants of her hus- 
 band to compel a partition, nor does it interfere with or in 
 an}- respect impair his authority to make a valid partition by 
 deed or agreement. As the husband is compellable by legal 
 proceedings to make partition with his cotenants, it is uni- 
 versally conceded that he may do voluntarily that which the 
 law will otherM'ise oblige him to do. Whenever, therefore, 
 the husband perfects a voluntary partition, the dower interest 
 of his wife is thereby removed from the purparties of the 
 other cotenants, and confined to the purparty of the husband." 
 Femes covert seeking to assert dower rights "will be restricted, 
 both at law and in equitj', to the allotments of their hus- 
 bands, and will be estopped from seeking to have dower as- 
 signed on undivided shares of other parcels. By confining 
 them to the equal shares which their husbands take in the 
 partition, they have all the dower the law gives them."'' A 
 voluntary partition is allowed to operate upon inchoate rights 
 of dower, because these rights are not thereby destroyed or 
 impaired, but affected substantially in the same mannei* that 
 the estates of the husbands are affected — an undivided in- 
 terest in the whole property becomes a several interest in a 
 specified parcel. Whenever the husband exercises liis power 
 of making voluntary partition, for the purpose of destroying 
 the wife's rights, or of accomplishing a fraud upon her, he is 
 not acting as the law would compel him to act, and the reason 
 for holding the wife bound by his partition fails."* Hence, if 
 he makes partition, taking the smaller and less valuable pur- 
 party, and receiving a compensation for so doing, the wife's 
 right to have her dower assigned at his death will not be re- 
 st) icted to the lesser purparty.' It seems that the right of a 
 
 ' Ktx; Ker. lOfi. 
 
 - Potter ('. Wheeler, i:{ MaHs. .jOG; Lloyd v. Conover, 1 Duteli. 51; WilkiuHoii v. 
 PariHh, 3 Paige, (i58; Jackson /-. Edwards, 22 Wend. 512; Lee v. Lindell, 22 Mo. 202. 
 ' Totten IK Htuyvi sunt. .'1 E<1. Ch. 503. 
 ' Potter J). Wheeler, 13 Mans. .500. 
 '■> Moeher lu Mother, 32 Me. 414.
 
 g 412 VOLUNTARY PARTITION. 488 
 
 husband by a voluntary partition to prescribe limits to the 
 wife's inchoate right of dower does not vest in his grantee. 
 Hence, where a husband, being a cotenant, conveyed his 
 moiety by a deed in which the wife did not join, and the 
 grantee with the other cotenants caused the tract to be segre- 
 gated into lots, and thereafter partitioned it among them- 
 selves, it was held that the wife, on the decease of her hus- 
 band, was entitled to have her dower assigned out of the ivhole 
 tract, and that she could not be compelled to confine her claim 
 to the lots which had been set off in severalty to her hus- 
 band's grantee.' 
 
 g 412. Effect on Femes Covert. — The proj^erty proposed 
 to be made the subject of a voluntary partition may be owned 
 in whole or in part by persons laboring under some disabil- 
 ity, such as coverture, lunacy, or infancy. In either of these 
 cases, it is important to determine whether the person or 
 persons subject to some one of these disabilities may make 
 a valid partition; and if so, by what means it is to be accom- 
 plished. A mamed woman may be interested in the lands 
 of the cotenancy directly, as when she is one of the coten- 
 ants, or more remotely, as when her husband is a tenant in 
 common or parcener, and she is, on that account, entitled 
 upon his death to have her dower assigned out of his moiety. 
 Where a wife was the cotenant whose interests were to be 
 affected, it has never been possible to permanently prejudice 
 her rights by a partition to which she did not give her assent. 
 If the partition be sought to be consummated by mutual con- 
 veyances, or by a single conveyance, no doubt the interests 
 of every cotenant then subject to the disabilities of coverture 
 can only be bound by her executing the conveyance which 
 purports to dispose of her moiety, and that such execution 
 must be made in the mode prescribed by law for the convey- 
 ance of her real estate to third persons. But while a deed 
 intended to transfer the moiety of a feme covert ought to be 
 executed in the same manner and with the same formality as 
 a conveyance of her separate estate, it must not be forgotten 
 that, in' many of the States, parol partitions are recognized 
 
 > Rank v. Hanua, 6 Ind. 20.
 
 489 VOLUNTARY TARTITION. ^ 412 
 
 and protected, and that a deed of partition, though insuffi- 
 cient of itself to consummate a partition, may, taken with 
 other evidence, establish such a parol partition as the 
 Courts will not permit to be disturbed, imless it was 
 clearly unequal when made. With respect to parol par- 
 titions between copai'ceners, the law, as thus laid down 
 by Mr. Allnatt, is fully supported by the common law au- 
 thorities: "If parceners, seized in fee simple, marry, and 
 they and their husbands make an equal and fair partition in 
 value, it ^\-ill be binding on the wives and their heirs ; and 
 the reason of this is, because the husbands and wives are 
 compellable at common law to make partition; and that 
 which they are compellable to do in this case by law they 
 may do by agreements without process of law. But it is 
 expressly stated that the Avife must be a party to the parti- 
 tion. So a parcener and her husband may grant a rent for 
 equality of partition out of her part ; and the partition being 
 equal, it shall charge such part forever. But if the partition 
 be unequal, though it shall be good during the lives of the 
 husbands, yet the woman who has the lesser part may defeat 
 the partition, by entry after her husband's death. In this 
 case, the partition is not actually void, but voidable; for if , 
 after the husband's decease, the wife enters into the unequal 
 part, and agi'ees to it, this shall bind her. And it may be 
 observed that when a j^artition is defeated for inequality, it 
 shall not be defeated for the sui-plusage only, but //* tola. 
 And with respect to the necessity of equality of division, the 
 partition by agreement differs from that by writ. If the an- 
 nual value of the pui-parties is equal at the time of the parti- 
 tion, and aftei-wards becomes unequal by any matter subse- 
 quent, as by surrounding, ill husbandry, &c., yet the parti- 
 tion remains good."' Mr. Allnatt further remarks that " in 
 all cases in which a partition is intended to bo made by hus- 
 bands and wives, of the wives' lands, though they are seized 
 as parceners, it seems advisable to make them join in levying 
 a fine, that all questions in regard to the fairness, Arc, of the 
 
 • .Vlluatt ou Partitiou, 'ii U> 2.1; McMahaii r. McMaliaii, l.J Pciiu. St. 380; Litt. soc. 
 257, 25G; Jones' Devisees v. Carter, 4 Hen. .V M. 190; Co. Litt. 171 a, 171 t>. 1C9 /». 
 ICo'd; Yin. Ab. Partition (K): Wetherill h. Moclce, iiri|;litley'rt Reports, 140.
 
 §§ 413-14 VOLUNTARY PARTITION. 490 
 
 division may be avoided. And, if joint tenants or tenants in 
 common, their concurrence is indispensable."^ 
 
 ^413. Between Hvisband and Wife. — If a Imsband and 
 wife be cotenants witli each other, they cannot in a direct 
 manner make a voluntary partition, though we apprehend 
 they would have no difficulty in doing so by the aid of cir- 
 cumlocutory conveyances. In a case arising in the State of 
 Missouri, all the persons interested in a large tract of land 
 executed a deed of partition, in Avhich they mutually released 
 to one another certain tracts to be held in severalty according 
 to previous agreement. Among these persons were Joseph 
 Pratte and Marie his wife, both of whom were cotenants in 
 the tract, and to whom, by this deed of partition, distinct 
 lots of land were severally assigned. The KSupreme Court of 
 the State subsequently held that this partition did not ter- 
 minate the cotenancy of the Imsband and wL'e in the lots so 
 assigned them, because "they could not mutually release to 
 each other their respective interests in the lots by a deed of 
 partition, which was executed between them and the other 
 parties in interest. According to the principles of our law, 
 ihis could not be done. The legal unity of husband and 
 wife prevents this."- We think that a husband and wife, de- 
 sirous of partitioning lands of avhich they are cotenants, can 
 do so by jointly conveying the lands to a third person, and 
 procuring him to reconvey a distinct parcel to each to hold in 
 severalty. On the other hand, in Yiner's Abridgement, it is 
 stated that ' ' partition between husband and wife of lands, if it 
 be equal, shall bind the makers, because they are compellable 
 to make partition; but secus of an use because they are not 
 compellable."" 
 
 § 414. Infancy. — According to Littleton: "If two co- 
 parceners be, and the youngest being within the age of 
 twenty-one years, partition is made between them, so as the 
 part which is allotted to the youngest is of lesse value than 
 
 ' AUnatt on Partition, 27. 
 - Frissell v. Rozicr, 19 Mo. iiS. 
 
 ^ Vin. Ab. Tit. Partition, (D. sub 13,} citing Ai-g. 2 Le. 25; Pafch. 30 Eliz. B. R. in 
 case of Robs v. Morris.
 
 491 VOLFNTAPiY PARTITION. § 414 
 
 the part of the other, in this ease the j-oimgest, during the 
 time of her nonage, and also when she cometh of full age, 
 scil. of 21 yeares, may enter into the part allotted to her sister 
 and defeat the partition. But let such parcener take heed 
 when she comes of her full age, that she taketh not to her 
 owne use all the profits of the lands or tenements which were 
 allotted unto her; for then she agrees to such partition at 
 such age, in which case the partition shall remain in force. 
 But peradventure she may take the profits of the moitie, 
 leaving the profits of the other moietie to her sister. " ' Lord 
 Coke comments upon this section as follows: "As before in 
 the case of the fem covert, so it is in the case of the enfant; 
 for if the partition be equall at the time of the allotment, it 
 shall bind him forever, because be is compellable by law to 
 make partition, and he shall not have his age in a pardtione 
 facienda; and though the partition be unequal, and the infant 
 hath the lesser part, yet is not the partition void but void- 
 able by his entry; for if he take the whole profits of the un- 
 equall part after his full age, the partition is good forever. "- 
 In a case decided in New Brunswick, A, B, and C were ten- 
 ants in common. In 1810, while A was a minor, her father, 
 acting in her behalf, made partition Avitli B and G. Four 
 years later, but before attaining her majority, A married. 
 Thereafter her husband occupied the portion allotted to her, 
 until his death in 1842. In 1848, she sought to avoid the 
 partition. Whereiipon, it was determined that she had a 
 reasonable time after the removal of her disability of cover- 
 ture to object to the partition; but that six years was such 
 an unreasonable delay as estopped her from making an ob- 
 jection which she might have made at once upon the decease 
 of her husband." "A procheiii ami may make partition on 
 behalf of an infant parcener, and it will bind the infant, if 
 equal, for the lorochebi ami is appointed by law to take care 
 of the inheritance of the infant; and this separation and 
 division of his part from what belongs to another is so far 
 
 ' Litt. Bcc. 258. 
 
 ^ Co. Litt. 171 a; AUniitt on Purtitioii, 27; Vin. Ab. Tit. Partiiioii (A. Ir, ll<nniiicli 
 V. High, 2 Watls, ir/J; Calhoun «. UayH, H W. & S. l;J2; Baviugtou v. Clarke. 7 Pen- 
 rose & W. 115; Darlington's Appropriation, 13 Pcun. St. 130. 
 
 ^ Doc d. Estabrooks i». Harris, 2 Allen, N. B. 42.
 
 §§ 415-17 VOLUNTARY PARTITION. 492 
 
 from being a prejudice to the infant, that it is really for his 
 benefit and advantage."* 
 
 g 415. Effect on Lien Holders. — We have seen that 
 voluntary partitions made by or on behalf infants, and femes 
 covert, will be treated as binding and valid where they were 
 equal at the time they were made, and were, in their incep- 
 tion and consummation, free from all taint of fraud. The 
 theory upon which such partitions are enforced is that the 
 interests of the cotenants are always best promoted by an 
 occupation in severalty ; and therefore that all honest and fair 
 agreements, having a direct tendency to authorize such occu- 
 pation, ought to be sustained. These parties, though under 
 disability, may be compelled to make partition; and whatever 
 the law will compel them to do, it ought to allow to be done 
 without compulsion. It may happen that the moiety of one 
 of the cotenants is subject to a judgment, mortgage, or other 
 lien. In such case, what effect will the voluntary partition 
 have on the lien-holder? The question has not received much 
 consideration; but, so far as considered, the answer has been, 
 that an equal and honest partition will bind him, and wiU 
 convert his lien from a charge against an undivided moiety of 
 the whole to a charge against the whole of the tract which 
 has been taken in lieu of the moiety.^ 
 
 § 416. Interests in Reversion or Remainder. — A volun- 
 tary partition and the conveyance executed in pursuance 
 thereof form no exception to the general rule, that by no 
 means can a grantor convey a greater estate than he possesses. 
 Hence, if a voluntary partition be made by a tenant in tail, 
 it is not binding beyond his life; and the heir in tail may, 
 upon the death of the tenant in tail, refuse to recognize the 
 partition, and claim all the rights to which he would be en- 
 titled had no such partition been made.^ 
 
 § 417. Po-wers Delegating Authority to make Parti- 
 tion. — The power which every cotenant has of joining with 
 
 ' Allnatt on Partition, 29; 2 Roll. Abr. 256; Vin. Abr. Tit. Partition (E.) 
 •'■ Bavington v. Clarke, 2 Penrose & W. 124; Manly v. Pettee, 38 El. 128. 
 ' Buxton V. Bowen, 2 W. & M. 365.
 
 493 VOLUNTARY PARTITION. g 417 
 
 his companions in interest in making a partition of the com- 
 mon property, may, no doubt, be delegated by him to another; 
 and when so delegated, it may be exercised by the agent as 
 effectually as it could bo exercised by the principal. A 
 serious doubt once existed, and is not yet fully dispelled, 
 as to whether a power to sell and exchange lands authorizes 
 a partition; and it is said that lawyers of great eminence fre- 
 quently expressed their satisfaction with partitions made 
 without a,ny other authority than that which was implied in 
 such a power. In the first case in which the question seems 
 to have been judicially considered, certain trustees were 
 authorized ' ' to make sale of, and to convey, surrender, and 
 assure, or convey in exchange for or in lieu of other manors, 
 lands, and hereditaments, <tc., for the best price or valuable 
 consideration in money or such other equivalent interest in 
 manors, lands, and hereditaments, as to them the trustees 
 shall deem proper." Under this power, the trastees joined 
 in making a partition. The validity of this partition being 
 subsequently questioned, it was upheld by Lord Chancellor 
 Loughborough, in an opinion in Avliich he said : ' ' The ques- 
 tion before me is the question whether, within the limits of 
 this power, the partition is not an exchange. If the question 
 was asked of me, whether a partition was not in view of the 
 parties, I should be obliged to answer, that it was; for there 
 is a supposition here that the interest vested by this settle- 
 ment might be sold by parcels. Though there is some dis- 
 tinction between a partition and an exchange, their conse- 
 quences and effects as to the interests of the parties are 
 precisely the same. If any person had been ingenious 
 enough to think of this objection at the time of the par- 
 tition, by making the trustees sell, receive the money, and 
 buy a third of the same estate, the whole would have been 
 within the words of the power. They revoked the uses in 
 order to acquire a divided third of the estate; which they 
 have taken in lieu of an undivided part. Thoy might \vd\o 
 taken money, rent, land, anywhere else. It is in cllbct 
 clearly, though not literally, within this power."' But this 
 case, and the language wo have just quoted, so far as they 
 
 ' Abel ('. llcatlicotc, 2 Ves. Jr. 'M: S. C. 4 Bro. C. C. 278.
 
 g 418 VOLUNTARY PARTITION. 494 
 
 imply that the power to exchange includes the power of par- 
 tition, did not remain long imqnestioned. Lord Eldon in 
 M'Queent-. Faiquhar, deferring to Abel v. Heathcote, doubted 
 Avhether the idea that " a power of exchange is well executed 
 by a. partition, is authorized by anything in that decision;" 
 and he truly reiu:irked that " exchange and partition are very 
 different." His Lordship evidently considered that the con- 
 clusion reached in Abel v. Heathcole, could be justified only 
 by treating the partition there upheld, as being authorized 
 by the words iu the power giving the trustees authority to ' 
 convev for money, "or such oilier equivalent interest," etc. 
 The case of Abel f. Heathcote was further questioned in At- 
 torney General v. Hamilton,- by Sir Thomas Plumer, Vice 
 Chancellor; and it is evident that it would now be very xmsafe 
 to act uj)on the theory that a power to exchange authorizes a 
 partition." If a power authorizes a sale only, we think there 
 is less reason for holding that it will support a partition than 
 when it authorizes an exchange. The Suj)reme Court of Cali- 
 fornia has decided that a power of attorney to sell and convey 
 any portion or all of the principal's real estate, and generiiUy 
 to do, transac^t, determine, and accomplish all matters, etc., 
 although the matters should require more special authority 
 than Avere comprised in the power, does not authorize the at- 
 lorney to make partition of lands in Avhich his constituent is 
 , tenant in common.* 
 
 {^ 418. Agreement for Partition. — An agreement in writ- 
 ing, entered into by several cotenants, whereby they mutually 
 agree to divide their lands in a specific manner, but which 
 does not contain words purporting to convey, transfer, or re- 
 lease to the respective' cotenants the parts agreed to be al- 
 lotted to tl^em, is probably not good at law as a transfer of 
 the legal title; but in equity it will be treated as an actual 
 partition.'' Notwithstanding the Statute of Frauds, it has 
 alwavs been conceded that " an agreement in loritmg to make 
 
 I n Yes. 47,'). 
 
 '' 1 Madd. Ch. 122. 
 
 '^ Sugden on Powers, 480^82; Alluatt ou Partition, 38 to 46. 
 
 •' Borel 7'. Rollins, 30 Cal. 413. 
 
 i Mastersou v. Finnigaii. 2 R. I. 318.
 
 495 VOLINTAKY PARTITION. g 4l9 
 
 pai*tition will have the same effect, in equity, as au achial par- 
 tition at law."^ ^ 
 
 '"/_ 419. Deed or Agreement void as to one is void as to 
 all. — If au agreement or deed intended to l)e entered into 
 by several cotenants, whereby- they mutuall3 convey \.o one 
 another distinct parts of tlie common property to liold in 
 severalt}-, or ^vhereby they agree to a sale of the jjroperty 
 and a division of the j^roceeds, or to an allotment and parti- 
 tioii of the property to be made by certain referees, and it 
 hapjaens that after several have executed the inst)nment, 
 others fail to do so, or that though all executed it, some of 
 them Avere feme-H covert and did not execute in a maiuicr 
 which will bind them, in either event, as it was clearly the 
 intent of the parties that all of them should l)e bound, and 
 as the consideration of the instrument is mutual conveyances 
 from and between all the parties, the instrument being in- 
 operative as to part is inoperative as to all. ' 
 
 ' 2 Cruise. ilO; Co.Lirt. IG!" a. 
 
 - Douglas r. Harrison, 2 Sneed. 382: Morris v. Kichardsou, 11 riTirnph. 380; Towks- 
 Inuv r. OT'oun.lI. 21 Cul. 60.
 
 CHAPTEE XIX. 
 
 OF THE COURTS HAVING JURISDICTION TO COMPEL PARTITION, AN]> 
 THE SOURCE AND NATURE OF THEIR AUTHORITY. 
 
 Partition at Common Law confined to Estates in Parcenary, f 420, 
 English Statiites extending the Eight of Partition, ^ 421. 
 General Outline of a Partition at Law, § 422. 
 Origin and Rise of Chancery Jurisdiction, § 423. 
 Eight to Partition in Chancery, whether absolute, ^ 424. 
 Advantages of Proceeding in Chancery, ^ 425. 
 Partition of Personal Property, '^ 426. 
 
 Difference between a Judgment and a Decree of Partition, § 427. 
 Jurisdiction over Partition in the United States, § 428. 
 
 Proceedings in Court exercising Common Law, Equity, and Statutory Juris- 
 diction, ^ 429. 
 
 § 420. Partition at Common La-w. — It would be difficult 
 to discover any contingency arising from any part of the law 
 of ownership in which the situation of the parties in interest 
 could be more unfortunate than that of cotenants at the com- 
 mon law, when they could no longer agree in regard to the 
 use and management of their common property, or when one 
 of them was so evil disposed as to take advantage of all the 
 opportunities which the law of cotenancy afforded him for 
 distressing his companions in interest, and of injuring the 
 common property, and depriving them of all beneficial owner- 
 ship therein. When the creation of the cotenancy was not 
 the result of agreement, purchase, or the act of the parties, 
 it was clear that they were in no way blamable for its exist- 
 ence, and the law early provided means by which either might 
 terminate its existence, and obtain an estate in severalty in 
 lieu of an undivided interest. Mr. Eeeves, in his summary 
 of the law of England, as it existed towards the end of the 
 reign of Henry III. (A. D. 1272,) states that "when an in- 
 heritance descended to more than one heir, and they could 
 
 496
 
 497 JURISDICTION IN PARTITION. g 420 
 
 come to no agreement among themselves concerning the di- 
 vision of it, a proceeding might be instituted to compel a 
 partition. A writ was for this pui-pose directed to four or 
 five persons, who were appointed justices for the occasion, 
 and were to extend and appreciate the land bj the oaths of 
 good and lawful persons chosen bj the parties, who were 
 called extensoi'es; and this extent was to be returned under 
 their seals, before the king or his justices: when partition 
 was made in the king's court, in pursuance of such extent, 
 there issued a seisinam habere facias, for each of the parceners 
 to have possession."' As the same author spoke of this reign 
 as the period in which, after having travelled ' ' through the 
 profound darkness of the Saxon times, and the obscure mist 
 in which the Norman constitutions are involved, we approach 
 the confines of known and established law," it is probable 
 that the proceedings for partition of which he Tva-ote, though 
 not mentioned before the reign of Henry III., were in exist- 
 ence at an earlier period, but are concealed from view by the 
 "darkness" and the "obscure mist" of the more remote 
 times. The writ of partition, as it existed at common law, 
 could issue only at the instance of a coparcener, but the 
 person against whom it issued might be either a coparcener, 
 or one who had succeeded to the interest of a coparcener. 
 The circumstances under which a coparcener was, and those 
 under which she was not, entitled to this writ were thus stated 
 by Mr, Roscoe in his Treatise on the Law of Actions relating 
 to real property:'^ "A writ of partition lies at common law 
 for one or more parceners against the other or others; and if 
 one parcener, after issue had, dies, whereby her husband is 
 tenant by curtesy, a A\T:it of partition will lie against the hus- 
 band.^ So, if one parcener aliens in fee, the other may, at 
 common law, have the writ against the alienee; and if there 
 are three coparceners, and the eldest marries, and the hus- 
 band purchases the interest of the youngest, though the 
 husband be in respect of his own part a stranger, yet he and 
 his wife may have a writ of partition at common law against 
 the middle sister, for he is seized of one part in the right of 
 
 ' ReevcB Ilist. 2(1 cd. (Dubliu) 312; Fiulasou'H od. 335, citing Bractou, 71 6 to 77 b. 
 
 ■' P. 130. 
 
 ^ Litt. see. 264. 
 
 C. & p.— 32
 
 § 421 JUKISDICTION IN PARTITION. 498 
 
 his wife.^ If one parcener makes a lease for life, no writ of 
 partition lies at common law, for she and her coparcener do 
 not then hold the freehold insimul et pro indiviso according 
 to the words of the writ, though if the lease be for years 
 only, the writ lies for the freehold, then continues in par- 
 cenary.^ So, if one coparcener disseises another, no writ of 
 partition can be had during the disseisin;'^ and neither tenant 
 by the curtesy, nor the alienee of a parcener, was entitled to 
 this writ at common law." 
 
 § 421. English Statutes in regard to Partition. — Joint- 
 tenants and tenants in common became such by their own 
 voluntary act. Their estates were always created by pur- 
 chase; and whatever hardship or inconvenience might subse- 
 quently arise out of the co-ownership, it was always con- 
 sidered as the result of a relation voluntarily chosen by the 
 parties, and from which the law would therefore grant them 
 no relief. If any cotenant became dissatisfied with the co- 
 tenancy, and unwiUing to continue his relations with the 
 other cotenants, his only remedy consisted of purchasing 
 their moiety, or of selling his own, or of making a voluntary 
 partition with the other part owners. He could under no cir- 
 cumstances, except by the custom of some cities or boroughs, 
 compel a partition.^ The inconvenience resulting to tenants 
 in common and to joint-tenants from their inability to com- 
 pel partitions was, in many instances, of the most grievous 
 character. At length, by stat. 31 Henry VIII., cap. 1, ten- 
 ants in common and joint-tenants of estates of inheritance 
 held in their own rights, or in that of their wives, were com- 
 pelled to make partition in " like manner as parceners by the 
 common law of the realm were compelled to do." The pre- 
 amble of this statute was more lengthy than the remedial 
 part, and described in strong language the wrongs which it 
 was intended to avert. •* As this statute applied only to joint- 
 
 ' Co. Litt. 175 a; Allnatt on Partition, 54; Bac. Ab. Joint-Tenants (I.) 
 
 •-' Co. Litt. 167 a. 
 
 ^ Roscoeon Real Actions, 131; AJluatt on Partition, 55; Bac. Ab. Tit. Joint-Tenants 
 'I) ; Miller v. Warmington, 1 Jac. & Walk. 493; Baring v. Nash, 1 Ves. & B. 555. 
 
 * The following ia the statute, 31 Henry VIII., referred to in the text: " Forasmuch 
 as by the common laws of this realm clivers of the King's subjects, being seised ol 
 manors, lands, tenements, and hereditaments, as joint^tenants, or as tenants in com-
 
 499 JtTRISDICTION IN PARTITION. ^ 421 
 
 tenants and tenants in common of estates of inheritance, it 
 remained for the legislative power of the realm to provide 
 means to ameliorate the condition of cotenauts of estates not 
 of inheritance. This was soon afterwards done by the stat. 
 32 Heniy \iii., cap. 32. This statute recited the passage of 
 the previous act, the fact that such act made no provision for 
 "joint-tenants and tenants in common, for a term of life or 
 years, neither for joint-tenants and tenants in common where 
 one or some of them have but a particular estate for term of 
 life or years, and the other have estate or estates of inherit- 
 ance;" and followed such recitals by an enactment " that all 
 joint-tenants and tenants in common, and every of them, 
 
 mon, with other of any estate of inheritance, in their own rights, or in the rights of 
 their wives, by purchase, descent, or otherwise, and every one of them so being joint- 
 tenants, or tenants in common, have like right, title, interest, aud possession in the 
 same manors, lands, tenements, and hereditaments for their parts or portions jointly, 
 or in common undividedly together with other; and none of them by the law dotii, 
 or may know their several parts or portions in the same, or that that is his or theirs, 
 by itself undivided, and cannot by the laws of this realm otherwise occupy or take 
 the profits of the same, or make any severance, division, or partition thereof, without 
 other of their mutual assents and consents: by reason whereof divers and many of 
 them, being so jointly and undividedly seised of the said manors, lands, tenements, 
 and hereditaments, oftentimes of their perverse, covetous and malicious minds and 
 wills, against all right, justice, equity, and good conscience, by strength and power, 
 not only cut and fallen down all the woods aud trees growing upon the same, but 
 also have extirped, subverted, pulled down and destroyed all the houses, edifices, and 
 buildings, meadows, pastures, commons, and the whole commodities of the same, and 
 have taken and converted them to their own uses and behoofs, to the open \vron" and 
 disherison, and against the minds and wills of other, holding the same manors, lands, 
 tenements, and hereditaments jointly, or in common with them, and they have been 
 always without assured remedy for the same. 
 
 "II. Bo it therefore enacted by the King, our most dread sovereign Lord, and by 
 the assent of the Lords Spiritual and T(!mporal, and by the Commons in tliis present 
 Parliament assembled, that all joint-tenants, and tenants in common, that now be, or 
 hereafter shall be of any estate or estates of inheritance in their own rights, or in the 
 right of their wives, of any manors, lands, tenements or hereditaments within tliis 
 realm oi England, Wales, or the marches of the sami;, shall and may be coaotcd and 
 compelled, by virtue of tliis present act, to make partition between them of all such 
 manors, lands, tenements and hereditaments as they now hold or hereafter shall liold 
 as joint-tenants, or tenants in common, by writ De participaliuiie facienda in that cast- 
 to be devised in the King our sovereign Lord's Court of Chancery, in like manner 
 and form as coparceners by the common laws of this realm have bitin and aro eom- 
 jx;lled to do, and th(; same writ to be pursued at the common law. 
 
 "III. Provided always, and be it enacted, that every of tlie said joint-tenants, or 
 tenants in common, and their heirs, after such partition made, sliall and may havo 
 aid of the other, or of their heirs, to the intent to deraign tlie warranty paramount, 
 and to recover for the rate as is used between coparceners after partition mado by thu 
 order of the common law; anything in this act contuinod t<j the contrary notwith 
 standing."
 
 § 421 JUEISDICTION IN PARTITION. 500 
 
 which now hold or hereafter shall hold jointly, or in common, 
 for term of life, year or years, or joint-tenants, or tenants in 
 common, where one or some of them have, or shall have, 
 estate or estates for term of life or years, with the other that 
 have or shall have estate or estates of inheritance or freehold 
 in any manors, lands, tenements or hereditaments, shall and 
 may be compellable from henceforth by writ of partition to 
 be pursued out of the King's Court of Chancery, upon his or 
 their case or cases, to make severance and partition of all 
 such manors, lands, tenements, and hereditaments which they 
 hold jointly, or in common, for term of life or lives, year or 
 years, or where one or some of them hold jointly, or in com- 
 mon, for term of life or years, with other, or that have estates 
 of inheritance or freehold." By comparison of the date of 
 these statutes with that at which, as stated by Mr. Keeves, 
 the right of coparceners to compel partition was clearly recog- 
 nized, it will be seen that nearly three centuries intervened 
 after the writ of partition was granted to parceners before 
 any relief whatever was provided for other cotenants. While 
 the right to compel a partition was, by these statutes, so ex- 
 tended that after their passage it might be enforced between 
 all cotenants, except tenants by entireties, it seems that the 
 remedies provided by law for the enforcement of the right 
 were tedious, expensive, and sometimes ineffectual. They 
 were not, however, improved in any haste. It was a century 
 and a half later before Parliament put forth another of its 
 formidable preambles on this subject. This preamble de- 
 clared that "the proceedings upon writs of partition between 
 coparceners by the common law or custom, joint-tenants, and 
 tenants in common, are found by experience to be tedious, 
 chargeable, and oftentimes ineffectual, by reason of the diffi- 
 culty of discovering the persons and estates of the tenants of 
 manors, messuages, lands, tenements, and hereditaments to 
 be divided, and the defective or dilatory executing and re- 
 turning of the process of summons, attachment, and distress, 
 and other impediments, in making and establishing partition, 
 by reason of which divers persons having undivided parts or 
 purparts are greatly oppressed and prejudiced, and the prem- 
 ises are frequently wasted and destroyed, or lie uncultivated 
 and unmanured, so that the profits of the same are totally or
 
 501 JURISDICTION IN PARTITION ^ 421 
 
 in a great measure lost."' The enactment prefaced by this 
 preamble directed that " after process of pone or attachment 
 returned upon a Mi-it of partition, affidavit being made by any 
 credible person of due notice given of the said writ of parti- 
 tion to the tenant or tenants to the action, and a copy thereof 
 left with the occupant, or tenant or tenants, or if they cannot 
 be found, to the wife, son, or daughter, (being of the age of 
 one and twenty years or upwards,) of the tenant or tenants 
 in actual possession, by virtue of any estate of freehold, or 
 for term of years, or uncertain interest, or at will, of the 
 manors, lands, tenements, or hereditaments, whereof the par- 
 tition is demanded, (unless the said tenant in actual posses- 
 sion be demanded in the action,) at least forty days before 
 the return of said iwne or attachment, if the tenant or tenants 
 to such M-rit, or any of them, or the true tenant to the mes- 
 suages, lands, tenements, and hereditaments, as aforesaid, 
 shall not in such case, within fifteen days after return of such 
 writ oiponc or attachment, cause an appearance to be entered 
 in such Court where such writ of pone or attachment shall 
 be returnable, then, in default of such appearance, the de- 
 mandant having entered his declaration, the Court may pro- 
 ceed to examine the demandant's title, and quantity of his 
 part and purpart, and accordingly as they shall find his right, 
 part and pui-part to be, they shall for so much give judgment 
 by default, and award a writ to make j^artition." The act 
 also provided for the execution of the writ after eight days' 
 notice to the "occupier or tenant or tenants of the premises," 
 for the return of the writ after its execution, for a final judg- 
 ment in pursuance of the return, and that such judgment 
 should "conclude all persons whatsoever, whatever right or 
 title they have or may at any time claim to have in any of the 
 manors, messuages, lands, tenements, and hereditaments men- 
 tioned in said judgment and Avrit of partition, although all 
 persons concerned are not named in any of the proceedings, 
 nor the title of the tenants truly set forth." By the s(*foiul 
 section of the act, all persons against whom judgment by 
 default was given were allowed one year after the first judg- 
 ment was entered, and infants, femes covoi, lunatics, and 
 
 ' stats 8 and ;» Wm, HI. cap. 31.
 
 § 422 JURISDICTION IN TARTITION. 502 
 
 persons absent from the kingdom, were granted one year 
 after his, her, or their return, or after the termination of the 
 infancy, coverture, or kinacy, in which to apply to the Court 
 to set aside the judgment, and for leave to appear and plead 
 as if no such judgment had been given. The third section 
 enacted ' ' that no plea in abatement shall be admitted or re- 
 ceived in any suit for partition, nor shall the same be abated 
 by reason of the death of any tenant." The fourth and fifth 
 sections were in reference to the manner of executing the 
 writ, and the effect of the partition on the interests of lessors 
 and lessees. The statute, though originally to continue in 
 force for seven years, and "thence to the end of the next 
 session of Parliament, and no longer," was made perpetual 
 by statute 3 and 4 Anne, c. 18, ^ 2. While the legislative 
 authority of England so long delayed the creation of rem- 
 edies adequate to a speedy and effectual partition of the 
 lands of cotenancies, cotenants did not remain without more 
 satisfactory means of relief than those provided by law. 
 Without legislative sanction. Chancery, as early as the reign 
 of Elizabeth, began to exercise jurisdiction in suits for par- 
 tition. This new jurisdiction was felt to be so much better 
 adapted to the adjustment of the rights of cotenants that it 
 rapidly grew into favor. The writ of partition, as known to 
 the common law, fell into general disrepute and neglect, from 
 which it could not be rescued by the statutes 8 and 9 Wm. 
 III., already referred to in this section, and entitled "An act 
 for the easier obtaining partitions of lands in coparcenary, 
 joint-tenancy, and tenancy in common." The writ, as it was 
 still much less commendable than proceedings in Chancery, 
 went into desuetude, and was finally wholly abolished by the 
 statute 3 and 4 Wm. IV., chap. 27, sec. 36. 
 
 g 422. General Description of Proceedings in a Parti- 
 tion at La-w. — When a cotenant wished to bring about a 
 compulsory partition of the common lands, through the in- 
 strumentality of proceedings at law, his first step was to sue 
 out a writ of partition, whereby the sheriff of the county was 
 commanded to summon the other cotenants named in the writ 
 and have them before the justices at Westminster on sojjtie 
 general return day, specified in the writ, to show wherefore
 
 4 
 
 503 JURISDICTION IN PARTITION. g 4*22 
 
 they denied partition to be made of certain lands, etc. The 
 process in partition was ' ' summons, attachment, and distress 
 infinite."^ But the statute of 8 and 9 Wm. III., ah-eady re- 
 ferred to, governed the sei^ice of process after its enactment, 
 and prescribed the course to be pursued -when the persons 
 summoned, or any of them, failed to enter their appearance 
 -v^-ithin the time allotted to them for so doing. If, however, 
 the defendants, instead of suffering their defaults to be en- 
 tered, appeared in the action, the next step in the proceedings 
 consisted of the filing of the plaintiff's declaration. To this 
 declaration the defendant might plead the general issue, 
 namely, non tenent imimul; but he could not, after the statute 
 of 8 and 9 Wm. III., interpose any plea in abatement. If 
 the action was confessed, or if after trial the issue was found 
 for the plaintiff', there was entered in his favor an interlocu- 
 tory judgment, quod partUio fiat intet' partes prcedlctas de tene- 
 mentis, cum pertinentus. This judgment designated the 
 persons between whom partition should be made, and also 
 the moieties to which each was entitled. Upon this judg- 
 ment, a judicial writ issued to the sheriff'. This writ recited 
 the writ of partition and the judgment entered thereon, and 
 commanded ' ' the sheriff, together with twelve men of the 
 vicinage, to go in person to the lands to be divided, and 
 there, in presence of the parties, (if they appear, on sum- 
 mons to be made,) by the oaths of those twelve men, to 
 make an equal and fair partition, and allot to each party his 
 full and just share, and then return the inquisition of the par- 
 tition, annexed to the writ, under the seals of the sheriff and 
 the jurors, whose names are likewise to be returned."- After 
 the writ was executed, by making the allotments as therein 
 directed, it was returned by the sheriff, with the inquisition 
 thereto annexed, showing in what manner the partition had 
 been made. Then, upon motion to the Court, the second sxnd 
 final judgment was given, qiiod parfitio pnedicta fiiiiia et stabilis 
 ill perpetuum teneatur.^ 
 
 ' Allnatton Partition, 65. 
 
 ^ AUnatt on Partition, 70; Booth on Real Actions, 244-5; 2 Cruiw, ;J85; PoterHclorff's 
 Ab. Tit. Partition; Littleton, kccs. 247. 248. For all the i)roci'«liiigH in j)aititi()U. mm 
 Chitty PI. 1300 to 1407; Bac. Ab. Joint-TcnuntH (1.)
 
 g 423 JURISDICTION IN PAHTITION. 504 
 
 g 423. Origin and Rise of Chancery Juris dicjtion. — 
 
 That the writ of partition fell into general neglect and was 
 finally abolished was due to the superior facilities afforded 
 by a new means of compelling partition, namely, that which 
 was carried on in Chancery. When or how Courts of Chan- 
 cery first obtained jurisdiction in cases of partition has never 
 been satisfactorily ascertained; but, like many other ques- 
 tions not susceptible of any positive and certain determina- 
 tion, it has occasioned considerable discussion, and no little 
 warmth both of feeling and of expression. Mr. Hargrave, 
 in one of his notes to Coke on Littleton, has said: "A new 
 compulsory mode of partition has sprung up, namely, by 
 decree of Chancery exercising its equitable jurisdiction on a 
 bill filed jDraying for a partition : in which case it is usual for 
 the Court to issue a commission for the purpose to various 
 persons, who proceed without a jury. How far this branch 
 of equitable jurisdiction, so trenching upon the writ of par- 
 tition, and wresting from a court of common law its ancient 
 exclusive jurisdiction over this subject might be traced by 
 examining the records of Chancery, I know not. But the 
 earliest instance of a bill for partition I observe to be noticed 
 in the printed books is a case of the 40 Eliz. in Tothill's 
 Transac. of Chanc, title Partition. According to the short 
 report of this case, the Court interposed from necessity in 
 respect to the minority of one of the parties, the book ex- 
 pressing that on that account he could not be made party to 
 a writ of partition; which reason seems very inaccurate; for, 
 if Lord Coke is right, that writ does lie against an infant, 
 and he shall not have his age in it, and after judgment he is 
 bound by partition. But probably in Lord Coke's time this 
 was a rare and rather unsettled mode of compelling partition; 
 for I observe in a case in Chancery of the 6 Cha. I., which 
 was referred to the judges on a point of law between two 
 coparceners, that the judges certified for issuing a writ of 
 partition between them, and that the Court ordered one ac- 
 cordingly;^ which, I presume, would scarce have been done 
 if the decree for partition and a commission to make it 
 had been a current and familiar proceeding in Chancery."^ 
 
 ' The case referred to was Drurj- v. Dniry, 1 Ch. Kep. 26, 3d ed. 
 -' Note to Co. Litt. 169 a.
 
 505 JURISDICTION IN PARTITION § 423 
 
 In commenting upon this note, Mr. Fonblanque, in his 
 Treatise ou Equity, said: "Mr. Hargrave's opinion upon 
 legal subjects is so deseiTecUy entitled to influence the 
 opinion of others, that I cannot refrain from observing that 
 a practice sanctioned by a precedent of so early a date as 
 the 40th Eliz. cannot reasonably be described as a new mode, 
 particularly when it is considered there are few, if any, re- 
 ports of decisions in equity of an earlier date. The reason 
 assigned by Tothill for the decision is, in the opinion of 
 Lord Coke, insufficient to support it; and it ^^'ill become still 
 more so when it is considered that an infant, when he attains 
 his age, may shew cause against a decree of partition in 
 equity, unless he be plaintiff in the suit. (Lord Brook v. 
 Lord and Lady Hereford, 2 P. Wms. 518; Tuckfield r. Bul- 
 ler, Ambler, 197; 3 Atk. 627.) But though the reason as- 
 signed by Tothill fail, the decision is not destitute of prin- 
 ciple to support it. * * ^ The case of Drary v. Drury ap- 
 pears to have been decided in the sixth of Charles the First : 
 previous to which j)eriod, and even to the 40th Eliz. , equity 
 had decreed an equal partition, when that made by the parties 
 appeared to be unequal. (Norse v. Ludlow, 32 Eliz. Toth. 155. ) 
 "S\'hether this partition was made by writ, commission, or con- 
 sent, does not indeed appear; neither does it appear in Druiy 
 V. Drm-y upon what ground the writ or partition was decreed; 
 but it is observable, in that case, that the question of parti- 
 tion was not referred to the judges, and that if it was, that 
 they could not strictly, in such a case, have certified that a 
 commission, which is an equitable process, ought to issue. 
 The inference, therefore, drawn by Mr. Hargrave from this 
 case cannot be supported, unless it can be at least shewn that 
 the judges Avere called upon to decide not only the question 
 of partition, but also to point out the mode to effect it. If, 
 however, the authority of this case can in any degree suppoit 
 the doubt raised upon it, I think it must bo removed by an 
 almost immediately subsequent case, 14 Car. 1, Babb v. 
 Dudeny, Tothill's Transaction, tit. Partition, f. 155, in which 
 case the Court refused to interfere, not upon the ground that 
 it had no jurisdiction, but because ' the matter was but C9 
 per annum.' Norbury v. Yarbury: Toth. Ulu supra. Seo 
 also Manaton v. Squire, 2 Freeman, 20; in which case parti-
 
 g 423 JURISDICTION IN PARTITION. 506 
 
 tion was considered as cognizable in equity as at law, and 
 Parker v. Gerrard, Ambl. 236, in wliich case it is described 
 as a matter of right. "^ Judge Story, in his Commentaries on 
 Equity Jurisprudence,- refers to Mr. Hargrave's note in terms 
 whose spirit is very identical with that manifested in the re- 
 marks which we have just copied from the Treatise of Mr. 
 Fonblanque. But it is evident, from a passage in Judge 
 Story's Commentaries, that he assigned to proceedings for 
 partition in Chancery a date long anterior to that claimed by 
 Mr. Fonblanque, and a scope so extensive as to embrace 
 joint-tenants and tenants in common, at a period when all the 
 common law authorities declare that none but coparceners 
 were able to make a compulsory partition. The following is 
 the passage referred to : " These remarks of the learned 
 author [Mr. Hargrave's note] are open to much criticism, if 
 it were the object of these Commentaries to indulge in such 
 a course of discussion. It cannot, however, escape notice 
 that, when the learned author speaks of this branch of 
 equitable jurisdiction as trenching upon the writ of parti- 
 tion, and wresting from the courts of common law their 
 ancient exclusive jurisdiction over the subject, he assumes 
 the very matter in controversy. That the writ of partition is 
 a very ancient course of proceeding at the common law is not 
 doubted. But it by no means follows that the courts of com- 
 mon law had an exclusive jurisdiction over the subject of par- 
 tition. The contrary may fairly be deemed to have been the 
 case, from the notorious inadequacy of that writ to attain, in 
 many cases, the purposes of justice. Thus, for instance, we 
 know that until the reign of Henry VIII., no writ of parti- 
 tion lay, except in case of parceners. And to show how nar- 
 rowly the whole remedial justice of this writ was construed, 
 it was the known settled doctrine that if two coparceners be, 
 and one should alien, in fee, the remaining parcener might 
 bring a writ of partition against the alienee ; but the alienee 
 could not have such writ against the parcener. And the like 
 diversity existed in cases of a writ of partition by or against 
 a tenant by the courtesy. Now such a case would, upon the 
 very face of it, constitute a clear case for the interposition of 
 
 ^ Fonblanque's Eq., book i., ch. 1, ^ 3, note/. ^ Sec, 646.
 
 507 JURISDICTION IN PARTITION. § 423 
 
 a Court of Chanceiy, upou the ground of the total defect of 
 any remedy at law, and yet of an unquestionable equitable 
 right to a partition. Cases of joint-tenancy and tenancy in 
 common afford equally striking illustrations. Until the stat- 
 ute of 31st Henry Ylll., ch. 1, and 32d Henry YIH., ch. 
 32., no writ of partition lay at law for a joint-tenant or tenant 
 in common. And yet the grossest injustice might have arisen, 
 if a Court of Chancery could not, in such a case, have inter- 
 posed and gi-anted relief, upon the analogy to the legal rem- 
 edy. The reason given at the common law against partition 
 in such cases was more specious than solid. It was, that a 
 joint-tenancy being an estate originally created by the act or 
 agreement of the parties, the law would not permit any one 
 or more of the tenants to destroy the united possession with- 
 out a similar universal covenant. The good sense of the 
 doctrine would rather seem to be, that the joint-tenancy 
 being created by the act or agreement of the parties, in a 
 case capable of a severance of interest, the joint interest 
 should continue (exactly as in cases of partnership) so long 
 as, and no longer than, both parties should consent to its 
 continuance."' From the foregoing quotation, we conclude 
 tiiat Judge Story was loth to believe that joint-tenants and 
 tenants in common were without any means of compelling 
 partition, until such means were provided by statute of Henry 
 Yni. ; and that, in his judgment, as there was no remedy 
 known to exist at law, there must have been some means of 
 redi-ess in Chancery. Perhaps Mr. Chitty's views on this 
 subject coincided with Judge Story's. At all events, he de- 
 clared that "bills for partition and apportionment were be- 
 tween joint-tenants and tenants in common, always sustaina- 
 ble and decreed in equity.'"'^ But it is not safe to assume 
 that some remedy always existed for every wrong and incon- 
 venience. That joint-tenants and tenants in common must at 
 a very early day have felt the necessity of relief in equity 
 by no means establishes that such relief was at once granted 
 to them. In fact, we think the testimony borne by the stat- 
 ute of 31 Hen. VIII. is conclusive that Chancery had never 
 at that time interposed in behalf of any cotcnant by proceed- 
 
 ' Story'H Eq. Jur. wee. 047. - 2 Chitty Geiil. I'l . J'J.
 
 g 424 JURISDICTION IN PARTITION. 508 
 
 ings in partition, because the preamble of that statute, after 
 reciting the numerous and grievous wrongs inflicted upon 
 joint-tenants and tenants in common, asserts that "they have 
 been always without assured remedy for the same."' Differ- 
 ent reasons have been assigned for the purpose of justifying 
 the jurisdiction taken by Chancery in matters of partition. 
 In the course of the argument in one case, it was insisted 
 that this jurisdiction was based on the statute making co- 
 tenants accountable to one another, whereby they became, as 
 it was claimed, trustees for one another." In another case, it 
 was claimed to be a consequence of the statutes of 31 Henry 
 YIII. and 32 Henry VIII.=^ Lord Eldon thought that the 
 Court of Chancery issued commissions to make partition, not 
 by virtue of any act of Parliament, but by analogy to its 
 jurisdiction in case of dower. ^ All that can be known of the 
 sources of Chancery jurisdiction of this subject, and of the 
 reason for its assumption, is thus tersely, and we think cor- 
 rectly, expressed by Bacon in his Abridgment: "The Court 
 of Chancery, at first acting only in the aid of the common 
 law court, then assuming a concurrent, has at length obtained 
 an almost exclusive jurisdiction over the subject. That it 
 has no original jurisdiction, nor any express authority from 
 statute, has been acknowledged by those who were most con- 
 versant with its jurisdiction and have best administered it: 
 the general reception it has met with is owing to the advan- 
 tage it has over the common law court, in being loose and 
 free from all technical restraints; and to the powers it pos- 
 sesses of dealing with and providing for the various interests 
 it may meet with."'^ 
 
 ^ 424. Right to Partition in Chancery, whether Abso- 
 solute. — From language employed by Lord Hardwicke, in 
 the case of Cartwright v. Pultney,^ it might be inferred that 
 the remedy by partition in equity based on the legal title is 
 
 ' See statute in note to sec. •121. 
 ■•* Earl of Kildare r. Eustace, 1 Vern. 421. 
 3 Mundy v. Mundy, 2 Ves. Jr. 125. 
 
 * Agar V. Fairfax, 17 Ves. 552. See also, to same effect, the argument for plaintiff 
 in tlie case of Watson v. The Duke of Northumberland, 11 Ves. 155. 
 s Bac. Ab. Joint-Tenants (I.) 
 » 2 Atk. 380.
 
 509 JUBISDICTION IN PARTITION. ^ 425 
 
 discretionary with the Court, instead of being a matter of 
 right. But we think, on a fail- construction of the language 
 used by his Lordship, it must be conceded to amount to this, 
 and no more, namely, that where it appears to the Court that 
 the plaintiffs title is questionable, equity will not inteipose 
 in his behalf, but will leave him to his legal remedy. If his 
 Lordship intended to assert that in the absence of suspicious 
 circumstances tending to involve the plaintiffs title in doubt, 
 a court of equity might, at its discretion, refuse to act, he 
 is clearly overruled by the more recent decisions. It is now 
 certain that unless when the titles of the respective parties 
 are spread before a court of equity, it can see that there are 
 legal objections to the complainant's title, he can demand, 
 as a matter of right, that it proceed with the partition.^ 
 
 § 425. Advantages of Proceedings in Chancery.— Mr. 
 
 Fonblanque, after employing all the means in his power to 
 trace the history of Chancery jurisdiction in partition cases, 
 added, by way of consolation for the unavoidably unsatis- 
 factory nature of the information he had been able to obtain, 
 that: "To establish the origin of any branch of legal or of 
 equitable jurisdiction is always difl&cult and seldom necessary, 
 provided the exercise of such jurisdiction is found to be con- 
 ducive to the ends of substantial justice; and such will ap- 
 pear to be the tendency of the jurisdiction exercised by our 
 coui-ts of equity, in cases of partition, upon a reference to 
 the difficulties which obstructed the mode of proceeding at 
 common law."^ The chief advantages of proceedings in 
 Chancery over the proceedings by writ of partition at com- 
 mon law, are these: Courts of equity deal with complicated 
 titles with greater ease and efficiency than courts of law;' 
 courts of equity compel the execution of conveyances to each 
 cotenant, from the others, for the lands embraced in his al- 
 lotment, and thus provide him with a permanent and satis- 
 factory muniment of title ;^ they may decree a pecuniary 
 
 ' Lucas V. King, 2 Stock. Ch. 280; Smith v. Smith, 10 Pai. Ch. 473; Wiscley v. Fmd- 
 ley, 3 Rand, 3C3; Baring v. Nash, 1 Yes. & B. 555; Straughan v. Wright, 4 Rand, 493: 
 Parker v. Gerard, Amb. 236; Vint v. Heirs of Kmg, 2 Am. Law Reg. (0. S.) 729. 
 
 ■^ Fonblanque's Eq., book 1, ch. 1. $ 3, note /. 
 
 ^Btory'aEq., $ C50. 
 
 *Va.. $C51.
 
 g 425 JURISDICTION IN TABTITION. 610 
 
 compensation to one of the parties for owelty, or equality of 
 partition;^ they may compel the cotenants to account with 
 one another, in regard to rents and profits received, and im- 
 provements made by either of them, or may set aside to a 
 cotenant the part which he has improved or otherwise made 
 more valuable; the parties in interest may be brought before 
 the Court far more extensively than they can by any processes 
 known to the courts of law;^ and the parties may compel a 
 discovery whenever it is necessary to enable them to properly 
 present their title. "In all cases of partition, a court of 
 equity does not act merely in a ministerial character, and in 
 obedience to the call of the parties, who have a right to the 
 partition, but it founds itself upon its general jurisdiction as 
 a court of equity and administers its relief ex cequo et bono, 
 according to its own notions of general Justice and equity be- 
 tween the parties. It will, therefore, by. its decree, adjust 
 all the equitable rights of the parties interested in the estate; 
 and will, if necessary for this purpose, give special instruc- 
 tions to the commissioners, and nominate the commissioners, 
 instead of allowing them to be nominated by the parties."'* 
 Courts of equity may also take into consideration the equities 
 of strangers to the original cotenancy, and make such a par- 
 tition as will protect those equities. This is particularly the 
 case where one of the cotenants has conveyed some part of 
 the lands of the cotenancy, by metes and bounds, in sever- 
 alty. In such case, if it can be done without prejudice to 
 the original cotenants who did not join in the conveyance in 
 severalty, a court of equity will make such a partition as will 
 secure to the grantee in severalty the part conveyed to him.^ 
 "It is upon some or all of these grounds, the necessity of a 
 discovery of titles, the inadequacy of the remedy at law, the 
 difficulty of making the appropriate and indispensable com- 
 pensatory adjustments, the peculiar remedial processes of 
 courts of equity and their ability to clear away all inter- 
 mediate obstructions against complete justice, that these 
 Courts have assumed a general concurrent jurisdiction with 
 courts of law in all cases of partition. So that it is not now 
 
 ' story's Eq., $ 65i. - Story's Eq., $ 650. 
 
 » Story's Eq. Jur., $ 656 b. * Story's Eq. Jur., $ 656 c.
 
 511 JURISDICTION IN I'AliTITION. 426 
 
 deemed necessary to state, in the bill, any peculiar ground 
 for equitable interference."' It was said, in a recent decision 
 made hy Chancellor Zabriskie of New Jersey, that ' ' the pe- 
 culiarities of an equitable partition are, that such part of the 
 land as may be more advantageous to any party on account 
 of its proximity to his other land, or for any other reason, 
 will be directed to be set off to him if it can be done Avithout 
 injiu'y to the others; that when the lands are in several par- 
 cels, each joint owner is not entitled to a share of each parcel, 
 but onl}' to his equal share in the whole; that where a parti- 
 tion exactly equal cannot be made without injury, a gross 
 sum or yearly rent may be directed to be paid for owelty or 
 equality of partition, by one whose share is too large to 
 others whose shares are too small; and that where one joint 
 owner has put improvements on the property, he shall receive 
 compensation for his improvements, either by having the 
 part upon which the improvements are assigned to him at 
 the value of the land without the improvements, or by com- 
 pensation directed to be made for them."-' 
 
 g 426. Partition of Personalty.— The common law, as 
 we have already shown, provided no means of redress in be- 
 liaK of a cotenant of personalty as against another cotenant 
 thereof, unless the latter had been guilty of an actual or 
 practical conversion, or of an actual or practical destruction, 
 of the common property.'' The inattention of the common 
 law to this species of property was carried still farther. Part 
 owners in addition to being without any legal remedy by 
 which either could enforce a fair and equitable use and en- 
 joyment of their common chattels, Avere also without any 
 legal means of compelling partition thereof. Neither the 
 common laAv nor the statutes of Henry VIII., nor of TVm. 
 ni., had any applicability to personal property.'* The neces- 
 sity of some remedy by which partition of this species of 
 property could be compelled was much greater than in the 
 case of real estate; for real estate was susceptible of a com- 
 mon possession and enjoyment, and in case of a total exclu- 
 sion of either cotenant, he had his remedy at law by an 
 
 ' Story'H Eq. Jur., $ 658. ^ Hall v. Piddock, 21 N. J. Eq. 311. 
 
 ' See Chapter XIII. ♦ Alliiatt ou Partitiou, 48.
 
 § 427 JURISDICTION IN PARTITION. 512 
 
 action of ejectment. The entire absence of any remedy at 
 law induced Courts of Chancery to take jurisdiction of ac- 
 tions for the partition of personal property. At what time or 
 under what circumstances this jurisdiction was first assumed 
 we are unable to state; but that it existed and was exercised 
 by the Courts of Chancery both in England and in the United 
 States is undisputed.' "A court of equity is competent to 
 give relief in such cases, by decreeing a partition of the prop- 
 erty, or a sale thereof where such partition is impracticable, 
 and a division of the proceeds. The powers of a court of 
 equity were conferred and exist to meet just such cases, where 
 no adequate remedy exists at law."^ The same reason which 
 induced Chancery to take jurisdiction of actions for the par- 
 tition of personal property, namely, the want of any adequate 
 remedy at law, induced it to exercise this jurisdiction over a 
 class of cases with which it would not have proceeded had 
 the subject-matter of the action consisted of real estate. This 
 class embraced all those cases in which the plaintiff's title 
 to the property was denied by the defendant. When real 
 estate was the subject of partition in Chancery, and the plain- 
 tiff's title was put in issue, he was required to establish it at 
 law. But there was no method by which a cotenant of per- 
 sonalty could litigate his title with another cotenant. There- 
 fore, when, in a partition in Chancery, the defendant denied 
 the title of demandant to personal property, and claimed such 
 property in severalty, the demandant was not sent to law to 
 establish his title. He was not required to attempt an im- 
 possibility. The Court of Chancery proceeded notwithstand- 
 ing the disputed title, and heard and determined all issues 
 made by the respective parties in reference thereto;^ and if, 
 as the result of its investigation, it found the parties to be 
 cotenantSj it proceeded to make partition among them accord- 
 ing to their respective rights.^ 
 
 § 427. Difference between a Judgment and a Decree af 
 Partition. — By the final judgment entered in proceedings for 
 
 - Smith 1). Smith, 4 Rand, 102; Conover v. Earl, 26 Iowa, 167; Tripp u. Riley, 15. 
 Barb. 334; Fobes v. Shattuck, 22 Barb. 568; Marshall v. Crow's Admr. 29 Ala. 279. 
 
 •^ Tinney v. Stebbins, 28 Barb. 290. 
 
 ^ Weeks v. Weeks, 5 Ired. Eq. 118; Edwards v. Bennett, 10 Ired. 363; Smith «j. Dunn, 
 27 Ala. 316.
 
 513 JURISDICTION IN TARTITION. g 427 
 
 partition at common law, the title to each allotment was Tested 
 in the person to whom such allotment had been made. No 
 conveyance from any of the cotenants was necessary to divest 
 him of his title to the portions not allotted to him. The 
 judgment itself operated as a cocveyance, and no other or 
 further muniment of title was necessary or possible as the 
 consummation of a compulsory partition at law. There were 
 interests which could not be bound by comj)ulsory partition 
 at law. As to these interests, the final judgment had no 
 effect. But as to the interests and the parties against which 
 the judgment could operate, it operated as a final and effec- 
 tive partition, needing for its validity and effect no further 
 transfer or ratification. The courts of the common law pro- 
 ceeded on the theory that by their judgment they could, as to 
 all the parties before them, deal with the title to the land. 
 But courts of equity never professed to act directly on the 
 title. Their decrees operated in personam only. A decree 
 of partition did not purport to invest the parties with title to 
 their several allotments. The final action of a court of equity 
 in reference to a partition was based upon the hypothesis that 
 it was just and equitable that a certain allotment should be 
 made between the parties. The Court therefore directed that 
 the parties should do that which it had determined they ought 
 to do; in other words, that they should make partition be- 
 tw'een one another by executing mutual conveyances. With- 
 out such conveyances, the legal title to the property remained 
 unaffected. A partition in Chancery, like a voluntary parti- 
 tion made by the parties, must be consummated by mutual 
 conveyances. Therefore, no effectual partition can be had in 
 equity against any person not competent to execute a convey- 
 ance. "It may therefore be stated as a general proposition, 
 that partition will be decreed for and against such persons as 
 are able to convey their undivided shares, for the purposes 
 of completing the partition. If persons seized of particular 
 estates, together with the reversioners or remainder-men, are 
 made parties, partition may well be made, because they to- 
 gether are competent to convey the whole interest. But if 
 the reversioner or remainder-man is not joined, then, al- 
 though partition will be decreed, because the particular tcn- 
 
 C. & P.--33
 
 g 428 JURISDICTION IN PARTITION. 514 
 
 ant would be entitled to it at law, yet it will be only of tem- 
 porary duration."^ 
 
 g 428. Jurisdiction over Partition in the United 
 States. — In England, cpmpulsory partition was accom- 
 plished by one of three methods: namely, by the writ of 
 partition at common law, by proceedings in Chancery, or by 
 act of Parliament. We know of no instance in the United 
 States in which partition has ever been made directly by the 
 legislative department of government. But while we have 
 not used all the means employed for the purposes of making 
 compulsory partition in England, we have entrusted juris- 
 diction over partition to a number of courts which never ex- 
 ercised any similar jurisdiction in the mother country. In 
 most of the States, the courts charged with the settlement of 
 the estates of deceased persons have authority to make par^ 
 tition of such estates among the heirs or devisees of the de- 
 ceased according to their respective interests. In some of 
 the States, such courts may make complete partition al- 
 though the deceased was a tenant in common, and others 
 are therefore co-owners with his heirs of the property to be 
 divided. Independent of enactments in reference to the dis- 
 tribution and partition of estates of deceased persons among 
 their heirs, the compulsory partition of estates held in co- 
 tenancy has been made the subject of statutory regulation in 
 every State in the American Union. These statutes, in their 
 general features, are reenactments of the law as it previously 
 existed at common law or in Chancery. They provide for an 
 application to some specified court by a complaint or peti- 
 tion, showing that the applicant and the defendant are co- 
 tenants, and the respective interests of each; for the sum- 
 moning of the defendant to answer such complaint or petition; 
 for an interlocutory judgment or order determining the in- 
 terests of each of the parties ; for the appointment of com- 
 missioners to make the allotments among the cotenants 
 according to their moieties as ascertained by the interloc- 
 utory judgment; for a sale of the property in case parti- 
 
 ' Alluatt ou Partition, 91; WLaley v. Dawsou, 2 Schoales & L. 372.
 
 515 JURISDICTION IN PARTITION. '^, 428 
 
 tiou thereof cannot be made without great injury to the 
 rights of the cotenants; and for a final judgment, either con- 
 firming the allotments made bj the commissioners or confirm- 
 ing the sale made -when it has been deemed best not to par- 
 tition the lands by allotment. In some of the States, the 
 jurisdiction of the proceedings authorized by these statutes 
 is confided to courts of law; in others, to courts of equity; 
 and in a few of the States, the applicant has, as in England, 
 his election whether he will proceed at law or in equity. 
 The remedy thus created by statute is, we think, generally, 
 but not universally, considered as cumulative, and as in no 
 way divesting courts of equity of their jurisdiction over the 
 same subject-matter. The Superior Court of Arkansas, in 
 speaking of the statute of that State, in reference to com- 
 pulsory partitions, said : ' ' The statute but cumulates the 
 remedy; and if, nevertheless, a party should elect to seek 
 his remedy in Chancer}-, as these parties seem to have done, 
 he is entitled to such as the Chancellor can afford him."' In 
 Missouri, "the statutory mode of partition has never been 
 supposed to divest Courts of Chancery of their jurisdiction 
 in suits for partition."- In New Hampshire, it was held that 
 Chancery still had jurisdiction, because "there are no nega- 
 tive words in the statute providing for a partition upon peti- 
 tion, and the partition of real estate is an undoubted branch 
 of equity jurisdiction."' But in Massacnusetts, in a case 
 where the decision of the question was unnecessary, it was 
 said that a bill in equity for a partition could not be sus- 
 tained because the statute provided an adequate and complete 
 remedy.* 
 
 ' Patton V. Wagner, 19 Ark. 233. 
 
 ■^ Spitts V. WellH, 18 Mo. 471. 
 
 •■' Whittea v. Whittcn, 3G N. H. 332. See also Baily v. Sissan, 1 R. I. 233. 
 
 * Whiting v. Whiting, 15 Gray, 504; Heeler's Heirs r. Bullitt's Heirs, 3 A. K. Marsh. 
 283; The Farmers v. Ilespass, 5 Monr. 504. But in California, it has been said, " tlioru 
 is no such thing under our system of pleading and practice as a suit in equity for par- 
 tition distinct from the proc( cding provided tor in the act." Oaks r. Salmon, 35 Cal. 
 597. 
 
 The following note is intended to show what ('ourls, in tlie respective States, have 
 jurisdiction of proceedings for eompidsoiy partition, not including proceedings for 
 the distribution ;i)id ])artiti(Pii of the estates of deceased persons among thi' heirs 
 thereto: 
 
 The statute of Aldhaina, in regard to partition, gives jurisdiction to the Judge of
 
 § 429 JURISDICTION IN PARTITION. 516 
 
 § 429. Proceedings in Courts having Jurisdiction in 
 Equity, and also at Common Law, and by Statutes. — In 
 
 several of the States, the Courts designated by statute to ex- 
 ercise authority over suits of partition, are Courts having 
 both Cj common law and a Chancery jurisdiction. When pro- 
 ceedings to compel partition are pending in such Courts, or 
 even after such proceedings have been consummated, the 
 question must frequently arise whether the jurisdiction which 
 the Court has exercised or is exercising is a common law jur- 
 isdiction, a Chancery jurisdiction, or a special statutory jur- 
 isdiction. Thus, the statute regulating partitions in Iowa, 
 passed soon after the admission of that State into the Union, 
 gave jurisdiction to the District Court. This Court had gen- 
 
 Probate, upon application made to him in writing. (Rev. Code, ed. 1867, sec. 3105.) 
 The power conferred by this statute " does not prevent a resort to any other legal 
 mode of obtaining partition of lands. (lb., sec. 3119.) In Arkansas, jurisdiction of 
 statutory proceedings for partition is vested in the Circuit Court (Comp. Laws, ed. 
 1858, p. 811, sec. 1) ; but the statutory remedy is regarded as cumulative only. (Pat- 
 ton V. Wagner, 19 Ark. 233.) In California, complaints for partition must be filed 
 in the District Court. (Code C. P., sec. 755.) In Connecticut, "the Superior Court, 
 as a court of equity, may, upon the petition of any person interested, order partition 
 of any real estate held in joint-tenancy, tenancy in common, or coparcenary." (Rev. 
 Code of 1866, p. 398, sec. 38.) Writs for the partition of real estate, held in joint- 
 tenancy or tenancy in common, may, in the State of Delaware, be issued by the Su- 
 perior Court of the county (Rev. Code, ed. 1874, p. 527, sec. 3) ; or either cotenant 
 may prefer a petition to the Chancellor of the State, who thereupon has jurisdiction 
 to proceed to make partition. (lb., p. 528, sec. 8.) The statute of Florida provides 
 that " suits or actions fof the partition or division of real estate may be instituted by 
 bill or petition in the Circuit Courts of this State; and that the proceedings in such 
 suits or actions for partition shall be governed by the ordinary rules of proceedings 
 in Courts of Chancery of this State, except as herein otherwise provided." (Bush. 
 Dig., p. 616, sec. 1.) The same statute (sees. 13 to 16) gives the same Court jurisdic- 
 tion over suits for the division of personal property. In Georgia, the statutory mode 
 of partition is accomplished in the Superior Courts of the respective counties (Code, 
 sec. 3996) ; but " equity has jurisdtction in cases of partition whenever the remedy at 
 law is insufficient; or pecuUar circumstances render the proceeding in equity more 
 suitable and just." (lb., sec. 3183.) Jurisdiction over personal property is vested in 
 County Judges. (lb., sec. 295.) For decisions determining what state of facts au- 
 thorizes a court of equity in Georgia in taking jurisdiction under the above provision 
 of the Code, seeBoggst). Chambers, 9 Geo. 1; Royston v. Royston, 13 lb. 425; Ruther- 
 ford «. Jones, 14 lb. 521; Osborn v. Ordiaary, 17 lb. 123; Greer v. Henderson, 37 lb. 1. 
 Ln Illinois, the petition for partition must be filed in a Cu'cuit Court. (Gross. Comp. 
 p. 469, sec. 1.) These Courts have Chancery jurisdiction. As such, they have all, and 
 more than all, the powers in partition cases, which could have been exercised by 
 Courts of Chancery in England. (lb., p. 471, sec. 15.) In Indiana, the Circuit Courts 
 have jurisdiction of proceedings for partition (2 Rev. St., 1852, p. 329); and in the 
 exercise of this jurisdiction is understood to be a court of law and not of Chancery. 
 (Wilbridge v. Case, 2 Carter, 36.) " The action for partition shall," in Iowa, " be by 
 equitable proceedings." (Sec. 3277 of Iowa Code.) In Kentucky, lands are parti-
 
 517 JURISDICTION IX PARTITION. g 429 
 
 eral jurisdiction, inclependeut of this statute, over proceed- 
 ings at law and in equity. The statutory proceeding for par- 
 tition was not, in express terms, made either a proceeding at 
 law or a proceeding in equity. Some of its modes of pro- 
 cedui-e were like those employed by coiu'ts of law; others 
 were like those common to courts of equity. One section of 
 the statute stated that the proceedings authorized by the act 
 were intended as a substitute for all partitions in Chancery, 
 as well as at law, and authorized the Court to exercise equity 
 powers, except as therein otherwise provided. Against the 
 validity of a partition made under this act, it was contended 
 that the District Court ' ' acted in the partition proceedings 
 under special authority conferred by statute, and was con- 
 
 tioned by commissioners appointed by the County Court. (Stanton's Rev. St., vol. 2, 
 p. 100, sec. 1.) In Maine, partition is compelled "by -writ of partition at common 
 law." (Rev. St., 1871, p. 694, sec. 1.) The chapter of the General Statutes of Massa- 
 daisetts, concerning the partition of lands, enacts that " persons holding lands as 
 joint-tenants, coparceners, or tenants in common, may be compelled to divide the 
 same, either by writ of partition at the common law, or in the manner provided in 
 this chapter." (Rev. St., 1860, p. 698, sec. 1.) The Courts vested with jurisdiction 
 in this chapter are the Superior Court or Supreme Judicial Court, held in the county 
 wherein the lands lie. (lb., sec. 2.) In Michigan, the application must be made "to 
 the Circuit Court for the county in which the lands lie, by a bill in equity." (Comp. 
 Laws, ed. 1871, sec. 6267.) In Minnesota, any pei'son entitled to partition may bring 
 an action therefor in the District Court of the proper county (Rev. 1866, p. 532, sec. 
 1; Rev. of 1873, p. 888) ; while in Missouri, such action must be brought in the Cir- 
 cuit Court. (Rev. 1865, p. 611, sec. 1.) The Revised Code of Mississippi provides 
 that " the Chancery Courts of this State shall have sole and exclusive jurisdiction in 
 all proceedings for partition, and proceedings shall in all cases be commenced in the 
 Chancery Court of that county in which the lands, or some part thereof, sought to be 
 divided are situated." (Code, sec. 1811.) The Statute of Xerada, in reference to 
 partition, is substantially like that of California. (Comp. Laws, sec. 1327.) In New 
 Hariipsldre, proceedings for partition according to the statutory mode, are instituted 
 by filing a petition in the Supreme Court in the county in which the estate to bo par- 
 titioned lies (Genl. Laws, ed. 1867, p. 463) ; but notwithstanding the statute, the rem- 
 edy by bill in equity may still be pursued with success. (Whitten v. Whitten, 36 N. 
 H. 326.) In New Jersey, an application for tlie partition of lands may bo made •' to 
 any Justice of the Supreme Court, or Judge of any Circuit Court or court of common 
 pleas of the county wherein such lands lie." (Nixon's Dig., 4th ed., 6G6.) It may 
 also be made in Chancery. (lb., p. 119, sec. 3, and p. 671, sec. 26.) Proceedings for 
 partition are, in the State of New York, commenced by a petition in the Supreme 
 Court, or the County Court of the county, or in the Mayor's Court of the city where 
 the premises are situated. (Rev. St., 5th cd., vol. 3, p. 603.) In North Carolina, 
 "the Superior and County Courts, and courts of equity, on petition" appoint com- 
 missioners and jxjrform the other duties incumbent on courts in perfecting compul- 
 sory partitions. (Code of 1854, ch. 82, sec. 1.) In Ohio, when the ])remise8 to be 
 partitioned are situate in one county, the proceedings must be in the Court of Com- 
 mon Pleas of such county; where the premises are situate in two or more counties, 
 the proceedings may be had in the District Court " when said Court shall be in ses-
 
 § 429 JUBISDICTION IN PARTITION. 518 
 
 sequently quoad hoc, an inferior or limited court;" and there- 
 fore " that the course prescribed by the statute ought to have 
 been observed mth at least substantial exactness, and every 
 fact necessary to show jurisdiction ought to appear on the 
 face of the proceedings." It was also insisted that the Dis- 
 trict Court could in such proceedings act only as a Court of 
 Chancery, and that it must therefore be shown that they were 
 ' ' conducted within the limits and imder the regulations of 
 equity jurisprudence." The Supreme Court, after referring 
 to the principal provisions of the statute, and considering 
 them in connection with the authority of the District Court 
 independent of such provisions, concluded as follows : ' ' The 
 jurisdiction of the Court was threefold: 1. It was invested 
 with all the cumulative and special powers created by the 
 statute; 2. It retained all Chancery attributes, except as 
 
 sion in any one of the counties ■where a part of the premises to be divided shall be 
 situate, or in the Court of Common Pleas in any one of the counties where a part of 
 such premises shall be situate at the election of the demandants. (Swan's Eev. St., 
 590; S. & C. Eev. St., 893.) In Oregon, proceedings for partition are classed among 
 suits in equity. (See Ch. 5, Tit. 5, Deady's Comp. 1864, p. 254.) In Pennsylvania, 
 the Supreme Court has "jurisdiction over the whole commonwealth as to the granting 
 and proceeding upon writs of partition." The respective County Courts of Common 
 Pleas have and may exercise the same power as Supreme Courts as to partition. 
 (Brightly's Purdon's Dig., 1112, sees. 1, 2.) In the county of Alleghany in said State. 
 the District Court for the county has Chancery jurisdiction and powers in cases of 
 partition. (lb., 593, sec. 15.) Like jurisdiction is given to the Supremo Court for the 
 Eastern District of Pennsylvania, and to the Court of Common Pleas of Philadelphia 
 county, over lands within the city and county of Philadelphia. (lb., 595, sec. 2933.) 
 In Rhode Island, partition may be compelled by a suit at law, or in equity. (Genl. 
 St., ed. 1872, p. 519.) In Smdh Carolina, " the Judge of Probate may exercise jur- 
 isdiction of all petitions for partition of real estate where no dispute exists in relation 
 to the title thereof; and when the title to such real estate is disputed, he shall refer 
 the same to the Circuit Court for adjudication, unless the parties shall consent to his 
 determination of the same." (Eev. St., ed. 1873, p. 531.) In Tennessee, partition 
 may be made in the County, Chancery, or Circuit Courts. (St. of Tenn., ed. 1871, 
 sees. 3266, 3267, 4201, 4205, 4233, and 4302; Hopper v. Fisher, 2 Head, 253; Down v. 
 Snelling, 2 Heisk. 484; Todd v. Cannon, 8 Humph. 512.) Partition may, in Texas, 
 be enforced "by such lawful method as the party seeking such partition shall choose 
 or deem expedient." (Sayles' Tex. Pr., sec. 725; Paschal's Dig., sec. 4707.) Part 
 owners of personal property may also be compelled to make partition thereof. (Sayles' 
 Pr., sec. 728; Paschal's Dig., sees. 4711-4714.) The County Courts of Vermont are 
 authorized to make partition of real estate in their respective counties. (Genl. St., 
 ed. 1863, p. 353.) In Virginia, "the court of equity of the county or corporation 
 wherein the estate, or any part thereof, may be, shall have jurisdiction in cases of 
 partition." (Code of Va., p. 920, ed. 1873.) In West Virginia, this jurisdiction is con- 
 fided to the Circuit Coui-ts of the respective counties (Code of West Va., ed. 1868, 
 p. 486); and this remark is equally applicable to Wisconsin. (Taylor's St. of Wis., 
 p. 1678.)
 
 519 JURISDICTION IN PARTITION. g 429 
 
 othennse provided by the act; 3. It retained all its inherent 
 common law authority so far as it could be exercised con- 
 sistently with the two preceding powers. The three jur- 
 isdictions are comprised in and are more or less exercised in 
 all partition suits under that act. The requirements of the 
 statute, so far as they are especially substituted for equity 
 and common law proceedings, are paramount, but beyond 
 such special substitution, law and Chancery interpose with 
 unabated and general concurrent authority. Hence, we con- 
 clude that even in cases of partition under our statute, the 
 District Court cannot be considered quoad hoc, as inferior or 
 limited. The doctrine will not be questioned that the general 
 jurisdiction of a Court cannot be taken away unless by ex- 
 press words of exclusion. The statute in question has only 
 enlarged and united powers previously existing in the Court, 
 and modified the proceedings previously existing under those 
 powers, and therefore there is no reason why the same liberal 
 rule should not be applicable to support the presumption that 
 the Court acted correctly and by competent authority."^ 
 
 ' Wright V. Marsh, 2 G. Greene, 104.
 
 CHAPTER XX. 
 
 OF WHAT PAETITION MAY BE COMPELLED. 
 
 General Division of the Subject, § 430. 
 
 Property must be held in Cotenancy, ^ 431. 
 
 Lands subject to Dower, § 432. 
 
 Dif&culty in making Partition. § 433. 
 
 Incorporeal Hereditaments, § 434. 
 
 Mines, $ 435. 
 
 Growing Timber, ^ 436. 
 
 Joinder of Parcels, § 437. 
 
 Property which Courts wiU not Partition, $ 438. 
 
 Of the Estates which may be Partitioned, $ 439. > 
 
 Of Estates in Eeversion or Remainder, §$ 440, 441. 
 
 Agreements not to Partition, ^ 442. 
 
 Partnership Property, § 443. 
 
 Tenancy by Entireties, § 444. 
 
 Community Property, $ 445. 
 
 g 430. General Divisions of the Subject. — We have now 
 given some account of the history of compulsory partition 
 both at law and in equity, and have shown how the jurisdic- 
 tion of courts of equity, though at first exercised at rare in- 
 tervals and in extreme cases, and without any other justifica- 
 tion or authority than that arising from the notorious 
 inadequacy of the remedy at law, and the anxiety of Chan- 
 cery to compel cotenants to deal equitably with one another, 
 grew in favor until it entirely supplanted and led to the stat- 
 utory abolition of the common law writ of partition. We 
 have also stated, in general terms, the advantages of the 
 proceeding in equity, upon which its popularity was justly 
 based; and have shown that in the United States the subject 
 of compulsory partition has received legislative attention, 
 whereby certain Courts have in each of the States been des- 
 ignated to exercise authority over such partitions. From 
 
 520
 
 521 WHAT MAY BE PARTITIONED. g 431 
 
 this point we shall endeavor to treat the subject of compul- 
 sory partition, so as to consider the various questions con- 
 nected therewith as nearly as possible in the order in which 
 they would ordinarily present themselves for consideration 
 in the preparation and prosecution of a suit. When a par- 
 tition has become desirable, we think the question which will 
 first require to be determined is this: Is the property of 
 which division is sought subject to any proceeding for com- 
 pulsory partition? In attempting to furnish data by the aid 
 of which this question can be answered, we shall consider : 
 1st, what subjects of ownership may be partitioned among 
 the cotenants thereof by proceedings for compulsory parti- 
 tion; 2d, the cases in which, though the subject-matter of 
 ownership may be liable to a compulsory partition, the par- 
 ticular estate sought to be partitioned is not; and 3d, express 
 or implied engagements between the cotenants, by which 
 their right to enforce partition is suspended or destroyed. 
 
 g 431. Property must be held in Cotenancy. — Before 
 proceeding to consider what subjects of ownership may be 
 divided by means of proceedings for compulsory partition, it 
 is here necessary to remind the reader that partition is a 
 division of property among the cotenants thereof, and there- 
 fore that it is always indispensable that the subject of every 
 compulsory partition should be held in cotenancy. It is also 
 necessary here to reiterate a statement made in another por- 
 tion of the work, namely, that several persons may together 
 own a thing without being cotenants thereof.' "Whenever 
 this happens, these persons are no more entitled to an action 
 for partition than though they were owners of distinct pieces 
 of property. This is well illustrated by a case decided in 
 the State of Illinois. The property sought to be partitioned 
 was a brick building known as the Morgan House. The de- 
 fendant owned portions of the ground on which the building 
 stood, and the first story of the building, subject to the right 
 of the plaintift' to use a specified cellar, and to pass to and 
 from the same by passages and doors. The defendant had 
 also the use of a well, and a right to have certain passages 
 
 ' Sec. 87.
 
 § 431 WHAT MAY BE PARTITIONED. 522 
 
 kept open for his use around and through the premises. 
 The plaintiff, in addition to having the right to have certain 
 passages kept open for his use, owned a portion of the 
 ground under the Morgan House, together with all the build- 
 ing above the first story. "The condition of the property 
 being so anomalous, and causing much irritation and litiga- 
 tion between the parties, McConnel (plaintiff) proposed to 
 have the property valued, and he would give Kibbe (defen- 
 dant) his share of the valuation, or would take from Kibbe 
 his own share of the valuation, so that the property might be 
 the exclusive property of the one or the other; or that a sale 
 should be made, and the proceeds thereof divided according 
 to their respective interests in the property, both of which 
 propositions Kibbe declined. McConnel then filed his bill 
 for a partition, which on the hearing was dismissed, for the 
 reason that a Court of Chancery had no jurisdiction of the 
 subject, there being no joint estate in the property shown, 
 but a separate estate, in separate and distinct parts thereof, 
 as shown by the deeds." From the decree of dismissal an 
 appeal was taken to the Supreme Court, where a judgment 
 of affirmance was entered. Mr. Justice Breese delivered the 
 opinion of the Court, in the course of which he said: "The 
 complicated nature of these several holdings is shown in the 
 bill, and the litigation to w^hich they have given rise, and may 
 hereafter prompt, is unfortunate perhaps for both parties, 
 but we are not aware of any principle of law or equity which 
 can compel either party to dissolve the connection, or to part 
 with his separate portion of the premises. We are satisfied 
 neither a court of law nor equity has jurisdiction over the 
 case as presented by these pleadings, and accord with ap- 
 pellee in the proposition that no power exists to compel the 
 fusion of these estates, to be followed by a sale and finally 
 by a distribution of the proceeds. The idea of the plaintiff 
 in error that he and the defendant in error hold this property 
 jointly is not supported by the title deeds. They are neither 
 joint-tenants, tenants in common, nor coparceners, but they 
 severally, each for himself, own distinct portions of the 
 premises, the character of which a Court of Chanceiy has no 
 power to change."^ 
 
 ' McConnel v. Kibbe, 43 111. 12.
 
 523 WHAT MAY BE PARTITIONED. g§ 432-33 
 
 § 432. Lands held subject to Dower. — A widow entitled 
 to dower is not regarded as a cotenant.' Where her inchoate 
 right of dower attached anterior to the existence of the co- 
 tenancy, it cannot, in the absence of statutory provisions to 
 the contraiT, be affected by proceedings in partition. Her 
 interest is not that of a cotenant, nor is it in au}- respect de- 
 pendent on the interest of a cotenant. It is paramount to 
 the cotenancy, and she may have it assigned irrespective of 
 any vohintary or compulsory division made among the co- 
 tenants. In an early case in New York, the heirs of one 
 Bradshaw instituted proceedings for partition to which they 
 made his widow a defendant. She was summoned to appear, 
 but disregarded the summons, and allowed judgment to go 
 against her by default. Afterwards, she brought an action 
 of dower, wherein it was held that ' ' the proceedings under 
 the partition act were null and void, as respects the claim of 
 the demandant for dower. She was not bound to appear and 
 plead; and her not appearing cannot prejudice her present 
 claim. The judgment in partition could only affect her rights, 
 if any she had, as a joint-tenant, tenant in common, or in co- 
 parcenary.''- The same reason which, before the assignment 
 of her dower, exempts a widow from the operation of the law 
 of compulsory partition, operates with equal force after such 
 assignment has been made. Notwithstanding the assignment 
 vests in her a present estate, it does not make her a cotenant 
 with the heirs of her husband.^ When an inchoate right of 
 dower is attached to a moiety instead of an estate in severalty, 
 it is not paramount to the cotenancy. It may therefore be 
 subjected to either a voluntary^ or a compulsory^ partition 
 whereby it is removed from the whole tract and attached to 
 the purparty assigned in severalty to the husband. 
 
 g 433. Difficulty and hardship of making Partition. — 
 Physical difficulties in making a division, arising from the fact 
 
 ' Sc'C sec. 108. 
 
 - Bradshaw v. Callaghan, o Johns. 80. Aflirmed on this point, but reversed on 
 others, Bradshaw v. Callaghan, 8 Johns. 558; aJso approved. Coles i'. Coles, 15 Johns. 
 321; White u. White-, 10 Gratt. 2C7. 
 
 ' Clark V. Richardstjn. .32 Iowa, -101. 
 
 ♦ See sec. 411. 
 
 => Coles V. ColeB, 15 Johns. 321.
 
 § 433 WHAT MAY BE PARTITIONED. 524 
 
 that the property sought to be divided is not partible, are 
 rarely if ever sufficient grounds upon which to deny a parti- 
 tion. According to the weight of the authorities, every co- 
 tenant is entitled as a matter of right to demand a partition 
 of the subject of the cotenancy, and this right cannot be de- 
 feated by showing that a partition wotdd be inconvenient, in- 
 jurious, or even i-uinous to the parties in interest. An early 
 case in Vermont was evidently determined upon the theory 
 that where partition could not be made without operating, 
 practically, as a destruction of the property, it would not be 
 ordered. The property involved in this case, and of which 
 partition was denied, was a saw-mill and utensils, together 
 with the mill yard and pond.^ It is quite certain that the 
 English Courts would have evinced no hesitation in acting in 
 a case as difficult as that refeiTed to in Vermont. According 
 to Mr. Allnatt, " if there is only one entire subject-matter of 
 division, it must be severed into shares, although the diffi- 
 culty of doing it should be almost insuperable, and although 
 it should be attended with the most palpable inconvenience 
 and even destruction;"'^ and certainly the authorities cited 
 by him fully sustain the rule which he has thus announced. 
 In the first case which he cites, ^ the objections to the partition 
 made and overruled were: 1st, that the estate consisted of 
 permitting the New River Company to lay pipes through the 
 groimds in the part of the estate known as the Cold Bath 
 Fields, which pipes were so arranged that they could not be 
 partitioned; 2d, that in the Cold Bath Fields were certain 
 water conduits, drains, and springs; 3d, that there were a 
 great many leases expiring at different times, and a great in- 
 equality in the goodness, nature, and situation, as to pleasure 
 and convenience, of the several houses on the estate; 4th, 
 that if a partition were made, it would be in the power of the 
 one having the allotment on which the bath was not situated, 
 by digging foundations for buildings, sinking cellars, etc, , to 
 prevent the waters which supplied the bath from flowing to 
 it, whereby the value of the bath would be destroyed. In a 
 
 ' Brown v. Turnea-, 1 Aik. 353. See also Conant v. Smith, lb. 67; Miller v. Mill er, 
 13 Pick. 237. 
 •■' Alluait on Partition, 85; Danl. Ch. Pr. 4th ed. 1157. 
 =* Warner v. Baynes, and Baynea v. Warner, Amb. 589.
 
 526 WHAT MAY BE PAETITIONED. g 433 
 
 very difficult case on a bill for partition before Sir Thomas 
 Gierke, Master of the KoUs, he said : ' ' Such a bill is a matter 
 of right, and there is no instance of not succeeding in it, but 
 where (there) is not proof of title in plaintiff."^ In a case 
 before Lord Chancellor Eldon, the subject of partition was a 
 house. This house was specially valuable both to the com- 
 plainant and to the defendant : "to the defendant as a shop- 
 keeper, and to the complainant as contiguous to other estates." 
 His Lordship had no doubt what should be done, but as the 
 partition seemed to be ruinous to the parties, and as the com- 
 plainant had made an offer to buy or sell at a specified price, 
 the case was continued "out of mercy to the parties," to 
 "give the defendant time to come into terms." Subse- 
 quently, the defendant not coming to terms, the commission 
 was ordered to proceed. When the commission was exe- 
 cuted, "an exception was taken by the defendant, on the 
 ground that the commissioners allotted to the plaintiff the 
 whole stock of chimneys, all the fire-places, the only stair- 
 case in the house, and all the conveniences in the yard. The 
 Lord Chancellor overruled the exception, saying, he did not 
 know how to make a better partition for these parties; that 
 he granted the commission with great reluctance, but was 
 bound by authority; and it must be a strong case to induce 
 the Court to interpose, as the parties ought to agree to buy 
 and sell." 2 In the United States, the manifest hardship 
 arising from the division of property of an unpartible nature 
 has been generally, and almost universally, avoided by 
 statutory provisions authorizing the sale of property when 
 its division Avould tend to greatly depreciate its value, or 
 otherwise to seriously prejudice the interests of the coten- 
 ants; but enough may be gathered from the American de- 
 cisions to show that they in general indorse the English ad- 
 judications on this subject, and that the American Courts, 
 whenever their responsibility had not been lessened by stat- 
 ute, followed the English Judges, and directed partitions to 
 be made irrespective of the consequences. The Supreme 
 
 ' Parker v. Gerard, Amb. 23G. For other extrcmo caKcs, sec Norris v. Lo Neve, 3 
 Atk. 83; Manaton v. Squire, 2 Ch. Ca.s. 237; Earl of Clarendon v. lloruby, 1 P. WmB> 
 440; Agar v. Fairfax, and Agar v. Holdawortli, 17 Vea. 533. 
 
 - Turner v. Morgan, 8 Ves. 143.
 
 §433 WHAT MAY BE PARTITIONED. 526 
 
 Court of Maine, on an application for the partition of a mill 
 and mill privilege, after examining the authorities then exist- 
 ing on the subject, said: "We come to the conclusion that 
 if the petitioner, as he alleges, is interested with others as 
 tenants in common in the real estate described in his peti- 
 tion, he may claim of right to have partition made and his 
 share set off and divided from the rest, however inconvenient 
 it may be to make such partition, or however much the other 
 cotenants or the common property may be injured thereby."' 
 This general language is in harmony with that employed both 
 before and since in other American Courts." Partition in 
 some form, unless waived by an agreement between the co- 
 tenants, is something to which each has an absolute and un- 
 conditional right. In invoking the aid of a Court of compe- 
 tent jurisdiction to enforce this right, he need not show any 
 special cause for the partition. That he is a cotenant and 
 no longer wishes to remain so, is sujB&cient to entitle him to 
 relief.'* If the situation and character of the property are 
 such that the Court will not order it to be divided, then it 
 must be sold. For partition either by a division of the prop- 
 evty or by its sale and a division of the proceeds, is a matter 
 of absolute right, against which no considerations of hard- 
 ship, inconvenience, or loss, on the part of the other coten- 
 ants, can prevail.* But Courts will make a division of the 
 property whenever they can do so without great detriment to 
 the parties in interest. When the property is not susceptible 
 of a division so as to assign each cotenant a part to hold in 
 severalty, a court of equity maj^ interpose and regulate the 
 enjoyment of the whole property in such manner as it deems 
 most just. Partition may be made of water rights,* of mills 
 and mill privileges,*^ and of mines. ^ 
 
 ' Hauson v. Willard, 12 Me. 147. 
 
 ^ LedbetteriJ. Gash, 8 Ired. 462; Steedman v. Weeks, 2 Sti'ob. Eq. 146; Crompton 
 V. Ulmcr, 2 Nott & McC. 432; Donneii v. Mateer, 7 Ired. Eq. 94; Scovil v. Kennedy, 
 14 Conn. 360; Smiih v. Smith. 10 Pai. 473; Wood v. Little, 35 Me. 110. 
 
 " Bradiey f. Harkaess, 26 Cal. 77; Lake r. Garret, 12 Ind. 395. 
 
 * Harteaann v. Hartmann. 59 Hi. 103; Eovstou v. Eoyston, 13 Geo. 425; Higginbot- 
 tom V. Short, 25 Miss. 160. 
 
 a Morrill V. Morrill, 5 N. H. 134; Monroe v. Gates, 48 Me. 467; Smith v. Smith, 10 
 Pai. 470; McGilhoi-ay v. Evans, 27 Cal. 96. 
 
 « Hanson v. Willard, 12 Me. 142. 
 
 ' Adam v. Briggs Iron Co. 7 Gush. 365.
 
 527 WHAT MAY BE PARTITIONED. ^ 434 
 
 § 434. Incorporeal Hereditaments. — Incorporeal as well 
 as coi-poreal property may be the subject of proceedings for 
 partition in equity.' Upon a bill in Chancer}' to have parti- 
 tion of an advowson by alternate presentations, the Court de- 
 clared the parties entitled to partition, and directed a decree 
 of partition to be entered requiring the plaintiff and defend- 
 ant to mutually execute conveyances ' ' to each other, so that 
 plaintiff may hold one moiety of the advowson to him and 
 his heirs, and the defendant the other moiety to her and her 
 heirs, as tenants thereof in severalty respectively;" and that 
 in such conveyance a clause should be inserted, "that the 
 plaintiff and his heirs and the defendant and her heirs should 
 present by alternate turns. "^ To a bill seeking a partition of 
 tithes, a demurrer was interposed, whereupon the Lord Chan- 
 cellor (Hardwicke) said: "An ejectment will lie of tithes; of 
 which execution is a writ of possession; and the sheriff may 
 do as much on partition as on a writ of possession on eject- 
 ment. This is not casual, whether tithes will rise or not. I 
 do not doubt but that this Court can divide them, as it may 
 several things, which cannot at law. Overrule the demurrer 
 therefore."^ But there are certain incorporeal hereditaments 
 of which it seems no partition will be ordered. These are 
 generally, if not universally, included in that class of prop- 
 erty of which division cannot be made without prejudice to 
 the interests of strangers to the cotenancy. They embrace 
 reasonable estovers, corodies uncertain, piscaries uncertain, 
 and commons sauns ')iomhre.^ The reason why a piscary un- 
 certain or a common sauns nomhre cannot be divided is that 
 such division would multiply the interest originally granted, 
 and inflict on the grantor a hardship never contemplated by 
 him in making the grant." " It seems to be well settled that 
 common of estovers cannot be divided or apportioned. The 
 reason given is, that it would necessarily lead to surcharging 
 the land from which they are taken. More fuel, fences, and 
 
 ' Bailf y v. Siartoii, 1 K. I. 233. 
 
 - liodicoatc v. StccTH, 1 Dick. G9. Bee also Matthews v. Bishop of Bath, 2 Dick. 
 G52; and Bulltr i'. Bishop of Exeter, 1 Vca. Sr. 340. 
 
 * Baxter v. Knowles, 1 Yes. Br. 494. 
 « Co. Litt. 165 «. 
 
 * AlJnatt on Partitiou, 8.
 
 ^ 435 WHAT MAY BE PARTITIONED. 528 
 
 buildings, would be requisite for a number of tenants than 
 for one."^ 
 
 g 435. Mining Interests. — Under a statute providing that 
 when two or more persons hold any lands, tenements, or her- 
 editaments, as cotenants, in which one or more of them have 
 an estate of inheritance, etc., any one of them may apply for 
 a partition, it has been held that cotenants of a right to mine 
 may apply and have their property partitioned. Thus, in 
 New York, the owner of certain lands conveyed all the mines, 
 ores, minerals, and metals lying in the lands, with the right 
 to raise, work, and carry away said mines, ores, minerals, 
 and metals, to have and to hold unto the grantees named in 
 the conveyance and their heirs and assigns forever. An ap- 
 plication for the partition of the estate thus granted was op- 
 posed on the ground that it was not an estate of inheritance. 
 The Supreme Court determined that it was not only an estate 
 of inheritance but also an estate in fee-simple; that although 
 there cannot be two "fee-simples absolute in one and the 
 self -same land," yet that "the mines, ores, and minerals be- 
 ing land, a man may have a fee-simple in them as well as he 
 who holds the soil that remains unconveyed may have a fee- 
 simple, for they are not the self-same land. " The Court also 
 distinguished the case before them from the case of Lord 
 Mountjoy, referred to by Lord Coke, and showed the differ- 
 ence between the two cases to be this : that in Lord Mount- 
 joy's case, the grant was of a mere permission to dig, etc., 
 and notwithstanding this grant, the grantor might also dig 
 ad libitum. The right granted as well as the right retained 
 was uncertain; and uncertain interests could not be parti- 
 tioned. But in the case before the Court, all the ores, min- 
 erals, etc., were granted. It was therefore immaterial to the 
 grantor whether the property or right granted was thereafter 
 held by one person or by fifty." In California, the interests 
 of miners in mines situate upon lands belonging to the United 
 States have always been regarded as legal estates of freehold." 
 
 ' Livingston v. Keteham, 1 Barb. 597. 
 ■'' Canfield v. Pord, 16 How. Pr. 473; S. C. 28 Barb. 336. 
 
 » Merritt v. Judd, 14 Cal. 64; Merced Mining Co. v. Fremont, 7 Cal. 319; Waits v. 
 White, 13 Cal. 324; McKeon v. Bisbee, 9 Cal. 142.
 
 629 WHAT MAY BE PARTITIONED. gg 436-37 
 
 They are therefore liable to partition under the statute of 
 that State, which is substantially like that of New York.' 
 But where the interest sought to be partitioned is not a dis- 
 tinct right of property in the mines, but a mere license to 
 mine in the lands of another, "it is indivisible, because a 
 division of the right would create new rights, and would pre- 
 judice the oviTiers of the soil.' 
 
 § 436. Growing Timber. — The right to growing timber 
 constitutes an estate very similar in its nature to that which 
 we have considered in the preceding section. In South Caro- 
 lina, the owner of certain lands, by his deed, sold and con- 
 veyed * ' one-haK of all the timber suitable for sawing liunber 
 on said lands together with all the right and privilege of cut- 
 ting said timber, with the privilege of roads to and through 
 the lands for the pui*poses of hauling said timber." The 
 grantor and the gi*antee soon became involved in contention 
 and difficulty in regard to the timber, when the latter applied 
 to a court of equity for a partition. This the grantor resisted, 
 claiming that the interest in controversy was not subject to 
 partition. Upon appeal, it was held that as Chancery had 
 jurisdiction over both real and personal property, it would 
 order a partition, and that it was not material to inquire 
 ' ' what was the character of the comj)lainant's estate — whether 
 real or personal — whether tenement or hereditament — whether 
 savouring of the realty or altogether personal."^ 
 
 g 437. Several tracts or parcels of land may together 
 
 form the Subject-matter of a single proceeding for compul- 
 sory partition.^ But in order to justify the union of several 
 parcels in one suit, each j)arcel must be owned by the same 
 persons.^ If, however, the cotenants of each tract be the 
 same, it is not essential that the interest of each one should 
 be of the same quantity in each tract. Hence, A, being the 
 owner of two-thirds of Black Acre and one-third of White 
 Acre, may, in one suit, compel partition of both tracts against 
 
 ' Hughes V. Devlin, 23 Cal. 505; Rockwell on Mines, 548. 
 ^ Steedman v. Weeks, 2 Strob. Eq. 140. 
 ^ Hagar v. Wibwall, 10 Pick. 152. 
 
 ' Kiteheh v. Sheets, 1 Carter, 138; BrownwcU i'. Bradley, IC Vt. 106; Hunnowell v. 
 Taylor, 3 Gray, 112. 
 
 C. & p.— 34
 
 § 438 WHAT MAY BE PARTITIONED. 530 
 
 B, who owns one-third of the former tract and two-thirds of 
 the latter.' 
 
 § 438. Property of ^vhich Partition will not be Or- 
 dered. — As neither mere difficult}- in making a division of 
 property, nor inconvenience, nor pecuniary loss likely to be 
 produced by the division or sale thereof, suffice to bar a co- 
 tenant's right to partition, it is evident that if a bar to such 
 right anywhere exists, it is useless to seek for it either in the 
 non-partible character of the subject of the cotenancy, or in 
 considerations having reference to the pecuniary welfare of 
 the cotenants. We think that if any species of corporeal 
 property is not now subject to proceedings for compulsory 
 partition, it embraces only those things the division of which 
 would be against public right or policy, or would tend to im- 
 pair some paramount right existing in a stranger to the co- 
 tenancy, or would outrage the public sense of 'propriety, de- 
 cency, and good morals. Of the things which cannot be 
 divided because the division would work detriment to the 
 public, Lord Coke produces an instance where he says: "If 
 a castle that is used for the necessary defence of the realme, 
 descend to two or more coparceners, this castle might be 
 divided by chambers and roomes, as other houses be. But 
 yet, for that it is pro hono 'publico et pro defensione regni, it 
 shall not be divided."^ Lord Coke also mentions the follow- 
 ing instance in which partition cannot be made because it 
 would prejudice the rights of a stranger to the cotenancy: 
 "The lord Monnijoy, seized of the mannor of Ganford in fee, 
 did by deed indented and inrolled bargaine and sell the same 
 to Browne in fee, in which indenture this clause was con- 
 tained : Provided alwayes, and the said Browne did covenant 
 and grant to and with the said lord Mountjoy, his heires and 
 assignes, that the lord Mountjoy, his heires and assignes, 
 might dig for ore in the lands (which were greate wasts) par- 
 cell of the said mannor, and to dig turfe also for the making 
 of allome. And in this case three poyntswere resolved by all 
 the judges. First, that this did amount to a grant of an in- 
 terest and inheritance to the lord Mountjoy to digge, <fec. 
 
 ' Halton V. Earl of Tlianet, 2 W. Bla. 1134; Hunnewcll v. Taylor, 3 Gray, 112. 
 ■^ Co. Litt. 165 n.
 
 531 WHAT MAY BE PARTITIONED. § 438 
 
 Secondly, that notwithstanding this grant, Browne his heires 
 and assignes might dig also, and like to the case of common 
 sauns noiuher. Thirdly, that the lord Mouutjoy might assigne 
 his whole interest to one, two, or more; but then, if there be 
 two or more, they could make no divission of it but work to- 
 gether with one stock; neither could the lord Mountjoy as- 
 signe his interest in any part of the wast to one or more, for 
 that might work a prejudice and a surcharge to the tenant of 
 the land; and therefore if such an incertaine inheritance de- 
 scendith to two coparceners, it cannot be divided betweene 
 them."' An action of partition brought in Pennsylvania by 
 one church against another seeking the division or sale of a 
 graveyard, furnishes a good illustration of a species of prop- 
 erty over which Courts will refuse to act, because, in so do- 
 ing, they would outrage the public sense of propriety and 
 decency. In the case referred to, the evidence disclosed that 
 the two religious corporations had at an early period united 
 their means, and had thereby procured certain real estate ; 
 that they, in pursuance of their original design, erected a 
 church on their land and used the same in common ; that the 
 lands adjacent to the church had long been used as a grave- 
 yard; and finally, that the parties were no longer able to use 
 their property without discord and contention. After stating 
 the evidence. Woodward, J., delivering the opinion of the 
 Supreme Court, said: "But Avhat can the law do for parties 
 in such imhappy circumstances? Divide their property, say 
 these plaintiffs. The law of partition in Pennsylvania is 
 adapted to every exigence of tenancies in common; for, if 
 the property cannot be parted without prejudice, it may be 
 put into the market and sold, and in general partition is a 
 right of tenants in common. Yet circumstances of their own 
 creation will sometimes induce the Courts to deny them this 
 right, a striking instance of which may be seen in Coleman 
 V. Coleman, 7 Harris, 100. Here we have circumstances es- 
 sentially difterent, but equally dissuasive from granting par- 
 tition. The members of two religious societies, under ar- 
 ticles of association which look to a permanent and inter- 
 minable union, erect a church and establish a burying-grouud. 
 
 ' Cu. Litt. 105 fl.
 
 g 439 WHAT MAY BE PARTITIONED. 532 
 
 A whole generation liave worshipped in the church and now 
 sleep in that ground. Their children and successors being 
 unable longer to enjoy the house of worship together, it is 
 proposed to make partition. The Lutheran portion object to 
 this, on the ground that they are unable to take the property 
 at a valuation and pay for it, and are unwilling that the altar 
 and the graves of their fathers should be brought to public 
 vendue. We think their objection well grounded and worthy 
 of respect. The church could not be divided, and to separate 
 it from the burial-places would only be a species of sacrilege, 
 but would materially impair the value of both parts of the 
 property. The only form in which the partition asked for 
 could be made would be by public sale; and what would 
 these graves, of inestimable value to surviving relatives, 
 fetch in market? They would prove a prejudice to the prop- 
 erty and would depreciate its price. And then, in the hands 
 of a purchaser, they would be almost sure of desecration. 
 Pennsylvania, with a refined and elevated sense of what is 
 due to both the dead and the living, has forbidden, by stat- 
 ute, the opening of streets, lanes, alleys, or public roads, 
 through any burial-ground or cemetery, and has provided a 
 penalty for wilful injuries done to graveyards— not only to 
 the tombstones and fence-railings, but even to the shrubs 
 and plants which bereaved love cultivates in such places. 
 The sentiment is sound, and has the sanction of mankind in 
 all ages which regards the resting-place of the dead as hal- 
 lowed ground — not subject to the laws of ordinary property, 
 nor liable to be devoted to common uses. We do but express 
 the concurrence in this sentiment which we feel, when we 
 hold that a church and burial-ground situated as these now 
 under consideration, and owned by distinct religious societies 
 as tenants in common, are not within the spirit and meaning 
 of the statutes of partition."^ 
 
 § 489. Of the Estates -which may be Partitioned. — The 
 
 statute of 31 Henry VIII., conferring upon joint-tenants and 
 tenants in common the right to partition, was limited in its 
 operation to estates of inheritance in manors, lands, tene- 
 
 > Browu V. Lutheran Church, 23 Penn. St. 500.
 
 533 WHAT MAY BE PARTITIONED. g 439 
 
 ments, and hereditaments. The remedy given by this statute 
 Tras analogous to that before open to parceners by the writ of 
 partition.^ The statute of 32 Henry YIII. extended the 
 remedy to estates for term of life or years, and also to estates 
 in -which some of the cotenants held for term of life or years 
 and others held estates of inheritance. At the common law, 
 none but parties having estates in possession were bound by 
 the judgment. It could not affect estates in remainder or 
 contingency.'- 'Estates at will were not within either of the 
 statutes referred to; therefore, no writ of partition could be 
 sued out against the tenant of such an estate. ' 'A copyholder, 
 therefore, although of inheritance, shall not have writ under 
 these statutes. In short, no person can have it, unless his 
 estate be, at least, one for years, in freehold lands properly so 
 called, as contradistinguished from lands held by base ten- 
 ure."^ Courts of equity, as has been shown,^ on account of 
 the absence of any remedy at law, have long assumed and 
 exercised jurisdiction over the partition of pei*sonal property. 
 A similar reason might have justified a similar assumption in 
 the case of copyhold estates. But, notwithstanding some 
 doubts expressed upon the subject, it seems clear that Chan- 
 cery never exercised any authority over copyhold estates,'' 
 (except when they were connected with freehold estates,) 
 until jurisdiction was granted to it by statute 4 and 5 Vict., 
 ch. 35, sec. 85. According to Mr. Allnatt, it may now "be 
 stated as a general proposition, that partition will be decreed 
 for and against such persons as are able to convey their un- 
 divided shares, for the purpose of completing partition. If 
 persons seized of particular estates, together with the rever- 
 sioners or remainder-men, are made jDarties, partition may 
 well be made, because they are together competent to convey 
 the whole interest. But if the reversioner or remainder-man 
 is not joined, then, although partition will be decreed, be- 
 
 ' AUnutt on Partition, 57. 
 
 - Bipsham'H Principles of Equity, bcc. 488. When partitiou w:is made by teuautrt 
 for life or for years, it was necessary, to make tlie partition absolute, to have another 
 writ against the remainder-man, when bis estate euiao into possession. Allnatt, 64. 
 
 '^ Allnatt on Partition, G2 
 
 ^ See sec. 420. 
 
 ^ Scott ?'. Fawcett, 1 Dick, 299; Horncastle r. Oburleswortli, 11 Sim. 315; Jojw v. 
 Morsbead, G Beav. 213.
 
 g 440 WHAT MAY BE PARTITIONED. 534 
 
 cause the particular tenant would be entitled to it at law, yet 
 it will only be of temporary duration."' Courts of equity 
 regard equitable titles as true and perfect. They will there- 
 fore recognize those titles and deal with them in proceedings 
 for partition. 2 In one respect, their jurisdiction over such 
 titles is more ample than over legal titles; for if a dispute 
 arises in reference to a legal title, a court of equity will not 
 undertake to determine it, but will send the parties to law to 
 have the doubtful legal title litigated and settled. But if in 
 the progress of a partition in Chancery, a question arises in 
 reference to an equitable title, it cannot be sent to law, be- 
 cause it is the proper province of a court of equity to investi- 
 gate equitable titles, and if found worthy, to give them its 
 recognition and support.^ Hence, in one instance, a court of 
 equity decreed a partition of lands held by the defendant 
 adversely to the plaintiff, because the question between the 
 parties was in reference to the equitable title, and the Court 
 having obtained jurisdiction for the purpose of determining 
 that question, could see "no reason for suspending the pro- 
 ceedings short of complete justice between the parties."* 
 Equity may proceed to make partition between owners of the 
 equitable titles, without bringing before the Court those in 
 whom the legal title is vested;^ but at law, where the estate 
 sought to be divided is equitable only, no writ of partition 
 can be sustained.^ 
 
 g 440. Estates in Reversion or Remainder. — The mis- 
 chief attending the ownership of estates in cotenancy, which 
 the various statutes of partition were intended to avoid, was 
 that which arose from disputes in regard to the occupancy of 
 lands. Independent of these statutes, it was possible for 
 each cotenant to harass the others beyond endurance through 
 a vicious assertion of his undoubted right to be in possession 
 
 ' Allnatt ou Partition, 91. , 
 
 ■•' Hitchcock V. Skinner, 1 Hoff. Ch. 24. 
 
 3 Coxe V. Smith, 4 Johns. Ch. 276; Cartwright v. Pultney, 2 Atk. 380; Swan v. Swan, 
 8 Price, 518, Welch v. Anderson, 28 Mo. 293; Herbert v. Smith, 6 Lans. 493; Faust v. 
 Moorman, 2 Carter, 20; Carter v. Taylor, 3 Head, 35; Leverton v. Waters, 7 Cold. 23; 
 Almony r. Hicks, 3 Head, 39. 
 
 * Hosford V. Merwin, 5 Barb. 62. 
 
 ^ Selden v. Vermilya. 2 Sandf. 577; S. C. 9 N. Y. Leg. Obs. 83. 
 
 •^ Coale »'. Barney. 1 G. A' J. 341.
 
 535 WHAT MAY BE PARTITIONED. ^ 440 
 
 of every part of the lands of the cotenancy. No one of the 
 cotenants could use or cultivate any specified part of the com- 
 mon lands to the exclusion of his fellow-tenants; and hence 
 neither cotenant had that incentive to improve or even to cul- 
 tivate the lands of the cotenancy which would invariably at- 
 tend a tenancy in severalty. Through the operation of the writ 
 of partition, it was intended that the undivided possession 
 should be severed, and that each person having the right to 
 be in possession of the whole property should exchange that 
 right for one more exclusive in its nature, whereby, during 
 the continuance of his estate, he should be entitled to the 
 sole use and enjoyment of some specific purparty. But per- 
 sons having estates in land under Avhich they had no right to 
 possession, were, in no respect, inconvenienced or damnified 
 by the undivided possession held by others. Tenants of 
 estates in reversion or in remainder were not permitted to 
 interfere with tenants in possession, because the former had 
 no reason to interest themselves concerning the manner in 
 which the estates of the latter should be enjoyed. On the 
 other hand, it is equally certain that tenants in possession 
 were at law in their power to compel partition confined to their 
 particular estates, and could do nothing towards effecting a 
 severance of estates in remainder or reversion. It was the 
 invariable rule at the common law, .and also under the Eng- 
 lish statutes, that estates in remainder or reversion could not 
 be divided by proceedings for a compulsoiy partition; and 
 this is still the rule under some of the American statutes upon 
 this subject.' Equity, in assuming concurrent jurisdiction 
 with courts of law over the subject of partition, generally re- 
 fused to extend its authority over any species of property of 
 which no partition could bo had at law. To this rule jjersonal 
 property formed an exception. The quotation made in the 
 preceding section from Mr. Allnatt's Treatise on Partition, 
 stating that partition will be decreed for and against such 
 persons as are able to convey their respective interests, is, so 
 far as estates in reversion or remainder are concerned, cer- 
 
 ' Stevens v. Ender«, 1 Green. N. J. 273; Culver v. Culver, 2 Itoot, 278; rac'kiird v. 
 Packard, 16 Pick. 194; ZieglcT v. Grim, G WattH, lOG; Baldwin v. Aldrick, 31 Vt. 532; 
 Brown v. Brown, 8 N. H. 94; Norment v. Wilaon, 5 Humph, 310; ilobertson %>. Rob- 
 crtBOD, 2 Swan, 201.
 
 ^§441-42 WHAT MAY BE PARTITIONED. 
 
 536 
 
 tainly inaccurate. There is no doubt that in England a re- 
 versioner or rema,inder-man cannot maintain a suit in equity 
 for partition, and that equity will not take jurisdiction to 
 partition an estate in reversion or remainder disconnected 
 from an estate in possession.^ 
 
 g 441. States in which Partition may be had of 
 Estates in Reversion or Remainder. — In New York, after 
 several decisions to the contrary, it was determined that the 
 statutes of that State authorized a partition to be made at 
 the instance of a tenant in common of a vested remainder, 
 and this whether the present estate were held in cotenancy or 
 in severalty.^ But a tenant in common of a contingent re- 
 mainder, as he may never have any interest in the property, 
 is not entitled to a partition even in New York.^ In Illinois, 
 the statute provides for partition, on the petition of any one 
 or more of the persons interested; and that the petition shall 
 set forth the rights and titles of all the parties in interest, in- 
 cluding tenants for years, for life, by curtesy, or in dower, 
 and of persons entitled to the remainder or reversion. It 
 was held that as this statute contained nothing requiring that 
 the applicant should have an estate entitling him to be in 
 possession, and as it clearly contemplated bringing before 
 the Court the owner of the life estate, it must be construed 
 as authorizing a reversioner or remainder-man to maintain a 
 suit for partition against the owner of the remaining un- 
 divided interest in reversion or remainder, although the 
 whole premises were subject to an unexpired life estate.* A 
 like construction was given to a similar statute in Minnesota.'^ 
 
 g 442. Agreements not to Partition. — We have spoken 
 of the right of partition as an absolute right incident to 
 every species cotenancy, (except that dependent for its 
 creation and continuance on the marital relations of the co- 
 tenants,) and as yielding to no considerations of hardship or 
 inconvenience. In so speaking, we have had in view the law 
 
 ' Evans v. Bagsliaw, L. K. 8. Eq. 469; affirmed, L. E. 5 Cb. Ap. 340. 
 
 ■^ Blakely v. Calder, 15 N. Y. 623. 
 
 ^ Woodruff V. Cook, 47 Barb. 309. 
 
 ■• Scoville V. HiUiard, 48 lU. 453; Hilliard v. Scoville, 52 111. 449. 
 
 » Cook V. Webb, 19 Minn. 170.
 
 537 WHAT MAY BE PARTITIONED. § 442 
 
 of cotenancy and partition as it exists independent of express 
 or implied agreements between the respective parties in in- 
 terest. There are cases from which it might be inferred that 
 the right to partition cannot be waived, and that, to an ap- 
 plication for partition, no other defense will be noticed by 
 the Courts than that the paiiies do not hold the property to- 
 gether and undivided. In Massachusetts, the defendants 
 presented a plea in bar, by which they denied the petitioner's 
 right to partition, because the lands to be divided belonged 
 to the proprietors of the common and undivided lands on the 
 Island of Nantucket; that such proprietors, "from the time 
 whereof the memory of man is not to the contrary," had 
 been an ancient body politic and corporate, and had, dming 
 all the time, been invested with the exclusive right, at their 
 corporate meetings, to divide, dispose of, manage, and im- 
 prove their common lands in such manner as they should 
 deem just and equitable; and that, during all such time, it 
 had never been competent for any member of the corporation 
 to have any of the lands set off or divided to him by petition 
 for partition. In reference to this plea, the Court said: 
 * ' Such a prescription as is attempted to be set up is against 
 the law of the land, and cannot be supported. It is essential 
 to an estate in common to be subject to partition."^ In this 
 case, it is true, no agreement against partition was attempted 
 to be asserted. But the theory upon which the Court acted 
 seems to be this : that anything militating against the right 
 of partition is so repugnant to the essential characteristics 
 of cotenancy that it cannot be allowed to prevail under any 
 circumstances. The civil law refused to enforce agreements 
 perpetually waving the right to partition, and gave an excel- 
 lent reason for so refusing. According to Domat : " It is 
 always free for every one of those who have anything in com- 
 mon among tnem to divide it, and although they may agree 
 to put off the partition to a certain time, yet they can make 
 no such agreement as never to come to a partition. For it 
 would be contraiy to good manners that the proprietors 
 should be forced to ha^'o always an occasion of falling 
 out, by reason of the undivided possession of a common 
 
 ' Mitchell V. Starbuck, 10 Mabs. 11.
 
 § 442 WHAT MAY BE PARTITIONED. 538 
 
 thing."' It may be that an agreement never to partition a 
 particular parcel of real or personal property, if supported 
 by no other consideration than the mutual compact between 
 the parties, would be ignored in England and in the United 
 States, for the reason suggested by Domat, where the rights 
 of the respective parties remained as before the agreement, 
 and neither had, because of his reliance upon such agreement, 
 done nor forborne to do some particular act. But we think 
 the decided preponderance of authority supports the proposi- 
 tion, that the general principle of law that the right to parti- 
 tion is absolute must be confined ' ' in its application to or- 
 dinary joint-tenancies or tenancies in common, where the 
 right of partition is left to result as an ordinary legal incident 
 of such tenancy, and that it was never intended to interfere 
 with contracts between the tenants modifying or limiting this 
 otherwise incidental right, nor to render it incompetent for 
 parties to make such contracts, either at the time of the crea- 
 tion of the tenancy or afterwards.'"- But where property is 
 purchased by two or more persons for specified purposes, and 
 these purposes can be accomplished only by the parties con- 
 tinuing cotenants, and there is sufficient to establish an ex- 
 press or implied agreement that the property shall remain 
 undivided, we think no Court would compel a partition to be 
 made. To do so would be to assist the complainant in con- 
 summating a fraud upon his cotenants. In England, four 
 persons purchased certain land ; and, on the day of their pur- 
 chase, executed a written agreement regulating the mode in 
 which the land was to be laid out into lots and sold for build- 
 ing purposes, and providing that if either party, or his heirs, 
 should be desirous of selling his share, it should first be 
 offered to the other parties at a price fixed by the vendor. 
 If the others refused to pay such price, the share might be 
 sold to any other person, to be first approved by the rest of 
 the cotenants. If such purchaser should be refused or re- 
 jected, then the share was to be valued by arbitration; and 
 if the others refused to purchase at the price named by the 
 
 I Domat's Civil Law by Strahan, Part I. B. II. Tit. V. sec. 11; Code Napoleon, sec. 
 815; Civil Code Lower Canada, sec. 689. 
 
 ^ Avery v. Payne, 12 Mich. 549. See also Coleman v. Coleman, 19 Penn, St. 100; 
 Hoyt (1. KimbaU, 49 N. H. 322.
 
 539 WHAT MAY BE PARTITIONED. ^ 443 
 
 arbitrators, the share might be sold at public auction. All 
 the parties having died, the representative of one filed a bid 
 for partition against the representatives of the others. The 
 bill was dismissed, on the ground that the agi-eement was a 
 waiver of the right to compel partition.' In New Hamp- 
 shire, several persons, desii'ous of erecting and managing a 
 hotel, purchased lands on which it was to be built. The 
 conveyance contained a provision that the property should 
 be held without partition or division, subject to certain ar- 
 ticles of association entered into between the proprietors. 
 The hotel was built by the association, and after it had been 
 occupied for several years, one of the part owners filed a 
 petition for partition. The Supreme Coui-t denied the par- 
 tition, and decided — 1st, that the proviso in the deed was 
 not repugnant to the estate gi-anted, "for originally at com- 
 mon law a tenant in common could not be compelled to make 
 partition, and the right given by statute being for the benefit 
 of the party, might be waived by him ;" 2d, that it was not a 
 restraint on alienation, for each cotenant might convey his 
 share at pleasure; and 3d, that it was not against public 
 policy.^ 
 
 g 443. Partnership Property. — We have, in another part 
 of this work,^ discussed the question of the effect of partner- 
 ship upon real estate held in the name of the partners as ten- 
 ants in common, and have there endeavored to show under 
 what circumstances and to what extent such real estate may 
 be withdrawn from the operation of the law of cotenancy, 
 and placed under the dominion of the law of copartnership. 
 We think that whenever any property is acquired or held by 
 two or more persons apparently as c(^tenants, but really under 
 such circumstances that it is to be regarded as dedicated to 
 partnership uses and purposes, and as liable to bo taken in 
 satisfaction of partnership obligations, it must be considered 
 as withdrawn from the law of partition, and as continuing so 
 withdrawn as long as the partners or their creditors have the 
 right to insist on its being devoted to partnership uses or to 
 the discharge of partnership liabilities. The decisions on 
 
 ' Peck V. Cardwcll, 2 Beav. 137. - limit <-. Wright, 47 N. H 'W!'. 
 
 2 See sees. Ill to 120.
 
 ^ 443 WHAT MAY BE PARTITIONED. 540 
 
 this subject are less satisfactory than we had reason to ex- 
 pect; and some of them, though too vaguely expressed to be 
 clearly understood, seem to militate against the position we 
 have taken. Thus, in California, a complaint was filed for 
 the partition of certain mining claims and of a certain min- 
 ing ditch. The defendant answered that he and the plaintifi 
 were partners in the business of mining; that they carried 
 on such business with said mining ground and ditch; and 
 that said ground and ditch constituted the capital stock and 
 means upon and by which the partnership business was car- 
 ried on, to the great benefit and advantage of plaintiff and 
 defendant. To this answer a demurrer was interposed and 
 sustained. Whereupon, the defendant declined to amend, 
 and the Court, without hearing any evidence, gave judgment 
 for the plaintiff, in accordance with the prayer of his com- 
 plaint. On appeal, the action of the subordinate Court in 
 sustaining this demurrer was approved, in an opinion from 
 which the following is an extract: " It is urged that the prop- 
 erty in controversy being used as partnership property, an 
 action for partition will not lie, and that a suit in equity must 
 be brought to dissolve the partnership, and for an account 
 of the partnership business. It does not appear in this case 
 that any suit in equity is necessary to settle and adjust the 
 business of the partnership. The mere fact that real estate, 
 ovmed by persons as tenants in common, or even as partners, 
 is used in partnership business, affords no valid objection to 
 an action to partition the same between the owners."^ In 
 this case, the pleadings disclosed the existence of a partner- 
 ship; that such partnership not only embraced the property 
 to be divided, but that such property was the chief or sole 
 matter with which the partnership dealt, and oat of which 
 its business and profits grew. The partition was therefore 
 equivalent to a compulsory dissolution of the copartnership 
 made in the absence of any disclosed cause. On the other 
 hand, the English Courts regard real estate constituting part 
 of the assets of a trading or commercial partnership, as be- 
 ing so entirely converted into personalty that it must, at the 
 termination of the partnership, be disposed of like other 
 
 ' Hughes V. Devlin, 23 Cal. 507.
 
 541 WHAT MAY BE PARTITIONED. §§ 14d - 40 
 
 personal estate, and cannot be the subject of proceedings 
 for compulsory partition.' In America, the conversion of 
 realty into personalty, by virtue of its becoming the property 
 of a partnership, is usually regarded as operative only so far 
 as may be necessary to discharge the liabilities of the firm, 
 either to third persons or to one of its members." There- 
 fore, in this country, when the firm has been dissolved, or 
 when it is evident that it can no longer continue its business, 
 real estate, constituting part of its assets, may be divided by 
 compulsory partition, if it be shown that such realty will not 
 be required to satisfy any liabiliiies of the copartnership.^ 
 Where real estate belonging to a partnership stood in the 
 name of one of the partners only, and he died, it was held 
 that the surviving partner might by one suit in equity obtain 
 a decree declaring the realty to belong to the partnership, 
 directing a sale of so much thereof as was necessary to pay 
 partnership debts, and making a partition of the remainder.* 
 
 § 444. A tenancy by entirety is dependent for its 
 
 creation and continuance upon the marital relations of the 
 cotenants. Neither can sever the tenancy and leave the mari- 
 tal relations intact. No tenant by the entirety could have a 
 writ of partition against his or her spouse at common law; 
 nor could any tenant by the entirety procure partition by pro- 
 ceedings in equity.'' At the present day, partition of property 
 held in entireties may be obtained in connection with a decree 
 of divorce, or whenever, by a divorce, the legal unity of the 
 cotenants has been destroyed. In other words, Avhile the 
 tenancy by entireties continues, no partition can be made; 
 but when the tenancy has been converted into a tenancy in 
 common, by the destruction of its peculiar and essential 
 unity — namely, unity of person — it may like other tenancies 
 in common be partitioned. 
 
 ^ 445. Community property cannot, during the con- 
 
 ' Wild V. Milne, 2G Bcav. .OOl; Crawsliay v. Maule, 1 Swaii^t. 495, 518; Darby v. 
 Darby, 3 Drcwry, 495, 501. 
 
 ^ Sec sec. 118. 
 
 ^ lioberts v. McCarty, 9 Ind. 18; Dauvcrs o. Dorrity, 11 Ab. I'r. 208; PattLrHou r. 
 Blake, 12 Ii)(l. 43G; Jackson r. Deese, 35 Geo. 88. 
 
 * Gray v. Palmer, 9 Cal. 030. 
 
 * Bee Been. CI, 71.
 
 3 445 WHAT MAY BE PARTITIONED. 542 
 
 tinuance of the marital relations of its cotenants, be the sub- 
 ject of proceedings between them for compulsory partition, 
 unless by such proceedings a dissolution of the marriage is 
 also sought. But when a divorce is about to be granted, the 
 partition of (he common property becomes a proper matter 
 for the consideration of the Court, ' ' and is part and parcel 
 of the decree to be rendered."^ But the Court granting the 
 divorce is not invested with exclusive jurisdiction over the 
 partition of the common property. The parties may seek 
 such partition in the suit for divorce, or they may defer seek- 
 ing it until some future time. If, in the divorce suit, the liti- 
 gation is confined to the investigation and determination of 
 the question whether legal gi'ounds exist for the annulment of 
 the marriage, and if, upon the determination of that question 
 in the affirmative, a decree of divorce is rendered, in which 
 nothing is said about the community effects, such decree 
 leaves the parties at liberty, at any subsequent time, to apply 
 for partition to any Court of competent jurisdiction.^ 
 
 ' Kashaw i'. Kasliaw, 3 Cal. 321; Gimmy v. Ginmiy, 22 Cal. 634. 
 '' De Godey v. Godey, 39 Cal. 162.
 
 CHAPTEK XXI. 
 
 WHO MAY COMPEL A PARTITION. 
 
 Only Cotenants entitled to Possession, ij 446. 
 
 Only Cotenants not Disseized, ^ 447 . 
 
 Exception as to Personal Projierty, ^S 448. 
 
 Exception where Equity has Jurisdiction lor some othtr purpose, § 449. 
 
 States permitting Disseized Cotenant to apply, ij 450. 
 
 Grantee of Cotenant, ij 451. 
 
 Mortgagor aud Mortgagee, $ 452. 
 
 Holder of Equitable Title, $ 453. 
 
 Administrator and Heir, ^ 454. 
 
 Tenant for Life or Years, § 455. 
 
 Tenant by Curtesy and in Dower, 6 456. 
 
 Infants, $ 457. 
 
 Married Women, 6 458. 
 
 Joinder of Applicants, $ 459. 
 
 After-acquired Rights, ^ 460. 
 
 Cotenant by Disseizin or Tax Title, ^461. 
 
 ^ 446. Applicant must be entitled to Possession. — If 
 
 the property of a cotenancy be a proper subject for compul- 
 sory partition, and if some or all of tlie estates held therein 
 be estates of which the Courts will take jurisdiction for the 
 purpose of compelling an enjoyment in severalt}', the next 
 subject for inquiry is whether the person who proposes to 
 file the bill or complaint for partition, is in respect to his 
 present interest in the property, and to his present relations 
 towards it, one of the persons authorized by law to demand 
 its partition. An estate may be one of which Courts may 
 take jurisdiction and compel a partition at the instance of 
 some of the parties interested therein; and yet it may happen 
 that the person desirous of procuring a partition, though a 
 party interested in the property, is not one who may demand 
 its partition. The interest of one of the part owners may be 
 
 543
 
 § 446 WHO MAY COMPEL A PAETITION. 544 
 
 such that he could be compelled to assent to a partition, but 
 not such as to authorize him to demand one from thp other 
 part owners. A familiar illustration of this existed in the 
 case of remainder-men, in proceedings for partition in Chan- 
 cery. Thus a remainder-man might be brought before the 
 Court, in certain cases, and compelled to execute a conveyance 
 for the purpose of carrying out a decree of partition; but in 
 no case could he institute proceedings to enforce compulsory 
 partition. It is a general rule prevailing in England without 
 exception, and also throughout the majority of the United 
 States, that no person has the right to demand any Court to 
 enforce a compulsory partition unless he has an estate in 
 possession — one by virtue of which he is entitled to enjoy 
 the present rents or the possession of the property as one of 
 the cotenants thereof.' Therefore, the grantee of a deed in 
 which the grantor reserves the right to remain in possession 
 during his natural life, cannot maintain a suit for a compul- 
 sory partition.^ So it was held that a tenant in common of 
 lands whose moiety was held by a tenant under a lease had 
 no right to demand partition,^ although the applicant was 
 tenant in common of the rents as well as of the reversion. 
 But probably the weight of the authorities is the other way, 
 and in favor of the rule that, notwithstanding a lease for 
 years, a cotenant both of the rents and of the reversion may 
 call for a partition.* So it is said that notwithstanding a lease 
 from one cotenant to another, a partition could be main- 
 
 ' Brownell v. Brownell, 19 Wend. 367; Hoyle v. Huson, 1 Dev. 348; Whitten v. 
 Whitten, 36 N. H. 332. 
 
 - Nichols V. Nichols, 28 Vt. 230. 
 
 3 Hunnewell v. Taylor, 6 Gush. 474. 
 
 * Woodworth v. Campbell, 5 Pai. Ch. 518; Cook v. Webb, 19 Minn. 172. The words 
 
 of the writ of partition were " that the said A. and B. hold together an undivided 
 
 acres of land with the appurtenances, M , of the inheritance which was 's, 
 
 the mother of the aforesaid A. and B., whose heirs they are." " The word hold, in a 
 wi-it, always implies a tenant of a freehold. And, therefore, the wilt lies against a 
 coparcener, ^lotwithstanding she has made a lease for years; for she still remains ten- 
 ant of the freehold. And if one coparcener make a lease for years to her companion, 
 the former shall have a writ during the existence of the term; for though the com- 
 panion is in possession of the entirety, yet she is only tenant of the freehold in an 
 undivided share; and partition may be awarded with a saving of the term. But if 
 one coparcener make a lease for life, the other shall not have a writ of partition 
 against her, because they do not hold the freehold together; and, therefore, the writ 
 of partition lies against the lessee for life, as tenant of the freehold." (Allnatt on 
 Partition, 52-3; Co. Litt. 167 a.)
 
 545 WHO MAY COMPEL A PARTITION § 447 
 
 tainecl at common law against the lessee ; but that ' ' in sncli 
 case, the judgment was rendered with a saving of the term."' 
 In New Hampshire, the Supreme Court said: "The right of 
 a pai-ty who is entitled to take advantage of a condition 
 broken seems a much more slender title than that of a re- 
 versioner. He has but a right to enter, of which ho may or 
 may not take advantage; and if he waives the forfeiture, as 
 he may, the partition would be without effect." A bill for 
 partition brought by such a party was therefore dismissed.^ 
 
 § 447. Applicant must not be Disseized. — If the party 
 seeking a partition have an estate in the propertj' held by 
 him in cotenancy with others, and such estate entitle him to 
 apply for partition, it is next necessary to inquire concerning 
 his relation to the property in respect to the possession 
 thereof. Proceedings for partition were not designed as an 
 alternative remedy with the action of ejectment. It was al- 
 Avays necessary at common law, and is still essential under 
 most of the American statutes, that the applicant for parti- 
 tion be actually or constructively in possession of the real 
 property sought to be divided. If it be held adversely to 
 the applicant, he must first establish his right by an action 
 to recover possession.^ "In partition, the plaintiff or peti- 
 tioner must allege that he is seized, which imports a present 
 possession as tenant in common or coparcener; and hence it 
 is that non i)isimul tenent is the appropriate issue in partition, 
 because the parties cannot hold together unless their posses- 
 sion as well as their titles are in common. The fact of the 
 adverse holding by one against the other shows that they 
 cannot hold together, and 2'>'^'o indiviso; for the party in pos- 
 session holds the whole in exclusion of the others. A mere 
 
 ' Hunt V. Ilazloton, 5 N. H. 217. 
 
 - Whitteii r. Whittcn, 3G N. H. .333. 
 
 •' Matthewsou v. Johnson, Hoft'. Ch. 560; Bonucr v. The Proprietors, f Mass. 475; 
 Albergottio v. Chaplin, 10 Piicli. Eq. 428; Law u. Patterson, 1 Watts & S. 184; Oravicr 
 v. Ivory, .34 3Io. 523; Forder v. Davis, 38 Mo. 107; McMastcrs v. Carotliers, 1 Pcnn. 
 St. .325; Longwell v. Bontley, 3 Grant's Cas. 177; Rozier v. Johnson, 35 Mo. 331; 
 Burnlians v. Burnlians, 2 Barb. Ch. 405; Thomas v. Garvan, 4 Dev. 224; Giflard v. 
 Williams L. 11. 5 Ch. .54G; Drew w. Clemmons, 2 Jones' F.q. 314, which was for parti- 
 tion of slaves. "If one coparcener disseize another, during this disseizin a writ of 
 jtartition does not lie between them; because they do not hold together and un- 
 divided." (.lYllnatt on Partition, 53; Co. Litt. 1C7 a.) 
 
 C. & p.— 35
 
 g 447 WHO MAY COMPEL A PARTITION. 546 
 
 right of entry, if shown, will not satisfy the terms of the 
 issue; for there is no seizin in the party who is ousted."' 
 "The object of the proceeding in a petition for partition," 
 as understood by the Supreme Court of Vermont, " is to turn 
 an estate that is possessed in common into an estate in sev- 
 eralty, and not to furnish a mode of settling conflicting titles. 
 It is a general rule that a petition for partition cannot be 
 sustained on a mere right of entry. But there is a distinc- 
 tion between a mere possession of the plaintiffs share by a 
 third person or by the defendant and a legal disseizin. In 
 cases where privity has existed between the parties, as in case 
 of joint-tenants or tenants in common, and one tenant ousts 
 his cotenant by taking all the profits to himself, denying his 
 cotenant's right, such a possession may be treated as a dis- 
 seizin, for the purpose of bringing ejectment; or, he may 
 elect to treat such possession of his cotenant as his posses- 
 sion, and, in that event, may maintain a petition for parti- 
 tion. But it would seem from the authorities, if the party in 
 such a case is effectually disseized, they no longer hold the 
 estate together, and he is barred of his remedy for parti- 
 tion."^ The foregoing quotation correctly states the general 
 proposition of law that an actual disseizin is a bar to the ap- 
 plicant's claim for partition; but in attempting to explain the 
 difference between an ouster committed by -a cotenant and 
 one committed by a stranger to the cotenancy, it employs 
 language liable to mislead. We deny that a possession held 
 by one cotenant so adversely and exclusively that he is there- 
 by made liable to an action of ejectment, differs in degree or 
 character from the possession by which he may defeat a peti- 
 tion for partition. Disseizin and ouster are terms having the 
 same signification in partition as in ejectment. In partition 
 as in ejectment, an entry made by a tenant in common, or 
 other cotenant, is x^resumed to be made iai subordination to 
 the common title, and for the benefit of all the cotenants. 
 Such an entry, until shown to have been adverse to the com- 
 mon title, neither subjects the cotenant by whom it was made 
 to an action of ejectment nor affects the power of the other 
 
 1 Clapp V. Bromagbam, 9 Cow. 5C1: Witherypoou v. Duulap, Harper, 390; Jenkins 
 V. Van Schaack, 3 Pai. Ch. 245. 
 ^ Brock V. Eastman, 28 Vt. C60.
 
 547 WHO MAY COMPEL A PAKTITION. g 447 
 
 cotenants to compel partition. The seizin of one cotenant, 
 unless proved to be adverse, is the seizin of all, and either 
 ma J institute proceedings for compulsory partition, though 
 not personally in possession of the property. ' The law upon 
 this subject is coi-rectly stated in the following extract from 
 an opinion of the New York Court of Appeals: "Possession 
 usually follows the legal title when no adverse possession is 
 shown, and consequently, when the lands are unoccupied, the 
 possession will be deemed to be in those having the title; 
 and when one of several tenants in common is in possession, 
 his possession will, in the absence of any act of ouster on 
 his part, inure to the benefit of all. But even the possession 
 of one of the tenants in common may become adverse by acts 
 of his amounting to an exclusion of his cotenants; and if he 
 convey the whole of the premises to a third party, and the 
 purchaser takes actual possession, claiming the whole, it is 
 certain that the possession of such purchaser is adverse, and 
 is not the possession of the former cotenants of his grantor. 
 The moment such adverse possession commences, the holding 
 in common is terminated, and until the excluded parties regain 
 their possession by the appropriate action, I do not see how 
 they can bring themselves within the provision of the statute 
 or the rule of the common law. It would be utterly incon- 
 gi'uous to hold, that where ejectment would lie, the plaintifi" 
 has possession which would entitle him to bring partition. 
 The duration of an adverse possession is material upon the 
 trial of the question of title in an action to recover posses- 
 sion, but it cannot be material in determining where the pos- 
 session was at the time of the commencement of the action."^ 
 A testator devised a tract of land to one of his heirs, subject 
 to the performance of certain conditions subsequent. The 
 devisee entered claiming under the devise, and held posses- 
 sion for several years. Another of the heirs then sued for 
 partition, claiming that the conditions subsequent' had not 
 been performed, and that in consequence of such non-per- 
 formance, the devise had become inoperative. Tlie Court 
 held that tbe entry under the will was clearly adverse to the 
 
 ' Beebe v. Griffing, 14 N. Y. 238. 
 
 * Florence v. llopkiun, 4G N. Y. 18G. Sco also Adam i'. Amco Iron Co. 21 Couu. 235.
 
 §§ 448-49 WHO MAY COMPEL A PARTITION. 548 
 
 other heirs and not as their cotenants; and that if the con- 
 ditions of the will were not performed, the heirs must 
 establish that fact, and their consequent right to enter for 
 condition broken, by an action of ejectment against the per- 
 son in possession.^ 
 
 § 448. Personal Property in Adverse Possession. — The 
 rule that when the defendant is in the adverse possession of 
 the property sought to be divided, the plaintiff will be sent 
 to law to establish his right to possession, has no application 
 to personal property. In this, as in all other cases, the law 
 does not require an attempt to accomplish the impossible. A 
 jDart owner has no remedy at law to obtain possession of a 
 chattel in the custody of another part owner, although the 
 latter repudiates the cotenancy and claims the property in 
 severalty. An action for partition is the proper and only 
 remedy in such a contingency;^ and that, except where a stat- 
 utory remedy has been created, can only be prosecuted wdth 
 success in a court of equity. 
 
 § 449. When Equity w^ill act notwithstanding Adverse 
 Possession. — While a court of equity will not, according to a 
 preponderance of the authorities, sustain a bill for partition 
 against a defendant in adverse possession, yet this rule must 
 be regarded as subordinate to the more general and beneficial 
 rule of equity jurisprudence that "jurisdiction having once 
 rightfully attached, it shall be made effectual for the purposes 
 of complete relief." Hence, when a suit is rightfully in 
 equity, and from the adjudication there made, it appears that 
 the parties are co-owners and entitled to partition, a decree 
 for such partition may be made irrespective of the question 
 whether the complainant is seized or disseized. Thus, where 
 the defendants were in possession claiming under a will, and 
 the complainants filed a bill to have the will construed, and 
 for an accounting and partition, the Court held that having 
 acquired jurisdiction for the purpose of construing the will, it 
 
 ' O'Doiigherty v. Aldrich, 5 Den. 388. 
 
 ' Weeks (1. Weeks, 5 Ired. Eq. Ill; Edwards r. Bennett, 10 Ired. 361; Smith y. 
 Duuu, 27 Ala. 316.
 
 549 WHO MAY COMPEL A PAUTITION. g 450 
 
 had authority to do complete justice between the parties by 
 compelling an accounting and partition.*" 
 
 § 450. States -where Disseized Cotenant may have 
 Partition. — In some of the States, a cotenant though dis- 
 seized may obtain a compulsory partition. Massachusetts 
 was the first to adopt this rule. The case of Barnard v. Pope," 
 decided in 1817, is sometimes cited as furnishing the initial 
 decision upon which the later decisions in the same State rest. 
 But this case can hardly be said to affirm any general prin- 
 ciple of law, or to decide anything except that the petitioner 
 should have judgment. The reasoning of the Court consisted 
 of an allusion to the inconvenience of restricting the remedy 
 by partition; to the fact that some dispossessions did not 
 amount to disseizins, and to the further fact that no ouster, 
 or refusal to account for rents and profits, had been shown. 
 This last circumstance may have controlled the judgment of 
 the Court; and, if so, it was not inconsistent with previous 
 authorities. The statute of Massachusetts under which Barn- 
 ard V. Pope was determined authorized the application for 
 partition to be made by " any person interested luith others i)i 
 ainj lot, tract of land, or other real estate." Subsequently, 
 the statute was changed so as to provide that ' ' all persons 
 holding land as joint-tenants, coparceners, or tenants in com- 
 mon, may be compelled to divide the same;" and to authorize 
 " any one or more of the persons, so holding lauds" to apply 
 "by petition for a partition of the same." Notwithstanding 
 the use of the word ' ' holding, " it was held that no actual 
 seizin was necessary, and that it was immaterial that the ap- 
 plicant had been ousted, if he still had a right to the posses- 
 sion.^ The decisions in Maine, upon this subject are in con- 
 sonance with those of Massachusetts;* and this remark is 
 equally true of adjudications made in some of the other 
 States.-' 
 
 ' Scott V. Guernsey, GO Barb. 178; Ilosford v. Mcrwin, 5 Barb. 62. See also $ 439. 
 
 •^ 14 Mass. 436. 
 
 a Marsihall v. Crohorc, 13 Met. 461, followed in Wood v. Lc Baron, 8 Cush. 474. 
 
 ♦ Baylies v. BuBwey, 5 Greenl. 157; Call v. Barker, 12 Mo. 325. 
 
 * Miller v. Dennett, 6 N. H. 101); Tabler j'. Wiseman, 2 Ohio St. 207; Godfrey c. 
 Godfrey, 17 Ind. 0; Foust o. M(M)rnian, 2 Ind. 17; Cookt'. Webb. l!)Minn. 170; Cuyler 
 V. Ferrill, 1 Abb. C. C. 181; llowey i'. Goings, 13 111. 108; Overton's lleirs v. Wool- 
 folk, 6 Dana, 374.
 
 g 451 WHO MAY COMPEL A PARTITION. 550 
 
 § 451. Transfer of Right to Partition. — The conveyance 
 of his moiety made by any cotenaut is also a transfer of his 
 right to partition. After such conveyance, unless he subse- 
 quently acquires some moiety of the lands of the cotenancy, 
 he cannot demand a partition for any purpose.' His grantee, 
 acquires the right to compel a partition, and usually succeeds 
 to such right with all the limitations and privileges attached 
 to it when it was in the hands of the grantor.^ A cotenant in 
 New York, failing in business, assigned his moiety to certain 
 persons for the benefit of his creditors. These assignees ap- 
 plied for partition. Their right was contested, on the ground 
 that they were simply invested with a power of sale ; and that 
 such a power did not authorize a partition. The Supreme 
 Court granted the petition, on the ground that the assignees 
 had something beyond a power of sale — in this, that they 
 were absolutely seized of the legal estate.^ But Avhere the 
 estate of a cotenant, or his right to possession, is transferred 
 for a temporary purpose, or the transfer is defeasible, the 
 Courts are not inclined to sustain the demand of the trans- 
 ferree for a compulsory partition. Thus, in Massachusetts, 
 where a judgment creditor may levy upon and take possession 
 of the real estate of his debtor and may enjoy the rents and 
 profits of such estate, but his title is liable to be divested by 
 a redemption made within one year, he cannot petition for 
 partition, until, through lapse of time, his estate has become 
 indefeasible. The debtor having the right to redeem ought 
 to be able to do so without being subjected to the expense of 
 partition, and without being obliged to accept a ditfereut 
 estate from that upon which the levy was made.^ At the 
 common law, as the right to compulsory partition was re- 
 stricted to coparceners, it could not be transferred by con- 
 
 1 King V. Howard, 27 Mo. 21. 
 
 ■i Ragan's Estate, 7 Watts, i42; Stewart's Appeal, 56 Pa. St. 2i2; Collamer i'. Hut- 
 chins, 27 Vt. 734. 
 
 3 Van Arsdale v. Drake, 2 Barb. 600. 
 
 * Newton Bank v. Hull, 10 Allen, 145; Phelps i'. Palmer, 15 Gray, 501. But Mr. 
 Hargrave states that in a Coke upon Littleton in his possession there is a note as fol- 
 lows: "Adjudged by St. John chief justice, and Windham and Ai'cher justices. Hilary 
 1659, in the common bench, in the cause between Major and the Lord Coventry, that 
 a tenant by elegit may have a writ of partition by the statute of 32 H. 8, and is with- 
 in the meaning thereof." (Hargrave's Co. Litt. 187 a.)
 
 551 WHO MAY COMPEL A PARTITION. ^ 452 
 
 veyance. The grantee of a parcener could not compel a par- 
 tition. This remark was equally tiiie of all strangers to the 
 blood who had acquii'ed some title or interest under some of 
 the parceners, although the acquisition was by act of law. 
 Hence, a tenant by the cui-tesy could not demand pai*tition. 
 But the transfer of the moiety of one parcener, whether by 
 conveyance or by act of law, did not defeat the right of the 
 other parcener to pai-tition. A wvit of partition lay against 
 a tenant by the curtesy, and also against an alienee of a co- 
 parcener.' But if one coparcener purchased the moiety of 
 another, the purchaser, having one moiety by descent and 
 another by purchase, could sustain a writ against the other 
 coparceners. So, if the husband of one parcener purchased 
 the moiety of another, he and his wife could have a joint -writ 
 against the others, because he was seized of one part in the 
 right of his wife, who was a parcener.- 
 
 g 452. Mortgagors and Mortgagees. — A mortgagor con- 
 tinuing in possession, and before the entry of the mortgagee 
 for condition broken, has the right to compel a partition. 
 But the partition is binding only on his interest, and cannot 
 prejudice the mortgagee.^ On an application for partition, 
 the right of the applicants to the relief sought by them was 
 contested, on the ground that their interests had been con- 
 veyed by mortgage. But the Court disposed of this point by 
 saying : ' ' Between the parties to a mortgage and their as- 
 signs, the title is in the mortgagee or his assigns; but with 
 respect to strangers to the mortgage, the mortgagee in pos- 
 session is regarded as the owner of the estate, and so seized 
 of it as to enable him to convey it, or to maintain a real action 
 counting upon his own seizin. Such title was sufficient to 
 prove the issue of seizin, and to entitle the petitioners to a 
 decision of it in their favor. "^ But if the mortgagee happen 
 to be cotenant of the other moiety, it is said that no action 
 for partition can be sustained against him. " Whetlier the 
 petition for partition be regarded as a real action, in which 
 
 ' Allnatton Partition, 5-i-55; Co. Litt. 174 b, 175 n. 
 '^ Allnatt on Partition, 55; Co. Litt. 175 a. 
 
 » 1 Hill, on Mo:-ts. 13; Colton w. Smith, 11 Pick. 311; Call i'. Barker. 12 Me. 327: 
 Wotten I', Copeland, 7 Johns. Ch. 140. 
 " Upham I). Bradley, 17 Mo. 427.
 
 § 452 WHO MAY COMPEL A PARTITION. 552 
 
 the title is drawn in question, or as a suit for possession, it is 
 an adversary suit, and the mortgagor has both the legal title 
 and the right of possession, as against the mortgagor and 
 those who claim under him. A bill to redeem is the proper 
 remedy, and after redemption a petition for partition may be 
 sustained."' In Massachusetts, it was once spoken of as a 
 perfectly clear matter that the execution of a mortgage by 
 one seized of a moiety, gave to the mortgagee a legal seizin 
 and right of possession., by virtue of which he could sustain 
 a suit for partition.^ At a later date, in the same State, a 
 debtor made three mortgages in severalty to three different 
 creditors. The mortgages embraced the same laud, and were 
 simultaneously executed. The mortgagor afterwards surren- 
 dered possession, simultaneously, to each of the mortgagees, 
 who entered for foreclosure. One of them then filed a peii- 
 tion against the others for partition. The Court held that 
 although by the simultaneous execution of mortgages a ten- 
 ancy in common was created between the mortgagees, in 
 which the moiety of each bore the same proportion to the 
 whole that his debt bore to the aggregate debts secured by 
 all the mortgages, yet " that in the present case, the facts of 
 which are peculiar," the petition cannot be sustained. Al- 
 though the Court declined to commit itself by a final decision 
 upon the rights of mortgagees in general, yet it considered 
 the nature of mortgage estates — showed that such estates 
 were defeasible, and were held as mere securities, and added : 
 ' ' Such being the nature of the right which mortgagees have 
 in mortgaged lands before foreclosure — a defeasible, redeem- 
 able, and fluctuating interest — we are of opinion that when 
 such right or interest is held by two or more persons, as 
 joint-tenants or tenants in common, they do not hold such an 
 estate as can be the subject of partition. The statute on this 
 subject of partition does not contain any express limitation, 
 but we think it results from the several provisions taken to- 
 gether, from the obvious purpose of the process of partition, 
 and from the nature of the interest of such mortgagees." 
 
 ' Bradley v. Fuller, and Fuller v. Bradley, 23 Pick. 8; Blodgett v. Hildreth, 8 Al- 
 len, 187. 
 ■^ Rich V. Lord, 18 Pick. 327. To the same effect ia Muuroe i'. Walbridge, 2 Aik. 410. 
 ^ Ewer V. Hobbs, 5 Met. 6.
 
 553 WHO MAY COMPEL A PAKTITION. g§ 453-55 
 
 g 453. Holder of Equitable Title. — A.s a general rule, an 
 equitable title will not be lecoguized nor protected outside 
 ol a court of equity. Except in the case of a mortgagor, a 
 party seeking to assert rights in a suit at law for a partition 
 must base his claim upon legal title.' In Penui>ylvania, the 
 rule is different from necessity, -for in that State there are no 
 courts of equity, and equitable titles, unless protected at law, 
 would be of no consequence anywhere. 
 
 ^ 454. An administrator, thovigh the estate be shovrn 
 to be insolvent, has no such seizin in the lands of the deceased 
 as entitles him to apply for partition.* The right to partition 
 in such cases is vested in the heirs. This right "is not 
 affected by the circumstance that the administrator, if the 
 estate is insolvent, is entitled" to the rents and profits pending 
 the administration; nor that he has the right by license from 
 the Court of Probate to sell the property for the payment of 
 debts, though it could not often be expedient to commence 
 such a proceeding under such circumstances."* 
 
 g 455. A tenant for life or for years could, both at law 
 and in equity, compel a partition. He could not compel the 
 reversioner to join with him; nor could he occasion a com- 
 pulsory partition which would be binding after the termination 
 of his estate.'' The various American statutes uniformly pro- 
 vide that partition may be made at the application of a co- 
 tenant of an estate for life or for years.** Partition may be 
 had on the application of a tenant for years, although the 
 tenant of the other moiety holds in fee." A party having a 
 life estate determinable on his marriage, in a moiety of one- 
 fifth, applied in Chancery for partition. The defendants were 
 entitled to the remaining four-fifths as tenants in common in 
 tail, and were together entitled to the reversion of the plain- 
 
 ' McCabe v. Hunter'H HeirB, 7 Mo. 350; Hopkins r. Toel'a Heirs, 4 Humph. 4G; 
 Stxyker v. L\Ticb, 11 N. Y. Leg. Obs. IIG; Coalc r. Barney, 1 G. & J. 341. 
 
 ■•^ Willing V. Brown, 7 Scrg. & B. 4G7. 
 
 » Nason v. Willard, 2 Mass. 478. 
 
 " KeUy V. Kelly, 41 N. H. 502. 
 
 '' Baring v. Nash, 1 Yes. & B. 551; Willa v. Slade, C Ves. 498; Oaskell v. GaakoU, 6 
 Sim. 043. 
 
 •* Ackley v. Dygert, 33 Barb. 189; Van Ar-tdalo v. Drake, 2 Burb. GOO. 
 
 ' Mussey v, Sanborn, 15 Mass. 155.
 
 §g 456-57 WHO MAY COMPEL A PARTITION. 554 
 
 tiff's fifth. The defendants all desired that the property 
 should remain undivided. The Master of the Rolls said: "I 
 cannot help regretting that this suit should ever have been 
 instituted. The plaintiff alone, who is tenant for life deter- 
 minable on his second marriage, desires a partition : all the 
 other parties desire to keep the estate together. If, however, 
 the plaintiff is entitled to the relief he asks, he must have it, 
 however inconvenient it may be to the other owners. As 
 tenant for life, I apprehend there can be no question but that 
 he is entitled to a partition. The question is whether the 
 circumstance of his life estate being determinable on his 
 second marriage makes any difference. As at present ad- 
 vised, I think it does not; but I will further consider it." At 
 a subsequent date, the partition was granted.^ 
 
 g 456. Tenants by Curtesy and in Dower. — A tenant by 
 the curtesy as he has a life estate in the lands of his deceased 
 wife, is, when such lands are held in cotenancy, clearly en- 
 titled to a partition thereof." A tenant in dower, because she, 
 is not a cotenant, has no right to demand partition of the 
 property to which her dower interest has attached.^ 
 
 ^ 457. Infants. — Judge Scott of Missouri, supported by 
 a majority of the Supreme Court of that State, denied an 
 application for partition made by an infant acting by his next 
 friend. This denial was based upon the idea that applica- 
 tions for partition made on behalf of infants were generally 
 prosecuted for the purpose of defrauding the applicant, 
 either by procuring an unjust division of the property or a 
 sale thereof for less than its true value. That the partition 
 might be competed by a proceeding to which the infant 
 should be made a party defendant, did not, in the estimation 
 of the Court, fiu^nish any reason for permitting him to appear 
 as plaintiff, because, ' ' if an evil cannot be entirely checked, 
 
 ' Hobson V. Sherwood, i Beav. 184. 
 
 •^ Eiker v. Darke, 4 Edw. Ch. 668; Otley v. McAlpine's Heirs, 2 Gratt. 343; Allnatt 
 on Parti-iion, 59; Co. Litt. 175 n. In Pennsylvania, at a very early day, the right of a 
 tenant by curtesy to partition was questioned; and the Court had so much doubt on 
 the subject that it prevailed on the parties to compromise, in order that it might 
 avoid the necessity of deciding the question. (Walker o. Dilworth, 2 Dallas, 257.) 
 
 '■> Wood V. Clute, 1 Sanf. Ch. 200; S. C. 2 N. Y. Leg. Obs. 407; Coles v. Coles, 15 
 Johns. 320.
 
 555 WHO MAY COMPEL A PARTITION. § 457 
 
 that is no reason for multiplying the facilities by which it may 
 be effected."' But the case iu which this conclusion was 
 reached was overruled the next year. To the arguments ad- 
 vanced by Judge Scott, the following reply was made : " It is 
 the duty of every minister of the law to watch witli jealous 
 care the rights of infants; but h^^man wisdom has not yet 
 succeeded in providing a shield that will protect the weak 
 and innocent against the strong and crafty, and it is not per- 
 ceived how infants are more exposed to robbery or treachery 
 when they are plaintiffs than when they are defendants. If 
 an infant has no other means of support but an undivided 
 interest in real estate, it is often of great importance to him 
 to have the power of forcing a partition and of securing the 
 separate enjoyment of his share; for whilst it is held in com- 
 mon with an obstinate cotenant, it would not be productive 
 in yielding a ground-rent, nor in any other manner; and to 
 deny him the right to have a partition, would drive him to 
 want or to an application to the County Court for a sale of 
 his interest, and in that way produce the very result dictated 
 by the cupidity of his tenant in common."^ The authorities, 
 except when influenced by prohibitory provisions in statutes 
 of partition, are nearly if not quite unanimous in coinciding 
 with the views last reached by the Supreme Court of Missouri. 
 An infant cotenant may therefore, except where the statute 
 makes special provisions intended for his protection, apply 
 for a partition in the same manner and by the same means 
 that he might institute any other action to enforce his rights 
 in the same property.^ At Chancery, an infant could file and 
 l)rosecute a bill for partition. In such case, as the plaintiff 
 was not competent to convey, the Court issued the commis- 
 sion to make the allotments, and decreed that the plaintiff 
 and defendant ' ' be respectively quieted in the possession of 
 the premises severally to be allotted," and that the convey- 
 ances to be made be respited until the infant plaintiff came 
 of age. The infant, being plaintiff, was said to be "as much 
 
 ' Jonson r. Noble, 24 Mo. 252; Davidson i'. Bowden, 5 Hncod, 133. 
 
 ■' Thornton v. Thornton, 27 Mo. 307; Lamed v. Renshaw, 37 Mo. 46L 
 
 ' Postley V. Cain, 4 Sandf. Ch. rm; Shull v. Kcnnon, 12 Ind. 35; Clark v. Clark, 14 
 
 Abb. Pr. 299; B. C. 21 How. Pr. 479; Mutter olMarsac, 15 How. Pr. 383; Freeman v. 
 
 Freeman, S. C. of Tenn., Apr. "72, 2 South. L. R. 1G8; Mitchell v. Jones, .50 Mo. 438: 
 
 Goudy 1). Shank, 8 Ohio, 415.
 
 I 457 WHO MAY COMPEL A PARTITION. 556 
 
 bound and as little privileged as one of full age."' But 
 doubtless an application for partition is not, when made by 
 or on behalf of an infant cotenant, to be granted, as in case 
 of an adult cotenant, as a matter of course. An adult has, 
 when not fettered by special obligations existing independent 
 of the cotenancy, an absolute right to partition; and the 
 Court to which the application is properly presented has no 
 authority to consider whether the further continuance of the 
 cotenancy would prove more or less advantageous than a par- 
 tition. But the protection of infants is one of the duties with 
 which courts of equity are specially charged. When the 
 Court to which an application for partition is presented on 
 behalf of an infant is a court of equity, or one authorized in 
 matters of partition to exercise a Chancery jurisdiction, it not 
 only may but ought to inquire whether the proposed partition 
 will operate to the prejudice or to the benefit of the infant 
 petitioner; and if, as the resrdt of such inquiry, the conclu- 
 sion reached is that the partition will not prove beneficial, it 
 ought to be denied. Hence, where the property of the co- 
 tenancy consisted cf lands, not susceptible of division, under- 
 laid with coal and likely to increase in value; and the lands 
 were less productive at the time than the proceeds of their 
 sale would be, an application made on behalf of the infants 
 was denied, the Court saying: "We cannot perceive that it 
 would be for the interests of the minors to grant the division. 
 A decree in their favor would necessarily result in a sale, for 
 the proof shows that there could be no partition. We can- 
 not consent that this property, now safe from the fluctuations 
 of prices, the accidents of money-lending, and the faithless- 
 ness of guardians, ^hall, without any necessity, be changed 
 into a fund which may take wing and fly away. It might 
 prove a grievous wrong to these children, of which we have 
 no ambition to be guilly."" In New York, a proceeding for 
 partition cannot be instituted on behalf of an infant except 
 by permission of the Supreme Court. Such permission will 
 
 ' Lord Brook v. Lady Hertford, 2 P. Wms. 519; Cannon v. Hemphill, 7 Tex. 202. 
 For a review of the authorities on the subject of partition by and against infants, see 
 Croghan v. Livingston, 17 N. Y. 220. 
 
 '^ Hartmann v. Hartmann, 59 111. 104. See also Davidson v. Bowden, 5 Sueed, 129; 
 Winchester v. Winchester, 1 Head, 460.
 
 557 WHO MAY COMPEL A PAUTITION. ^^ 158-59 
 
 not be given in the absence of sati.sfactory evidence that a 
 partition or sale is for the best interests of the infant. The 
 proceedings are prosecuted by a competent next friend ap- 
 pointed by the Court, and required to give security.' 
 
 § 458. Married Women. — If the person desirous of pro- 
 curing a partition is a married woman, she shouki join her 
 husband with her in the petition, unless, under the law of the 
 State, she is authorized to sue alone in respect to her separate 
 property. Even if a suit brought by her alone be treated as 
 sufficient to bind her interest, the partition would be imper- 
 fect because it could not affect the estate of her husband in 
 the premises.^ But where a husband and wife are cotenants, 
 it is said that no compulsory partition can be made between 
 them at law, because the proceeding is an adversary one, to 
 which parties, both plaintiff and defendant, are indispensable ; 
 and that the wife cannot sue the husband, nor the husband 
 the wife, nor can the two join as petitioners.^ In equity, how- 
 ever, a married woman may compel her husband to make par- 
 tition of lands of which they are cotenants.* 
 
 ^ 459. Two or more cotenants may unite in making 
 
 an application for compulsory partition ; and those so uniting 
 may elect to consider their several moieties as one moiety, 
 and have it set off to them to hold together undivided.^ But 
 parties not entitled to demand partition ought not to be 
 
 I Lansing i'. Guluck, 2G How. Pr. 252; Clark v. Clark, 14 Abb. Pr. 300. For form 
 of petition for leave to bring suit on behalf of an infant, see 2 Van Santvoord's Eq. 
 Pr. 447, 450. 
 
 ■^ Spring V. Sandford, 7 Pai. 555. 
 
 ^ Howe V. Blanden, 21 Vt. 321. See also Marston v. Ward, 35 Tex. 798. 
 
 < Moore v. Moore, 47 N. Y. 468. 
 
 '•> Ladd V. Perley, 18 N. H. 396; Upham v. Bradley, 17 Me. 427; Clioteau v. Paul, 2 
 Mo. 263. It is said that one seized of a moiety as tenant in common or joint-tenant 
 cannot join in one writ with a coparcener; that the parcener cannot have the writ 
 by virtue of the statute, because, as she had a remedy at common law, the statute 
 docs not apply to her; and that the joint-tenant or tenant in common can only have 
 the writ by virtue of the statute, llcnce the parceners must apply alono at common 
 law, or the joint-tenant or tenant in common must apply alone under the statute. 
 (AllJiatton Partition, 58.) "The writ is not necessarily conUued to mere joint-tenants, 
 or mere tenants in common. It may so happen that several persons may, as to a cer- 
 tain undivided proportion of the estate, bo joint-tenants, and as to the residue bo 
 tenants in common; yet a wi'it may be well brought by one or more of them against 
 their companions." (lb. 59, citing Rider v. Williamson, And. 42.)
 
 2 459 WHO MAY COMPEL A PARTITION. 558 
 
 joined with others who are so entitled; nor should any one 
 be made a party defendant who can neither take nor lose 
 anything by the partition.' It has sometimes been held that 
 all the cotenants cannot join in demanding a partition. Thus, 
 at an early day in Massachusetts, when all the co-owners 
 joined in the petition, it was denied, because "the appli- 
 cants, if qualified, in point of age and mental capacity, to 
 maintain this process, are also competent to effect among 
 themselves, and by their own agreements and contracts, 
 every valuable and proper purpose which they can be sup- 
 posed to have by the partition;" and further, because "the 
 statute plainly implies that this process is only maintainable 
 when the ai^plicant has a share only, and the respondent, or 
 some other person not applying, had an interest, respecting 
 which the partition by this process will be conclusive, to 
 some purposes at least, after due notice. It will be danger- 
 ous to give sanction of this kind to an agreement to divide, 
 where all the parties professedly interested are applicants for 
 a partition among themselves."- Judge Scott, in pronouncing 
 the opinion of the Supreme Court of Missouri, said: "The 
 statute contemplates that in suits for partition there should 
 be a plaintiff and a defendant. In all suits at common law, 
 there must be an adm- and a reus. If parties come in volun- 
 tary and ask a Court to make a partition among them, and it 
 is done, they wall stand afterwards just as they did before the 
 Court interfered, so far as judicial sanction is concerned."^ 
 The views here expressed by Judge Scott were soon after- 
 wards repudiated in the same Court, on the ground that pro- 
 ceedings for partition were, in that State, statutory and in 
 many respects sui generis; that the practice of uniting as 
 petitioners all the parties in interest had long been followed, 
 and that great injustice would inevitably result from ignoring 
 titles based on this practice; and further, that the statute 
 clearly contemplated the union of all the cotenants as peti- 
 tioners whenever they saw proper so to unite.* The rule that 
 the misjoinder of parties plaintiff is fatal to the maintenance 
 
 ' Mark v. Mark, 9 Watts. 411; Power r. PoT\er, 7 Watt*, 205. 
 
 - Swett V. Bussey, 7 Mass. 504. 
 
 •i Bompart v. Bodermaii, 24 Mo. 399. 
 
 * Wau"h ('. Blumenthal, 28 Mo. 4G4; Larned r. Kenshaw, 37 Mo. 462.
 
 550 
 
 WHO MAY COMPEL A PARTITION. §^ 460-61 
 
 of au action Las been thought to be applicable to wTits for 
 partition. Thus Kennedy. Justice, pronouncing the opinion 
 of the Supreme Court of Pennsylvania, said: "No good 
 reason can be shown, I apprehend, for exempting an action 
 for pai-trtiou from this rule. It being a real action in its 
 nature, and particularly, from the nature of the general issue 
 that is appropriate to it, if there be any difference between 
 it and mere personal actions of tort, it is that the rule seems 
 to be applicable to it, when too many persons are made co- 
 defendants as well as where too many join in becoming co- 
 plaintiffs.'" 
 
 § 460. Rights acquired after filing Partiticm.— It is ma- 
 terial that the applicant should be entitled to partition at the 
 time when his demand for it was made. If a reversioner file 
 a bill for partition, it must be dismissed notwithstanding the 
 fact that before the hearing he purchased the life estate, and 
 thereby acquired an interest entitling him to partition.^ A 
 like result must follow where the reversioner, subsequently 
 to filing his petition, becomes entitled to the possession 
 through the termination of the particular estate;'^ and also 
 where the petitioner held a defeasible estate, which, through 
 lapse of time, became indefeasible before his petition was 
 heard. ^ In Vermont, a petition, filed before the applicant's 
 right became perfect, was sustained, process not being served 
 until his title had become absolute.^ 
 
 ^ 461. Cotenant by Disseizin or Tax Title.— That the 
 applicant procured the title to his moiety by disseizin or by 
 tax sale is no answer to his petition for partition. If he has 
 become a cotenant, and is of right and in fact in possession 
 of the property to be divided, the manner of his acquisition 
 is immaterial. But he must show clearly that he is a cotenant, 
 and must negative every fact the existence of which would 
 defeat his title. He must therefore prove that the person to 
 whose title he claims to have succeeded by disseizin or 
 
 ' Lockhart i'. Power, 2 Watte, 372. 
 
 ' EvauH V. Bagabaw, L. li. f) Ch. 340; Attoruey-General v. Avou, 11 W. \\. 1050. 
 
 * Huniu;\vcll v. Taylor, G Cusli. 47G. 
 
 * Pholiw V. Paluitr, 15 Gray, 501. 
 » Hawley v. Soper. 18 Vt. 322.
 
 § 461 WHO MAY COMPEL A PARTITION. 560 
 
 through a tax sale was free from disability, for otherwise the 
 tax sale might still be defeated by a redemption or the title 
 by disseizin avoided by suit within a proper time after the 
 removal of the disability.^ 
 
 ' Rossi). Cobb, 48111. 111. 
 
 Note containing a synopsis of the statutes of the several States, showing what may- 
 be partitioned, and who may apply therefor. 
 
 Alabama. — "Any property — ^real, personal, or mixed — held by joint owners or ten- 
 ants in common, may be divided among them on the application of the persons en- 
 titled thereto, or any one of them, in -wi-iting, to the Judge of Pi'obate of the county 
 in which the property is. Such appUcation may be made by the executor or admin- 
 istrator of a deceased person in interest, or by a guardian of a minor or person of un- 
 sound mind." — Code of Ala., ed. 1867, sec. 3105. 
 
 Akkansas.^" When any lauds, tenements, or hereditaments shall be held in joint- 
 tenancy, tenancy in common, or coparcenary, whether such right or title be devised 
 by purchase, devise, or descent, or whether any, all, or a part of such claimants be 
 of full age or minors, it shall be lawful tor any one or more of the persons interested, 
 by themselves if of full age, or by their guardians, if minors, to present their petition 
 praying for a partition," etc. — Gould's St. of Ark., ed. 1858, p. 811, sec. 1. Sec. 32, 
 same statute, provides for partition when some of the cotenarrts have estates for life 
 or years, and others have estates in fee. Guardians of minors or of persons of un- 
 sound mind are authorized, "in behalf of their respective wards, to do and perform 
 any matter or thing respecting the division of lands or tenements, as herein directed, 
 which shall be binding on such ward." — lb., p. 815, sec. 34. 
 
 CvLiFOKNiA. — ' ' When several cotenants hold and are in possession of real property 
 as parceners, joint-tenants, or tenants in common, in which one or more of them 
 have an estate of inheritance, or for life or lives, or for years, an action may be bi-ought 
 by one or more of such persons for a partition thereof." — Code C. P., sec. 752. 
 
 Connecticut. — On petition of any person interested, a partition may be ordered o'f 
 any real estate, held in joint-tenancy, tenancy in common, or coparcenai-y; also of any 
 real estate held by tenants in tail. — Rev. of 1866, p. 398, sec. 38. 
 
 Delawaee. — "Writs for the partition of real estate, held in joint-tenancy, or ten- 
 ancy in common, may be issued by the Superior Court." — Rev. St., ed. 1874, p. 527, 
 sec. 3. " When any two or more persons hold as joint-tenants or tenants in common, 
 lands or tenements within this State, any one or more of them, being of lawful age, 
 or the guardian of any being under age, may prefer a petition to the Chancellor," 
 etc.— lb., p. 528, sec. 8. 
 
 Florida. — The bill or petition may be filed by any one or more of several joint- 
 tenants, tenants in common or coparceners. — Bush's Digest, p. 616, sec. 2. The stat- 
 ute also provides for the partition of personal property. — lb., p. 620, sec. 13. 
 
 Geoegia. — AppUcation for pai-tition may be made in all cases where two or more 
 are common owners of lands and tenements. — Code of Geo., ed. 1873, sec. 3996. " If 
 the party desiring the writ of parirition be of full age, and free fi-om disability, he 
 may make the application either in person or by his agent or attorney in fact, or at 
 law, and if the application is for the beneiit of a minor, a lunatic, feme cone^'t, or 
 cestui qve trust, it may be made by the guardian of such minor, or lunatic, by the 
 husband of such feme covert, or the trustee of such cestui que trust." — lb., sec. 3997. 
 Personal property may be partitioned in the same manner as real estate. — lb., sec. 
 4008.
 
 561 WHO MAY COMPEL A PARTITION. § 461 
 
 Illinois.— The part of the statute of this State which designates what property 
 may be partitioned and who may apply for partition, is substantially like sec. 1 of the 
 statute of Ai'kansaii. (See Gross' St., p. 469, sec. 1.) 
 
 Intjiaxa. — "All persons holding lauds as joint-tenants, tenants in common, or ten- 
 ants in coparcenaiy, may be compelled to divide the same." — -Rev. St., ed. 18.52, p. 
 329, sec. 1. The applicaiiou may be made by any such tenant. — lb., sec. 2. 
 
 Iowa. — The Code provides that partition shall be by equitable proceedings, and 
 makes no other designation as to who may have partition, nor of what it may be had. 
 (See sec. 3277 of Code of 1873.) 
 
 Kansas. — Nothing said in the statute in reference to who may apply. (See Genl. 
 St.,ed. 1868, p. 753.) 
 
 Kextdcky. — "Lands held by joint-tenants, tenants in common, coparceners or de- 
 visees, may be divided," etc. "The party desiring such partition^ may apply," etc. — 
 Stanton's Rev. St., vol. 2, p. 100, sees. 1, 2. 
 
 Maine. — " Persons seized, or having a right of entry into real estate in fee-simple 
 or for life, as tenants in common, joint-tenants, or copartners, may bo compelled to 
 divide the same." " Pei"sons so entitled, and those in possession or having a right of 
 entry for a term of years, as tenants in common, may present a petition," etc. — Rev. 
 St. of Me., ed. 1871, p. 694, sees. 1, 2. 
 
 MAKYLiND. — Partition may be decreed of any lands, or tenements, or any right, in- 
 terest, or estate therein, legal or equitable, on the bill or petition of any joint-tenant, 
 tenant in common or parcener, or of any concurrent owner, whether claiming by de- 
 scent or purchase. The application, if on behalf of an infant, may bo made by his 
 guardian or prochein ami, and if on behalf of a lunatic, may be by his committee or 
 trustee.— Public Genl. Laws, ed. 1860, p. 91, sec. 99. 
 
 Massachusetts. — "Persons holding land as joint-tenants, coparceners, or ten- 
 ants in common, may be compelled to tlivido the same." " One or more of the per- 
 sons so holding may apply." — Genl. St., td. 1860, p. 698, sees. 1, 2. The applicant 
 must have an estate in possession — (lb., p. G99, sec. 3) — but partition may bo made 
 notwithstanding a lease of the whole or of part. — lb., p. 705, sec. 67. No tenant for 
 less than twenty years can have partition against a tenant of the freehold.— lb., p. 699. 
 sec. 4. Tenants for years may have partition among one another, not to affect their 
 landlords or reversioners. — lb., sec. 5. The statute also provides for the; partition of 
 water rights.— lb., p. 706, sec. 77. 
 
 Michigan. — "All persons holding lands as joint-tenants, or tc'nants in common, 
 may have partition tliereof." "Any one or more of the persons so holding may in- 
 stitute a suit." Such suit cannot be sustained by one having an estate in reversion or 
 remainder.— Comp. Laws, ed. 1871, sec. 6266-6268. 
 
 Minnesota. — " When two or more persons are interested in real property as joint- 
 tenants, or as tenants in common, in which one or more' of them have an estate; of 
 inheiitanco or for life or years, an action may be brought by one of such persons 
 against the others for a partition thereof." — Bissell's St., ed. 1873, p. 888, sec. 34. 
 
 MissLssu'Pi. — "^yi persons who arc joint-tenants, tenants in common, or copai'ce- 
 ners, having estates in land in this State, in possession, or having tlio mere right of 
 possession, whether the joint interest in such lands bo in fee-simple or for a term not 
 less than five yxars, shall bo entitled to partition of such lands. But those who hold 
 in reversion or remainder shall not be entitled to this remedy." — Rev. Code, ed. 1871, 
 iiec. 1809. "Any one or more of the parties interested, whether suing in their own 
 right or as executors or guardians, may institute proceedings for pia*tition."— lb., 
 sec. 1814. 
 
 C. & p.— 36
 
 g 461 WHO MAY COMPEL A PARTITION. 562 
 
 Missouri.— " lu nil cases where lauds, tenements or henditanients, are held in joint- 
 tenancy, tenancy in common, or coparcenary, including estates in fee, for life, or for 
 years, tenancy by the courtesy and in dower, it shall be lawful for one or more of the 
 parties interested therein, whether adults or minoi-s, to file a petition, asking for the 
 admeasurement and setting off of any dower interest thereui, if any, and for the par- . 
 tition of the remainder."— Rev. St., ed. 1865, p. 611, sec. 1. 
 
 Nkbbaska.— "All tenants in common or joint-tenants of any estate in land may be 
 compelled to make or suffer partition of such estate or estates."— Code C. P., sec. 
 802. 
 
 Nevada.- The statute of this State is substantially like that of California. (See 
 Comp. Laws, ed. 1873, sec. 1327.) 
 
 Niiw Jersey.— "Any person, being a coparcener, joint-tenant, or tenant in common, 
 in any tract or tracts of land within this State may apply to any Justice of the Su- 
 preme Court, etc., for a partrtion of such tract or tracts."— Nixon's Dig., 4th ed. p. 
 666, sec. 1. In addition to this statute, another is in force like that of 3 and 4 Wm. 
 rV.— lb., p. 677, sec. 1 to 8. Also another statute providing that 'partition of lands, 
 held by coparceners, joint-tenants or tenants in common may be made, notwithstand- 
 ing the share held by any coparcener, joint-tenant, or tenant in common, may be for 
 a less estate than a fee, or may be limited over after an estate for life, or any estate 
 therein; and such partition shall bind all tenanis of such share, in remainder, rever- 
 sion, or expectancy, who shall be entitled only to that part of the lands partitioned as 
 may be set oft" in severalty to the share upon which such remainder or expectancy is 
 limited."— lb., p. G73, sec. 53. 
 
 New Hampshire.-" One or more persons, having or holding real estate with others, 
 in possession, reversion, or remainder, after an estate of freehold, if such remainder 
 is vested and not contingent, may have partition thereof."— Genl. St., ed. 1867. p. 463, 
 gee. 1 . 
 
 Nkw York.— The statute is similar to that of California, except that the apphcant 
 
 must Ix- of full age 3 Rev. St., 5th ed. p. 603, sec. 1. The Supreme Court may also 
 
 authorize proceedings for partition to be commenced on behalf of an infant.— lb., p. 
 604, sees. 5, 6. 
 
 NoKTH Cakolina.— Partition may be made '• on the petition of one or more persons 
 claiming any real estate as tenants in common."— Code of N. C. ed. 1855, p. 452, see. 
 1. The same right is given to cotenants of personal property-.- lb., p. 457. sec. 17 
 
 Ohio.— "All joint-tenants, tenants in common, and coparceners of any estate in 
 lands and tenements and hereditaments within this State, may be compelled to make 
 or suffer partition of such estate or estates."— Swan's Rev. St., ed. 1854, p. 590, sec. 1. 
 
 Oregon.— The statute is like that of Califoi-nia and New York.— Deady's Genl. 
 Laws, ed. 1864, p. 255, sec. 419. 
 
 Pennsylvania.— Partition may be made " at the suit of any tenant in common, 
 joint-tenant, or copartner."— 2 Brightly's Purdon's Digest, p. 1112, sees. 1, 5. 
 
 Rhode Island.- Every joint-tenant, tenant in common, or coparcener, seized or 
 Xwssessed of any estate of inheritance, or for Life or j-ears, in any lands, tenements, 
 or hereditaments, in their own right or the right of their wives, may compel parti- 
 tion. Such partition continues only until the estate of some of the parties deter- 
 mines, except when the tenant in reversion or remainder joins with the tenant for 
 life or years in demanding partrtion, when the partition shall be of the whole estate.— 
 Gtenl. St., ed. 1872, p. 51i), sec.s. 1 to 5.
 
 568 WHO MAY COMPEL A PARTITION. g 461 
 
 SociH Cabollva.— Partition may be made upon the petition of any ptrson or per- 
 sons interested in any real estate as joint-tenants or tenants in common of an estat«- 
 of inheritance, or for life or lives or years.— Rev. St., ed. 1873, pp. SoO-l. sees. 1, 4. 
 
 Tennessee.— -Any person lun-ing an estate of inheritance, or for life or for years, 
 in lands, and holding and being in possession thereof as tenant in common or other- 
 wise, with others, is entitled to a partition thereof."— St. of Tenn., ed. 1871. sec. 3262. 
 
 Texas.— ••AH part o-wners of any estates of inheritance in lands, tenements, and 
 liereditaments, in their own rights, or in the rights of other persons, and all part 
 ovraers who hold, for a term of life or years, with others who may havt- < states of in- 
 heritance, or freehold in any lands, tenements, or hereditaments, may bu eompelled 
 to make partition between Uiem, of such lands, tenements, and hereditaments as they 
 may hold as part owners; but no such partition between a part owner, or o\niers, who 
 hold estates for term of bfe or years, with others who hold equal or greater estates, 
 shall be prejudicial to those entitled to the reversions, or remainders, after the death 
 of the owners for life, or after the expiration of the years."— Pascal's Digest, Art. 4707. 
 " Part owners of slaves and other personal property may be comix-lled to make parti- 
 tion between them." — lb.. Art. 4711. 
 
 VERMONT.-'-Auy person, having or holding real estate with others, as joint- tenants, 
 tenants in common, or coparceners, may have partition thereof in the manner hert^ 
 inafter provided. Such person may apply to the County Court, * * * praying for a 
 partition."— Genl. St., Vt., p. 353, sees. 1, 2. 
 
 VntGixiA.—" Tenants in common, joint-tenants, and coparceners, shall be eom- 
 JM-Ilable to make partition."— Code of Ta., p. 920, sec. 1. 
 
 West Vieginia.— Same as Virginia.— Code of West Va.. p. 486, sec. 1. 
 
 WiscoxstN.— "All persons holding lands as joint-tenants, or tenants in coparcenary 
 or common, may have partition thereof."— 2 Taylor's St. of Wis., p. 1678, sec. 1. 
 "Anyone or more of the persons so holding lands may institute an action."— lb., sec. 
 2. " Such action may be maintained by any person who has an estate in possession 
 in the lands of which partition is sought, but not by any one wlio ha*) only an estate 
 therein in remainder or reversion."— lb., p. 1670, sec. 3.
 
 CHAPTER XXII. 
 
 OF PARTIES DEPENDANT, AND THE PERSONS BOUND BY PARTITION. 
 
 Division of the Subject, ^ 462. 
 
 All the Cotenants must be Parties, $ 403. 
 
 If Cotenant dies, his Heh-s must be brought into Court, ^ 464. 
 
 Grantee of part, by Metes and Bounds. <» 465. 
 
 Cotenants under Disability of Coverture, § 466. 
 
 Cotenants under Disability of Infancy, ^ 467. 
 
 Granting Infants a new Partition, § 468. 
 
 Lunatics, § 469. 
 
 Purchasers pendente lite, ^ 470. 
 
 Administrators, § 471. 
 
 Wife of Cotenant, claiming Dower, ^ 472. 
 
 Wife of Cotenant, when claiming Homestead, ^ 473. 
 
 Wife of Cotenant, claiming Dower, how affected by Sale, $ 474. 
 
 Wife of CoteniJnt, where Husband sokl before Partition, ^ 475. 
 
 Widow of Cotenant, how affected by Sale in Partition. § 476. 
 
 Husband of Cotenant claiming Life Estate, § 477. 
 
 Imcumbrancers, how affected by Partition, § 478. 
 
 Imcumbrancers, how affected by Partition Sale, $ 479. 
 
 Lessees, ^ 480. 
 
 Disseizors, § 481. 
 
 Persons not in esse, $ 482. 
 
 Unknown Owners, § 483. 
 
 ^ 462. Division of the Subject. — If it be ascertained that 
 tbe property sought to be divided is a proper subject for a 
 compulsory partition, and that the person desirous of pro- 
 curing a partition is, under the law, competent to institute 
 proceedings therefor, the next question to be considered is, 
 who are proper and necessary parties defendant; who must be 
 brought before the Court to enable the petitioner to procure 
 the most perfect and absolute title to the purparty to be as- 
 signed to him, which it is possible for him to acquire by a 
 compulsory partition; or to enable the purchaser, in case a 
 
 564
 
 565 PARTIES DEFENDANT. § 463 
 
 sale of the property is ordered, to obtain u title so satisfactory 
 that no reasonable objections can be urged against it. In 
 treating of parties defendant, we shall speak, first, of the co- 
 tenants themselves; second, of persons who though not co- 
 tenants at the institution of the proceedings, have rights and 
 interests attached to some part of the property of the coten- 
 ancy, such as lienholders and tenants in dower; third, of per- 
 sons not in being at the filing of the petition, but who on 
 coming in esse may be entitled to some interest in the property; 
 and fourth, of persons having an interest in the property as 
 tenants of moieties or in severalty, and ])roceeded against as 
 unknown owners. 
 
 ^ 463. All the Cotenants must be Parties. — It is a gen- 
 eral principle of law that a litigation can never result in an 
 adjudication which will be binding upon others than the 
 parties to the suit, and their privies in blood or in estate. 
 To this general rule proceedings in rem form no exception, 
 for in those proceedings the subject of the litigation is itself 
 a party, and being itself bound by the result, all interests in 
 it must be likewise bound. A suit for partition is some- 
 times spoken of as a proceeding i)i rem; but ordinarily it is 
 not such a proceeding, for the process is not served upon 
 the land, nor is the land a party defendant, nor is the final 
 judgment binding on any of the cotenants who were not 
 brought within the jurisdiction of the Court by some service 
 of process, actual or constructive. It is therefore indispens- 
 able that all the cotenants not uniting in the petition be made 
 parties defendant.' In treating of parties in Chancery, in 
 the case of Barney v. Baltimore City,' Mr, Justice Miller 
 divides them into three classes: 1st, those who have such a 
 relation to the suit, formal or otherwise, that Avhile they may 
 be called proper parties, the Court will take no notice of their 
 omission; 2d, those whose interests are such that the Court 
 
 ' Burhansr. Burhans, 2 Barb. Ch. 407; K.^tt r r. St;iiK, 19 111. :J:i!); Biii.^luar v. 
 Macoy, 3 J. J. Marsh. 93; Borah v. Archer, 7 Dana, 177; Battertou r. Cliilcs. 12 B. 
 Monr. 354; Harlan v. Stout, 22 Iiid. 488; I>ancastor n. Scay, G Rich. Eci. HI . •■ Whoro 
 a bill in brouglit for a partition f ithrr by tonantH in connnnn or joint-t<'naiits all jvr- 
 BoiiH rt(iuirc(l to join in tho convfyanncs must be made parties to the suit," Calvert 
 on Parties. 259. eitinp Anon. 1 Swan. 130. 
 
 ■' r, Wall. 284.
 
 g 463 PARTIES DEFENDANT. 566 
 
 will oixler them to be made paraes, if within its jurisdiction, 
 but otherwise will administer such relief as it can without 
 them; 3d, those "whose interests in the subject-matter of the 
 suit, and the relief sought, are so bound up with that of the 
 other parties, that their legal presence as parties to the pro- 
 ceeding is an absolute necessity, Avithout which the Court 
 cannot proceed. In such cases, the Court refuses to enter- 
 tain the suit, when these parties cannot be subjected to its 
 jurisdiction." He then proceeded to quote and approve the 
 following description of this third cltiss as given in Shiels v. 
 Barrow:' They are "persons who not only have an interest 
 in the controversy but an interest of such a nature that a 
 final decree cannot be made without either affecting that in- 
 terest or leaving the controversy in such a condition that its 
 final determination may be wholly inconsistent with equity 
 and good conscience." He next stated that this description 
 applied to all cotenants where the suit was for partition, say- 
 ing: "If a decree is made which is intended to bind them, 
 it is manifestly unjust to do this when they are not parties to 
 the suit, and have no opportunity to be heard. But as tlie 
 decree cannot bind them, the Court cannot, for that veiy 
 reason, afford the relief asked to the other parties. If, for 
 instance, the decree should partition the land and state an 
 account, the particular pieces of land allotted to the parties 
 before the Court would still be undivided as to these parties, 
 whose interest in each piece would remain as before the par- 
 tition. And they could at any time apply to the proper Court, 
 and ask a repartition of the whole tract, unaffected by the 
 decree in this case, because they can be bound by no decree 
 to which they are not parties." While the rule seems to be 
 invariable that Courts will not proceed to a partition in the 
 absence of any of the cotenants, yet it must be remembered 
 that this rule is confined to cotenants of the estate of which 
 partition is sought. Hence, a partition may be ordered of 
 an estate for years, or for life, or of a mere equity, although 
 the tenants of the reversion or of the legal title are not before 
 the Court. In such case, while the absent parties are not 
 bound, yet the partition made is, to the extent of th^ interests 
 
 I 17 Huw. U. S. 130.
 
 567 PARTIES DEFENDANT. ^, 464 
 
 with which it assumes to deal, perfect and conclusive.' But 
 by proceeding in equit}', the holders of the equitable title 
 may make the holders of the legal title parties, and may thus 
 obtain complete title both at law and in equity to their re- 
 spective pui-parties. It has also been held that unless some 
 special reason for their omission can be shown, the Court 
 ought not to proceed in the absence of the cotenants of the 
 legal title. In a case in Kentucky where the holders of the 
 legal title were made defendants, but no decree was entered 
 against them, and the failure to decree a conveyance from 
 them was assigned as error, the Court of Appeals, by Chief 
 Justice Marshall, said: " In a case where, owing to peculiar 
 circumstances, the legal title could not be at once conveyed, 
 the Court might doubtless make partition, give possession, 
 and secure the enjoyment accordingly, until ejffectual convey- 
 ances could be made. But where there is no obstacle to de- 
 creeing the title at once, or where the obstacle is such that 
 its removal ma}- affect the partition itself, the general practice 
 of the Court, and the principle and object of its jurisdiction, 
 require such proceedings, that the whole matter should be 
 settled and the partition effectuated by a conveyance of the 
 title according to the equities of the parties. Othei-wise, one 
 or more new contests may spring up in the attempt to procure 
 the legal title. '"- 
 
 ^ 464. Cotenant Dying, his Heirs must be made Par- 
 ties. — It is essential that the persons whose interests are 
 sought to be affected be parties to the suit at the time the 
 judgment or decree disposing of their interest is made, ex- 
 cept where a transfer has been made pendente lite under such 
 circumstances that the title of the assignee is held by him 
 subject to the result of the litigation. If pending a partition 
 suit between cotenants who do not hold with benefit of sur- 
 vivorship, one of them die, the action thereby becomes de- 
 fective, and cannot properly proceed until the successors in 
 interest of the deceased are brought before the Court. By 
 his death his heirs have become cotenants in liis stead, and 
 
 ' story's Eq. Jur. »tc. i)5G. In a suit between tenant'^ in common, for oarfcition of 
 ail GHtatc or interent carved out of tlio fee. tho owner of the fee, who is the common 
 Hource of title, in not a neceHHurj- party. CiiniioJd v. Ford, 28 Barb. 342. 
 
 ^ Hunter v. Brown, 7 B. Monr. 2S-J.
 
 ^ 464 PARTIES DEPENDANT. 568 
 
 their rights as such cannot be litigated in their absence. In 
 New York, a bill for partition was filed, and was taken as 
 confessed against all the defendants. One of them died be- 
 fore any further proceedings were taken. The suit proceeded 
 without any revivor against his heirs, resulting in a sale of 
 the i^remises. The heirs of the deceased cotenant brought 
 an action of ejectment against the purchaser at the partition 
 sale. In this suit they prevailed, on the ground that the 
 partition proceedings were, as against them, absolutely void.' 
 So in California where, in a suit for divorce, a supplemental 
 decree had been made, subsequently to the death of the hus- 
 band, disposing of the community property, the Supreme 
 Court, in another action in which the efiect of the decree was 
 questioned, said: "The supplemental decree in the divorce 
 suit, under which the plaintiff claims to be the owner of the 
 whole land sued for, was, in our judgment, null and void as 
 against the heirs at law of Harman. By the death of Har- 
 man, the suit abated for all the purposes of judicial action 
 therein on the subject of partitioning the common property, 
 and the Court had no jurisdiction to adjudge that the prop- 
 erty should be sold and the proceeds divided without a re- 
 vivor as to the heirs. No such revivor was had, and the in- 
 terests of the heirs were therefore unaffected by the supple- 
 mental decree, and the transactions under it."^ But we 
 apprehend that the decisions holding as void in all cases de- 
 crees of partition rendered against parties who were duly 
 served with process, and thereafter and before judgment 
 died, will not be received with universal concurrence, espe- 
 cially where an inspection of the whole record in the partition 
 suit would have no tendency to put the purchaser upon his 
 guard. Many of the authorities in reference to judgments 
 against deceased parties hold that the service of process gives 
 Courts jurisdiction which they may exercise to final judg- 
 ment; that on the death of a party, Courts ought to pause 
 until his successor in interest can be brought in, but that if 
 they do not so pause, their action, though erroneous, is not 
 void. 
 
 ' Requa v. Holmes, 16 N. Y. 198, Kequa v. Holmes, 26 N. Y. 347. 
 ^ Ewald V. Corbett, 32 Cal. 499. » Freeman on Judgments, sees, 140, 153.
 
 669 PARTIES DEFENDANT. g 465 
 
 g 465. Grantee of Part, — We have in a pre^^ous part of 
 this Mork treated of the effect of convej-ances made by one 
 of the cotenants, assuming to convey by metes and bounds 
 his interest in some portion of the lands of the cotenancy; 
 and have there shown that, according to some of the author- 
 ities, such a conveyance may be disregarded for all pui-poses 
 by all the cotenants of the grantor; while, according to other 
 authorities, the conveyance makes the grantee a tenant in 
 common of the tract so conveyed, and is valid and binding, 
 except that it can in no respect prejudice the rights of the 
 cotenants of the whole tract to a compulsory partition there- 
 of.' In those States M'here such a conveyance is regarded as 
 void against the cotenants of the grantor, the grantee is not 
 usually considered as a necessary party defendant to a suit 
 for partition; and such suit may be prosecuted to a final de- 
 cree without taking any notice of him whatsoever.^ But there 
 can be no doubt that the grantee of a specified parcel will be- 
 come seized thereof in severalty if, upon partition, it should be 
 assigned to him or to his grantor;^ and that if not so assigned, 
 he will lose his entire interest.^ He is more deeply interested 
 in the partition than are any of the tenants in common of the 
 entire tract. It matters little to them where their resDective 
 purparties may be located. But with the gi-antee of a special 
 location, it is all-important that such a division may be made 
 as will allow his deed to become oj)erative. He is entitled to 
 the consideration of the Court, and will, whenever his claims 
 are known to the Court, be protected, as far as possible, with- 
 out doing injustice to the cotenants of the whole tract. He 
 has therefore been regarded as a proper party defendant even 
 in States where his conveyance has been spoken of as void 
 against the cotenant of his grantor.^ In such States the mak- 
 ing of such a grantee a party defendant may, perhaps, be re- 
 quired by the Courts rather by reason of their desire to do 
 complete justice, than as a matter of absolute right; but in 
 
 ' See sees. 195 to 20G. 
 
 ■' JackHon v. Meyers, 14 Jolins. 354; BloHsom v. BrigLtmau, 21 Pick. 284 and 285- 
 Broughton v. Howe, (i Vt. 2C7. ' 
 
 2 See sec. 207. 
 
 ♦ Cooper V. Fibber, 10 L. J. It. (N. S.) Ch. 221. 
 '•> Whitton V. Whittoii, 38 N. li. 133; Harliin v. Laugliam, 69 Pa. St. 237.
 
 ^ 466 PARTIES DEFENDANT. 570 
 
 States where his conreyance is regarded as valid and as in- 
 vesting him with all the rights and interests which his grantor 
 had in the tract conveyed, his right to be a party defendant 
 is as absolute as that of a cotenaut of the whole tract.' In 
 Ohio, the extreme, and we think untenable, position has been 
 taken, that where there are several grantees of different special 
 locations, they cannot be united as parties defendant to a suit 
 for partition brought by one holding a moiety of the whole 
 tract. ^ The most that has elsewhere been claimed in behalf 
 of such grantees, is that they acquire the rights of their 
 grantor so far only as such rights may be transferred without 
 prejudicing the rights of the cotenants of the grantor to par- 
 tition. The effect of this Ohio decision would be to permit 
 each cotenant to break the cotenancy into fragments, and to 
 require a separate suit for every fragment. This, we feel con- 
 fident, will not be tolerated in any other State. 
 
 j^ 466. Femes Covert. — When one of the cotenants is a 
 married woman, she is as necessary a pai-ty defendant as if she 
 were a feme sole. Many of the statutes in regard to partition 
 provide the means and mode by which she must be brought 
 into Court. When the statute fails to regulate this subject, we 
 apprehend that she must be made a party and served with 
 process as in other civil cases affecting her separate estate. 
 A majority of the authorities sustains the view that a judg- 
 ment against a married woman is as impregnable against a 
 collateral assault as if it were against a Jhae sole, and that a 
 judgment rendered on a cause of action to which the fact of 
 her coverture would have been a sufficient defense is never- 
 theless valid until set aside by some appropriate motion, or 
 reversed upon appeal.^* But coverture never afforded any 
 defense to a suit for partition. It was always competent for 
 Courts having jurisdiction of the subject of partition to dis- 
 pose of the moieties of femes covert. We know of no reason 
 why a judgment or decree in partition should be any less 
 binding on a married woman than on any other party to the 
 
 ' Gates V. Salmon, 35 Cal. 588; Sutter o. San Francisco, 3G Cal. 115. 
 
 ■' Ebenezer Prentiss' Case, 7 Ohio, Part 2, p. 132; Harman v. Kelley, 14 Ohio, 506. 
 
 '■' Freeman on Judgments, see. 150.
 
 571 PARTIES DEFENDANT. i^ 466 
 
 suit.' There are, it is true, instances in which inarried 
 women have been able to escape from what might, at first 
 glance, seem to be the necessary consequence of a partition. 
 But it is well settled that a person litigating in one capacity 
 can neither be himself bound nor bind others when subse- 
 quently litigating in another capacity;- and also that a former 
 adjudication is not conclusive upon issues not involved with- 
 in it. All the cases where femes covert have been able, to 
 any extent, to avoid a compulsory partition to which they 
 were parties, are justified by one or the other of these prin- 
 ciples, if they can be justified at all. One J. W., being a 
 married'man, was seized of certain real estate, upon which an 
 execution was levied. Under this execution, a sale and con- 
 veyance were made by the sheriff; and the title thereby trans- 
 ferred subsequently vested in J. H., the father-in-law of J. 
 W. At the death of J. H., he devised this rejil estate to 
 Mrs. J. W. and her sister as tenants in common. An action 
 for partition was afterwards prosecuted between the devisees, 
 in which no mention was made of Mrs. J. W.'s inchoate right 
 of dower. After the partition was comjjleted, J. W. died, 
 and his wife filed her petition for the assignment of her dower. 
 In stating its reasons for sustaining this petition, the Court 
 said: "The plaintiff's claim is not barred by the proceeding 
 in partition regarded as an adjudication. It is not res judicata. 
 That proceeding was, throughout, silent in respect to the 
 plaintiff's. inchoate right of dower, and very properly so; for 
 she then had not only no estate, but no right capable of being 
 asserted in action. What she had was a mere possibility, 
 which might or might not subsequently ripen into something 
 of value. "^ In Missouri, A. 0. and wife were tenants by en- 
 tireties of a parcel of real estate. After the death of A. C, 
 his wife again married. The administrator of A. C.'s estate 
 brought suit against the wife and lier second husband for the 
 pui'posc of procuring an assignment of her dower, and of 
 having the residue of the land sold for the purposes of parti- 
 tion. The petition contained the usual and ordinary iiver- 
 
 ' Doe on deniiKc of Slioit c. I'n'Uyniau, 1 Houh. Del. 334; Dinbruw c. Folger, o .Vbb. 
 Pr. 54; PillHbury r. Dugan'H Admr. !) Ohio, 120. 
 - Freeman on Judfjmonts, sec. 156. 
 ' Walker c. Hull. \r, Oliio St. .360.
 
 ^ 466 PARTIES DEFENDANT. 572 
 
 ments of a petition for partition and to set aside dower. The 
 wife was ignorant of her rights as survivor of the tenancy by 
 entireties, and therefore made no objection to the proceedings 
 instituted by the administrator. A decree was entered assign- 
 ing her part of the land as dower, and directing the balance 
 to be sold. At the sale, the land was purchased by persons 
 interested as heii's of the deceased and conversant with all 
 the facts of the case, and who were not misled by any act or 
 representation of the wife. Eight years afterwards, the wife 
 becoming informed of her rights, filed her petition praying 
 that the former proceedings might be set aside. The Supreme 
 Court was of the opinion "that under the circumstances of the 
 case, there was certainly no rule of law which would prohibit 
 her from maintaining her suit for the assertion of her rights."' 
 Considerable stress was placed upon the fact that the sale was 
 made to persons fully acquainted with all the circumstances, 
 and who were parties in interest. The grounds upon which 
 the plaintiff v/as deemed entitled to relief were not clearly 
 stated by the Coui-t. It is probable, however, that the Court 
 proceeded upon the theory suggested by the wife's counsel, 
 that she ' ' having acted by mistake and in ignorance of her 
 rights, and no thii'd parties intervening, a court of equity will 
 grant relief." In Kentucky, when the lands of a married 
 woman are about to be sold in order to make a partition, the 
 Court must require her share of the proceeds to be secured 
 to her by a bond, unless she, ' ' being over the age of twenty- 
 one years, and upon privy examination before the Judge, or 
 a commissioner by him appointed, requests that no order for 
 such bond be made. In one case, a sale was made without 
 requiring any bond, and without the wife consenting, on such 
 examination as the statute designated, to waive such bond. 
 She did not object to the sale, nor make any motion to have 
 it set aside. The purchaser, however, refused to comply with 
 his bid, and was sustained in his refusal, on the ground that 
 "these proceedings, as to the sale, not conforming either to 
 the Revised Statutes or Civil Code, were invalid and the sale 
 unauthorized, and no valid title could, by virtue thereof, be 
 secured the purchaser."" 
 
 ' Crenshaw v. Creek, 52 Mo. 100; Thompson v. Ilenoe, 12 Mo, 157. 
 ' Horsfall v. Ford, 5 Bush. 644.
 
 573 
 
 PARTIES DEFENDANT. §467 
 
 ^ 467. Infants,— By the conrmon law, an infant could be 
 compelled to make partition. In this respect, he could nerer 
 avail himself of his disability. The fact of his nonage was 
 at no time regarded as a sufficient reason for denying his co- 
 tenants their right to have a partition.' The judgment ren- 
 dered upon such writ was not less binding on the infants 
 than on the adults.- In equity, as the partition was not con- 
 summated until conveyances were executed by the parties in 
 pursuance of the decree of the Court, an infant could not be 
 compelled to make partition, because he was incapable of 
 executing a conveyance. But this apparent difficulty was so 
 nearly avoided as to be of little consequence. The infant 
 was subject to the jurisdiction of the Court. He could be 
 made a party defendant. In partition cases, infant cotenants 
 were brought before the Court; the allotments were made as 
 in other cases; a decree was entered quieting the enjoyment 
 of the respective purparties to the persons to whom they had 
 been allotted; and the making of the conveyance was respited 
 until the infant attained his majority, or until the further 
 order of the Court. In analogy to the practice in other 
 cases, the infant Avas allowed a day after coming of age to 
 show cause against the decree.^ But by statute 13 and 14 
 Vict., ch. 60, sec. 30, an infant no longer has his day in court, 
 after coming of age, to show cause against the decree; but is 
 declared to be a trustee of such portions as are awarded to 
 the other cotenants.* In America, the rule of the common 
 law that infancy does not suspend the right of the adult co- 
 tenants to enforce a partition is believed to be of universal 
 obligation.'^ This rule has been held to be applicable to a 
 sale of the property, when a division was impracticable. The 
 right of the adults " to have the possession of their property, 
 and to have their wishes in the premises gratified, is to be 
 respected equally with the interests of the infants. It Avould 
 be monstrous to hold, that adult part owners should bo kept 
 out of the enjoyment of their property merely because the 
 
 ' Co. Litt. 171 a; Alluatt on Partition, 27. 
 ■' Allnatt, 64, 80. 
 
 ^ Allnatt, 104; Story's Eq. sec. C52. 
 
 * Bowra v. Wright, 4 Dc O. and S. 2Co; S. C. 20 L. J. (N. S.) Ch. 210; S. C. 3 En" 
 L. & E. 190. 
 '•> Hooke V. Hooko, (j Lou. 474.
 
 §§ 468-69 PARTIES DEPENDANT. 574 
 
 other part owners -were infants, and the interests of such in- 
 fants did not require the property to be sold."' The means 
 of bringing infant cotenants before the Court in order to bind 
 their interest in a suit against them for partition has been 
 made the subject of special statutory regulation in most of 
 the States. Unless the infant voluntarily appeal^ in some 
 manner authorized by law, or is served -with process in sub- 
 stantial conformity with the provisions of the statute, the 
 partition is not binding upon him.- But if he be brought 
 within the jurisdiction of the Court, the partition is as effect- 
 ual against him as against an adult, ^ and cannot be avoided 
 for irregulai'ities or errors in the subsequent proceedings.* 
 
 g 468. Granting Infants a New Partition. — While in- 
 fants, in partition suits as in other legal proceedings, are not 
 exempt from the jurisdiction of the Courts, and may be re- 
 quired to appear in court for the purpose of representing and 
 protecting their intei-ests, yet the law is not designed for the 
 puipose of allowing dishonest persons to take advantage of 
 the incompetenc}' of infancy. And wherever, through the 
 collusion of the adult cotenant with the guaixiian or other 
 person to whom the duty of caring for the infant's interest has 
 been assigned, an unequal partition has been made, courts of 
 equity are ready to interfere in the infant's behalf, and, by 
 ordering a new partition, to restore him to the condition in 
 which he was before his interests were imperiled by collusion 
 and treachery. ^^ 
 
 g 469. Lunatics. — The authorities in regard to the parti- 
 tion of property, one of the cotenants of which is a lunatic, 
 are exceedingly meagre. This much, however, is certain: 
 that the lunatic, notwithstanding the appointment of a 
 guardian or committee, is still vested with the title to his 
 property, and that the legal title thereto cannot be affected 
 
 ' Coker v. Pitts, 37 Ala. 693. 
 
 ' Shaw V. Gregoire , 41 Mo. 413; Fiske i'. Kellogg, 3 Oregon, 503; Hickenbotham v. 
 Blacklegc, 54 111. 316; Savage i-. Williams, 15 La. An. 250. 
 
 ^ Hite V. Thompaon, 18 Mo. 461; Kichards c. Richards, 17 Tnd. 636; Althause r. 
 Kadde, 3 Bosw. 410. 
 
 '* Castleman v. Pt'n7, 50 Mo. 583; Shaw v. Gregoire, 35 Mo. 346; Fulbright v. Can- 
 nelfox, 30 Mo. 425. 
 
 = Merritt v. Shaw, 15 Grant's Ch. 323; Long v. Mulford, 17 Ohio St. 184.
 
 575 PARTIES DEFEND A N'T. §§ 470-72 
 
 by any suit to which the lunatic is not a party. ' He must, 
 therefore, be made a defendant in partition. "It is very 
 certain that a coparcener, joint-tenant, or tenant in common, 
 is entitled to partition, and to have his shai'e allotted to him 
 in severalty, although his cotenant be a lunatic; and the 
 jmisdiction of the Judge does not depend on the character 
 of the cotenants, but on the fact that the land is held jointly 
 by parceners, joint-tenants, or tenants in common, and that 
 some of them, able to sue, make application for partition 
 in the manner prescribed by the act."^ Where a bill for 
 partition was filed against a person of weak intellect whcj 
 answered by her guaiiiian, the Court made the usual order 
 for a commission, and that the lands should be held in sev- 
 eralty; but it seemed to be conceded by complainant's coun- 
 sel that no conveyance could be made by defendant owing to 
 her mental incapacity. The decree was therefore made sub- 
 ject to further directions, and without ordering a convey- 
 ance.^ 
 
 § 470. Purchasers pendente lite are as much bound by 
 the final result of a suit for partition as they are by the final 
 result of any other suit pending in reference to the property' 
 at the time of their purchase.* 
 
 g 471. Administrators. — We have already seen'^ that the 
 administrator is not a proper party plaintiff in a suit for par- 
 tition. The like rule applies to parties defendant, in ordi- 
 nary circumstances.* But if the deceased cotenant is claimed 
 to have been indebted to hLs cotenant for rents received, and 
 an accounting as well as a partition is sought, the adminis- 
 trator is a proper party defendant.^ 
 
 '''/^ 472. Claimants of Dower. — We have shown in another 
 chapter tliat the wife of a cotenant, having an inchoate right 
 
 ' Oorliam r. Gorliam, 8 Barb. Cii. W. 
 - Heirs of Bryant v. Hk'ariis, 16 Ala. ilOC. 
 
 • lif)llinf,'wortli v. Sidobottom, 8 Sim. 020; S. C. 7 L. J. (N. S.) Cli. 2. 
 
 ' Partrid},'<; v. Lucr-, .30 Mf. l(i; Cobli' r. Clapp. 1 ./ou 3 Eq. 173; Wolty i'. Itnflfner, 
 9 Pa. St. 224; Baird v. Cr.rwiii, 17 Pa. Si. 100. 
 ■ Soe »ec. 454. 
 
 * Foster r. Nowtoii, 46 Miss. 00:1, 
 ' bcott V. Guernsey, 60 Barb. IB I .
 
 ^ 472 PABTIES DEFENDANT. 576 
 
 of dower in his moiety, is not a necessary party to a voluntary 
 pai-tition.^ As the moiety of the husband was always liable 
 to be turned into an estate in severalty by partition, voluntaiy 
 or compulsory, it was thought that the wife whose interest 
 was dependent on that of her husband ought not to be allowed 
 to prevent or avoid a partition which was fairly made, and 
 which left her interest as valuable as before. The same 
 reasoning would apply with greater force to compulsory par- 
 titions; and we apprehend that the claim of the widow for 
 dower, made after a compulsory partition , would, in all cases, 
 in the absence of fraud, be confined by the Courts to the pur- 
 party which had been assigned to her husband. "The wife 
 of a tenant in common is not a necessary party to a suit for 
 partition. If an actual partition should be made, her right 
 of dower will attach to the shai-e allotted in severalty to her 
 husband. This results, as a ma,tter of course, without any 
 decree or order of the Court, and, consequently, without her 
 being before the Court as a party. "^ Where the husband, 
 being a tenant in severalty, dies, and his estate descends to 
 several heirs, his widow is not a tenant in common with the 
 heirs. She is not therefore a proper party defendant in a suit 
 brought by one of the heirs for partition. Any pai^tion 
 which they may procure must be subordinate to her rights as 
 dowress. They need not — in fact they cannot — make her a 
 party defendant, for she does not hold with them in common 
 and undivided." On the other hand, it has been insisted that 
 the widow is a proper and necessary party to an action among 
 the heii-s for partition, and that it is erroneous to make a par- 
 tition in her absence. Thus, in Virginia, where a partition 
 was granted, as prayed for, subject to the widow's right of 
 dower, the Court of Appeals reversed the decree, saying: 
 "The widow and her husband should have been made parties, 
 and her dower assigned, and partition should have been made 
 of the residue. And it was error to have directed or con- 
 firmed a partition of said tract until such dower had been as- 
 signed." The case was therefore remanded, with instructions 
 
 ' See sec. 411. 
 
 ■' Matthews v. Matthews, 1 Edw. Ch. 5G7; Wnidnson v. Parish, 3 Pai. Ch. 658; Hoxsie 
 V, Ellis, 4. R. I. 124; Motley v. Blake, 12 Mass. 280. 
 " M'Clintic v. Manns, 4 Munf. 831; Bradshaw v. Callaghan, 8 Johns. 563^
 
 577 PARTIES DEFENDANT. §§ 473-74 
 
 to require the applicant to make the widow a party.' But 
 whei^ the husband is a tenant in common, instead of an owner 
 in severalty', the right of his wife to dower can never be para- 
 mount to the right of the other cotenants to partition ; and 
 they may therefore, in suing for partition, make her a party 
 defendant.- In such case, she would be bound by the parti- 
 tion, and her dower interest, as in case of partition in her hus- 
 band's lifetime, would be removed from the large tract and 
 attached to that assigned as her husband's share. 
 
 ^ 473. When the premises are claimed as a homestead, 
 
 the wife of the claimant is a necessary party defendant, be- 
 cause she is a party having or claiming an interest in the 
 land.' 
 
 ^ 474. Inchoate Claim of DovT-er in a Moiety — hovr 
 affected by Sale. — Under voluntary as well as under com- 
 pulsory partitions, both at law and in equity, no wrong, in 
 the absence of collusion among the cotenants, could ordi- 
 narily arise from considering the wives of the respective co- 
 tenants as bound by the allotments made to their husbands, 
 for notwithstanding such allotments, the wives still retained 
 interests in the lands as valuable as those held by them prior 
 to the partition. Through the operation of the partition, 
 these interests were made more definite, and their value was 
 enhanced rather than depreciated. But by virtue of statutes 
 recently enacted in England, but long in force in most of the 
 United States, Courts having jurisdiction in partition may 
 order the property to be sold. A sale so made must convert 
 realty into personalty, and thereby destroy the dower inter- 
 ests of the wives of the cotenants, unless the sale is to be 
 treated as transferring title subject to those interests, or un- 
 less the Court makes such directions as are necessary to se- 
 cure to the wife her just proportion of the proceeds of the 
 sale. Where a sale of the premises is sought, the wife 
 ought, at least, to bo brought before the Court and allowed 
 to contest the issue there tendered in regard to the necessity 
 of the sale, for, by so doing, she may be able to retain her 
 
 ■ CiiHtis r. Sncad, 12 Oratt. 2W. ^ CoIch v. CoIch, 15 Johns, 322. 
 
 ' DeUprey v. DeUprey, 27 Cal. 332. 
 
 C. <fe p.— 37
 
 g 474 PARTIES DEFENDANT. 578 
 
 inchoate right of dower. Hence, we find Chancellor Wal- 
 worth stating that, " as a feme covert cannot be bound by a 
 decree against her husband in a partition suit to which she 
 is not a party, it seems to be proper, in all cases where a sale 
 of the property will probably be necessary, that the wife 
 should be joined with her husband as a party to the suit, so 
 that the purchaser's interest in the premises may not be 
 charged with her contingent claim of dower. "^ But Vice- 
 Chancellor McCoun of New York held that it was immaterial 
 whether the wife was made a party to the suit or not, "be- 
 cause a decree for sale and conveyance by a master will not 
 bar her right of dower in her husband's share of the lands 
 in the event of her surviving him."- He justified this de- 
 cision on the ground that as nothing in the statute of that 
 State expressly declared ' ' a divestment of the dower initiate 
 of a wife of a joint-tenant or tenant in common upon a sale," 
 ' ' nothing so materially aflecting her legal rights ought to be 
 taken by implication." The same Vice-Chancellor, in a sub- 
 sequent case, expressed similar views, and sustained them 
 with some very clear and satisfactory reasoning.^ On appeal, 
 this portion of the Vice-Chancellor's decision was reversed 
 by the Chancellor, who determined : 1st, that the statutes of 
 the State, though containing no direct provisions on the sub- 
 ject, clearly contemplated that the wife's right of dower 
 should be discharged by the partition sale, ' ' and that a pur- 
 chaser under the judgment or decree will be protected against 
 any future claim on her part, both in equity and at law;" 2d, 
 that it was the duty of the Court to make such disposition of 
 the sale ' ' as may be necessary to secure to the wife a fair 
 equivalent for the value of her contingent right of dower, in 
 
 ' Wakinson v. Parish, 3 Pai. Cli. 658; Green v. Putnam, 1 Barb. 506. 
 
 '>■ Matthews v. Matthews, 1 Edw. Ch. 567; Van Gelder r. Post, 2 Edw. Ch. 577. In 
 Georgia, the following emphatic and extravagant language was employed by the Su- 
 preme Court: "It may be said that the last section of the act of 1837 demonstrates 
 that the Legislature foresaw that there would be recusant parties; and hence the pro- 
 vision to coerce the execution of deeds or other suitable conveyances in conformity 
 ^vith the decree or order of sale. And this may be true of those who are sui jurxs. 
 But as we have already intimated, neither the husband, nor the Courts, nor any other 
 human power, can compel the wife to relinquish her right of dower, inchoate though 
 it may be when she is not asking the aid of the Court." Royston v. Royston, 21 Geo. 
 172. 
 
 2 Jacltsou V. Edwards, 7 Pai. Ch. 391.
 
 579 PARTIES DEFENDANT. § 474 
 
 case she survives her husband."' From this decision of the 
 Chancellor an appeal Avas prosecuted to the Court of Errors. 
 In this Court the only opinions given were those of Bronson, 
 Judge, and Verplanck, Senator. The former agreed with the 
 Vice-Chancellor, holding: 1st, that the wife's right of dower 
 was not affected by the sale; 2d, that the dii*ection to invest 
 a just portion of the proceeds of the sale for the benefit of 
 the wife was an assumption of legislative prerogative. Sen- 
 ator Verplanck concurred with the Chancellor. Both the 
 Judge and the Senator united in the vieAv that the decision 
 of this question was immaterial, and the case was therefore 
 disposed of on pther grounds." So the question of the effect 
 of a sale in partition ujaon the dower interests of the wives 
 of cotenants, in the absence of provisions in the statute di- 
 rectly controlling the subject, may be considered as still un- 
 settled in New York. Its further discussion was rendered 
 unnecessary by the passage, in the year succeeding the final 
 decision of Jackson v. Edwards, of a statute providing for 
 the interest of the wife in accordance with the suggestions 
 and directions contained in the opinion of the Chancellor, to 
 which we have before referred. But in other States where 
 the question has arisen, the Courts have been disposed to 
 treat the sale in partition as conveying title paramount to the 
 wife's right of dower.^ The case in which this question is 
 best discussed is that of Weaver v. Gregg,* from M'hich we 
 extract the following: 
 
 "The question before us is one of legislative intention: 
 Did the General Assembly, in providing for the sale of 
 estates, in proceedings in partition, intend that the entire 
 estate should pass to the purchaser divested of the wife's in- 
 choate right of dower? In seeking for the intention of the 
 Legislature on this point, and in the absence of any clear and 
 decisive expression of that intention in the language of the 
 statute, it seems to us that the maxim, argumentum ah incoii- 
 venienii plurimum valet in lege very prof)erly and forcibly ap- 
 
 ' Jackson i'. EdwardH, 7 ]'ai. Ch. 411, iVi. 
 ■^ JaclvHon V. Edwiirds, 22 Wend. 512, 515. 
 
 » Warren v. Twilloy, 10 Md. 39; Lee v. Liudell, 22 Mo. 202; Siro c. St. Louis, 22 
 Mo. 20G. 
 ♦ Ohio St. 547.
 
 g 474 PAKTIES DEFENDANT. 580 
 
 plies; for, 'if the words used by the Legislature have a neces- 
 sary meaning, it will be the duty of the Court to construe the 
 clause accordingly, whatever may be the inconvenience of such 
 a course. But unless it is very clear that ^dolence would be 
 done to the language of the act by adopting any other con- 
 struction, any great inconvenience which might result from 
 that suggested may certainly afford fair ground for supposing 
 that it could not be what was contemplated by the Legislature, 
 and will warrant the Court in looking for some other inter- 
 pretation.' (Bi-owne's Legal Maxims, 140, 141.) To apply 
 this maxim to the case before us, let us suppose two copar- 
 ceners, each the owner of an equal undivided half of an estate 
 inherited from a common ancestor. One of them has a wife; 
 the other is unmarried. One of them petitions for partition 
 of the common estate, which is found to be incapable of ac- 
 tual partition, and is ordered to be sold. It is understood to 
 be the settled law that the inchoate right of dower is not di- 
 vested by the sale. The consequence is, inevitably, that the 
 estate must be sold for much less than it would otherwise 
 have brought. Yet, on the distribution of the proceeds of 
 the sale, the husband comes in for an equal sliare, and the 
 loss, consequent on the existence of such contingent incum- 
 brance, falls alike on the unmarried and the mai-ried copar- 
 cener. This is a necessary result, and it is not only incon- 
 venient but grossly unjust: too inconvenient and unjust to 
 permit us to suppose it to have entered into the intention of 
 the Legislature. 
 
 "We are of opinion, therefore, that it was the intention of 
 the Legislature, by a sale in partition, to divest the wife of 
 her inchoate right of dower. In so holding, we do not sub- 
 ject this right at all to the wU or caprice of the husband. 
 The sale is the act of the law, designed to do justice to joint 
 owners, and render estates available, and put forth only when, 
 from the fact that the estate is incapable of actual partition, 
 the necessities of the case require it. The Legislature has 
 deemed it more important to the public interest to render 
 estates available to their owners without sacrifice of their 
 value, by a sale, in case of necessity, than to preserve in all 
 cases whatsoever the wife's remote and contingent interest, at 
 the expense of parties on whom she can have no proper claim.
 
 581 PARTIES DEFENDANT. g 475 
 
 "On the whole, our view of the question is this: The right 
 of dower in the wife subsists in virtue of the seizin of the 
 husband; and this right is always subject to any incumbrance, 
 infirmity, or incident, which the law attaches to that seizin, 
 either at the time of tlie marriage or at the time the husband 
 became seized. A liability to be divested by a sale in parti- 
 tion is an incident which the law affixes to the seizin of all 
 joint estates; and the inchoate right of the wife is subject to 
 this incident. And when the law steps in and divests the 
 husband of his seizin, and turns the realty into personalty, 
 she is, by the act and policy of the law, remitted, in lieu of 
 her inchoate right of dower in the realty, to her inchoate right 
 in a distributive share of the personalty into which it has 
 been transmitted." 
 
 g 475. Claimant in Do-wer, -where Husband conveyed 
 before Partition. — The authorities to which reference has 
 been made in the preceding section arose out of cases in 
 which, when the sale in partition was ordered, the husband 
 was still a cotenant, and therefore may be claimed to have 
 represented his wife's inchoate right of dower. But a case 
 determined by the Supreme Court of Indiana presents this 
 novel feature, that the husband had conveyed the property 
 before the proceedings for partition were instituted. Neither 
 he nor his wife Avas a party to the partition; but the pur- 
 chaser at the partition sale nevertheless claimed, that, under 
 the authorities cited from the Ohio reports, the sale had di- 
 vested the wife's inchoate right of dower. The Court did 
 not "controvert the position that the rights of the wife in 
 her husband's real estate are subject to legislative control 
 while the}- remain inchoate" nor the correctness of the de- 
 cisions of the Ohio Courts; but it regarded the case before 
 it as materially difierent from that determined in Ohio. The 
 material difference referred to consisted in this, that, in the 
 previous cases, the seizin of the husband had been divested 
 by the act of the law, while in the case before the Court, the 
 husband's seizin had been divested solely by his own act. 
 As it was clear that the act of the husband could not defeat 
 the wife's right of dower, it was thought that the subsequent 
 partition, to which she was no party, and in which her estate
 
 §§ 476-78 PARTIES DEPENDANT. 582 
 
 had no representation, must be equally powerless to prejudice 
 her interests.^ 
 
 § 476. Sale in Partition, where Widow is entitled to 
 
 Dovrer. — When a widow is entitled to dower by virtue of her 
 late husband having had a sole seizin in the premises, her 
 right, as we have before stated, is generally regarded as par- 
 amount to right of the heirs to compel a partition. This is 
 equally true whether a division or a sale be sought. Courts 
 have no authority, unless it is expressly conferred by statute, 
 to compel a widow to accept a certain sum of money in lieu 
 of her dower. She cannot be divested of her dower except 
 by her own act.^ But in some of the States the statutes in 
 reference to partition authorize the widow to be made a party 
 defendant, and empower the Court, in case a partition cannot 
 be made, to decree a sale, and to award the widow a part of 
 the proceeds, which she must accept in satisfaction of her 
 dower.* 
 
 ^ 477. Husband of Cotenant. — If a married woman, being 
 a cotenant of real estate, be made a party defendant in a suit 
 for partition without joining her husband, and a judgment be 
 entered against her, such judgment is erroneous, because the 
 Court ought not to have proceeded against the wife in the 
 absence of her husband. This, however, is a mere error of 
 proceeding, and does not render the jiidgment void. The wife 
 is therefore bound by the partition, unless she procures the 
 reversal or revocation of the judgment. But the life estate 
 which the husband has in the lands of his wife cannot be 
 affected by judicial proceedings to which he is not a party. 
 He is therefore a necessary party defendant in an action for 
 partition of lands of which she is a cotenant.'' 
 
 ^ 478. Incumbrancers. — The reason assigned for com- 
 pelling a wife of a tenant in common to abide by a partition 
 
 ' Verry v, Robinson, 25 Ind. 19. 
 ^ See sec. 472. 
 
 ^ Francisco v. Gates. 28 111. G7. 
 
 ' Tanner v. Niles, 1 Barb. 562; Gordon v. Sterling, 13 How. Pr. 408; In the Mattes 
 of Sipperly, 44 Barb. 372. 
 ^ Pillsbury v. Dngan, i> Ohio, 120; Foi-ter c. Dugan, 8 Ohio. 106.
 
 583 PARTIES DEFENDANT. g 478 
 
 of lands to which she was not a pai-ty, namely, that her in- 
 terest is inseparably connected with her husband's seizin, and 
 must therefore be destroyed, restrained, or enlarged, as that 
 seizin is destroyed, restrained, or enlarged, applies with 
 equal force to persons having liens upon the moiety of any of 
 the cotenants. Hence, Avhen a partition is made, the interest 
 of a lienholder, like the inchoate right of a wife to dower, is 
 removed from the undivided moiety of the whole, and at- 
 tached to the whole of the purparty assigned to the tenant in 
 common against whose moiety the lien was a charge.' It is 
 the rule at law and in equity, except where statutory innova- 
 tions have been introduced, that holders of liens against the 
 cotenanls cannot be affected by partition, except to the extent 
 which we have just intimated. An incumbrancer, unless the 
 statute so directs, therefore, is not a necessary i^arty defend- 
 ant, because no relief can be decreed against him.'- It must 
 be admitted, however, that there are cases which, while they 
 do not controvert the rule that an incumbrancer is not a neces- 
 sary party defendant, deny that a partition can have any effect 
 whatever against him. Thus, in the case of Colton v. Smith,^ 
 a partition had been made between cotenants, one of whom 
 had previously given a mortgage on his moiety. The mort- 
 gagee subsequently applied for partition. His application 
 was^ji-anted on the ground that he could not be bound by the 
 judgment in partition to which he was not a party. ^ In so far 
 as the Court assumed that the mortgagee was not conclusively 
 bound by the judgment against his mortgagor, it was un- 
 doubtedly correct. But we understand that a judgment in 
 
 ' Hai-wood V. Kiiby, 1 Pai. Cli. 471; Thurston v. Minke, 32 Md. 574; Jackson v. 
 Pierce, 10 Johns. 417; LoomLs v. liiley, 24 111. 307. 
 
 ^ Baring r. Nash, 1 Ves. & B. 5.51; Wotten v. Copeland, 7 Johns. Cli. 141; Scbring 
 I'. MtTsereau, Hopk. Ch. 502; Low >\ Holmes, 17 N. J. Eq. 150; Speer v. Speer, McCart- 
 ner Ch. 251. In one of tiie Upper Canada reports is a case in which the plaintiff in 
 partition, being a mortgagee,, was required to l)ring his mortgagor bel'or the Court to 
 join with him in the conveyance. (McDougall r. McDougall, 14 Grant's Ch. 267.) 
 But tills case is clearly contrary to all precedent. The opinion of tlie Court was based 
 upon the tlieory tliat an incumbrancer occupied a position analogous to that of a lessee. 
 This theory is incorrect. S(;e see. 479. 
 
 • 11 Pick. 314. 
 
 * See to same effect Muuroe v. Lukt;, 19 Pick 40; Bradley v. Fuller, 23 Pick. 4. But 
 sec. 43 of the statute of this SUite in regard to partition now provides that aiwrson* 
 having a lien on the share of a part owni r shall be concluded by (he jwrtition. (dcnJ. 
 Ht. of Mass. ed. 18G0. p. 702. )
 
 g 479 PARTIES DEFENDANT. 584 
 
 partition, or even a voluntary partition, is so for binding upon 
 mortgagees and other incumbrancers as to cast upon them the 
 onus of showing that the allotments thereby made were un- 
 equal; and that until such a showing is made the partition 
 cannot be disturbed. To permit a mortgagee or other incum- 
 brancer, either before foreclosure or afterwards, to wantonly 
 assail and destroy a prior partition, and to disturb possession 
 taken and held thereunder, would certainly be a maladminis- 
 tration of the law. But if such mortgagee has a right to par- 
 tition which cannot be denied without disregarding any well 
 established rule of law. Courts may still prevent a malicious 
 and inequitable exercise of that right by allotting to him the 
 parparty already set off to his mortgagor, in all cases where 
 the previous allotment has not been unjust. 
 
 ^ 479. Incumbrancers, how affected bjrSale. — When the 
 subject-matter of a suit for partition is divided among the 
 various cotenants thereof, the interests of each lienholder are 
 sufficiently protected, because, by operation of law, his lien 
 is attached to the whole of the property assigned to the co- 
 tenant against whose moiety it was charged. But when, in- 
 stead of a partition, a sale of the property is ordered, it is 
 evident that some means must be devised for the adjustment 
 of the conflicting interests of the lienholders and of the pur- 
 chaser at the sale. Even where a sale is sought, lienholders 
 are not, in the absence of statutory provisions to the contrary, 
 necessary parties defendant; because they cannot be affected 
 by such sale.^ "The business of the Court is not to draw into 
 discussion various and conflicting rights and equities of in- 
 cumbrancers. The property is divided cum onere. The true 
 rule is no persons are to be made parties except those having 
 a present interest in the premises.^ When a lien became 
 attached to the interest of one of the cotenants pendente lite, 
 the purchaser took the premises discharged of the lien; and 
 
 ' 1 Wait's P. 136; Owsley v. Smith, 14 Mo. 155; Matter of Harding, 3 Ired. 322; 
 Thurston v. Minke, 32 Md. 574. 
 
 ■^ Sabring v. Mersereau, 9 Cow. 345; S. C. Hopk. Ch. 502. But in Pennsylvania a 
 sale in partition, like all other judicial sales in that State, transfers the property free 
 of all liens. Gerard Life Ins. Co. i'. F. & M. Bank, 57 Pemi. St. 394; S. C. 7 Am. 
 Law Reg. 4G7. See also Sackett i'. Twining, 18 Peun. St. 202; Jacobs'. Appeal. 23 
 Penn. St. 477; Allen v. Gault, 27 Penn. St. 473.
 
 585 PARTIES DEFENDANT. g 480 
 
 the lien became a charge on the cotenant's share of fhe pro- 
 ceeds of the sale.' If no means were provided b}- which the 
 existence of liens against a cotenant's moietj could be brought 
 to the attention of the Court, great injustice would be done. 
 The lands would be sold at a sacrifice owing to the existence 
 of such liens; while the cotenant against whose moietj the 
 lien existed would claim his proportion of the proceeds of 
 the sale, without allowing any deduction on account of the 
 lien. The authority of Courts to order a sale of the property 
 of cotenants is based upon statutes all of a comparatively 
 modern date. These statutes will, on examination, be found 
 to contain provisions by means of which either of the co- 
 tenants in the partition suit may have all the liens chargeable 
 upon the proj^erty ascertained, and may have such a disposi- 
 tion made of the proceeds of the sale as will protect him 
 from loss. In some of the States, the lienholders must be 
 made defendants; in others, they may be made defendants or 
 not, at the option of the parties to the partition suit. Lien- 
 holders may intervene in some of the States, or may apply on 
 motion, and thereby affirmatively assert their lien and pro- 
 cure an order for its payment out of the proceeds of the 
 sale.'^ A lienholder thus coming before the Court will not 
 be sustained in demanding anything upon which neither of 
 the cotenants could legally insist. Hence, if, under the stat- 
 ute, a sale may be ordered to be made on credit, a lienholder 
 cannot compel it to be made for cash, in order that his claim 
 may thereby be paid." 
 
 g 480. A lessee of a moiety has an interest -which 
 cannot be divested without making him a party. The coten- 
 ants may, if they choose, go on and have a decree of parti- 
 
 ' Westervelt v. Haff, 2 Sandf. Ch. 101; Cradlcbaugli i-. Pritehftt. s Ohio St. 041); 
 Church V. Church, 3 Sandf. Cli. 437; Loomis v. Uiley, 24 111, 310. 
 
 '^ Garvin v. Garvin, 1 S. C. (N. S.) GO; SimonH v. Simons, Harp. Eq. 25U. 
 
 ^ Stern v. Epstin, 14 llich. Eq. 7. For wtatutory provisions in regard to lienliolders, 
 see Code of Ala., Ktc. 3114: Laws Arizona, p. 42G, sec. 268; p. 427, sees. 274-G; p. 429. 
 sec. 283; Cal. Code C. P., sees. 7G1, 7G!}; Code of Iowa, sees. 3281, 3281 -8f); Kansas 
 Code C. P. sec. GIG; Kev. St. Me., p. G'J7, sec. 28; Comp. Laws Mich., ed. 1871, sees. 
 6273-4; Bissell's St. of Minn., p. 889 and 890, sees. 43, 4G, 51, 52; Ilev. Code Miss.. 
 sec. 1830; C. C. P. of Neb., sec. 804; Comp. Laws Nev., sees. 1344, 1340-7; Nixon's 
 Digest, Laws of N. J., 4th ed.. p. G09, sec. 14; 3 Kev. St. N. Y., pp. G05. GU, sees. 11, 
 12, 13, 51; Thompson <t Bteger's St. of Teim., sees. 3309-15; Doady's Laws of Oregon, 
 sec. 421.
 
 §g 481-82 PABTIES DEPENDANT. 586 
 
 tion witliont bringing him before the Court. By such parti- 
 tion, the legal title vests in the assignees of the various 
 purparties, subject to the equities of the lessees who were 
 not parties.' But whenever it is proposed by the partition 
 to affect the rights of lessees, they must be made parties de- 
 fendant, or in some other manner brought before the Court.^ 
 
 ^ 481. Disseizors. — In most of the States, proceedings 
 for partition cannot be . sustained while the property to be 
 divided is held adversely to the petitioner. But even in 
 those States where the disseizin of the applicant presents no 
 obstacle to his procuring a partition, the disseizor is not a 
 necessary party defendant unless his adverse possession has 
 continued for a sufficient period to ripen into title, and has 
 thereby made him a cotenant.^ 
 
 g 482. Persons not in Esse. — If several remainders are 
 limited by the same deed, this creates a privity between the 
 person in remainder and all those who may come after him ; 
 and a verdict and judgment for or against the former may be 
 given in evidence for or against any of the latter.^ But there 
 seems to be a conflict of opinion as to whether the same privity 
 exists between a tenant for life and a reversioner, unless the 
 latter has identified himself with the litigation out of which 
 the judgment resulted, as by being made a party to the pro- 
 ceedings by said prayer.^ "If there are ever so many con- 
 tingent limitations of a trust, it is an established rule, that it 
 is sufficient to bring the trustees before the Court, together 
 with him in whom the first remainder of inheritance is vested; 
 and all that may come after will be bound by the decree though 
 not in esse, unless there be fraud and collusion between the 
 trustees and the fii'st person in whom the remainder of in- 
 heritance is vested."^ According to the views entertained and 
 expressed by Lord Eedesdale, "it is sufficient to bring before 
 
 ' Pleak I!. Chambers, 7 B. Monr. 570. 
 
 '' Thurston v. Minke, 32 Md. 575; Fitzpatrick v. Wilsou, 12 Grant's Ch. 440; Cor- 
 nish V. Gest, 2 Cox's Ca. 27; Calvert on Parties, 349. 
 » Tilton 11. Palmer, 31 Me. 488. 
 ^ Pyke V. Crouch, 1 Ld. Eaym. 730. 
 ^ Adams v. Butts, 9 Conn. 79; Ph. Ev. 14-5. 
 « Hopkins v. Hopkins, 1 Atk. 590.
 
 587 PARTIES DEFENDANT. § 482 
 
 the Court, tlie first tenant-in-tail in being, and if there be no 
 tenant-in-tail in being, the first person entitled to the in- 
 heritance, and if no such person, then the tenant for life. It 
 has been repeatedly determined, that if there be tenant for 
 life, remainder to his first son-in-tail, remainder over, and he 
 is brought before the Court before he has issue, the con- 
 tingent remainder-men are barred."^ But in Maryland where 
 one-sixth of certain property was devised to the testator's 
 daughter "during her life, and after her decease to her male 
 children on her body lawfully begotten or to he begotten," a 
 bill in equity was filed against this daughter and her two sons, 
 by other part owners of the land, alleging that a partition 
 could not be advantageously made, and praying for a sale of 
 the land and the distribution of the proceeds. A decree was 
 subsequently entered in accordance with this prayer, and was 
 succeeded by the sale of the property thereunder. After the 
 death of the daughter, her five sons commenced an action of 
 ejectment to recover possession of one-sixth of the land. 
 Three of the sons had been bom since the rendition of the 
 decree under which the sale had been made; and it was con- 
 tended that as they were not in esse they coiild not be bound 
 by the decree. The Court held that their interest could not 
 be destroyed by their mother, as life-tenant, nor by their 
 living brothers; " that their rights under the will were inde- 
 structible by any act of the parties having interests prior to 
 or in common with them," and, therefore, that they were not 
 prejudiced by the decree of sale and the proceedings had in 
 pursuance thereof." The difi'erence between the conclusions 
 reached by the Court in Maryland and those announced by 
 Lord Redesdale is this : that in Maryland some person must 
 be brought before the Court having an estate of inheritance, 
 and who is, on that account, entitled to represent both his 
 own interests and the interests of all who may claim after his 
 death; while, according to Lord Eedesdale, if there be no 
 person in existence possessing an estate of inheritance, then 
 the tenant for life may be brought before the Court and 
 treated as the representative of persons who may, by their 
 subsequent birth, acquire interests in the estate. The views 
 
 ' Giffard r. Uort, 1 HcU. A- Uf. 407. ' Downiii i'. SprecLtv, 35 Md. 478.
 
 ^ 488 PARTIES DEFENDANT. 588 
 
 of Lord Redesdale are sustained by a majority of tlie reported 
 adjudications on this subject.^ The rule that "the person 
 entitled to the first indefeasible estate of inheritance is al- 
 lowed to represent all persons who are entitled to subsequent 
 estates" is as applicable to suits in equity for partition as to 
 any other suits. ^ "A tenant for life of an undivided share of 
 an estate with remainder to his unborn sons-in-tail may file a 
 bill for partition, and the decree wdll be binding on the sons 
 when they come into esse."^ An English case recognizes an 
 exception to this principle of virtual representation, by deny- 
 ing its applicability in cases where the person seized in fee is 
 liable to have his seizin defeated by a conditional limitation 
 or an executory devise, because, in that event, the estate is 
 insufficiently represented by the person holding the first 
 vested estate of inheritance* This exception is repudiated 
 so far as it seems to be noticed in the United States.** 
 
 ^ 483. tJnknown Owners. — In most of the States, the 
 statutes in reference to partition have been designed to fur- 
 nish all the means necessary to make a partition binding and 
 valid as against all persons. In order to achieve this result, 
 it was essential that some method should be provided by 
 which all parties in interest could be brought before the 
 Court. As these parties could not ahvays be known to the 
 applicant, he was authorized to proceed against such as were 
 not known to him by the general designation of ' ' unknown 
 owners." When the proceedings against the unknown own- 
 ers were conducted in compliance with the statute and cul- 
 minated in a final judgment or decree of partition, the co- 
 tenants not named in the proceedings were as much bound 
 as those who were so named.*' Of course, if the proceedings 
 
 ' Faulkner v. Davis, 18 Gratt. 68-i; Baylor's Lessee v. Dejarnette, 13 Gratt. 152; 
 •Gaskell v. Gaskell, 6 Sim. 643; Fi-eeman v. Freeman, Tenu., April Term, 1872, 2 
 South. L. R. 168; Calvert on Parties, 58; Dayrell i>. Champness, 1 Eq. Cas. Ab. 400; 
 Leonard v. Sussex, 2 Vern. 527; Finch v. Finch, 2 Ves. Sr. 492. 
 
 '•^ Freeman on Judgments, sec. 306; Wills v. Slade, 6 Yea. 498; Cheeseman v. Thome, 
 1 Ed. Ch. 629; Clemens v. Clemens, 37 N. Y. 59. 
 
 ^ Calvert on Parties, p. 60, 259. 
 
 ■> Goodess V. Williams, 2 Y. & C. 595. 
 
 * Mead v. Mitchell, 17 N. Y. 210. 
 
 « Cole V. Hall, 2 Hill, 627; Rogers v. Tucker. 7 Ohio St. 428; Foster v. Ablx)t, 8 Met. 
 598; Marvin v. Titsworth, 10 Wis. 320.
 
 589 PARTIES DEFEXTtAXT. g 483 
 
 necessary to procure jurisdiction against tlie unknown owners 
 are omitted, the judgment based upon such proceedings must 
 be void. But in the prosecution of inquiries in regard to 
 jurisdictional facts, upon which the proceedings of courts of 
 record are based, the Courts of the different States are by no 
 means harmonious. Some of them insist that such inquiry 
 must be confined to an inspection of the papers constituting 
 the judgment roll; others have no hesitation in employing 
 any evidence tending to disprove the existence of jurisdic- 
 tional facts wheresoever it may be found, even against the 
 express jurisdictional declarations made upon the record.* 
 And so in regard to proceedings in partition, a diversity of 
 opinion would no doubt be manifested upon the question 
 whether these proceedings, though conducted in a court of 
 record, were to be supi)orted by the same jurisdictional pre- 
 sumptions which ordinarily attend the judgments and de- 
 crees of such courts. For in some of the States,^these pro- 
 ceedings, being of a statutory origin and controlled by 
 statutory provisions, would be regarded as in derogation of 
 the common law, would be strictly scrutinized, and would 
 be received with no greater deference than though emanating 
 from a court of special and limited jurisdiction; while in 
 other States, the Court exercising jurisdiction over an action 
 for partition, though pursuing its jurisdiction and regulating 
 its proceedings in accordance with the statute, would never- 
 theless be regarded, even as to those proceedings, as a court 
 of general jurisdiction, and its judgments would import the 
 same uncontrollable verity as though rendered in the exercise 
 of its general common law authority.^ Hence, when a judg- 
 ment or decree in partition against unknown owners is col- 
 laterally called in question, we may expect to find that some 
 courts will refuse to give it effect unless all the facts author- 
 izing the proceeding against "unknown owners" are shown 
 to have existed;* whilst other courts will require the absence 
 of these facts to be affirmatively established, and will incline 
 to consider mere defects in the proceedings as involving 
 nothing beyond the erroneous exercise of established juris- 
 
 ' Freeman on Judgments, Chapter VIII. - lb. 
 
 ' Denning v. Corwin, 11 WcncL C52.
 
 g 4B3 PARTIES DEFENDANT. 590 
 
 diction.' But whenever a judgment or decree in partition 
 cannot be attacked and overthrown, by such investigation in 
 regard to jurisdiction as may be pennissible under the laws 
 of the State, it is, when against unknown owners, conclusive 
 not only upon every person owning a moiety of the property, 
 but also upon all claimants in severalty. Nor does it seem to 
 make any exception to this general rule that such owner in 
 severalty was, at the time the proceedings were being prose- 
 cuted against him as an unknown owner, in the actual and 
 open possession of the premises partitioned. The leading 
 case on this subject is that of Cook v. Allen,^ decided by 
 Chief Justice Parsons in the year 1807. This was an action 
 on a writ of entry. The demandant gave in evidence before 
 the jury the record of a suit in partition. From this record 
 it appeared that one Eeed, under whom the plaintiif claimed, 
 filed a petition for partition, alleging that he was seized as a 
 tenant in common, ivith divers persons to him nnknoiun, of one 
 thousand acres of land. "Notice of the petition was given 
 to all persons interested, that they might show cause against 
 granting the prayer of it. Afterwards, on proclamation being 
 made for any person to appear and show cause, no person 
 appeared, and the first judgment, quod partitio fiat, was en- 
 tered. Pursuant to this judgment, Reeds purparty was regu- 
 larly set out and assigned to him, Avhich included the premises; 
 and a final judgment was rendered that he and his heirs liold 
 the part thus assigned, in severalty, forever. The tenant, to 
 defeat this title, gave in evidence the entry of one Jonatha)t 
 Frye into the lands more than thirty years past; that he after- 
 wards mortgaged them to the present tenant, who foreclosed 
 the mortgage, by judgment and execution, according to the 
 statute in such case provided; and that he, the tenant, has 
 continued in possession ever since. From this evidence, he 
 insisted that Reed and the other tenants in common were dis- 
 seized by Frye; that at the time of the partition their right 
 to enter was gone; and that he not appearing to defend 
 against Reed's partition, and not claiming as a tenant in com- 
 mon, was Jiot conncluded by the judgment on that petition, 
 
 ' Cole V. Hall, 2 Hill. 627; Waltz v. Barrowav, 25 lud. 381; Hynes v. Oldham, 3 
 Monr. 266. 
 ■' 2 Mass. 467.
 
 591 PARTIES DEFENDANT. g 483 
 
 even as to the right of j)ossession.'" The Coui-t in which the 
 action was tried instracted the jury in favor of the tenant. 
 The demandant excepted to the instructions, and appealed to 
 the Supreme Court. This Court set aside the verdict, and 
 granted a new trial, giving the following reasons for so doing : 
 
 "A writ of partition must name all the tenants who liold 
 together and undivided, either as plaintiffs or defendants; 
 the shares of each must be alleged; and the partition must 
 be made among them all. In this State, very large parcels 
 of land are holden in common, the- tenants are numerous, and 
 frequently unknown to each other, and their shares unascer- 
 tainable. Partition, so necessary for the settlement and cul- 
 tivation of lands, is therefore impracticable by writ at com- 
 mon law. Inconveniences of this kind heretofore prevailed 
 in England, and they were remedied by an act of Parliament, 
 passed 8 and 9 Will. 3, c. 31. This act, after providing that 
 to a writ of partition no plea in abatement shall be received, 
 and that it shall not abate by the death of any of the tenants, 
 enacts that, if any tenant to the writ shall not enter an ap- 
 pearance within fifteen days after the return of the attach- 
 ment — notice having been given of such writ by leaving a 
 copy thereof, forty days before the return, with the occupier 
 or tenant in possession, or, if he cannot be found, Avith his 
 wife, son, or daughter — the Court may proceed to examine 
 the demandant's title, and give judgment on default for his 
 pui-j^arty; and his purparty being regularly assigned by an 
 execution of that judgment, the partition shall be good, m\d 
 conclude oil persons zvhaiever, whatever right or title they had in 
 the premises, although all persons concerned were not named 
 in any of the proceedings, nor the title of the tenants truly 
 set forth; and a power is given to the Court, within a limited 
 time, to permit a tenant against whom judgment has been 
 rendered by default to plead in bar, or to show an inequality 
 in the partition. 
 
 "The inconveniences of partition by writ according to the 
 course of the common law were, in this State, remedied by a 
 temporary provincial act, passed 22 G. 2, c. 3. This act, after 
 several continuances, expired, but its provisions were re- 
 enacted, with some new regulations, by tlie statute first men-
 
 g 483 PARTIES DEFENDANT. 592 
 
 tioned, and whicli is the foundation of the partition in the 
 case. By virtue of this statute, a person interested with 
 others in land may file his petition, showing his purparty, 
 and that others (naming them) hold the premises together 
 and undivided with him, and may pray for the severance of 
 his purparty. Of this petition, those others named are to be 
 notified personally, or by leaving a copy of it at their last 
 place of abode, if practicable. 
 
 "If the petitioner does not know the cotenants, he may 
 allege that he holds his purparty, together and undivided 
 with others to him unknown. In this case, notice is to be 
 given to all persons interested, by publishing the substance 
 of the petition, three weeks successively, in one or more of 
 the public newspapers as the Court may direct. If partition 
 be regularly made, pursuant to the petition, it is declared to 
 be valid to all intents and purposes, which words are of as large 
 import as the provision of the English statute, where the par- 
 tition is declared to conclude all persons lohatever, whatever 
 may be their right and title to the premises. But it is rea- 
 sonable to give the words a construction by which no person 
 shall be concluded by a partition, when he could not, by law, 
 be admitted to defend his rights. This construction is con- 
 formable to a maxim of the common law, that judgments do 
 not bind the rights of any but parties or privies ; understand- 
 ing by parties all persons who might have been made parties 
 on the record but from their own laches. In applying this 
 construction to the statute before us, when in the petition 
 certain persons are named as cotenants, if partition be made, 
 none are concluded by it but the persons named, their heirs 
 and assigns. If in the petition the cotenants are not named, 
 but are supposed to be unknown to the partitioiier, and notice 
 is given to all persons interested to appear and show cause 
 against the partition, and partition be made, no person ap- 
 pearing, this partition shall conclude all jjersons w^hatever, as 
 to their right of possession. Any person interested was 
 authorized to appear, and, by falsifying any allegation of the 
 petition in a point material to his defence, might have pro- 
 tected his interest. But if he will lie by and refuse to appear, 
 it is a consent that the petition may proceed ex parte; and he
 
 593 PARTIES DEFENDANT. ^ 483 
 
 shall be bound by the partition as fully as if he had appealed, 
 and afterwards made default. 
 
 "In a writ of partition, the plaintiff alleges that all the 
 parties to the writ hold together and undivided; so in the 
 petition where the cotenants are not known or named, the 
 petitioner, by declaring that he is seised of an undivided 
 share of the land, in effect alleges that all persons holding 
 the land, or any part of it, are seised as cotenants with him ; 
 and when judgment is rendered in partition, all the allega- 
 tions material to the rendition of the judgment are to be con- 
 sidered as facts, and all persons concluded by the judgment 
 are estopped from controverting them. In this case, there- 
 fore, Allen, the tenant, cannot be admitted, by showing a dis- 
 seisin of all the tenants in common, to question the right of 
 Reed, alleged in his petition, and supported by the judgment; 
 as he cannot be considered as a stranger to the record, and 
 so not bound by it. He was on the land at the time of the 
 partition, claiming an interest in it; he was notified to appear 
 and defend his interest; he might have appeared and have 
 been admitted a party on the record. He did not choose to 
 do it; and it is owing to his own laches that he did not de- 
 fend his interest, if he had any to defend. To consider him, 
 under these circumstances, as a stranger to the record, is re- 
 pugnant to a well-known rule of law; for he would take ad- 
 vantage of his own laches. 
 
 " The remaining objection made by the tenant against the 
 effect of the partition is that, upon the true construction of 
 the statute, the right of possession of no person is, in fact, 
 bound by any proceeding under it but a tenant in common. 
 It is a sufficient answer to this objection, in this case, that, 
 the tenant having been notified of the petition, in which it 
 appears that the petitioner claimed to hold with him, together 
 and undivided, the premises, and having a legal right to ap- 
 pear and controvert the petition, and judgment being ren- 
 dered on his default, ho is now concluded from saying that 
 he is not a tenant in common."' 
 
 In the case from which the preceding quotation has been 
 
 ' Cook V. AUon, 2 Mass. 467; BaylicB v. Bussey, 5 Groonl. 157; Foxcroft v. BarncB. 
 29 Me. 129; Kario v. Kock River Canal Co. 15 Wis. 18C. 
 
 C. & V.--6S
 
 g 483 PARTIES DEFENDANT. 694 
 
 made, it does not clearly appear whether the tenant had per- 
 sonal knowledge of the pendency of the suit for partition or 
 not, but from the imputation of laches thrown upon him in 
 the opinion of the Court, we infer that he had such knowl- 
 edge. But it is probable that this circumstance was imma- 
 terial. In a case determined by the Supreme Court of Wis- 
 consin, the person in possession claiming in severalty had no 
 notice of the suit for partition, except the constructive notice 
 given him by the publication against unknown owners. In 
 considering the effect of this partition, Dixon, Chief Justice, 
 said: "The position assumed by the respondents' counsel in 
 the argument of the case, I must say, appeared to me novel 
 and somewhat extraordinary. It seemed to me that if they 
 were correct, we should, so far as the appellants are con- 
 cerned, be compelled to give one of the most unjust judg- 
 ments ever pronounced in a court of justice ; that every senti- 
 ment of equity and justice demanded of us to uphold them 
 in their title and possession, or at least to give them their 
 day in court for the purpose of establishing them. The idea 
 that, under our statute for the partition of real estate, a party 
 in the quiet and undisturbed possession of his property could 
 be sti'ipped of it by a judicial proceeding, of which he was 
 entirely ignorant, struck me as being so flagrantly and enor- 
 mously unjust and oppressive, that I thought it could not be 
 the law. The taking of a valid title of a person in possession 
 from him and transferring it to another having no right to it 
 by a proceeding of which the owner has no knowledge, and 
 in which the title was not directly adjudicated, nor the atten- 
 tion of the Court directly called to it, exhibits a most alarm- 
 ing defect in justice. Such a proceeding is opposed to all 
 our notions of law and justice, and we search with anxiety 
 for some mode of escape from it. 
 
 " It is not by the rules of the common law, which Courts 
 are at liberty to mould and modify to meet the ends of justice, 
 but by the declarations of the Legislature upon a subject con- 
 fessedly within their control, that we are to determine this 
 case. They, not the Court, are responsible for the unjust 
 consequences which may flow from its decisions. They have 
 prescribed the mode in which parties shall be brought into 
 court, the form of the proceedings, and the effect of the judg-
 
 595 PARTIES DEFENDANT. g 483 
 
 ment in actions like that under which the respondent claims 
 title. The same power which authorized the wrong must 
 apply the remedy." His Honor then proceeded to quote from 
 and concur with the opinion of Judge Parsons in the case of 
 Cook t7. Allen; and added: "I have quoted at length from 
 this opinion, partly because it was not noticed at the trial, 
 but more for its sound reasoning, and because the necessity 
 and policy of the law in providing for proceedings against 
 property of persons unknown is clearly shown. If judgments 
 in such jDroceedings are not to be held binding and conclusive 
 on all such persons having an interest both as to the amount 
 and nature of their interests, like other judgments, then the 
 mischiefs to be remedied cannot be reached, and partition in 
 many cases becomes an impossibility. The law makes the 
 allegation that they are unknown, and publication of notice 
 equivalent to a suit against them by name when they are 
 known, and personally served with process. If the defend- 
 ant Church had been sued by name and served with process, 
 and had made default, no one can doubt that such default 
 would have been a confession by him according to the allega- 
 tions of the complaint, that he was a tenant in common. The 
 statute gives precisely the same effect to the proceeding in 
 the form in which it was had."' 
 
 ' Nash V. Church, 10 Wis. 311. See also Herr v. Heir, 5 Penn. St. 428. 
 
 Alabama..— The Code of this State (sec. 310C) requires the applicant to set forth 
 the names of all the persons interested in the property. All parties in interest (see 
 sec. 3107) must have notice of the hearing of the petition, and if any of the parties 
 are infants or of unsound mind, guardians ad litem must be appointed to represent 
 them. Non-residents are made parties in the same manner as when property in the 
 hands of an administrator is to be distributed. By sec. 3114, a lien on an undivided 
 interest becomes a charge on the share assigned to the holder of sucli interest. 
 
 Ahkansas. — All persons interested in the property must be parties, including ten- 
 ants for years, for life, by curtesy, or in dower; persons entitled to the reversion, 
 remainder, or inheritance; and persons who on any contingency may become entitled 
 to any beneficial interest. Peiuons entitled to dower, if the same has not been ad- 
 measured, are necessary parties. — Gould's St. of Ark., ed. 1858, p. 811, sees. 2 and 3. 
 The statute also provides for proceeding against unknown owners.— lb., sees. 4 to 7. 
 
 California.— The interests of all persons, known and unknown, must bo set forth, 
 unless they claim under a conveyanco or incumbrance not on record. The summons 
 is directed to all of the cotenants, all persons having any interest in or lion on the 
 property or any part thereof, and generally to all persona unknown.— Code C. P.,
 
 g 483 PARTIES DEPENDANT. 596 
 
 sees. 753, 754, 756. If it appears to the Oourt that lienholders exist in addition tc 
 those made parties to the suit, the Court may order them to be made parties..— lb. 
 sec. 761. 
 
 CoNNECTicioT. — The statute of this State does not make any specification of the 
 persons ■who must be defendants. 
 
 Delaware. — The only provision in the statute in regard to defendants is that the 
 summons shali issue to the persons interested who have not joined in the petition. — 
 Eev. St., ed. 1874, p. 529, sec. 8. 
 
 Florida. — The petition must be against the cotenants or others interested. If the 
 names of some of the owners are unknown, this fact may be stated in the bill, and 
 the suit may then proceed as if they were named. — Bush's Digest, p. 616-17, sec. 2. 
 
 Georgia. — The Code of this State contains no provisions directing who shall be 
 made parties defendant. 
 
 Illinois. — The statute of this State in regard to parties and to proceedings against 
 unknown owners is like that of Ai-kansas. — See Gross' St., p. 469-70, sees. 2-6. 
 Courts of Chancery have power to assign dower in suits for partition. — lb., p. 471, 
 sees. 15, 16. Lienholders have been adjudged to be necessary parties. — ^Loomis v. 
 Riley, 24 Dl., 310. 
 
 Indiana. — The petition must set forth the rights and titles of the parties interested 
 in the property. On each of these parties summons must be served.^Rev. St., ed. 
 1852, vol. 2, p. 329, sees. 2, 3. The statute also provides for proceeding against un- 
 known owners. — lb., sees. 3, 4. 
 
 Iowa. — The interests of the several owners, if known, must be described. Persons 
 having contingent interests, and holders of specific or general liens on the entire 
 property, maybe parties.— Code of Iowa, ed. 1873, sees. 3278-81. If the lien be on 
 an undivided interest, the holder must be made a party.— lb., sec. 3287. When the 
 owner of a share sold has a husband or wife living, who does not agree in reference 
 to the disposition of the proceeds of the sale, the Court must direct such proceeds to 
 be invested in real estate, taking the title in the name of the person whose share has 
 been sold.— lb., sec. 3303. 
 
 Kansas.- The provisions of the statute of this State are similar to sees. 3278-81 of 
 Code of Iowa, cited above.— See Genl. St. of Kans., ed. 1868, p. 753-4, sees. 615, 616. 
 
 Kentucky. — The statute seems to contempate that all persons interested shall be 
 parties. If defendant be feme covert, infant, or insane, notice may be given to the 
 husband, guardian, or committee, or if there be no guardian or committee, one may 
 be appointed for the occasion. — 2 Stanton's Rev. St., p. 101, sec. 2. 
 
 Maine. — No parties seem to be necessary defendants except the other cotenants. — 
 Rev. St. of Me., ed. 1871, p. 694, sec. 2. 
 
 Massachusetts. — The petition for partition must be against all persons known to 
 the petitioner to have any interest in the premises who would be bound by the parti- 
 tion, whether they have estates of inheritance, for life or years, in possession, re- 
 mainder or reversion, whether vested or contingent. If the petitioner has an estate 
 for life or years, the person entitled to the reversion or remainder is entitled to notice.— 
 Genl. St., ed. 1860, p. 699, sec. 6. Process may be served on unknown owners. — lb., 
 eec. 10.
 
 597 PARTIES DEFENDANT. § 483 
 
 MiCHiGAX. — Every person having any interest in the premises, including tenants 
 for life, for years, by the curtesy, in dower, reversioners, remainder-men and persona 
 having contingent interests, may all hv made parties. — Comp. Laws, ed. 1871, sees. 
 6269-70. Holders of specific liens may be parties.— lb., 6273-4. The interests of 
 tenants in dower may be sold or not, at the option of the Court. — lb., G310-11. 
 
 Minnesota. — The summons is addressed to all known owners and lienholders, and 
 also to unknown owners. — Bissell's St., p. 888, sec. 35. The Court may provide for 
 ascertaining the value of inchoate rights of dower, etc. — lb., p. 892, sec. 62. 
 
 Mississippi. — "Before any decree for partition shall be made in any case, every 
 person claiming or having an interest in the lands, and who has not joined in the 
 bill, shall be made a party to the proceeding; and everj' minor shall also be repre- 
 sented by a discreet and careful guardian ad litem, whether he has a legal guardian 
 or not."— Eev. Code, ed. 1871, sec. 1817. 
 
 MissouKi.^Every person having any interest in such premises, whether in posses- 
 sion or otherwise, shall be made a party. — Rev. St., ed. 1865, p. 612, sec. 4. The 
 summons may also be against unknown owners. — lb., sees. 5-7. 
 
 Nebkaska. — The petition must describe the several interests of the joint owners, 
 if known. — Code C. P., sec. 802. Lienholders may bo made parties, at the option of 
 petitioner. — lb., sec. 804. The interests of tenants in dower may be secured by in- 
 vestment made under the order of the Court. — lb., sec. 831. 
 
 Nevada. — Substantially as in California. — Comp. Laws, ed. 1873, sees. 1329, 1331, 
 1332, 1336. 
 
 New Jersey. — We find no special designation of necessary parties defendant in the 
 statute of this State, except that reversioners and remainder-men may be made par- 
 ties and bound by the partition. — Nixon's Digest, 4th ed., p. 673, sees. 33, 34. Pro- 
 visions are made for dower interests. — lb., p. 670, sec. 23; p. 672, sees. 29, 36, 44. 
 
 New HAiiPSBtiKE. — All persons interested, if known, seem to be necessary parties. 
 Summons may bo issued against and service made on unknown owners. — Genl. St., 
 ed. 1867, p. 463. 
 
 New Yoek.— All parties in interest may be made defendants. — 3 Rev. St., 5th ed., 
 p. 605, sec. 9. Lienholders need not be parties. — lb., sec. 11. The proceeding may 
 be against unknown owners. — lb., sees. 15, 16. Tenants in dower may be parties.— 
 lb., p. 609, sees. 33, 59, 63-68. If a sale is to be made, lienholders are notified. — lb., 
 p. 611, sec. 52. 
 
 Ohio.—" The demandant in each and every jjartition shall give notice, in some 
 newspaper in general circulation in each county where the lands lie, or shall give 
 personal notice in writing, to each and every person concerned, their agent or attor- 
 ney." — Swan's & Sawyer's Rev. St., p. 504. A widow entitled to dower is a necessary 
 party, unless it has been assigned. — Swan's Rev. St., ed. 1854, p. 592, sees. 12, 13. 
 
 Obeoon. — The statute of tliis State is like that of California. — Deady's Genl. LawH, 
 ed. 1864, p. 258, sees. 420-21. 
 
 Pennsylvania. — All the parties in interest shall bo named in the writ, declaration, 
 and notices, when known. — 2 Brightly's Purdon's Digest, p. 1115, sec. 16. Person? 
 not in esue cannot bo bound by suit in partition, except at the suit of a cotenant hav- 
 ing an indefeasible estate in fee in the moiety claimed by liim.— Tb. 1117, sec. 30.
 
 g 483 PAKTIES DEFENDANT. 598 
 
 SoxJTH Cabouna. — Summons shall be served on all the persons interested, and they 
 shall be made parties.— Rev. St., ed. 1873, p. 531, sec. 5. 
 
 Tennessee. — Every person having any interest, in possession or otherwise, and 
 every person entitled to dower, if the same has not been allotted, shall be a party. — 
 Thompson & Steger's St. of Tenn., sec. 3271. UnknoAvn owners may be proceeded 
 against.— lb., sees. 3273-75. 
 
 Ykkmont. — The petition must set forth the names of the several owners, as far as 
 known; and notice must be given to all parties interested. — Genl. St. of Vt., p. 353, 
 sees. 2, 3. 
 
 Wisconsin. — All persons interested are necessary parties defendant, including ten- 
 ants for years, for life, by the curtesy, in dower, in reversion, or remainder. — Taylor's 
 St. of Wis., p. 1679, sees. 4, 5. Lienholders may be made parties.— lb., sees. 7-9.
 
 CHAPTEK XXIII. 
 
 THE applicant's PLE.\DINGS. 
 
 The Declaration at Common Law, § 484. 
 
 The allegation that the Parties hold together^ ^ 485. 
 
 The Deraigument of Title, $ 486. 
 
 The Description of the Premises, ^ 487. 
 
 The Statement of the Moieties of the respective Parties, ^ 488. 
 
 Variance between the Interest Stated and that Proved, ^ 489. 
 
 Allegation of a Demand for Partition, ^ 490. 
 
 Allegation of necessity of a Sale, $ 491. 
 
 The Keplication, ^ 492. 
 
 The Service of Process, § 493. 
 
 The Defendant's Default, § 494. 
 
 g 484. The Declaration or Bill for Partition. — The di- 
 versity existing between the statutes of the several States 
 governing the subject of partition — prescribing the estates 
 of which partition may be made, and the persons competent 
 to compel such partition — must give rise to a corresponding 
 diversity in the pleadings by the aid of which a demand for 
 partition is sought to be asserted or repelled. The first in- 
 quiry of the practitioner about to prepare a petition, com- 
 plaint, or bill for partition, is naturally addressed to the 
 statute of his own State, for the purpose of ascertaining 
 what, under it, constitutes a good cause of action. Espe- 
 cially under the liberal rules of pleading now recognized in 
 many codes of practice, requiring of the pleader nothing be- 
 yond the statement of his cause of action in ordinary and 
 concise language, it is more important that he should be 
 sure that ho has stated all the material facts upon which his 
 claim depends, than that he should adopt any particular form 
 or order of expression. The same facts Avhich entitled a co- 
 tenant to partition at law were sufficient to enable him to 
 successfully invoke the powers of Courts of Cliancery. From 
 
 599
 
 ^ 485 THE applicant's pleadings. 600 
 
 this substantial identity of causes of action, logically fol- 
 lowed a substantial identity in the pleadings by which the 
 causes were stated to the different Courts. Except where 
 some special ground existed, on account of which Chancery 
 was called upon to furnish some relief beyond that contained 
 in a mere decree of partition, the allegations contained in a 
 bill for partition corresponded with the allegations to be 
 found in the declaration in proceeding at law under the writ. 
 The declaration at law may still serve as a guide to the 
 pleader, if he takes care to add such averments as the statute 
 of his State has made essential, and to omit such as it has 
 made immaterial. It is therefore proper that we should 
 analyze the declaration, and consider of what its material 
 allegations consist.' 
 
 g 485. The first material allegation to be found in 
 
 the declaration at common law is that the parties "hold 
 together and undivided." This word " hold" was always un- 
 derstood as implying a tenant of the freehold. The allega- 
 tion that they hold together and undivided was therefore 
 equivalent to averring that the plaintiff and defendants are 
 
 ' The following form of a, declaration at law by a tenant in common is given in 
 standard works on pleading and practice: 
 
 " to wit: E. r., of , in the county aforesaid, was summoned to answer 
 
 A. B. and C. D. of a plea, wherefore, whereas the said A. B., C. D., and the said 
 
 E. F., hold together and undivided the manor of , with the appurtenances, etc., 
 
 [specify the premises according to the writ,] of which the said E. F. desireth parti- 
 tion to be made between them according to the form of tlie statute in such case 
 made and provided, and unjustly permitteth not the same to be done, and contrary 
 to tlie form of the statute: And whereupon the said A. B. and C. D., by their attor- 
 ney, say, that whereas they and the said E. F. hold together and undivided the tene- 
 ments aforesaid, with the aj^purtenances, whereof it belongs to the said A. B. and C. 
 
 D. and their heirs, to have one moiety of the tenements afoiesaid, with tlie appurte- 
 nances, to hold them in sevei'alty, so that the said A. B. and C. D. of their moiety 
 belonging to them of the tenements aforesaid, with the appurtenances; and the said 
 
 E. F. of his moiety belonging to him of the tenements aforesaid, Avitli the appurte- 
 nances; may severally apportion themselves; he of the said E. F. denieth partition 
 thereof to be made between them, according to the form of the statute in such case 
 made and provided, and unjustly permitteth not the same to be done, and contrary 
 to the form of said statute ; whereupon they say that they are injured, and have 
 
 damage to the value of . And therefore they bring suit," etc. — 2 Sellon's Pr. 
 
 216-7; 3 Chitty's PL 1391. Where the declaration is by one coparcener against an- 
 other, it contains, in addition to the allegations of the above declaration, the state- 
 ment that the ancestor was seized; that being so seized, he had issue certain daughters 
 [naming them]; that the estate had descended to such daughters, etc. — 3 Chitty PI. 
 1397; 3 Danl. Ch. Pr. 4th ed. 2027.
 
 601 THE applicant's PLEADINGS. g 486 
 
 tenants in common of a freehold, and negatived the idea 
 that the plaintiff Avas disseized. The seizin of the plaintiff 
 was always at common law essential to the maintenance 
 of his action.^ But this seizin was regarded as sufficiently 
 stated by the use of the word ' ' hold, " and was not required 
 to be alleged in any other form.- The most usual practice in 
 complaints under the code seems to be to aver, in express 
 terms, that the plaintiff is in possession, or that he is seized." 
 That the plaintiff' is iu possession will always be "presumed 
 from the allegation that the parties are seized iu common."* 
 
 g 486. Deraignment of Title. — When the partition was 
 between tenants in common, the declaration contained no 
 reference to the source of title. If by one parcener or joint- 
 tenant against another, it was necessary to show how they 
 became joint-tenants or parceners.'^ But even in the case of 
 coparceners, it was sufficient to allege that the common an- 
 cestor was seized, and to show that by his death the lands 
 had descended to the coparceners. So far as we are aware, 
 it has never been held to be necessary in applying for a par- 
 tition, whether at law or in equity, to show any deraignment 
 of the plaintiff's title.® This question was thus considered 
 and determined at an early day in New York: " Our statute 
 directs that the party applying for partition shall set forth 
 the rights and titles of the parties; and this, it has been con- 
 tended, imposes on the party applying for partition to set 
 forth the right and title at large of all the parties to the suit. 
 This statute must receive its construction from the terms in 
 which it is conceived, expounded by the ordinary use to 
 which those terms, in legal phraseology, are applied. If that 
 application has been uniform and durable, it will certainly 
 aid in ascertaining the intent of the statute. 
 
 ' ' In an action for an anmiity, it is not necessary to set 
 forth the title and estate of the grantor, but only that he did 
 grant it. In replevin, a defendant may avow, as tenant to 
 
 ' Maxwell v. Maxwell, 8 Ired. Eq. 2'J. 
 
 •' Biddle v. Htsirr, Penn. St. 405. 
 
 » 2 Esteo'H Pi. 318; 2 Van Hantvoord's PI. 234. 
 
 * JenkiiiH v. Van Scliaak, 3 Pai. Ch. 245. Seo also Lucot v, Beckmau, 2 Oai. 385. 
 
 i Sellon's Pr. 217; Allnatt on Partition, C8; Yato v. Wliindiiain, Cro. Eliz. G4. 
 
 ' Piutherford v. Joik.h, 14 Goo. 521.
 
 g 487 THE applicant's pleadings. 602 
 
 J. S., who loas seised. K feoffee may plead that A. was seised, 
 and did enfeoff him. In ejectment, seisin and descent cast 
 are prima facie evidence of right. In an action for a rent 
 charge, the form of deducing the defendant's privity is, that 
 the premises on which the rent was reserved came to his 
 hands hij assignment, without showing how; and in ejectment, 
 the proof that the defendant holds under the same title with 
 the lessor entitles him to commence his deduction from the 
 common source. 
 
 "When partition could only be had by coparceners, they 
 were conusant of each other's right; and thus privity at- 
 tached with and constituted an essential part of their estate. 
 It is not so with tenants in common. They have a unity of 
 interest, but may have totally different titles. All that the 
 petitioners were bound to maintain, as to the defendants, 
 was that they held with him, as tenants in common, the pro- 
 portion of the estate described in their petition. In analo- 
 gous cases, it does not require that the title should be spread 
 on the record. The words of the statute may as well be sat- 
 isfied by alleging the seisin of all the parties, of their differ- 
 ent portions simply, which constitutes their title, as if it 
 were traced from the State or the Crown. It would be sur- 
 charging the record with useless matter, and impose on the 
 plaintiff in partition in all cases a hazardous, and, in many 
 cases, an impracticable task to compel him to set forth his 
 title beyond his own seisin, as he must do it correctly, or fail 
 in sustaining his action. The general allegation of seisin, I 
 therefore think, was well enough."' 
 
 I 487. The Description. — The allegation in the declara- 
 tion that the parties " hold together and undivided" is fol- 
 lowed by a description of the property which they so hold 
 and of which partition is demanded. This description must 
 be indispensable, under all statutes,' for otherwise the Court 
 could not know of what subject-matter it was exercising jur- 
 isdiction, nor could the defendants ascertain what interest 
 they were called upon to assert. But some difference of 
 opinion exists in regard to the degree of particularity or pre- 
 
 ' Bradshaw v. Callaghan, 8 Johnrt. 562. " Banner n. Silver, 2 Oregon, 339.
 
 603 THE applicant's pleadings. g 488 
 
 cision with which the description must be set forth. In one 
 case, it is said, " all that would seem to be required is, that 
 such a general description be given as will lead to the iden- 
 tification of the property upon which the decree is intended 
 to operate."' In another instance, the Coiirt thought that 
 all which should be required is such a description as will be 
 intelligible to the parties interested.- But we think the bet- 
 ter opinion is that the description should be so perfect as of 
 itself to enable a competent surveyor to locate the premises 
 to be divided.^ It has been held that while the description 
 in a deed may be made certain by evidence aUtaide, the de- 
 scription in a petition for partition ought to be so definite as 
 to need no such evidence to make it intelligible.^ 
 
 g 488. The Moieties of the respective Parties. — The 
 declaration, after describing the property, proceeded to des- 
 ignate the respective interests of the plaintiff and defendant. 
 This is also essential, under the various statutes, for unless 
 the moiety of each cotenant be stated, the portion to be al- 
 lotted to each cannot be ascertained, nor can the Court know 
 that all the necessary parties are made defendants. A com- 
 plaint in partition forms an exception to the general rule of 
 pleading, that the plaintiff need not attempt to show the de- 
 fendant's title or grounds of defence; and, perhaps out of 
 deference to the general rule, the opinion has been expressed 
 that the plaintiff need not allege of what moieties the respec- 
 tive defendants are seized.'' But the authorities preponderate 
 very decidedly against this opinion, and in favor of the rule 
 that the plaintiff must state what interests the defendants 
 have as between one another, or must excuse himself from 
 making such statement, by showing that he has not the 
 knowledge necessary to enable him so to do.** A petition for 
 partition is demurrable if it shows that the petitioner owns 
 
 ' Thurston v. Minke, 32 Aid. 574. 
 
 ' Scwall V. Kidlon, 5 Greeul. 4C0; Wright i\ MoCunnick, ti7 N. C. 27. 
 
 ■* Swanton v. Crooker, 52 Me. 41(i. 
 
 ♦ MUlcr V. MUler, IG Pick. 216. 
 
 ^ Champion v. Spcnctr, 1 Root, 117. 
 
 « Van Cortlandt v. Beiknian, G Pai. Ch. 495; KaniHay o. Bell, :i Ired. Ch. 209; Han 
 ncr V. Silver, 2 Oregon, 33'J; Morenliout o. Higuera, 32 Cal. 294; Millington v. Mil- 
 lington, 7 Mo. 446; HunU-.T v. DeBernal. 38 Cal. (U2.
 
 § 489 THE applicant's pleadings. 604 
 
 one-fifth, and the defendant three-fifths, but neither states to 
 whom the remaining fifth belongs, nor that its ownership is 
 to plaintiff unknown.' Whatever difference of opinion may 
 exist in regard to the propriety of requiring the plaintiff to 
 show what moietj^ each of the defendants holds, nothing 
 proceeding from the Courts has ever encouraged the idea 
 that anything can excuse the plaintiff from alleging that he 
 holds some distinctly specified moiety. He must aver, in 
 addition to the fact that he holds together and undivided 
 with the defendants, what it is that he will be entitled to 
 have set apart to him in making the partition. He cannot 
 proceed upon the theory that the extent of his interest is un- 
 known to himself.^ 
 
 § 489. Variance bet-ween Complaint and Proofs. — Hav- 
 ing alleged that he is seized of a specific moiety, the plaintiff 
 may recover for that or for a smaller moiety, as he may be 
 shown to be entitled. "If there be a variance between the 
 petition and proofs, as to the quantity of interest which any 
 of the tenants in common have in the lands whereof partition 
 is sought, this can be set right by the Court, to whom it is 
 referred to ascertain and determine the respective rights of 
 the parties."^ "Although the interest of the parties may 
 not be correctly described in the petition, it is competent for 
 the Court in which the trial is had to amend the record and 
 give judgment that partition may be made according to the 
 respective rights of the parties."^ But the rule as under- 
 stood by Mr. Allnatt is very different. He says: "The judg- 
 ment must be conformable to the demand, for if A. brings 
 partition, and thereby demands the fourth part, and the jury 
 find that the cotenants hold pro indiviso, but that A. ought 
 to have only a fifth part, A. shall not have that which is due 
 to him, viz., the fifth part which he has a right to, for then 
 the judgment will be variant from the demand.'^ 
 
 ' Rogers v. Miller, 48 Mo. 379. 
 
 - Savery v. Taylor, 102 Mass. 510; Champion v. Spencer, 1 Boot, 147; Tibbsf. Allen, 
 27 Dl. 128. 
 » Ferris v. Smith, 17 Johns. 223. 
 ■* Thompson v. Wheeler, 15 Wend. 342. 
 ^ Allnatt on Partition, 75, citing Becket v. Bromley, Noy. 107.
 
 605 THE applicant's pleadings. §g 490-91 
 
 g 490, Allegation of Demand. — The form of a declara- 
 tion at law^ and of a bill in Chancery, '^ as given by eminent 
 writers, both contain an allegation to the effect that the ap- 
 plicant has demanded that partition be made, and that the 
 defendants have refused to consent thereto. The same alle- 
 gation is to be found in some of the works on pleading pre- 
 pared under the Code of Procedure of New York-^* But as 
 we know of no decision at law or in equity, nor of any stat- 
 utory provision, requiring these facts to exist as a pre- 
 requisite to a compulsory partition, we doubt not that the 
 allegation in regard to their existence is mere surplusage.^ 
 Such, we infer, must have been the opinion of the Supreme 
 Court in New York, when it ordered an allegation in an 
 answer, that the plaintiff had unreasonably refused to make 
 partition by deed, to be stricken out as irrelevant and frivo- 
 lous.* 
 
 g 491. Allegation of necessity of Sale. — In Tennessee, 
 it has been held that a sale of the property cannot be or- 
 dered unless the complaint contain an allegation of those 
 facts which the statute prescribes as necessary to authorize 
 such sale.* But in California, it has been said "that the 
 manner in which the partition is to be made constitutes no 
 part of the cause of action, but is merely a part of the re- 
 lief. While it is proper and perhaps advisable to ask for a 
 particular mode of partition — there being two provided by 
 statute — and to that end allege the facts upon which the 
 plaintiff relies for the particular mode which he seeks, yet 
 this is not indispensable, and a complaint which is silent 
 upon the subject is good."' It was further decided, in the 
 same case, that, conceding that the complaint ought to state 
 the facts upon which a sale rather than a division of the 
 property will be claimed, still nothiug further need bo al- 
 leged than "that the premises cannot be divided by motes 
 and bounds without prejudice." "Whether a partition can 
 or cannot be made by metes and bounds is purely a question 
 
 ' 2 Sellon's Pr. 21&-7; 3 Chitty PI. 1391. '^ 3 Danl. Ch. Pr. 4th wl. 2027. 
 
 » 2 Van Santvoord'rt PI. 234. ' Sec hccb. 424, 425, 433. 
 
 " McGowan v. Morrow, 3 Codo II. 9. « Hobs v. llamHOy, 3 Head, 16. 
 
 ' DoUpioy V. DoUprey, 27 Cal. 331.
 
 § 491 THE applicant's pleadings. 606 
 
 of fact, and is the ultimate faot to be fomid, and therefore 
 the only fact necessary to be averred under any system of 
 pleading with which we are acquainted. The constituent 
 facts, or those which lie behind, are merely probative, and 
 need not be averred."^ It is not necessary to show in the 
 complaint when the right to partition accrued. The statutes 
 of limitation have no application to suits for partition.^ 
 
 ' DeUprey i'. DeUprt-y, 27 Cal. 331. The following foi"m of complaint contains all 
 the material averments necessary to sustain the applicant's demand for partition, in 
 California and New York, and in other States having similar statutes. 
 
 The plaintiff alleges: 
 
 I. That he and the defendants C. and D. hold and are in possession, as tenants in 
 common, of [here describe the property.] 
 
 II. That the plaintiff has an estate therein, consisting of [hei'e state what the 
 plaintiiFs moiety is, and whether it is of an estate of inheritance, or for life, or for 
 years. ] 
 
 III. That each of the defendants, C. and D., has an estate in said property, con- 
 sisting of [here state the interest of each of these defendants.] 
 
 Wherefore, plaintiff prays that said propertj' may be j^artitioned among the parties 
 hereto, according to their respective interests therein; or, in case such partition cannot 
 be made without gi-eat prejudice to said parties, that said property be sold, and the 
 proceeds divided among them, according to their respective rights. 
 
 X. Y., Attorney for Plaintiff. 
 
 If any of the parties in interest be unknown, or the share of any of the parties bo 
 unknown, uncertain, or contingent, this fact must also be stated. According to Mr. 
 Van Santvoord: "It is always advisable to set forth, as far as can be ascertained, the 
 titles and interests of unknown owners; but it has been held that an averment that 
 there are 'certain imknown OTvners,' without setting forth their exact interest in the 
 premises, is sufficient. " — 2 Van Sautvoord's Eq. Pr. 2d ed. 465, citing Hyatt ik Pugs- 
 ley. 23 Barb. 303. 
 
 When a lienholder is made defendant, the nature of his claim should be specially 
 stated, (Styker v. Lynch, 11 N. Y. Leg. Obs. 116,) as: 
 
 That tlie defendant E. is the owner and holder of a mortgage, executed on the 
 
 (Jay of by the defendant C upon his interest in said property', to secure the pay- 
 ment of a certain promissory note, etc. [here stating the substance of the note]; or. 
 
 That the defendant F. holds a judgment recovered by him. duly given and entered 
 
 in tlie Court, on the day of , against the defendant D. for the sum 
 
 of , and docketed on the day of . in said county of , wliich 
 
 judgment remains unpaid and unsatisfied. 
 
 For statutory provisions in regard to complaints in partition, see Kev. Code, Ala., sec. 
 310G: Gould's Ai'k. Dig., p. 811, sec. 2; C. C. P. of Cal., sec. 753: Genl. Laws Del., 528, 
 sec. 8; Bush's Dig. of Fla., 616, sec. 2; Code of Geo., sec. 8996; Gross' St. of 111., 469, 
 sec. 2; Code of Iowa, sec. 3278; C. P. of Kans., sees. 614-5; Kev. St. Me., 694, sec. 2 
 2 Comp. Laws Mich., sec. 6269; Genl. St. of Mass., 699, sec. 6; Bissell's St. of Minn. 
 888, sec. 3; Eev. Code Miss., sec. 1816; Genl. St. of Mo., 611, sec. 3; C. P. of Neb. 
 sees. 802-3; Comp. Laws Nev., sec. 1328; Genl. St. of N. H., 463, sees. 2, 3; 3 Eev. St 
 N. Y., 604, sees. 8, 10; Swan's St. of Ohio, 591, sec. 2; Deady's Laws of Oregon, 255, 
 sec. 420; Thompson & Steger's St. Tenu., sees. 3270. 3272: Genl. St. Vt., 353, sec. 2; 
 Taylor's St. Wis., 1679, sec. 4. 
 
 •^ Jenkins v. Dalton, 27 Ind. 78.
 
 607 THE APPLICANTS PLEADINGS. §§492-94 
 
 § 492. The Replication. — lu addition to his complaint or 
 bill for partition, the applicant is, in many of the States, en- 
 titled to file a replication denying such allegations in the 
 answer as he may choose to controvert. 
 
 § 493. The service of process is so exclusively a 
 
 matter of statutory regulation in the several States that we 
 shall not undertake to treat of it in this work. This is 
 equally true whether the defendant on whom process is to be 
 served is an adult not under any disability, or is ixfeme covert, 
 an infant, or a lunatic, or an unknown owner of whose age 
 and condition nothing can be ascertained. In the case of 
 unknown and non-resident owners, the summons is generally, 
 if not universally', served by publication in some newspaper 
 in pursuance of an order of the Court. To obtain this order, 
 an affidavit must be made and filed showing that some of the 
 owners are unknown, or are non-residents of the State, or 
 cannot be found therein.' 
 
 j^ 494. If the defendants fail to ans^ver the complaint 
 
 or petition within the time prescribed by law for them to do 
 so, their defaults may be entered.^ In New York, no judg- 
 ment can be rendered in favor of plaintiff upon such default 
 until he has introduced such proof of his title as, if unex- 
 plained, would entitle him to recover in ejectment.^ The 
 same rule seems to prevail in Nebraska, but is there held not 
 to apply to cases in which the defendant appears by filing a 
 demurrer which is overruled.* 
 
 ' For provisions in regard to notice of application for partition, see: Eev. Code. Ala., 
 sec. 3107; Gould's Ark. Dig., 811, sees. 5-8; C. C. P. of Cal., sees. 756-7; BuhIi's Dig. 
 Fla., 617, sec. 3; Code of Geo., sec. 3998; Gross' St. of 111., 470, sec. 6; Eov. St. Mo., 
 694, see. 3; 2 Stautou's St. of Ky., 101, sec. 2; 2 Comp. Laws Mich., sees. 6275, 6276; 
 Genl. St. Mass., 699, sees. 8-12; Rev. Code Miss., sec. 1817; Genl. St. of Mis., 612, 
 sees. 6-7; Comp. Laws Nev., sees. 1330-32; Genl. St. N. H., 463, sees. 4-8; 3 Rev. St. 
 N. Y. 604, sees. 14-18; Swau's St. of Ohio, .^Ol, sec. 3; Deadj''s Laws of Oregon, 255, 
 sees. 422-3; Brightly's Pmdon's Dig., 1113, sees. 5, 6, 7, 12, 13, 14; Genl. St. IJ. I., 
 519, sees. 7-9; Rev. St S. C. 530, sec. 5; Thompson .V; Stoger's St. Tenn. sees. 3273-5; 
 Genl. St. Vt., sec. 303; Taylor's St. Wis., 1080, sec. 10. 
 
 ■' Neilson v. Cox, 1 Cai. 121. 
 
 =• Griggs V. Peckham, 3 Wend. 436; .Jennings v. Jennings, 2 Abb. Pr. 6; Larkin v. 
 Mann, 2 Pai. 27; Wilde v. .Tenkins, 4 Pai. 191; Hamilton r<. Morris, 7 Pal. 39; Porter 
 I'. Lee, How. Pr. 491; Ripplo v. Gilboru, 8 How. Pr. -150. 
 
 ■• Mills t'. Miller, 2 Neb. 314. For proceedings in default, see: Gould's Dig. Ark., 
 812, sees. 13-14; Bush's Dig. Fla. 617, sec. 4; 2 Comp. Laws Mich., sec. C284; Genl. 
 St. Mis. 612, sec. 11; Genl. Hi. N. IT. 464, sec. 10; Taylor's St. Wis., 1082, sec. 19.
 
 CHAPTEK XXIV. 
 
 DEFENCES AND THEIR PRESENTATION. 
 
 The Defendant's Pleadings, $495. 
 
 Pleas in Abatement, § 496. 
 
 The General Issue, § 497. 
 
 Defences allowed iaa the United States, $ 498. 
 
 Stating the Defendant's Title and Equities, 499. 
 
 Intervening, § 500. 
 
 Defences necessitating a reference to Legal Tribunals, ^ 501. 
 
 Disputed TiUe, § 502. 
 
 Disputed Title — States where it may be determined in the Pai-tition Suit, $ 503. 
 
 Answers and Cross-bills, § 504. 
 
 § 495. Defendant's Pleadings. — In the States of Califor- 
 nia and New York, and probably in most of the other States 
 where srtatutorj provisions have not directed to the contrary, 
 the proceedings and pleadings on the part of the defendant 
 in partition correspond with those in other actions.' If the 
 complaint insufficiently states the origin, nature, or extent of 
 the plaintiff's interest, the defendant may demur. ^ No doubt 
 he may also successfully interpose a demurrer whenever the 
 complaint fails to show the existence of any fact without 
 which the plaintiff is not entitled to the relief sought. In 
 Indiana, it has been held that uncertainty in the description 
 of the premises to be divided is not a ground for demurrer. 
 The reasons given for this decision are that " the uncertainty 
 in the description cannot be regarded in the same light as 
 the omission of a fact necessary to be stated in order to con- 
 stitute a cause of action. The uncertainty in the description 
 
 ' Eeed v. Child, 4 How. Pr. 125; Jennings v. Jennings, 2 Abb. Pr. 14. 
 ^ Broad v. Broad, 40 Cal. 495. 
 
 608
 
 609 DEFENCES IN PARTITION. §§ 496-97 
 
 might have been obviated by a motion to require the plead- 
 ing to be made definite and certain by amendment."^ 
 
 ^ -^06. Pleas in Abatement. — Tlie statute 8 and 9 Wm. 
 III., for the easier obtaining partitions of lands, enacted 
 ' ' that no plea in abatement shall be admitted or received in 
 any snit for partition, nor shall the same be abated by reason 
 of the death of any tenant." In the United States, pleas in 
 abatement are generally received. But the suit, as a general 
 riile, does not abate on the death of any of the parties, 
 whether plaintiff or defendant. The heirs or other succes- 
 sors to the interest of such deceased person may be brought 
 into Court and bound by the partition.^ 
 
 ^ 497. The General Issue. — The plea of non tenent in- 
 ■simul constituted the general issue in actions of partition at 
 common law.^ Every allowable plea which could be inter- 
 posed amounted to non tenent insimid.* This plea put in 
 issue all the material allegations of the complaint, and seems 
 to have been so adequate as to authorize the defendant to 
 place in evidence every conceivable fact which, if proved, 
 would prevent the plaintiff's recovery.* 
 
 ' Godfrey v. Godfrey, 17 Ind. 8. See also 2 Van Sanvoon Eq. Pr. 18. In regard 
 to defendant's pleadings, see Gould's Ark. Dig., 812, sec. 10; C. C. P. of Gal., sec. 758; 
 Code Geo., sec. 4001; Code Iowa. sec. 3282; C. P. of Kans., sec. 017; Eev. St. Me., C94, 
 sec. 5; Genl. St. Mass., 099, sec. 16; C. P. of Neb., sec. 806; Comp. Laws Nov., sec. 
 1333; Genl. St. N. H., 464, sec. 9; 3 Eev. St. N. Y., 606, sec. 20; Genl. St. 11. I., 521, 
 sec. 14; Genl. St. Vt. 354, sec. 5; Taylor's St. Wis., 1681, sec. 16. 
 
 ■^ Frohoch v. Gustine, 8 Watts, 123; Requa v. Holmes, 16 N. Y. 195; Osgood v. Tag- 
 gard, 18 N. H. 319. But where the statute of 8 and 9 Wm. III., or some similar stat- 
 ute, has not been adopted, a suit in partition abates on the death of one of the parties. 
 Thomas v. Smith, 2 Mass. 479. 
 
 •' The following is the plea of non tenent insiniul, as shown in Tillinghast's Forms, 
 p. 625: "And the said C. D., by G. H. his attorney, comes and says that ho did not 
 hold the premises in said petition of the said A. B. set forth, together with the said 
 A. B. at the time of the commencement of the proceedings in this cause, as allegad 
 in said petition of the said A. B.; and of this ho the said C. D. puts himself upon the 
 country: And the said A. B. doth the like, etc. G. H., Attorney for Defendant C. D." 
 In Hunt V. Hazleton, 5 N. H. 210, it is said that tlie general issue in partition is 
 " that the respondents do not hold, nor on the day of the; exliibition of the petition in 
 this belialf, nor over afterwards did hold the said premises, nor any part or parcet 
 thereof, together and undivided with the petitioner, as lie, in his said petition, ha* 
 supposed." But this is not now a sufficient j>lea in New Hampshire. See Morrill ji. 
 Foster, 5 Foster, 334. 
 
 * 2 Sellon's Pr. 218. 
 
 * Bethell V. Lloyd, 1 Dall. 2; McKee v. Btraub, 2 Binu. :t; Batw v. McCrory, 3 
 Yeates, 192. 
 
 C. <fe p.— 39
 
 gg 498-99 DEFENCES IN PARTITION. 610 
 
 I 498. In the United States, it is generally understood 
 that the defendant may plead any plea, including pleas in 
 abatement, which affords him any defence to the plaintiff's 
 petition, and which show either that the plaintiff ought to 
 have no relief whatever, or that his relief ought to be differ- 
 ent from that which he claims in his petition. The answer 
 of the defendants may be confined wholly to showing that 
 the plaintiff' is not entitled to relief. If so, it must of course 
 take issue with one or more of those allegations which we 
 have shown to be essential to every complaint in partition. 
 It must either deny that the plaintiff is in possession, or that 
 the parties are cotenants, or that the property to be divided 
 is subject to compulsory partition. If no issue be taken on 
 some of the indispensable allegations of the complaint, then 
 some other matter must be affirmatively stated, as that the 
 plaintiff has no legal capacity to sue, or that there is another 
 action pending between the same parties for the partition of 
 the same property.' "Any party appearing may plead either 
 separately or jointly with one or more of his codefendants, 
 that the plaintiffs, or any of them, were not in possession of 
 the premises in question, or any part thereof; or that the de- 
 fendants, or any of them, did not hold the premises together 
 with the plaintiffs at the time of the commencement of the 
 suit, as aHeged in the petition; and other and further plead- 
 ings may also be had between the parties respectively, ac- 
 cording to the practice of the Court as in personal actions, 
 until an issue or issues, in law or in fact, be joined between 
 the parties, or some of them."^ 
 
 g 499. Setting out Defendant's Title and Equities. — In 
 
 the great majority of the cases in which a partition is sought, 
 the right of the plaintiff to some relief is not denied, and 
 the defendants are more interested in setting forth their own 
 pretensions than in combatting the complainant's demand for 
 a division. When the defendants have an interest in the 
 propert}^ as cotenants, it is incumbent on them, by their an- 
 swer, to disclose the nature and extent of such interest as 
 fully as the plaintiff, in his complaint, is required to disclose 
 
 ' Hornfager v. Horufager, 6 How. Pr. 279; Martindale v. Alexander, 26 Ind. 105. 
 ' 2 Van Santvoord's Eq. Pr. 25.
 
 611 DEFENCES IN PARTITION §g 500-1 
 
 the nature and extent of his interest. They become, as it 
 were, plaintiffs seeking afl&rraative relief, and bound, by all 
 the rules of pleading, to exhibit the facts upon Avhich alone 
 that relief can be properly extended. "An action for parti- 
 tion," said the Supreme Court of California, "under our 
 statute, is sni generis. The parties named in the complaint, 
 whether as plaintiffs or defendants, are all actors, each repre- 
 senting his own interest. "Whether plaintiffs or defendants, 
 they are required to set forth fully and particularly the origin, 
 nature, and extent of their respective interests in the prop- 
 erty. This having been done, the interests of each, or aU, 
 may be put in issue by the others; and, if so, such issues 
 are to be first tried and determined, and no partition can be 
 made until the respective interests of all the parties have 
 been ascertained and settled by a trial."' The parties may 
 have no disagreement in regard to their respective moieties, 
 and yet various facts may exist which, if properly brought to 
 the attention of the Court, may influence the final determina- 
 tion of the suit. Some of the parties may have taken pos- 
 session of some part of the property and enhanced its value 
 by permanent or other valuable improvements, or may be the 
 grantees of an interest in some specified parcel of the com- 
 mon lands. Facts like these, upon which claim for special 
 relief may be predicated, ought to be alleged by the party 
 desiring to secure the advantages to which they justly entitle 
 him. 
 
 g 500. Persons not named as defendants may appear 
 and ask leave to protect their interests. When allowed by 
 law or by order of the Court to participate in the suit as 
 parties thereto, they are, no doubt, under the same obliga- 
 tion as the original parties to clearly present their claims; 
 and when they have participated in the suit, they are not less 
 bound by the judgment than any other actor in the litiga- 
 tion.^ 
 
 g 501. Defences necessitating a reference to Legal Tri- 
 bunals. — The defoudaut's answei- may show thai ho is in the 
 
 ' Morenhout v. Iliguera, iJ2 Cal. 295. 
 
 ^ Field u, Unknowu, 34 Me. 35; lIuutreBS v. Tinoy, 4G Me. 83.
 
 g 602 DEFENCES IN PABTITION. 612 
 
 sole possession-of the property, holding the same adversely 
 to the plaintiff. If this allegation be established, the plain- 
 tiff will generally be required to proceed by an action at law 
 to regain possession of the property, and thereby to put him- 
 self in a situation to compel a partition.' In such a case, if 
 the suit be in equity, the general practice is to retain the bill 
 and afford the complainant a reasonable time in which to 
 prosecute his suit at law, to be let into possession. In 
 equity, by bringing all parties in interest before the Court 
 and obliging them to join in the requisite conveyances, it 
 was possible to secure a partition which would be of per- 
 petual obligation. But the jurisdiction of courts of equity, 
 when proceeding in partition was likely to be superseded by 
 controversies in regard to title which these courts were not 
 authorized to decide. Whenever a dispute arose in reference 
 to an equitable title, or whenever any matter was presented 
 as a ground for equitable relief, these courts were exclusively 
 authorized to determine it, and to afford an adequate redress. 
 A dispute of this nature, instead of ousting or superseding 
 the jurisdiction of a court of equity over a suit in partition, 
 furnished an additional as well as an unanswerable argument 
 in favor of the exercise of such jurisdiction.^ But when an 
 issue was formed in equity, to the determination of which 
 an adjudication of questions of law was necessary, such issue 
 was referred to some common law court, as will be apparent 
 from decisions cited in the next section. 
 
 g 502. Disputed Title. — It is certain that courts of equity, 
 in assuming jurisdiction of the subject of partition, always 
 disclaimed the authority to determine doubtful questions in 
 regard to the legal title. There is a material difference be- 
 tween a doubtful and a disputed title; and the question very 
 naturally arises, whether the mere fact that the defendant 
 disputes the complainant's title is sufficient to oust Chancery 
 of its jurisdiction? A large number of cases exist in which 
 
 ' Byers v. Danley, 27 Ai'k. 77; Trayner v. Brooks, 4 Hayw. 295; Lambert v. Blum- 
 enthal, 26 Mo. 471. See sees. 439, 447. 
 
 ■■" Coxe V. Smith, 4 Johns. Ch. 276; Overton's Heirs v. Woolfolk, 6 Dana, .^75; Obert 
 V. Obert, 2 Stock. Ch. 101; Sterricker v. Dickinson, 9 Barb. 521; Foust v. Moorman, 
 2 Carter, 20; Carter v. Taylor, 3 Head, 35; Lamb v. Burbank, 1 Saw. C. C. 227. See 
 sec. 439.
 
 613 DEFENCES IN PARTITION. § 502 
 
 no attention whatever is given to this distinction, and the 
 broad proposition is asserted that whenever the complainant's 
 title is disputed or suspicious, equity will not proceed with 
 the partition until the dispute has been settled at law.' But 
 in a few cases in which the distinction between a disputed 
 and a suspicious title has suggested itself to the Court, the 
 conclusion has been reached that the bare denial of com- 
 plainant's title did not necessitate a reference to the legal 
 tribunals; that equity had jurisdiction to determine whether 
 the title was free from suspicion, and would, notwithstanding 
 the defendant's objections, proceed whenever, in its judg- 
 ment, the title was clear. " I do not understand, however, 
 that the bare denial of the complainant's title is any obstacle 
 to the Court's proceeding. The defendant must answer the 
 bill, and if he sets up a title adverse to the complainant, or 
 disputes the complainant's title, he must discover his own 
 title, or show wherein the complainant's title is defective. 
 If, when the titles are spread before the Court upon the 
 pleadings, the Court can see that there is no valid legal ob- 
 jection to the complainant's title, there is no reason why the 
 Court should not proceed to order the partition."^ "If a 
 bare denial of the title, when there was no reasonable doubt 
 or suspicion attending it, would authorize the dismissal of 
 the complainant's bill, it would place this equitable jurisdic- 
 tion, which has been established by a long train of decisions, 
 and is deemed of much public convenience, at the mercy of 
 every profligate or unconscientious defendant, and render the 
 Court the mere ministerial agent to carry into effect the 
 wishes of parties in cases where there were no matters of 
 controversy between them."^ Whether the view here given 
 be sustained or not, this much is certain, whenever a court 
 of equity determined that there were any serious doubts in 
 regard to th6 legal title, it Avould not proceed until those 
 
 » Blade v. Barlow, L. R. 7 Eq. 290; S. C. 38 L. J. R. (N. S.) Cli. 3G9; Maxwell v. 
 Maxwell, 8 Ired. Eq. 28; Butler v. King, 2 Yer. 122; Bolton r. Bolton, L. R. 7 Eq. 298; 
 Potter V. Waller, 2 DeG. & Sin. 410; Daniel v. Green, 42 111. 473; Whilluck i'. Hale'a 
 Heirs, 10 Ilumx'li. 04; Wilkin v. Wilkin, 1 John. Oh. 117; Iloiiinan v. Beard, 22 Mich. 
 59; llasBam v. Day, 39 MIhh. 395; GroveH v. Grovea, 3 Sueed, 188; Van Riper v. Ber- 
 dan, 2 Green, 132; Currin v. Spraull, 10 Gratt. 147. 
 
 ^ Lucas V. King, 2 St<jck. Ch. 280. 
 
 ^ Overton'n Heirs v. Woolfolk, Dana, 374.
 
 § 503 DEFENCES IN PARTITION. 614 
 
 doubts were judicially determined and removed.' Instead 
 of at once dismissing the bill for partition, it was retained 
 for a reasonable time, witli liberty to the plaintiff to bring 
 " such action as he might be advised" to establish his title.* 
 "The rule of equity jurisdiction is well se'otled, that the 
 Court will not interfere unless ihe complainant's title be 
 clear, and will never grant the relief when the title is denied 
 or suspicious until the party seeking relief has established 
 his 4itle at law."* But when the complainant was in posses- 
 sion as the sole owner of a life estate, and the tenancy in 
 common was in the reversion only, and he could therefore 
 sustain no action for the purpose of establishing his title, he 
 was allowed to proceed at equity.* If during the progress of 
 an action at equity for partition a question of law arises, the 
 Court may, by consent of the parties, determine the question 
 without referring it to any common law court for trial. ^ 
 Where the title of the complainant was clear, but the de- 
 fendants set up conflicting titles between themselves, the 
 Court directed that the plaintiff's moiety be set off to him, 
 and that the partition between the defendants be respited 
 until they had settled their titles at law.® 
 
 § 503. States "where questions of Title may be Deter- 
 mined. — In several of the States, the Courts having jurisdic- 
 tion over partition are entrusted with more ample powers 
 than those elsewhere exercised by Courts proceeding in con- 
 formity with the common and statute law of England. This 
 is particularly the case in regard to disputes concerning tho 
 title. Such disputes may, in the States referred to, be tried 
 and conclusively determined, and no necessity exists for 
 referring any of the issues to some other tribunal for 
 
 ' Obert V. Obert, 2 Stock. Ch. 100; Deery r. McClintock, 31 Wis. 201; Nicely t». 
 Boyles, 4 Humph. 177; Garrett v. White, 3 Ired. Eq. 135; Hay v. Estell, 18 N. J. Eq. 
 252; Bruton v. Rutland, 3 Humph. 435. 
 
 » Giffard v. Williams, L. R. 5 Ch. Ap. 546; S. C. 39 L.- J. E. (N. S.) Ch. 735; Dewitt 
 V. Ackerman, 17 N. J. Eq. 215; liiverview Cemetery Co. v. Turner, 24 N. J. Eq. 18; 
 Manners v. Manners, 1 Green. Ch. 385. 
 
 ' Shearer v. Winston, 33 Miss. 150. 
 
 * Allen V. Allen, 2 Jones Eq. 237. 
 
 * Bart V. Hellyar, L. R. 14 Eq. 160. 
 « Phelps V. Green. 3 Johns. Ch. 306.
 
 615 DEFENCES IN PARTITION. § 503 
 
 trial. ^ In California, where it was claimed that a judgment 
 in partition could affect nothing beyond a mere division 
 of the property, leaving the title as before the partition, the 
 Coui't said: " The learned counsel for the appellant has filed 
 a very able brief, which would be entitled to much weight in 
 a jurisdiction where the distinctions between actions at law 
 and suits in equity are still preserved; but unfortunately for 
 the argument, the distinctions have been abolished in this 
 State, and a party who here seeks relief at the hands of the 
 Court may obtain both legal and equitable relief in the same 
 action or proceeding, if upon the facts of his case he is en- 
 titled to both. If between the parties to an action for parti- 
 tion disputes exist as to their rights or interests in any re- 
 spect, such disputes may be litigated and determined in such 
 action."^ In Wisconsin, under a system of practice similar 
 to that of California, a conclusion has been reached in the 
 Supreme Court directly antagonistic to that sustained by the 
 quotation we have just made, as will fully appear by the fol- 
 lowing extract from an opinion written by Chief Justice 
 Dixon of the first named State: "The only question which 
 the Court is required to consider, or which it has considered 
 and will determine, is, whether the mere legal title to land, 
 the same being in good faith the subject of controversy and 
 in doubt, may be tried and adjudicated in this form of ac- 
 tion, it appearing that the objection was taken in the Court 
 below, and is noAv renewed on appeal. It is not contended 
 by counsel for plaintiff that the remedy in partition given by 
 our statute is not an equitable proceeding. It is conceded 
 to be such. It was by bill in Chancery before the enactment 
 of the Code; and the same statutory provisions, with some 
 slight and immaterial modifications or changes of name, still 
 exist. The position of counsel, in short, is, that the blend- 
 ing of legal and equitable remedies, or the reduction of all, 
 as near as may be, to a single form of action, under the 
 Code, has abolished the rule which formerly prevailed, that 
 the action for partition, being equitable, was not the proper 
 
 ' Godfrey v. Godirey, 17 Ind. 9; Parker v. Kane, 22 How. U. S. 13; Wolcottu. Wig- 
 ton, 7 Ind. 46; Ffjrder v. Davis, 38 Mo. 115; Orniond y. Martin, 1 Ala. Select Gas. 
 534; 8. C. 37 Ala. fJ05; Griflin v. Griain, Jr., 33 Geo. 109; Grosrt' St. ol' 111. 471, see. 15. 
 
 ' Morenbout v. Higuera, 32 Cal. 293; Hollo v. Navarro, 33 Cal. 405.
 
 g 503 DEFENCES IN PARTITION. 616 
 
 one in wliich to try and determine a question of legal adverse 
 title claimed. The contention is, that the action, though still 
 equitable, has now become the proper one for the trial and 
 adjudication of such an issue. A few considerations will, we 
 think, suffice to show the error of this position, and that a 
 court of equity is not now, any more than it formerly was, 
 the proper forum in which to try and decide a question of 
 mere legal title to land, and that the jurisdiction must still 
 be refused. And first we observe, what all the adjudications 
 since the enactment of the Code maintain, that although the 
 distinction between actions at law and suits in equity, here- 
 tofore existing, are abolished, yet this only relates to the 
 forms of actions, and does not touch or affect their inherent 
 qualities and differences, which, from the nature of things, 
 are unchanged and unchangeable. The change in the form 
 of action has not changed the nature of the action itself. It 
 has not enlarged tiiie jurisdiction of equity nor abridged that 
 of the law. This has been so often of late decided, and 
 equitable interference refused on the ground that there vested 
 an adequate remedy at law, that it seems unnecessary to re- 
 mark upon it, especially in view of the provisions of the con- 
 stitution of the State, under which it has been repeatedly 
 held by this Court to be incompetent for the Legislature to 
 take from the original or primary jurisdiction of equity and 
 give to the law, or to do the reverse."' One circumstance 
 controlling the decision in Wisconsin was not involved in the 
 case in California. It was this, that the property in dispute 
 was vacant lands, and ihat by statute either party could by 
 law sustain ejectment against ihe other. Upon this point the 
 Court said: "But the considerations of greatest weight in 
 our minds, and w^hich seem to us controlling, are the advan- 
 tages which the defendant in partition may or must lose if 
 compelled to submit to a trial of the legal title in this form 
 of action, instead of the trial in ejectment as provided by 
 law. Judgments in partition are, as declared by statute, and 
 as has frequently been adjudged by this Court, binding and 
 conclusive as to the title or interest of all persons, parties to 
 the action, and their legal representatives, and all persons 
 
 ' Deery v. McClintock, 31 Wis. 202.
 
 617 DEFENCES IN TARTITION. g 504 
 
 claiming under them or either of them, except tenants, or 
 persons having claims as tenants in dower, by the curtesy, or 
 for life, to the whole of the premises which shall be subject 
 to partition. But in the action of ejectment this is not so — 
 at least not so as to the first judgment, which may always be 
 vacated and a new trial had at the option of the defeated 
 party. * * * The judgment in such action rendered on the 
 defendant's failure to answer, does not become conclusive 
 upon him, or upon persons claiming from or through him by 
 title accruing after the commencement of the action, until 
 the expiration of two years from the time of docj^eting the 
 same. The statute reserves other and further very important 
 rights and privileges in this respect to any defendant who 
 may be, at the time of docketing the judgment, either within 
 the age of twenty-one years, or insane, or imprisoned on any 
 criminal charge, or a married woman. All these rights and 
 privileges accorded to the defeated party and defendant in 
 an action of ejectment, and which must be conceded to be 
 not unfrequently of great value to him, to say nothing of the 
 advantage, often most material, of a new trial, sometimes 
 granted for misdirection, or improper admission of testi- 
 mony, or other error in action at law, would be wholly lost 
 to the same party if required to litigate the same question or 
 matter of controversy in a suit or proceeding in equity. 
 These considerations seem conclusive to us upon the point, 
 and to show that the jurisdiction of equity does not attach 
 and ought not to be maintained in a case like the present." ' 
 
 ^ 504. Answers and Cross-bills. — When the defendant 
 wishes to assert any matter for the purpose of defeating the 
 plaintiff's claim for partition, he should do so by his answer. 
 When the matter is brought forward, not for the purpose of 
 defeating the partition, but of obtaining some afl&rmative 
 relief for the defendant — as when compensation for improve- 
 ments is sought, or a conveyance of the legal title is desired — 
 he should assert this affirmative matter by cross-bill.'^ 
 
 ' Deory v. McCliutock, 31 Wis. 202. 
 
 ■^ German v. Machin, 6 Pai. Oh. 288; Martindalo v. Alexander, 26 Ind. 105; Stafford 
 V. Nutt, 35 Ind. 93.
 
 CHAPTEE XXV. 
 
 RELIEP GRANTED IN EQUITY, IN CONNECTION WITH PARTITIONS. 
 
 All Equities may be Considered and Adjusted, § 505. 
 
 Except those which do not arise out of the Common Property, § 506. 
 
 Granting Owelty, § 507. 
 
 Making Partial Partition, $ 508. 
 
 Awarding Cotenant his Improvements, $ 509. 
 
 Compensating Cotenant for his Improvements, § 510. 
 
 States where Compensation is not allowed, § 511. 
 
 Compelling an Accounting, § 512. 
 
 Compelling Conveyance, $ 513. 
 
 Injunction against Waste, $ 514. 
 
 Injunction against Partition at Law, $ 515. 
 
 § 505. All Equities may be Considered and Adjusted. — 
 When a suit for partition is in a court of equity, or in a court 
 authorized to proceed with powers as ample as those exer- 
 cised by courts of equity, it may be employed to adjust all 
 the equities existing between the parties and arising out of 
 their relation to the property to be divided. "He who seeks 
 equity must do equity." Hence whoever, by a suit for par- 
 tition, invokes the jurisdiction of a court of equity in his 
 behalf, thereby submits himself to the same jurisdiction, 
 and concedes its authority to compel him to deal equitably 
 with his cotenants.' As the equities of the cotenants may 
 arise from a great variety of circumstances, it follows that 
 the assertion of these equities necessarily introduces into 
 partition suits a great variety of issues, and calls for various 
 
 ' story's Eq. Jur. sec. 656. "Though partition had its origin in the common law 
 courts, it is a subject over which the courts of equity assume almost exclusive jm"is- 
 diction; and in disposing of the cases for partition, the equities of the respective 
 parties growing out of their ownership of the property as tenants in common or 
 otherwise are taken into consideration, and disposed of upon the broad principles 
 which govern those courts in the administration of justice." — Dall v. The Confidence 
 Silver Mining Co. 3 Nev. 535. 
 
 . 618
 
 619 RELIEF, IN CONNECTION WITH PARTITION. g^ 506-S 
 
 allegations in the respective complaints and answers which 
 would not be required in an ordinary suit for partition not 
 complicated by any special equities between the cotenants. 
 We shall not undertake to treat of these various pleadings, 
 for the reason that they are not peculiar to suits in partition, 
 and have been sufficiently considered in Avorks on pleadings 
 and practice in equity, but shall confine our attention to the 
 enumeration and consideration of the principal matters 
 which may be asserted by one cotenant in a suit for parti- 
 tion, whether so asserted for the purpose of securing equi- 
 table allotments or of adjusting other claims arising out of 
 the cotenancy. 
 
 ^ 506. The Equities which may be adjusted and 
 enforced in a suit for partition are such only as arise out 
 of ihe relation of the parties to the common property. But 
 the fact that an equitable cause of action for which the court 
 can grant no relief in a suit for partition is set up in the bill, 
 is no ground for dismissing the suit. For independent of 
 this fact, the plaintiff is entitled to some relief — to wit, to 
 a partition.^ 
 
 § 507. Owelty. — When .an equal partition cannot be 
 otherwise made, courts of equity may order that a certain 
 sum be paid by the party to whom the most valuable purparty 
 has been assigned.^ The sum tlius directed to be paid to 
 make the partition equal is called owelty. It seems to have 
 been a lien on the purparty on account of which it was 
 granted. "The law cannot contemplate the injustice of 
 taking property from one person and giving it to another 
 without an equivalent, or a sufficient security for it."^ 
 
 g 508. Partial Partition. — A tract held in common can- 
 not be partitioned by fragments. Hence the grantee under 
 a deed from one of the cotenants purporting to convey by 
 metes and bounds a part of the larger tract, cannot enforce 
 
 • Hoffman v. Ross, 25 Mich. 176. 
 
 ■' Smith V. Smith, 10 Pai. 177; Oraydon v. Graydou, 1 McMullaii's E(i. C3; Cox t». 
 McMullan, 14 Gratt. 91; Bipuham'w Eiiiiity, wc 49; Allnatt on Partition, 89. 
 
 ^ Wynne v. TunsUll, 1 Dcv. Eq. 28; I^ong «. Long, 1 Watts, 2GG; Darlington'B Appro- 
 priation, 13 Pa. St. 432; Davis v. Norris, 8 Pa. Ht. 125.
 
 § 509 EELIEF, IN CONNECTION WITH PARTITION. 620 
 
 a pai-tition of the portion in which alone he has any interest.' 
 The suit for partition should always embrace the whole tract 
 held by the cotenancy. But while it is indispensable that 
 the whole tract should be embraced in the suit for partition, 
 it does not follow that those who are mutually desirous of 
 continuing the relation of cotenancy between one another 
 are obliged to have their several portions allotted to them to 
 hold in severalty. It is true that, in a few cases, a parjiial 
 partition has been treated as unauthorized and improper 
 under all circumstances.^ But the decided weight of the 
 authorities is the other way. Two or more cotenants may 
 anite in a petition for partition, and have their moieties set 
 off to them, to be by them enjoyed together and undivided.* 
 ' ' The plaintiff in partition is entitled to have his share set 
 off", if the premises are capable of being divided, for that is 
 his object in instituting the proceedings; but if the situation 
 of the defendants is such as to render it for their interest to 
 retain their proportion together and undivided, there can be 
 no possible objection, in principle, in permitting it to be 
 done, nor is it incompatible with the spirit and intent of 
 the act."" 
 
 § 509. Improvements. — ^The fact that a cotenant has lo- 
 cated upon a particular portion of the lands of the cotenancy 
 and has enhanced its value by making improvements, or by 
 reducing it from a wild state to one fit for profitable cultiva- 
 tion, is a circumstance always deemed worthy of the atten- 
 tion of a court charged with the duty of making a partition.^ 
 Such improvements are generally indispensable to a profit- 
 able and comfortable enjoyment of the property, and con- 
 tribute to the general prosperity of the community. The 
 law declines to compel one cotenant to pay for improvements 
 
 ' Bigelow V. Littlefield, 52 Me. 25; Sutter v. San Francisco, 36 Gal. 116; Hanson v. 
 Willard, 12 Me. 145; Duncan v. Sylvester, 16 Me. 391; Miller v. Miller, 13 Pick. 237: 
 Sweeny v. Meany, 1 Miles, 167. 
 
 '■^ Eobertson v. Robertson, 2 Swan, 199; Handy v. Leavitt, 3 Edw. Cb. 229. 
 
 =" Upham V. Bradley, 17 Me. 427; Page v. Webster, 8 Mich. 265; Northrop v. Ander- 
 son, 8 How. Pr. 351; Shull v. Kennon, 12 Ind. 35; Allen v. Hoyt, 5 Met. 326. 
 
 * McWhorter v. Gibson, 2 Wend. 445; Hobson v. Sherwood, 4 Beav. 185; Abbott v. 
 Berry, 46 N. H. 369; Murray v. Wooden, 17 Wend. 540. 
 
 * Hart's Devisees v. Hawkins, 3 Bibb. 510.
 
 621 RELIEF, IN CONNECTION WITH rARTITION. 'f^ 510 
 
 made without his authorization; but it will not, if it can 
 avoid so inequitabe a result, enable a cotenant to take advan- 
 tage of the improvements for which he has contributed no- 
 thing. When the common lands come to be divided, an 
 opportunity is offered to give the cotenant who has enhanced 
 the value of a parcel of the premises the fruits of his expen- 
 ditures and industry, by allotting to him the parcel so en- 
 hanced in value, or as much thereof as represents his share 
 of the whole tract. "It is the duty of equity to cause these 
 improvements to be assigned to their respective owners, 
 (whose labor and money have been thus inseparably fixed on 
 the land,) so far as can be done consistently with an equi- 
 table partition."' 
 
 § 510. Compensation for Improvements. — When the 
 equities accruing to a cotenant by virtue of improvements 
 made by him can be fully recognized and protected by 
 awarding him the portion of the land on which they are 
 situated, no special embarrassment attends the partition, 
 and there can be no possible doubt in regard to the action 
 which a court of equity, or a court having authority similar 
 to that exercised by courts of equity, will take. But when 
 the property is not susceptible of such a division, the more 
 doubtful question arises, whether compensation ought to be 
 awarded to the cotenant who has made the improvements. 
 Upon this question, we think the following extract from the 
 opinion of a Supreme Court in the State of New York fairly 
 expresses the result of a decided preponderance of the au- 
 thorities, where the improvements have been made in good 
 faith, and without any apparent desire to injure or oppress 
 the other cotenants: " Where one tenant in common lays out 
 money in improvements on the estate, although the money 
 so paid does not, in strictness, constitute a lien on the estate, 
 yet a court of equity will not grant a partition without first 
 directing an account and a suitable compensation. To en- 
 title the tenant in common to an allowance on a partition in 
 
 ' Withers v. Thompson, 4 Monr. 335; Sealo v. Soto, 35 Cal. 101; Dreiinon v. Walker, 
 21 Ark. 557; Louvalle v. Menard, 1 Gilm. 39; Biookfiokl i'. Williams, 1 Grctn'a Ch. 
 .341; Crafts v. Crafts, 13 Gray, 360; Pope v. Wliituhead, OH N. C. l'J9; BioLu v. Biolin, 
 18 Grant's Ch. 497; Hovey v. Ferguson, IB Grant's Ch. 498; Wood v. Wood, IG Grant's 
 Ch. 471.
 
 § 510 RELIEF, IN CONNECTION WITH PARTITION. 622 
 
 equity, for the improvements made on the premises, it does 
 not appear to be necessary for him to show the assent of his 
 cotenants to such improvements, or a promise, on their part, 
 to contribute their share of the expense ; nor is it necessary 
 for them to show a previous request to join in the improve- 
 ments, and their refusal."^ "The only good faith required 
 in such improvements is that they should be made honestly 
 for the purpose of improving the property, and not for em- 
 barrassing his cotenants or encumbering their estate, or hin- 
 dering partition."^ But "if one joint -tenant, or tenant in 
 common, covers the whole of the estate with valuable im- 
 provements, so that it is impossible for his cotenant to ob- 
 tain his share of the estate without including a part of the 
 improvements so made, the tenant making the improvements 
 would not be entitled to compensation therefor, notwith- 
 standing they may have added greatly to the value of the 
 land; because it would be the improver's own folly to extend 
 his own improvements over the whole estate, and because it 
 would be unjust to permit a cotenant, at his pleasure, to 
 charge another cotenant with improvements he may not have 
 desired. In such a case, the improver stands as a mere vol- 
 vinteer, and cannot, without the consent of his cotenant, lay 
 the foundation for charging him with improvements."^ As 
 the allowance of compensation for improvements is, in all 
 cases, made, not as a matter of legal right, but purely from 
 the desire of the Court to do justice, the compensation will 
 be estimated so as to inflict no injury on the cotenant against 
 whom the improvements are charged. He will therefore be 
 charged, not with the price of the improvements, but only 
 . with his proportion of the amount which at the time of the 
 partition they add to the value of the premises.* From this 
 amount he will also be entitled to deduct any sum to which 
 
 ' Green i'. Putnam, 1 Barb. 507; Martindale v. Alexander, 26 Ind. 105; St. Felix «. 
 Rankin, 3 Edw. 323; Swan v. Swan, 8 Price, 518; Doughaday v. Crowell, 3 Stock. 204; 
 Dean v. O'Meara, 47 111. 120; Kurtz v. Hibner, 55 111. 521; Respasa v. Breckenridge, 
 2 A. K. Marsh. 584; Robinson v. McDonald, 11 Tex. 390; Hitchcock v. Skinner, Hofif. 
 26. 
 
 ■' Hall V. Piddock, 21 N. J. Eq. 314. 
 
 " Nelson's Heirs v. Clay's Heirs, 7 J. J. Marsh. 142. 
 
 ♦ Moore U.Williamson, 10 Rich. Eq, 328.
 
 623 RELIEF, IN CONNECTION WITH PARTITION. ^ 511 
 
 he may have a just claim for use and occupation of his 
 moietj enjoyed by the coteuant making the improvements.' 
 
 g 511. States where Compensation for Improvements 
 is not allo-wed. — The rule that a coteuant may, in partition, 
 recover compensation for improvements made by him with- 
 out the assent of his cotenants, does not universally prevail. 
 In Alabama, the claim for improvements can be asserted 
 only as a counter demand to a claim for rents. '^ In a com- 
 paratively recent case decided by the Commission of Appeals 
 of the State of New York, language is used which tends very 
 strongly to impair the authority of Green v. Putnam, referred 
 to in the preceding section. In the case determined by the 
 Commission of Appeals, a tenant in common of a reversion 
 had, by an arrangement with the tenant of the life estate, 
 erected buildings by which the value of the property was 
 considerably^ enhanced. From these buildings he had before 
 the death of the tenant for life received rents sufficient to re- 
 pay him the original outlay, with interest thereon. In a sub- 
 sequent action for partition, he claimed of his cotenants 
 compensation for these improvements. For rejecting this 
 claim, the following reasons, among others, were given : 
 ' ' There was no consent, mistake, or other equitable ground 
 in this case for relieving a party who made his investment 
 with full knowledge of the facts, voluntarily, and without 
 any inducement oifered by the other cotenants. Had the 
 applicants offered to share their rents, upon being paid a 
 due proportion of the value of the improvements after the 
 termination of the life estate, it might have afforded a better 
 ground to claim compensation. The appellants are not within 
 the reason of any of the adjudged cases where relief has 
 been granted in partition for money expended in improve- 
 ments by one of several tenants in common. If the laud 
 has been really enhanced in value by the improvements, the 
 appellants are in a better plight than strangers, as they will 
 receive their pro rata share of the increased proceeds of the 
 sale. The owner cannot be; called upon to afford any in- 
 
 * Teasdalo v, Sanderson, 3a iJiav. 534; llowan v. Rccd, 1!) 111. 28. 
 " Ormond v. Martin, 37 Alu. OOC; llDrton v. Sledgo, 29 Alii. 408.
 
 g 512 RELIEF, IN CONNECTION WITH PAETITION. 624 
 
 demuity or compensation for money expended by a stranger 
 for improvements, if lie had full knowledge of the risk he 
 was encountering when they were made."^ 
 
 g 512. Accounting. — A complainant may, by the same 
 bill, procure a partition and an accounting;^ and the defend- 
 ant may also, by a cross-bill, compel the complainant to 
 account with him. Claims for rents received, or for use and 
 occupation of the common property, to the exclusion of the 
 other cotenants, are very frequently enforced in suits for par- 
 tition.^ In New York, in a case in which the point did not 
 require to be decided, it was held that ' ' the rents and profits 
 of the premises accruing while the land has been held ad- 
 versely to the claim of the complainants, even if such rents 
 and profits had been received by one who was a joint owner 
 of the premises with the complainants, are not properly re- 
 coverable in this Court upon a bill for partition; or rather, 
 they must be more properly recoverable as mesne profits, in 
 an ejectment suit brought for the recovery of the possession 
 of the part claimed by the complainants."* The opinion 
 here expressed has not, so far as we can ascertain, met with 
 any support; and it certainly does not deserve to meet with 
 any. When equity has jurisdiction for partition, no obstacle 
 exists to its proceeding to do complete justice, by compelling 
 an account for all rents received; and nothing better than 
 expense and delay can result from requiring one suit at law 
 for mesne profits and another in equity for partition. 
 "Where one tenant in common has made a parol agree- 
 ment with another tenant in common for his interest in the 
 land, and paid a part of the purchase money, which agree- 
 ment fails by reason of the purchaser's refusing to comply 
 on account of the agreement not being in writing, a court 
 
 ' Scott V. Guernsey, 48 N. Y. 123. 
 
 ^Obert V. Obert, 2 Stock. Ch. 98; Tuckfield v. Bnller, 1 Dickens, 241; Wills v. 
 Slade, 6 Ves. 498. 
 
 =* Davidson v. Thompson, 22 N. J. Eq. 84; Goodenow v. Ewer, 16 Cal. 472; Hill v. 
 Fulbrook, 1 Jac. 574; Lorimer v. Lorimer, 5 Madd. Ch. 363; Story v. Johnson, 1 Y. 
 & C. Eq. Ex. 546; 2 lb. 586; Humphrey v. Foster, 13 Gratt. 657; Allen v. Barkley, 
 Speer Eq. 264; Howey v. Goings, 13 HI. 107; Hawkins v. Taber, 47 HI. 460; Pope v. 
 flalsman, 35 Mo. 365. 
 
 * Burhans v. Burhans, 2 Barb. Ch. 410.
 
 625 RELIEF, IN CONNECTION WITH PARTITION. § 513 
 
 of equity, in decreeing a partition, may properly decree the 
 purchase money so paid to be a lien on the premises."' So 
 where, on the joint purchase of the common lands, one of 
 the cotenants had paid more than his proportion of the price, 
 he was held to be entitled to be indemnified, for the excess, 
 out of the proceeds of the sale in partition.- A tenant in 
 common who has removed an inciunbrance from the common 
 property is entitled to contribution from his cotenants. To 
 secure such contribution, a court of equity, acting in a suit 
 for partition, in favor of the cotenant removing the incum- 
 brance, will enforce an equitable lien of the same character 
 with that which he has removed.^ In one case, the commis- 
 sioners awarded damages for waste. Their report was ex- 
 cepted to, on the ground that the remedy for waste was at 
 law; but the Court said: "There is hardly any question in 
 relation to property which this Court may not determine in- 
 cidentally, for the purpose of doing complete justice, and 
 preventing multiplicity of litigation."* In decreeing parti- 
 tion of slaves, the Coui't required the plaintijQf to reimburse 
 the defendant for expenses incurred in a suit to recover the 
 slaves from a third person.* 
 
 g 513. Compelling Conveyance. — When the title of a 
 cotenant is equitable merely, and he is entitled to a convey- 
 ance of the legal title, he may, by proper pleadings, assert 
 his rights and obtain a decree of the Court "compelling 
 those in whom the legal title rests to convey according to the 
 partition awarded."^ But where the sole purpose of the bill 
 is to procure a partition, it will not be granted on the ground 
 that the plaintiif is entitled to a conveyance. He must first, 
 in the same or in an indejjendent suit, obtain a decree de- 
 claring his right to the conveyance.' 
 
 ' Campbell v. Campbell, 3 Stock. Ch. 276. 
 ■' Warfield o. BanlcH, 11 Gill & J. 98. 
 » Titsworth v. Stout, 49 111. 78. 
 
 * liacldcr v. Farrow, 2 UiU'H Ch. 111. 
 
 6 M'Mc-ekin v. Bnimmct, 2 HiU's Ch. G43. 
 
 • Oveiton'H Heirs v. Woolfolk, 6 Dana, 37C; ChristiaD'e Deviscf v. Cliristiaii, C 
 Munf. .03'1; ilunter v. Brown, 7 B. Monr. 283. 
 
 ' WilIi;uiiH V. Wiggand, 53 111. 233. 
 
 C. & p.— 40
 
 g§ 514-15 RELIEF, IN CONNECTION WITH PARTITION. 626 
 
 § 514. An injunction may, in some instances/ be 
 granted on the application of one cotenant to restrain an- 
 other from committing or continuing some act destructive to 
 the common estate. This relief may be obtained in a suit 
 for partition^ as well as in an independent proceeding. 
 
 § 515. Enjoining Partition at Law. — In proceeding at 
 law for a j)artition, no notice was taken of any equitable 
 rights or titles. The land was divided into moieties, as di- 
 rected by the judgment of the Court; and, in making such 
 division, no attention was paid to the equitable rights of 
 either of the cotenants, arising from the erection of improve- 
 ments, or from any other cause. ^ When a court of law by 
 proceeding with a partition is about to sacrifice the equitable 
 rights of some of the cotenants, a court of equity will enjoin 
 the proceedings at law and award an equitable partition. 
 "A court of equity will not interfere, unless such interfer- 
 ence becomes necessary to protect some party thereto from 
 fraud or wrong, or to secure him some clear right which the 
 law tribunal, from the manner of proceeding before it, can- 
 not secure. For such purpose, courts of equity in exercising 
 one of their principal functions, which is to remedy injustice 
 occasioned by the strict rules of the law and the manner of 
 proceeding in courts of law, will interfere to prevent a failure 
 of justice and loss of rights."^ A court of equity will there- 
 fore interfere where one of the cotenants has, in good faith, 
 placed valuable improvements on the property.* Where by 
 statute Chancery has power to decree a sale of lands, and no 
 such authority exists at law, a proceeding at law for partition 
 may be enjoined, if it appears that the partition at law will 
 result in great injury to the parties in interest, and that a 
 sale of the property will be much more beneficial to them 
 than a division thereof.* 
 
 ' See sees. 323-4. 
 
 - Baily v. Hobson, 22 L. T. R. 594; S. C. 2 Alb. L. J. 74. A receiver may also be 
 appointed pending a partition. Low v. Holmes, 17 N. J. Eq. 150; Rutherford v. Jones, 
 14 Geo. 526. 
 
 » Greenup v. Sewell, 18 111. 54; Thornton v. York Bank, 45 Me. 164; Tilton v. Pal- 
 mer, 31 Me. 487; Liscomb v. Root, 8 Pick. 377; Baldwin v. Breed, 16 Conn. 65; Mar- 
 shall V. Crebore, 13 Met. 468; Bull v. Nichols, 15 Vt. 335. 
 
 « Hall V. Piddock, 21 N. J. Eq. 312. 
 
 a Gash V. Ledbetter, 6 Ired. Eq. 185.
 
 CHAPTER XXVI. 
 
 THE JODGMENTS, AND THE PROCEEDINGS THEREUNDER. 
 
 The First Judgment, § 516. 
 
 The First Judgment determines the Moieties, $ 517. 
 
 The First Judgment, Special Directions in, $ 518. 
 
 The First Judgment is not Final, $ 519. 
 
 Issuing the Writ, $ 520. 
 
 Issuing the Commission in Chancery, $ 521. 
 
 The Commissioners and their Duties, $ 522. 
 
 Keport of the Commissioners, 6 523. 
 
 Vacancies in the Commissioners, $ 524. 
 
 Vacating Commissioner's Report for Error in Judgment, $ 525. 
 
 Vacating Commissioner's Eeport for Error in Proceeding, $ 526. 
 
 The Final Judgment in Decree, ^ 527. 
 
 g 516. The First Judgment. — Whether the proceeding 
 for partition was prosecuted at law or in equity, it was first 
 necessary to decide whether the parties were cotenants and 
 entitled to partition. This question being resolved in the 
 affirmative, it was next necessary to determine the respective 
 moieties of each of the parties. The result of the decision 
 of these two questions was the judgment qxiod payiitio fiat. 
 This was the first or interlocutory judgment in partition. It 
 directed that partition be made between the parties, and 
 commanded the sheriff to go to the premises, and in the 
 presence of the parties, if they be willing to be present, after 
 being first forewarned, "by the oath of good and lawful men 
 of his county, respect being had to the true value of the said 
 tenements, with the appurtenances, he cause to be divided" 
 into certain moieties which the judgment proceeded to 
 specify, and that he deliver one moiety to A and another 
 to B, etc' In Chancery, the decree for partition ordered: 
 
 ' 3 Chitty PI. 1302; Booth on Real Actiona. 244-6. 
 
 627
 
 § 517 JUDGMENTS AND PROCEEDINGS. 628 
 
 1st, that a partition be made between the plaintiffs and de- 
 fendants, in certain moieties which it specified; 2d, that a 
 commission or commissions issue to certain persons to be 
 therein named; 3d, that the commissioners do make a parti- 
 tion, [here specifying the manner in which it shall be made] ; 
 4th, that all writings, surveys, muniments of title, etc., be 
 produced before the commissioners; 5th, that the commis- 
 sioners examine witnesses, as they may think fit; 6th, that 
 after such partition has been made, that the parties execute 
 conveyances to each other respectively.' The decree, in ad- 
 dition to these directions, usually contained another in refer- 
 ence to the title deeds, and one in regard to costs. 
 
 § 517. First Judgment must determine the Moieties. — 
 
 Whether the proceeding was at law or in equity, the province 
 of the Court was to determine between whom, and in what 
 proportions, the division should be made. In no case could 
 the commission determine title, or prosecute any inquiries 
 in regard thereto.^ In one case in equity, where it was con- 
 ceded that the parties were cotenants and entitled to parti- 
 tion, but their respective moieties were uncertain, the Master 
 of the Rolls said : " I shall take a little time to consider what 
 is a proper decree in this case. At present, I am strongly 
 inclined not to decree an immediate partition, upon the 
 grounds that have been stated; but I wish to consider 
 whether, as incidental to the demand for partition, the Court 
 would not put into a train of inquiry what are the propor- 
 tions in which they are interested in these lands, in order to 
 lay a foundation for partition afterwards, that previous in- 
 quiry to be before the Master; whether the commission ought 
 not, as the writ always does, to state the proportion in which 
 the partition is to be made." Subsequently, he announced 
 the result of his consideration as follows : "There are two 
 cases in which the Court referred it to the Master to ascer- 
 tain the interests of the parties, and afterwards directed a 
 commission to issue: Calmady v. Calmady,^ and Duncan v. 
 Howell. The uncerbainty of the shares is not a ground for 
 
 ' Seaton's Forms, 184; DanL Ck. Pr. 4th ed. 2254. 
 ^ Ham i>. Ham, 39 Me. 218. « 2 Ves. Jr. 568,
 
 629 JUDGMENTS AND PROCEEDINGS. gg 518-19 
 
 definitely refusing a partition : it is for refusing it at present. 
 It cannot be referred to the commissioners to ascertain the 
 interests. This must be done, as in those cases by the Court, 
 through the medium of the Master. In one of the cases, the 
 form of the inquiry was, what undivided shares the several 
 parties were entitled to, and for wh^it estates and interests 
 therein respectively. " ^ 
 
 g 518. Special Directions. — The respective duties of the 
 Court and of its commissioners in making a partition are not 
 very clearly defined. Although the first or interlocutory de- 
 cree determines the moieties of the respective parties, and 
 thereby furnishes the basis upon which the commissioners 
 are to proceed, there are many things, in addition to the 
 moieties of the parties, to be considered in making an equi- 
 table partition. Among these are the granting of owelty, 
 the setting aside of improved lands to the tenant who im- 
 proved them, and the allotment of wasted lands to the tenant 
 who wasted them. No doubt the Court might insert in its 
 interlocutory decree such special directions to the commis- 
 sioners as it thought necessary to insure an equitable parti- 
 tion. But whether it was usual to insert such directions in 
 the first decree, or to leave the whole matter to the judgment 
 of the commissioners in the first instance, and to apply for 
 the modification or rejection of their report when it proved 
 unsatisfactory, are subjects of which the authorities coming 
 within our view have failed to enlighten us. 
 
 § 519. First Judgment is not Pinal. — Neither the inter- 
 locutory judgment at law nor the first decree in Chancery is 
 final : it cannot, therefore, be corrected by a direct appeal.'^ 
 The parties must wait until the entry of the final judgment 
 or decree. In Texas, a different rule prevails. A decree 
 which determines all the issues made by the pleadings, and 
 directs partition to be made in accordance with such deter- 
 
 ' Agar t). Fairfax, 17Ve8. 542; Phelps v. Green, 3 Jolms. Ch. 304; Ledbottcr u.Gatth, 
 8 Injd. 463. 
 
 •^ Ivory V. Delare, 26 MiH. 505; Bcobe v. Griffin^, G N. Y. 465; Clcwttir v. Oibaon. 16 
 Ind. 10; Griffin v. Griffin, 10 Ind. 170; Cook v. Knii:k( rbock((r, 11 lud. 230; Hiintor 
 V. Miller, 11 Ind. .350; Pipkin v. Allcu, 29 Mo. 221); Durlmin v. Durham. 34 Mo. 447; 
 Mcdford v. Harrcll, 3 Ilawlw, 41.
 
 § 620 JUDGMENTS AND PROCEEDINGS. 630 
 
 mination, is regarded as final, because it leaves nothing to 
 be done but to execute the directions therein contained.' It 
 is obvious that if no appeal is permitted from the interlocu- 
 tory judgment in partition, all the subsequent labor of the 
 commissioners in making the allotment may be lost by a re- 
 versal for some error in fixing the interests of the parties. 
 To avoid this result, an appeal from the interlocutory judg- 
 ment is, in some of the States, authorized by statute.'^ Under 
 these statutes, an error in the preliminary decree must be 
 corrected by an appeal therefrom, or by a motion for a new 
 trial ;^ because, " upon appeal from a fimal judgment, an order 
 made in the cause which is itself by statute made the subject 
 of a distinct appeal, cannot be reviewed."* 
 
 g 520. Issuing the Writ. — In proceedings at law, after 
 the entry of the first judgment in partition, the writ de 'par- 
 titione facienda was issued to the sherift*. By this writ he 
 was commanded, with twelve good and lawful men of the 
 neighborhood, to go to the manors and tenements, and there, 
 in the presence of the parties, (who are to be forewarned, ) 
 if they be willing to be present, by the oath of said twelve 
 men, respect being had to the true value of the property, to 
 cause the same to be divided. The writ then proceeded, in 
 accordance with the interlocutory judgment, to specify the 
 moieties into which the property should be partitioned. 
 After the partition was made, it was returned to the Court 
 under the seals of the sheriff and the twelve jurors. This 
 return certified that on a day named, the sheriff' took with 
 him twelve free and lawful men, (naming them,) and went on 
 the manor, etc., and by the oath of said men, he caused to 
 be divided the said manor, etc. The return here states the 
 bounds of the several allotments, and to whom each allot- 
 ment had been delivered and assigned. Upon this return, 
 ihQ final judgment of the Court is: "Therefore, it is con- 
 sidered that the aforesaid partition be holden firm and effec- 
 tual forever."^ 
 
 ' McFarland o. Hall, 17 Tex. 676. ^ Cal. C. C. P. sec. 939. 
 
 ' Regan v. McMahon, 43 Cal. 627. ^ McCourtney v. Fortune, 42 Cal. 387. 
 
 " 2 Sellon'B Pr. 219-221; Chitty's PI. 1394-1407.
 
 631 JUIKJMENTS AND PROCEEDINGS. §g 521-22 
 
 g 521. The commission issued in Chancery appointed 
 
 certain persons as commissioners, and autliorizeil them to 
 meet at proper times and places, to enter upon, walk over, 
 and survey the estate in question, and make a fair allotment 
 thereof, and to distinguish such allotments by certain metes 
 and bounds. The commission stated the names of the sev- 
 eral persons entitled to allotments, and designated their re- 
 spective interests. It authorized the summoning of -witnesses 
 and their examination upon oath, provided that their depo- 
 sitions should be reduced to writing, and concluded as fol- 
 lows : ' 'And when ye have done and performed these things, 
 ye shall certify and return the same into our Court of Chan- 
 cery, without delay, wheresoever our said Court shall then 
 be, the facts and proceedings in the premises, by your cer- 
 tificate fairly written on parchment, together with the said 
 examinations and interrogatories, and also this writ closed 
 up, under the seals of you, any three or two of you.'" When 
 the commissioners have performed their duties by making 
 the necessary allotments, they must prepare their certificate, 
 "which must detail their proceedings and appoint the shares 
 of each party, according to their allotments, to be enjoyed 
 by them in severalty, distinguishing each part, if so directed 
 by the commission, by metes and bounds. There is no pre- 
 scribed form of a certificate: it is in the nature of a report; 
 and, as a rule, it should follow, as nearly as may be, the lan- 
 guage of the commission; and the particulars, description, 
 and quantities of the several parts of the estate, may be de- 
 scribed in a schedule."^ AVhen the commission, with the 
 accompanying documents, has been returned and filed, an 
 order must be obtained confirming the certificate. The par- 
 tition is next completed by conveyances executed in pursu- 
 ance of the decree of partition, and the allotments made 
 thereunder by the commissioners. 
 
 g 522. Commissioners and their Duties. — In the United 
 
 States, under tlie various statutes, the proceediugs subse- 
 quent to the interlocutory judgment conform more nearly to 
 
 ' Beaton's Forms, 190. See the opinion of Lord ItwlcKdale upon the CommiBtiion 
 of Partition in the cage; of Oorzon i'. LyHter, Scaton'H FonuB, 191. 
 'Danl. Ch. Pr. 4th ed. 1158.
 
 § 522 JUDGMENTS AND PROCEEDINGS. 632 
 
 the proceedings in Clianceiy than to those formerly had at 
 law under the writ of partition. Immediately after entering 
 this judgment, or at the same time by a provision in the 
 judgment, the Court appoints a number of disinterested per- 
 sons — usually three or five — to make the partition. They 
 are commonly called commissioners, sometimes referees, and 
 more rarely partitioners. They have no power to determine 
 questions of title.' "When the interlocutory judgment is 
 entered, it is a conclusive determination of the rights of all 
 the parties to the proceedings; and no question any longer 
 remains open concerning their ownership, or title, or their 
 undivided shares and interests. The commissioners have no 
 other duty to perform, or authority to act, than to divide the 
 estate according to the directions contained in the warrant. " ^ 
 The statutes usually require the commissioners to be sworn ^ 
 before entering upon the discharge of their duties, and also 
 to give notice to the parties interested of the time and place 
 when and where they will make the partition. They are 
 authorized to employ a surveyor when necessary, and are 
 directed to divide the lands in such manner as to give each 
 cotenant, as nearly as possible, his proportion in value.* In 
 some of the States, the land is first divided by the commis- 
 sioners into equal parts, and they then determine by lot to 
 whom each part shall be assigned;^ but more usually they 
 are authorized to make the several allotments without having 
 recourse to chance.^ In many of the States, they have power 
 to determine whether a partition can be made without great 
 prejudice to the cotenants, and may, instead of attempting a 
 partition, report to the Court that they find a division preju- 
 dicial or impracticable, and that they therefore advise a sale. 
 
 ' Allen V. Hall, 50 Me. 263. Examine this case for a general discussion of the 
 duties and powers of commissioners. See also Kane v. Parker, 4 Wis. 123; Marvin v. 
 Titsworth, 10 Wis. 320. 
 
 - Brown v. Bulkley, 11 Gush. 168. 
 
 * Absence of oath of commissioners held to avoid partition, Massey v. Massey, 4 H. 
 & J. 144. For contra opinion, see Wilcox v. Cannon, 1 Cold. 369; Bledsoe v. Wiley, 7 
 Humph. 507. 
 
 * Field V. Hanscomb, 3 Shep. 367; Lewis v. The C. I. Co. of Cmn. 23 Ind. 445; 
 Buck V. Wolcott, 15 Gray, 502; Coply v. Crane, 1 Root, 69; Hunter v. Brown, 7 B. 
 Monr. 285. 
 
 * This is the method preferred in Chancery. Danl. Ch. Pr. p. 1158, 4th ed. 
 
 * Cecil V. Dorsey, 1 Md. Ch. 225.
 
 633 JUDGMENTS AND PKOCEEUINGS. g 522 
 
 According to the Chancery practice in England, the proceed- 
 ings of the commissioners are open; they may be attended 
 by the parties and their solicitors; -witnesses may be exam- 
 ined and cross-examined under the control of the commis- 
 sioners; and every step may be taken necessary " to discover 
 the truth and enable the commissioners to make a proper re- 
 turn."^ This evidence is confined to the proof of such facts 
 only as will be necessary to enable the commissioners to 
 make proper and impartial allotments. The first duty of the 
 commissioners is to divide the subject-matter of the partition 
 into as many shares and proportions as the decree or order 
 under which the commission issues directs. They must next 
 allot these proportions to the respective cotenants. In so 
 doing, they must take into consideration all the circum- 
 stances. They have no right to make an arbitrary allot- 
 ment.^ They should, so far as they can do so without in- 
 justice to the others, assign each cotenant the part most 
 valuable to him, whether this special value arose from his 
 having made improvements or from any other cause. ^ If 
 there are several parcels, they need not divide each parcel, 
 but may assign one parcel to each cotenant.^ Unless author- 
 ized to do so by the decree under which they were appointed, 
 commissioners cannot award owelty of partition.^ Neither 
 the commissioners nor the Court can, unless so authorized 
 by statute, divide the land into town lots and give part of 
 the land to the public for streets." In Maine, the commis- 
 sioners cannot assign to one of the parties the right to haul 
 lumber on the other's lands, nor to drive logs or use a dam 
 there. ^ But in England it is understood that the commis- 
 sioners may make such directions as are necessary to an 
 equitable partition, and to assure to the parties an equitable 
 enjoyment in severalty. They may therefore lay out a road 
 
 ' Danl. Ch. Pr. 4th ed. 1154. The name nile prevails in Maryland. Cecil t'. Dorsoy, 
 1 Md. Ch. 22G. 
 
 '^ Canning v. Canning, 2 Drewery, 4.34. 
 
 " Story V. Johnson, 1 Y. & C. Ex. 546. 
 
 * Earl of Clarendon ». Hornby, 1 P. Wms. 446; Smith v. Barber, 7 Ohio, Part 2, 
 p. 118. 
 
 '■> Mole t). Mansfield, 15 Sim. 41; Danl. Ch. Pr. 1157, 4th od.; Peers c. Nocdham, 19 
 Beav. .316. Contra— Smith v. Smith, 10 Pai. 477; Wood v. Little, 35 Mo. 112. 
 « Kitchen V. Sheets, 1 Ind. 130. 
 ' Dyer v. Lowell, .30 Mo. 219.
 
 g§ 523 JUDGMENTS AND PROCEEDINGS. 634 
 
 across the purparty of one of the cotenants, in order that 
 the other may have a means of passing to and from his pur- 
 party; and they may order fences to be built and maintained 
 between the lands assigned to the parties.^ And no doubt 
 the law, as thus understood in England, prevails in the 
 greater portion of these United States. In a case in New 
 York, where the subject-matter of the partition consisted of 
 certain mills and water privileges, the Court, speaking of 
 the power of the commissioners, said: "In short, the com- 
 missioners who are to make the partition may divide the dam 
 and the lands under the water, and may make such provisions 
 for keeping the different portions of the dam, and the waste 
 gates and flumes in the same, in repair, and such regulations 
 for the use of the water power which is not capable of actual 
 partition without a destruction of its value, as the parties 
 might make by a partition deed between themselves, and by 
 agreeing for a compensation to be paid by one party to the 
 other, if necessary, so as to make that partition perfectly 
 equal, so far as human judgment is capable of producing 
 equality in such a case." ^ 
 
 g 523. Report. — When the commissioners have completed 
 their allotments, they must prepare and return to the Court 
 whence the commission issued a report showing what they 
 have done, and the proceedings had before them.^ When 
 
 ' Lister V. Lister, 3 Y. & C. Ex, 544, 546. 
 
 '' Smith V. Smith, 10 Pai. 478; Hill v. Dey, 14 Wend. 204; Morrill v. Morrill, 5 N. H. 
 134. The commissioners have not, in New Hampshire, authority to make partition 
 by assigning to each of the cotenants the exclusive occupation for alternate periods 
 of time. Crowell v. Woodbury, 52 N. H. 613. 
 
 For provisions in reference to appointment and duties of commissioners, see Kev. 
 CodCi Ala., sec. 3108-13; Gould's Ark. Dig., 813, sees. 16-18; C. C. P. of Cal., sees. 
 763-4; Laws of Del., p. 528, sec. 5; lb. 529, sec. 10; Bush's Dig. Fla., 618, sec. 6; Code 
 of Geo., sees. 3999^:000; Gross' St. of 111., 470, sec. 9; Code Iowa, sec. 3290; C. P. of 
 Kans., sec. 619, p. 24; Eev. St. Me., 695, sees. 13-16; 2 Stanton's St. of Ky., 101, 102; 
 2 Comp. Laws Mich., sees. 6273, 6288-91; Genl. St. Mass., 790, sees. 21-24; Bissell's 
 St. of Minn., 888, sees. 6-7; Rev. Code Miss., sees. 1818-27; Genl. St. of Mis., 812, 
 sees, 16-21; C. P. of Neb., sec. 812; Comp. Laws Nev., sees. 1338-9; Genl. St. N. H., 
 464, sees. 10-13; Nixon's N. J. Dig., 4th ed., 666, sees. 1-6; 3 Eev. St. N. Y. 609, sees. 
 34-41; Swan's St. of Ohio, 591, sees. 4, 5; Deady's Laws of Oregon, 256, sec. 424; 
 Brightly's Purdon's Dig., 1116, sec. 22; Rev. St. S. C. 532, see. 10; Thompson & Ste- 
 ger's St. Tenn., sees. 3279-81; Genl. St. Vt., 354, sec. 6; Taylor's St. Wis., 1682, sees. 
 23-26. 
 
 ^ Hathaway v. Persons Unknown, 32 Me. 137.
 
 635 JUDGMENTS AND PROCEEDINGS. §§ 524r-25 
 
 evidence has been taken, it should be returned with the re- 
 port. The report must show how the property has been 
 divided, and to whom the several parts have been allotted. 
 The report of the commissioners need not be unanimous. 
 " We think the true rule is, that where three or more persons 
 are charged with a judicial or a quasi judicial function under 
 an authority derived, not from the parties in interest merely, 
 but from a law or statute of the State, though all must hear 
 and deliberate together, a majority may decide. But though 
 a majority may decide, all should be present to hear and de- 
 liberate, and we think the report at any rate, when not signed 
 by all, should show affirmatively that all were so present." ' 
 The report is sufficiently certain, if it is capable of being re- 
 duced to certainty by a survey.^ " If the commissioners are 
 equally divided, both returns will be quashed."^ 
 
 g 524. On the death, resignation, or refusal to act, 
 of any of the commissioners, the Court may appoint others 
 in their places, who have power to complete the partition.* 
 
 § 525. Vacating Report. — The report of the commission 
 is not final. It may be set aside by the Court.^' But where 
 the Court is asked to set aside the action of the commission- 
 ers, on the ground that they erred in making their allotments, 
 whereby an unequal partition has been made, it will not 
 grant the relief asked except in extreme cases— cases in 
 which the partition is based on wrong principles, or it is 
 shown by a very clear and decided preponderance of evi- 
 
 ' Townsend v. Hazard, 9 R. I. M2, 444; Underbill v. Jackson, 1 Baib. Ch. 73; 
 Scuyler v. Marsh, 37 Barb. 354; Kane v. Parker, 4 Wis. 123. 
 
 •^ Boyd V. Doty, 8 Iiid. 374. 
 
 ■> Daul. Ch. Pr. 1159; Watson v. Duke of Northumberland, 11 Ves. 153, 162. 
 
 For report, see Rev. Code Ala., sec. 3111; Gould's Ark. Dig., 813, sec. 19; C. C. P. 
 of Cal., sec. 7G5; Gross' 111. St., 470, sec. 9; Code Iowa, sec. 3292; C. P. of Kans., 622; 
 Rev St Me , 090, sec. 21; 2 Stanton's St. of Ky., 101, sec. 6; Comp. Laws Mich., sec. 
 6292; Genl. St. Mass., 700, sec. 29; Bissell's St. of Minn., 889, sec. 7; Rev. Code Miss., 
 sec 1825- Genl. St. of Mis., 613, sees. 22-3; Comp. Laws Nev., sec. 1340; Genl. St. 
 N H 464, sees. 13, 14; Nixon's Dig. N. J., 4th ed., 668, sec. 7; 3 Rev. St. N. Y., 610. 
 sec 42; Deady's Laws Oregon, 257, sees. 427-8; Genl. St. R. I.. 523. sees. 27-29; Rev. 
 St. B. C, 533, sec. 12; Thompson & Bteger's St. Tenn., 3282; Genl. St. Vt., 354, Beo. 8; 
 Taylors St. Wis., 1683, sec. 27. 
 
 ♦ Rev. Code Ala., sec. 3115; Gould's Ark. Dig., 81(;, sir. 37; 2 Comp. Laws Mich., 
 BCC. 6289; Rev. Code Miss., sec. 1821; Taylor's St. Wis. 1683, sec. 24. 
 
 » Riggs V. Dickuison, 2 Beam. 439.
 
 ^ 526 JUDGMENTS AND PROCEEDINGS. 636 
 
 dence that the commissioners have made a grossly unequal 
 allotment.' In one case, it was said that "the report of the 
 commissioners is to be regarded in the light of a verdict of 
 a jury rendered upon a trial at law; and it will be disturbed 
 or interfered with by the Court only upon grounds similar to 
 those on which a verdict would be set aside and a new trial 
 granted. Nay, more : it will be regarded with greater con- 
 sideration even than a verdict, because, in this particular in- 
 stance, the commissioners are persons who were selected by 
 the parties themselves on account of their superior judgment 
 and capacity to perform this particular service, and they were 
 authorized to act upon a personal view of the property, and 
 upon their individual knowledge of its value, location, etc., 
 which they were left to acquire at their leisure, and from all 
 the best sources of information in their power, and without 
 regard to rules and forms of judicial proceedings in acquiring 
 their knowledge."^ In England, "it is improper for the 
 Court to interfere with the valuation of commissioners, un- 
 less there be any mistake in it so gross as to induce the Court 
 to think that the commissioners have acted from unjust, cor- 
 rupt, or fraudulent motives."* 
 
 g 526. Vacating Report for Error in Proceeding. — The 
 report of the commissioners may also be set aside for errors 
 in their proceeding affecting the rights of the parties, and on 
 account of which the law presumes that the party complain- 
 ing may have been injured. Hence, the report will be set 
 aside when the parties had no notice of the meeting of the 
 commissioners, and, on that account, did not attend.* "If 
 the report be set aside for the misconduct of the commis- 
 sioners, or any of them, new ones may be appointed in their 
 places. If for a mere irregularity or unintentional omission 
 to perform some duty, such as to give notice to the parties, 
 
 1 In the Matter of the Division of the Heal Estate of J. S. Thompson, 2 Green Oh. 
 637; Hay v. EsteU, 19 N. J. Eq. 135; Story v. Johnson, 1 Y. & C. Ex. 538; Jewett v. 
 Scott, 19 Tex. 568; Geer v. Winds' Executors, 4 Desaus, 85; Wilhelm v. Wilhelm, 4 
 Md. Ch. 331; Morrill v. Morrill, 5 N. H. 329; Nicelar v. Barbrick, 1 Dev. & Bat. 257; 
 Kane v. Parker, 4 Wis. 123. 
 
 ^ Livingston v. Clarkson, 4 Edw, Ch. 597; Doubleday v. Newton, 9 How. Pr. 71. 
 
 3 Lister v. Lister, 3 Y. & C. Ex. 544. 
 
 •• Doubledav v. Newton, 9 How. Pr. 72.
 
 637 JUDGMENTS AND PKOCEEDINGS. § 527 
 
 or to take tlie oath prescribed by statute, the same commis- 
 sioners will be retained, and proceed a second time to exe- 
 cute the order for partition. If there is any formal inaccur- 
 acy in the report of the commissioners, it maybe amended."' 
 The partition must be made by commissioners. If the Court 
 sets aside the report of the commissioners, it cannot proceed 
 to make a partition, but must refer the partition back to the 
 same commissioners, or appoint others in their stead. In 
 one instance, a partition made by the Court without the as- 
 sistance of commissioners was declared void, when collate- 
 rally drawn in question.^ 
 
 § 527. The Final Judgment or Decree. — If no motion 
 is made to set aside the report of the commissioners, or if 
 such motion is made and denied, the next step is to have the 
 final judgment or decree entered.' Under a vast majority of 
 
 ' 2 Van Santvoord's Eq. Pr. 47. 
 
 •J George v. Murphy, McBride's Mo. Decis. 779; S. C. 1 Mo. 558. 
 » A decree, where no conveyance is necessaiy, may be as follows: 
 [Title of Court and Cause.] 
 
 The report of A, B, and C, commissioners heretofore appointed by this Court, hav- 
 ing been filed herein on the day of , whereby it appears that they have 
 
 made partition of tlie premises described in the plain tiffs complaint, according to. 
 the resijective rights and interests of the parties to this action, as the same have been 
 ascertained and declared by this Court, by which partition the said commissioners 
 have divided the whole of said premises, as follows: They have set oli' in severalty to 
 D one allotment, bounded and described as follows [description]; and to E ouo allot- 
 ment [i^roceed to state each allotment.] 
 
 Now therefore, on motion of F, attorney for plaintiff, it is hereby oi'dered and ad- 
 judged that the said report stand, in all respects, ratified and confirmed; and that the 
 partition so made be firm and eflectiial forever. 
 
 It is further adjudged that the said E pay to the plaintiff dollars, being 
 
 part of hi* costs and disbursements in this action, and that execution issue therefor. 
 As the suit for partition may involve other claims arising out of the cotenancy, it 
 follows that the final decree in partition may contain other provisions than thoso 
 necessai-y to efiect a mere division of the property. The decree may direct sums to 
 be paid for owelty of partition, or for a balance found due upon an accounliiig, or for 
 improvements made in good faith. It may direct conveyances of the legal title to be 
 mjide, and, in short, may contain any provision or direction which the Court finds 
 necessary to accomplish, between the parties, an equitable adjustment of all their 
 rights arising out of their relation to the common pi-operty. Costs, which are now 
 almost uniformly recovered in judgments and decrees of partition, were denied to 
 the complainant under the common and statute law of England.— Allnatt on Parti- 
 tion, 75. When the question of costs arose in Chancery, the Lord Chancellor de- 
 clared " that as the party came into equity, instead of going to law, for his own con- 
 venience, the rule of law should be adopted; and therefore no costs should be given 
 until the commission; that tho costs of issuing, executing, and confirming the com- 
 miflsion should be borne by the partioB in proportion to tlie value of tlieir respective.
 
 § 527 JUDGMENTS AND PROCEEDINGS. 638 
 
 the statutes of partition in force in the United States, an 
 actual partition is fully consummated by the entry of this 
 judgment or decree; and no necessity exists for conveyances 
 to be subsequently executed by the parties.^ The title, which 
 by force of the final judgment or decree is vested in severalty 
 in the various persons to whom the respective allotments were 
 made, is said to relate back to the date of the filing of the 
 commissioner's report. "Where a decree or judgment of a 
 Court is rendered, declaring rights of property in tenants in 
 common of things capable of division, and a partition is or- 
 dered, made, and reported, an inchoate right of property is 
 raised, which the subsequent judgment of confirmation per- 
 fects. In such case, the title has relation back to the divi- 
 sion, and starts from that time; in like manner as the right 
 of property in an administrator is held to relate back to the 
 death of the intestate, for the more complete protection of 
 estates."" 
 
 interests; and there should be no costs of the subsequent proceedings." — Agaric. 
 Fairfax, 17 Ves. 558. In New York, the Chanceller ordered all the costs, both of 
 complainants and defendants, to be taxed, and the aggregate amount to be appor- 
 tioned among the parties according to their respective interests. — Tibbits v. Tibbits, 
 7 Pai. 204. This is now the general rule, (Coles v. Coles, 2 Beas. Ch. 366,) except 
 where one of the parties has incurred unnecessary costs, in which case the party in 
 fault must pay the amount of costs which his fault has occasioned. — Hamersly v. 
 Hamersly, 7 N. Y. Leg. Obs. 127. In some of the States, the complainant k allowed 
 a reasonable fee for his counsel (Lowe v. Phillips, 21 Ohio St. 657); but the rule is 
 generally the other way. — Coles v. Coles, 2 Beas. Ch. 366; Williamson v. Williamson, 
 1 Met. Ky. 304. 
 
 ' Young V. Frost, 1 Md. 403; Street i'. McConnell, 16 ni. 126; VanOrman v. Phellps, 
 9 Barb. 503; Swett v. Swett, 49 N. H. 264; Griffith v. Phillips, 3 Grant's Cas. 381; 
 Wright V. Marsh, 2 G. Greene, 110; Young v. Cooper, 8 Johns. Ch. 295. Contra— 
 Smith V. Moore, 6 Dana, 417. 
 
 '^ Dixon V. Warters, 8 Jones, 451.
 
 CHAPTER XXYIL 
 
 EFFECT OF THE PARTITION. 
 
 Sustained against Collateral Assaults, $ 528. 
 Whether it binds Title or Possession only, $ 529. 
 Is Conclusive on all the Issues, $ 530. 
 "Where Title is in Issue, it is Bound, § 531. 
 After-acquired Title, 532. 
 Failure of Title after Partition, ^ 533. 
 Vacating and CoiTecting in Equity, § 534. 
 Confirming Invalid and Imperfect Partitions^ ^ 535. 
 
 § 528. Collateral Attack on Judgment in Partition. — 
 As a judgment or decree of partition, in the United States, 
 operates effectuall}', independent of conveyances between the 
 parties, and is followed by no further assurance of title, it 
 becomes important to determine its eftect both as an instru- 
 ment transferring title and as an adjudication of the material 
 issues made or tendered in the suit out of which it arose. 
 But before considering the effect of any judgment or decree, 
 it is first necessary to determine whether it is to be treated 
 as a binding adjudication, or Avhether, from some vice or in- 
 tirmity, it is to be disregarded altogether. A judgment in 
 partition is, according to a very decided preponderance of 
 the authorities, shielded from collateral assault as fully as 
 any other judgment. It cannot be avoided for error or ir- 
 regularity, and is valid unless the Court had not jurisdiction 
 of the subject-matter of the action or of the jDarty against 
 wliom the partition is sought to be enforced. It may be 
 avoided for fraud; but not, as we apprehend, under circum- 
 stances which would not authorize the avoidance of any other 
 judgment tainted by like fraud. The prosecution of juris- 
 dictional inquiries must, as a general rule, bo conducted in 
 the same manner, when the judgment is in partition, as 
 
 039
 
 g 528 EFFECT OF THE PAETITION. 640 
 
 though its origin were iu some other form of action. Wliere 
 the record, or other competent evidence before the Court, 
 fails to show whether some jurisdictional step was taken, it 
 will generally be presumed that the Court granting the par- 
 tition did not proceed without taking every essential step.* 
 But what Ave have here represented to be the result of the 
 majority of the authorities does not meet with universal con- 
 currence. In Kentucky, the record of a proceeding in par- 
 tition will be disregarded unless it shows affirmatively that 
 the various steps required by law have all been taken. ^ 
 Hence, a judgment in partition was there treated as void 
 because the record did not show whether the commissioners 
 were sworn. ^ In Massachusetts, the proceedings of the Pro- 
 bate Court in making partition are strictly construed. If 
 this Court makes an order which the law did not authorize it 
 to make, the error need not be corrected by appeal. The 
 order may be disregarded as fully as if never made.* In 
 Maine, a record in partition, when offered in evidence, was 
 excluded because it did not show whether the defendant had 
 been notified of the suit, although it appeared that he at- 
 tended the meeting of the commissioners.^ In New York, 
 where the Court confessedly had jurisdiction of the suit in 
 partition and of the parties thereto, the judgment was held 
 invalid in the Supreme Court, on the ground that the record 
 showed affirmatively that one of the commissioners did not 
 act;^ and in an earlier case in the same State, a partition was 
 
 ' For cases containing judgments and decrees of partition against collateral attacks, 
 see Snevely v. Wagner, 8 Penn. St. 396; Wright v. Marsh, 2 G. Greene, 110; Cole v. 
 Hall, 2 Hill, 627; Merkleiu v. Trapnell, 34 Pa. St. 47; Herr v. Herr, 5 Pa. St. 430; 
 Painter v. Henderson, 7 Pa. St. 51; Lockhart v. John, 7 Pa. St. 139; Lair v. Hun- 
 sicker, 28 Pa. St. 12-3; Girard Life Ins. Co. v. F. & M. Bank, 57 Pa. St. 392; Fowler 
 V. Succession of Gordon, 24 La. An. 270; Lessee of Foster v. Exi-. of Dugan, 8 Ohio, 
 106; Wilson v. Bull, 10 Ohio, 256; Castle v. Matthews, Hill & D. 438; Crogan v. Liv- 
 ingston, 17 N. Y. 220; Austin v. Charlestown Seminary, 8 Met. 202; Foster v. Abbot, 
 8 Met. 598; Richards v. Bote, 68 Penn. St. 253; Wilson v. Smith, 22 Gratt. 493; Waltz 
 V. Borroway, 25 Ind. 380; Johnson v. Kirkhoflf, 35 Mo. 291; Latrielle v. Dorleque, 35 
 Mo. 233; Bohart v. Atkinson, 14 Ohio, 428; Herbert v. Smith, 6 Lans. 493. 
 
 '^ Craig D. Barker, 4 Dana, 601; Guy ton u. Shane, 7 Dana, 498. 
 
 » Smith V. Moore's Heirs, 6 Dana, 417. 
 
 * Jenk V. Howland, 3 Gray, 537; Newell v. Sadler, 16 Mass. 122; Thayer u. Thayer^ 
 7 Pick. 209. 
 
 6 Dean v. Hooper, 31 Me. 109. See also Harris v. Preston, 5 Eng. 206_ 
 
 « Schnyler v. Marsh, 37 Barb. 356.
 
 641 EFFECT OF THE TARTITION. g 529 
 
 declared to be void because the parties were not tenants in 
 common of all the lands divided.^ 
 
 g 529. Whether Title is Bound, or Possession only. — 
 ' ' The high regard of the people among whom the common 
 law grew into being, for real property, evinced itself in a 
 vast variety of ways in the different branches of that law; 
 and in none of those branches did it make itself more evi- 
 dent than in the branch relating to the effect of former ad- 
 judications. The pursuit of any of the forms of personal 
 action to a judgment on the merits, completely barred all 
 other actions, based on the same right, in every other form. 
 But that the law gave ' consecutive remedies for injuries to 
 real estate is recognized in all the books that treat on real 
 action.'"^ In Ferrer's Case, 6 Coke 7, "it was decided that 
 there was a difference between real and personal actions; 
 that in personal actions the bar is perpetual, for the plaintiff 
 cannot have an action of a higher nature; but if demandant 
 be barred in a real action by judgment, he may have an ac- 
 tion of a higher nature to try the same right again. "^ Par- 
 tition was, at common law, classed as a real action. The 
 judgment in partition therefore had no higher effect, as res 
 judicata, than if rendered in some other real action of like 
 dignity. Partition was considered as a mere possessory ac- 
 tion, which left the title as it found it.^ Speaking of a judg- 
 ment in partition, the Supreme Court of Pennsylvania said : 
 "What was the legal effect of that judgment? It did not 
 determine title between tenants in common who held by de- 
 scent from a common parent. It decided only that it should 
 be parted and divided among them. It is the partition that 
 is to remain firm and stable. The parties acquire no new 
 title : there is nothing but dividing the old one among them."^ 
 Judge Story thus described the effect of a common law par- 
 tition: "The present suit is a writ of right, and no judgment 
 in a writ or petition for partition will constitute any bar to 
 
 ■ Jackson v. Meyers, 14 Jolins. 355. 
 
 •^ Freeman on Judgments, sec. 293. 
 
 - Pierce c. Oliver, 13 Mass. 212; Nicely r. Boyles, 4 Humph. 177; Nash n. Cutler, 
 16 Pick. 500; Whitlock v. Hale, 10 Humph. 01; Goundio i\ Northampton Water Co. 
 7 Pa. St. 238; llicliman i'. Baldwin, 1 Zab. 398. 
 
 * McChire v. McClure, 14 Penn. St. 130; Hailan i', Langharu, 09 Pcun. St. 237. 
 
 C. & P.— 41
 
 g 530 EFFECT OF THE PARTITION. 642 
 
 the maintenance of a writ of right between the same parties. 
 A writ of partition, or a petition for partition, which is but 
 a substitute for the former, is a mere possessory action; and, 
 at most, a judgment in a possessory action can bar only an 
 action of as high a nature, that is a possessory action; for 
 the judgment only establishes the right of possession. But 
 a writ of right is in no sense a possessory action. It is 
 founded on the mere right, and not upon the possession; and 
 the general issue or mise is but a trial of the mere right. 
 The plea of the demandant of a sole seizin, to the petition of 
 partition, even if it were found against him, would only dis- 
 prove his sole seizin at the time when the petition was filed. 
 It would not prove that he was not so seized at any time 
 prior within the last twenty years, which is the statute limit- 
 ation of writs of right. It could not be pleaded as a bar to 
 a writ of right, or as an estoppel thereof; since it did not, 
 and could not, try the same question, who had the better 
 mere right. The most that can be said is, that it is admis- 
 sible as evidence between the same parties. But of what is 
 it evidence? Certainly only of the very fact of sole seizin 
 put in issue by the pleadings; and that can properly apply 
 only to sole seizin at the time when the partition was filed." ^ 
 "When partition is made pursuant to the writ de partitione 
 facienda, and the shares are allotted in severalty by the 
 sheriff, and final judgment is given that the partition be 
 holden firm and effectual forever, nothing further is neces- 
 sary; for the partition is completely effectual, whether the 
 parties were seized as coparceners, joint-tenants, or tenants 
 in common. The judgment of law operates to vest in each 
 party a sole seizin in his allotment; but nothing further is 
 wrought than to affirm or ascertain the possession. "^ . 
 
 I 530. Conclusive on all the Issues. — But if a judgment 
 in partition is not conclusive upon the title of the parties, 
 this is only because the title was not, according to the law of 
 the State where the partition was made, within the issues 
 made or tendered in the action. The rule that a judgment 
 
 ' Mallet V. Foxci-oft, 1 Story C. C. i75. 
 
 •' Alluatt on Partition, 123 and 68, citing Haward i'. Duke of Sussex, Dy. 79 h, Fitz 
 Abr. 142; Cave i'. Holford, 3 Yes. G56.
 
 643 EFFECT OF THE PARTITION. § 531 
 
 is conclusive upon all the issues determined by it, is not less 
 applicable to judgments in partition than to judgments in 
 any other form or kind of action.^ One of the issues winch 
 such a judgment ordinarily determines is, that the parties 
 were in possession of the property, holding it as cotenants. 
 Hence, a party to a partition suit is estopped from showing 
 that at the time of the partition he was holding any part of 
 the premises in severalty adversely to his cotenants,^ or that 
 the petitioner had no interest in the property.^ 
 
 § 531. Where Title is in Issue, it is Bound. — In the 
 
 greater portion of the United States, actions for partition, 
 like actions in ejectment, have ceased to be mere possessory 
 actions, and have come to involve the right as well as the 
 possession. Wherever this is the case, a judgment or decree 
 in partition is conclusive of every right to which any of the 
 parties was entitled to at the institution of the suit. "The 
 parties to the record are concluded from averring that any 
 other right vested in them or any of them at the time of the 
 proceeding than the record imports."^ In New Hampshire, 
 the Superior Court of Judicature, after considering the effect 
 of a judgment in partition, concluded as follows: "There is 
 nothing, then, on which to found a distinction in this respect 
 between a verdict and judgment in a petition for partition 
 and a verdict and judgment in a writ of entry. The former 
 is of as high a nature as the latter. If the one may lie after 
 the other, it cannot be to try the same question of title which 
 has been put in issue and tried in the first. This cannot be 
 done even in a writ of right. ' It is not the recovery, but 
 the matter alleged by the party, and upon which the recovery 
 proceeds, which creates the estoppel.' The conclusion is in- 
 evitable that as by the statute the right of the party to a 
 share — which is, in other words, his title to a share — may be 
 tried in a petition for partition, and a judgment rendered, 
 that judgment is as valid and conclusive as to the matter put 
 
 ' Flagg D Thurston, 11 Pick. 431; Ihmsen v. Ormsby, 32 Pa. St. 200; Foxcroft v. 
 Barnes, 29 Me. 120; Ilaljb v. Aiken, 2 McCord's Ch. 125; Dixon v. Warder, 8 Jones, 
 450; Herr u. Herr, 5 Pa. St. 428; Burgliardt v. Van Deusen, 4 Allen, 375. 
 
 •■' Edson V. Munsell, 12 Allen, GOO; Cole v. Hall, 2 Hill, 027. 
 
 ■■' liurgbardt v. Van Deusen, 4 Allen, 370. 
 
 * lleese v. Holmes, 5 Ilicli. Etj. 540; Muse v. Edgorton, Dud. Eq. 179.
 
 g 531 EFFECT OF THE PARTITION. 644 
 
 in issue and tried as a judgment in any otlier proceeding."^ 
 The following statement of the law of partition in Missouri 
 is equally applicable in many other States. The suit was in 
 ejectment. It appeared that the plaintiff had been a party 
 to a suit in partition; but he claimed that the partition 
 affected another and different title from that which he now 
 sought to assert by ejectment. "The judgment of partition 
 establishes the title to the land which is the subject of the 
 partition, and, in an action of ejectment upon an adverse pos- 
 session, or an adverse title existing at the date of the parti- 
 tion, it is final and conclusive at law upon all parties to the 
 record, and on all persons holding under them afterwards.^ 
 The statute requires that the petition shall set forth the 
 rights and titles of all parties interested in the premises 
 sought to be divided, and of all persons having, upon any 
 contingency, a beneficial interest therein, present or expect- 
 ant. It requires the Court to ascertain by evidence, by con- 
 fession, or by verdict, and to declare the rights, titles, and 
 interests of the petitioners and defendants; and the final 
 judgment, that tlie partition be firm and effectual forever, is 
 made binding and conclusive on all parties to the proceed- 
 ings, and their representatives, and on all those claiming 
 under them by right derived after the commencement of the 
 suit. It provides further that if it shall appear that there 
 are parties claiming the same portion adversely to each 
 other, the Court may decide upon such adverse claims, or, 
 in its discretion, direct such share to be allotted, subject to 
 such claims; and there can be no doubt that if any party de- 
 fendant wholly denied the tenancy in common, and claimed 
 the land adversely to the plaintiff, he could so answer, and if 
 that issue were found for him, it would entirely defeat the 
 partition as against him. When the title or possession is 
 held adversely, that matter must first be settled either in the 
 partition suit, when it can be done under the statute, or by 
 an action of ejectment, before a partition can be had, either 
 at law or in equity. It is only when lands are held in joint- 
 tenancy, tenancy in common, or coparcenary, that a partition 
 will lie imder the statute or at common law; and unless such 
 
 ' Whittemore v. Shaw, 8 N. H. 397. -' Clapp v. Bromagham, 9 Cow. 569.
 
 645 EFFECT OF THE PARTITION. § 532 
 
 holding be averred and established, there is an end of the 
 partition. The plaintiff might have asserted his adverse 
 title in the partition suit, or pleaded it in bar, and if de- 
 cided against him, he had his remedy by appeal or writ of 
 error. The judgment must be taken as conclusive here that 
 no such defence was made, or that, if made, it was decided 
 against him. Not having asserted his claims there, they were 
 Avholly barred at law."^ In Illinois, it has been held that a 
 widow who had been a party defendant in a suit for partition 
 could not thereafter assert that she was entitled to the prem- 
 ises as a homestead.^ But in the same State partition is re- 
 garded as a proceeding at law, and therefore as not conclusive 
 upon equitable titles held by any of the parties.' 
 
 g 532. After-acquired Title. — The estoppel arising from 
 judgments is usually, if not universally, confined to rights 
 held by the parties to the suit, and which they could, if so 
 disposed, have asserted therein. Hence, a judgment in eject- 
 ment is never a bar to the assertion of a title acquired by the 
 losing party subsequently to the rendition of such judgment. 
 The same rule has been adjudged to be equally applicable to 
 judgments in partition. Hence, a party to a partition who 
 subsequently acquired a new and independent title — one that 
 was in no way represented by any of the parties to the par- 
 tition — was permitted to successfully assert such title when 
 it proved to be paramount to the one involved in the parti- 
 tion suit.* But, in one instance, it was held that one of sev- 
 eral heirs was bound by a decree of partition, not only as to 
 rights held by him at the date of the partition, but also as 
 
 ' Forder v. Davis, 38 Mo. 115. See also Mills v. Withcringtou, 2 Dov. & Bat. 433; 
 Morenhout v. Higuera, 32 Cal. 295; Short v. Prettyman, 1 Hous. Del. 331; Doolittlo 
 V. Don Maus, 34 111. 457. 
 
 ■' Wright V. Dunning, 46 111. 272. 
 
 ^ Greenup v. Sewell, 18 Dl. 53. Sec also Williams v. Van Tuyl, 2 Ohio Ht. 330. 
 For effect of judgment in partition as prescribed by statutes: liev. Code Ala., sec. 
 3113; Gould's Ark. Dig., 814, sec. 21; C. C. P. of Cal., sees. 7GG-7; Genl. St. Conn.. 
 398, sees. 38-41; Code Geo., sees. 4002-7; Gross' 111. St., 471, sees. 11-13; Code Iowa, 
 sees. 3298-330G; Rev. St. Mu., G9G, sees. 22-28; Comp. Laws Mich., seen. G29G-C307; 
 Genl. St. Mass., 701, sees. 32-3: Bissell's St. of Minn., 889, sees. 8, 9; Rov. Code Miss., 
 sec. 1828; Genl. St. of Mis., G13, sec. 25; Comp. Laws Nov., sees. 1341-2; Doady's 
 Laws Oregon, 257, sees. 428-9; Tliompson <t Steger's St. Tonn.,Becs. 3291-2; Code of 
 Va., 921, sec. 3; Code West. Va., 48G. sec 3; Taylor's Ht. Wis., 1084, sees. 31-2. 
 
 ■• Tapley v. McPike, 50 Mo. 592; Woodbridge v. Banning, 14 Ohio St. 330.
 
 § 533 EFFECT OP THE PARTITION. 646 
 
 to rights subsequently acquired from other heirs who were 
 not parties to the partition.' And the preponderance of the 
 authorities is probably in favor of the theory that as each co- 
 tenant who has been evicted after a compulsory partition 
 may call upon his cotenants to contribute their proportions 
 of his loss, each of them is, by his obligation of warranty, 
 estopped from asserting any independent adverse title to the 
 purparties assigned to the others.'' 
 
 j^ 533. Failure of Title after Partition. — A parcener 
 had, by the common law, when evicted by title paramount, 
 the right to reenter and defeat the partition, or to obtain a 
 recompense for the part which she had lost.'* The statute of 
 31 Henry VIII., extending the right of partition to joint- 
 tenants and tenants in common, provided ' ' that every of the 
 said joint-tenants or tenants in common, and their heirs, 
 after such partition made, shall and may have aid of the 
 other, or of their heirs, to the intent to deraign the warranty 
 paramount, and to recover for the rate as is used between 
 coparceners after partition made by the order of the common 
 law." This statute gave to joint-tenants and to tenants in 
 common, as will be manifest from its inspection, the right of 
 warranty and recompense only. They were not authorized 
 to reenter and wholly defeat the partition.* The right of a 
 cotenant who has, by title paramount to that partitioned, 
 been evicted from the purparty allotted to him, to enforce 
 contribution in equity for his loss has been frequently recog- 
 nized and enforced in the United States;^ and there has been 
 at least one case in which the Court proceeded upon the 
 theory that the party evicted might reenter and entirely 
 avoid the partition.^ In North Carolina, tenants in common 
 of some slaves made a compulsory partition thereof. It 
 
 ' Doe on dem. of Short v. Prettyman, 1 Hous. Del. 334. Contra, see Eichardson 
 V. Cambridge, 2 Allen, 122. 
 
 ' Venable v. Beauchamp, 3 Dana, 325; Walker v. Hall, 15 Ohio St. 362; Mills v. 
 Witherington, 2 Dev. & Bat. 433. 
 
 ^ Co. Litt. 174 a ; Hawle on Covenants for Title, 4th ed. 473. 
 
 * Eawle on Covenants, 4tli ed. 474; Boss v. Armstrong, 25 Tex. Supp. 372. 
 
 * Dugan V. HoUins, 4 Md. Ch. 147; Walker v. Hall, 15 Ohio St. 362; Sawyers v. 
 Cator, 8 Humph. 256, 287. 
 
 e Feather v. Strochoecker, 3 Pen. & W. 508.
 
 647 EFFECT OF THE PARTITION. i^ 534 
 
 afterwards appeared that one of the slaves was, at the date 
 of the partition, laboring under an incurable disease, by 
 reason of which he was worthless; and that this fact was 
 equally unknown to the cotenants and to the commissioners 
 who made the partition. The cotenant to whom the diseased 
 slave was allotted filed his bill after the death of the slave, 
 praying that the others be decreed to pay a pro rata of the 
 loss sustained thereby. The Court, in announcing its opinion 
 granting the relief, said : " In partition of chattels, which is 
 an equitable proceeding, a warranty is implied, not only of 
 title, but of soundness; and the common law maxim ' caveat 
 emptor' has no application, being restricted (as the word 
 ' emptor' imports) to sales of chattels. In the conveyance of 
 a fee-simple estate in lands, no warranty is implied, because 
 there is no tenure. In partition of land, a warranty is im- 
 plied, because of the privity of estate. In sales of chattels, 
 a warranty of title is implied; but there is no implied war- 
 ranty of soundness, the maxim of the common law being 
 * caveat emptor, ' because it was thought some ' play ' (as me- 
 chanics call it) ought to be allowed, for the chafiering and 
 exercise of individual judgment, attendant upon the traific 
 in such articles when the parties are at arms'- length, and 
 each is supposed to trade Avith his eyes open; so that in the 
 absence of an express warranty of soundness, the purchaser 
 of a chattel has no remedy except on the ground of deceit. 
 Upon partition, the parties are in equali jure: there is sup- 
 posed to be mutual confidence by reason of the privity of 
 estate; and the object is to make an equal division of a com- 
 mon fund. There is no chafiering or trafiicking about it. 
 Third persons, selected by themselves, or appointed by the 
 Court, make the division, and if the common fund is not so 
 large as the parties suppose, either from defect of title or of 
 unsoundness as to part, the loss should be borne equally : in 
 other words, in partition there is an implied warranty both 
 as to title and soundness." ' 
 
 j^ 534. Correcting and Vacating in Equity. — A final 
 judgment or decree in partition is not more exempt from the 
 
 ' Nixon V. LiudBay, 2 JoiitB Kq. 233.
 
 ^ 535 EFFECT OF THE PARTITION. 648 
 
 interference and controlling power of courts of equity than 
 are final judgments and decrees in other cases. Hence, such 
 a mistake of facts, or such accident as would authorize a 
 court of equity in enjoining or setting aside an ordinary 
 judgment, will authorize it to set aside or correct a judgment 
 or decree of partition.^ And that degree of carelessness and 
 inattention which would justify a court of equity in denying 
 relief to the negligent party, in ordinary cases, will operate 
 with like effect when the proceedings are in partition.^ A 
 voluntary partition, carried into effect by the aid of commis- 
 sioners appointed by the parties, and which, by a mistake in 
 running a line, is not made in accordance with the intention 
 of the parties, is not a finality. It may be corrected in equity. 
 And where the person whom the mistake injures is sued in 
 ejectment, he may set up the facts, and thereby make out a 
 good equitable defence.^ After a decree of partition had 
 been entered between some heirs, a mortgage on a part of 
 the land, executed by their ancestor, and of which none of 
 them had any knowledge, was foreclosed, and the mortgaged 
 portion was sold. The heirs to whom the mortgaged portion 
 had been assigned then petitioned the Court to set aside the 
 decree of partition, and to order a new partition of the re- 
 maining lands. The petition was granted.'* 
 
 g 535, Confirmation of Invalid and Imperfect Parti- 
 tions. — A partition which, in itself, is invalid as against 
 some of the parties, or is imperfect because not sanctioned 
 by the final judgment of the Court wherein it was made, 
 ma}^ no doubt, become binding by reason of the acquies- 
 cence of the party who had reason to complain of its imper- 
 fection or invalidity. Hence, a cotenant who, though not a 
 party to the partition, accepts the portion allotted to him, 
 and holds and conveys the same in severalty, will not be sub- 
 sequently permitted to avoid the partition.'' Where a decree 
 
 ^ Eoss V. Armstrong, 25 Tex. Supp. 372; Boyd y. Doty, 8 Ind. 373; George's Appeal, 
 12Penn. St. 260; Douglass i'. YUle, 3 Sanf. Ch. 439. 
 2 Wiim V. Dicksou, 15 La. An. 273. 
 =* Guedici v. Boots, 42 Cal. 452. 
 * Manning v. Horr, 18 Iowa, 117. 
 5 Mellican v. Mellican, 24 Tex. 439; Jackson v. Piichtmyer, 13 Johns. 376.
 
 649 EFFECT OF THE PARTITION. g 535 
 
 of partition was not binding because it awarded the lands to 
 one of the parties without requiring him to give security for 
 the payment of the price at which it was awarded, it was 
 held to have subsequently become binding on them by reason 
 of various acts of ratification.' When the commissioners 
 treated a portion of the property as part of a public street 
 and made partition of the remainder, it was held that the ac- 
 ceptance of the partition by the parties estopped them from 
 denying that the portion not divided was part of a street." 
 Several cases have been determined in which the commis- 
 sioners made the allotments and reported the same to the 
 Court. The parties accepted the allotments, and thereafter 
 held their respective purparties in severalty; but no final 
 judgment was entered confirming the partition and making 
 it fii'm and stable forever. In such cases, the parties so 
 taking possession have generally been held to be estopped 
 from objecting to the want of a final judgment, and the 
 Courts have refused to award a new partition.^ But this mle 
 has not been universally observed. In Maine, an heir who 
 had acquiesced in a partition for eight years was held not to 
 be estopped from claiming his undivided share of the estate, 
 the only objection to the partition being that it had not been 
 returned to nor accepted by the Court. ^ 
 
 ; White V. Clapp, 8 Met. 370; McQueen v. Fletcher, 4 Rich. Eq. 152. 
 ■^ McGregor v. Reynolds, 19 Iowa, 228. 
 
 ^ Piatt V. Hubbel, 5 Ohio, 243; Welchol v. Thompson, 39 Geo, 561; Craig y. Craig, 
 Bai. Eq. 103. 
 * Cogswell V. Reed, 12 Me. 198.
 
 CHAPTER XXVIII. 
 
 SALE INSTEAD OF PARTITION. 
 
 Sale, History of Authority of the Com-ts to order, § 536. 
 
 When ordered in the United States, $ 537. 
 
 Not granted where the Parties are not entitled to a Partition, § 538. 
 
 Is a matter of Kight, § 539. 
 
 Laws authorizing, are Constitutional, § 540. 
 
 Appraisement before Sale, § 541. 
 
 When preferred to actual Partition, § 542 . 
 
 Necessity for, when and by whom determined, $ 543. 
 
 Proceedings after ordering the Sale, $ 544. 
 
 Vacating Sale against the wish of the Purchaser, § 545. 
 
 Vacating Sale made to Commissioner or Guardian, $ 546. 
 
 Beleasing the Purchaser, ^ 547. 
 
 The Conveyance and its effect, $ 548. 
 
 Distribution of the Proceeds, § 549. 
 
 § 536. History of Sale in Partition. — We have so far 
 treated the subject of partition upon the theory that the 
 property was susceptible of division. We shall now con- 
 sider the subject upon the theory that the property is not to 
 be divided, but is to be sold, and its proceeds distributed 
 among the respective parties, in proportion to their various 
 interests. By the common law, and also by the earlier Eng- 
 lish statutes in reference to partition, no authority was con- 
 ferred upon the Courts to compel a sale of the property.' 
 The only remedy of the cotenants was to compel an actual 
 partition irrespective of the loss and inconvenience it might 
 occasion, or to buy or sell as best they could by their own 
 vokmtary agreements. Both in England and in America the 
 power of the Courts has been enlarged, and they are no 
 
 ' Bipsham's Principles of Equity, sec. 493; Deloney v. Walker, 9 Porter, 497; Hax- 
 kins V. Pope, 10 Ala. 499. 
 
 650
 
 651 SALE IN PARTITION. ^ 536 
 
 longer compelled to order a partition of the property itself, 
 when such a course is clearly ruinous to the parties. We 
 find the present English law upon this subject thus sum- 
 marized in the Solicitors' Journal and Reporter for July 26, 
 1872 :• "Previously to the Partition Act, 1868, (31 and 32 
 Vict., c. 40,) where land was held in co-ownership, a major- 
 ity, however large, of the co-owners could not insist upon a 
 sale.^ The act alters this rule, and provides, by section 4, 
 that where the parties representing at least a moiety of the 
 estate desire a sale, the Court shall direct a sale, unless it 
 sees good reason to the contrary. On the other hand, by 
 section 3, where persons representing less than a moiety de- 
 sire a sale, the Court may order a sale, if, under all the cir- 
 cumstances, it appears more beneficial to the parties inter- 
 ested than a partition. As generally happens when a new 
 rule is introduced by statute, the Judges were at first reluc- 
 tant to forego the old practice; and in Dicks v. Batten, (not 
 reported,) Vice-Chancellor Stuart held that a sale ought not 
 to be granted at the instance of a party entitled to five- 
 eighths in a case where partition could be made without dif- 
 ficulty — a decision which Vice-Chancellor Malins followed in 
 Pemberton v. Barnes.^ The latter decision was, however, 
 overruled by Lord Hatherley,* and it may now be considered 
 as settled that if the owners of a moiety or more desire a 
 sale, the owners of the remainder must, even where the 
 estate is large and a partition would be easy, show some 
 special grounds to induce the Court to refuse a sale. The 
 presumption is in favor of sale. In Allen v. Allen, decided 
 by Vice-Chancellor WickeHs recently, an attempt seems to 
 have been made to force a sale on the owners of four-sixths, 
 mainly on the ground that the Chief-Clerk had certified that 
 a sale would be more beneficial to all parties than a partition. 
 The majority desired a partition of the bulk of the property, 
 and evidence was adduced to show (1) that though part ol 
 the property consisted of houses, a partition could be made 
 
 ' Vol. 17, p. 742. 
 
 ••' Turner v. Morgan, 8 Vck. 143; Parker v. Gerard, Amb. 23G; Warner v. Baynea, 
 Amb. 589. 
 » 19 W. R. 709; L. R. C Cli. C87 n. 
 * See 19 W. R. 988; L. U. Cli. C85.
 
 § 5o7 SALE IN PARTITION. G52 
 
 without difficulty, and (2) that the property was increasing 
 in vakie. The Vice-Chancellor thought that the balance of 
 the argument might rather be in favor of a sale, but he held 
 in accordance, as it seems to us, with the clear intention of 
 section 3 of the act, that this circumstance was not sufficient 
 to justify him in forcing a sale of the entire property upon 
 the dissentient majority, and therefore made an order re- 
 ferring it to Chambers to make a partition of so much of the 
 property as was capable of apportionment, and a sale of so 
 much as was incapable of apportionment. There must be 
 many cases in which justice will be best done by an order of 
 this kind, which gives due effect to the wishes of the major- 
 ity, but does not permit them to be carried to the unreason- 
 able extent tolerated by the old rule." 
 
 § 537. When Ordered in the United States. — The va- 
 rious States of the American Union had, long before the 
 passage of the act referred to in the preceding section, en- 
 acted statutes authorizing the sale of lands held in cotenancy 
 when an actual partition thereof could not be had without 
 serious prejudice to the interests of the cotenants. A sale 
 will not be ordered without good cause being shown. It is 
 not sufficient that some or even a majority of the cotenants 
 prefer a sale to a partition. The applicants for a sale must 
 show the existence of such a state of facts as, under the stat- 
 ute, will be sufficient to rebut the presumption of law that 
 each of the parties is entitled to an actual partition. The 
 onus is always on him who seeks a sale.' But when the Court 
 in which the suit for partition was instituted determines to 
 grant or deny a sale, its action will be considered as, to a 
 great extent, discretionary, and will not be reversed except 
 in a clear case of error. ^ The grounds upon which a sale 
 will be ordered in preference to a partition are substantially 
 though not precisely identical in the different States. A sale 
 is proper in Tennessee ' ' when it is manifestly for the interest 
 of the parties ;" ^ in Vermont, when a partition cannot be 
 
 ' Windley v. Barrow, 2 Jones Eq. 66; Davis v. Davis, 2 Ired. Eq. 607. 
 ^ Scott u. Guernsey, iS N. Y. 125. 
 
 * Eoss V. Eamsey, 3 Head, 15; Helm v. Franklin, 5 Humph. 405; Davidson v. Bo^T- 
 den, 5 Sneed. 129.
 
 653 SALE IN TARTITION. §§ 538-9 
 
 made without great inconvenience;' in New York and New 
 Jersey, when partition can be made only by greatly preju- 
 dicing tlie OA\Tiers;^ in North Carolina, when a sale is best 
 for the interest of the parties;^ in Georgia, when the entire 
 land will, by division, be depreciated in value ;^ in Mis- 
 sissippi, when a sale will best promote the interest of the 
 parties;^ in Maryland, when the lauds cannot be divided 
 without loss or injury to the parties interested;^ in Virginia, 
 when " the interests of those who are entitled to the subject, 
 or its proceeds, will be promoted by a sale of the entire sub- 
 ject;"^ and in Kentucky, " when a division of the land would 
 materially impair its value. "^ 
 
 ^ 538. Not Granted -when Parties are not entitled to 
 Partition. — A sale cannot be granted except under such cir- 
 cumstances as would have justified an actual partition pre- 
 vious to the passage of the statute authorizing a sale. Two 
 distinct parcels of land cannot be joined in one suit for par- 
 tition unless the same persons are cotenants of both tracts. 
 Hence, the Court cannot order the sale of two distinct par- 
 cels of laud in one suit, unless the same parties are cotenants 
 of both tracts, although the lands are adjacent, and are so 
 situate that they would together sell to better advantage than 
 if sold separately.^ 
 
 g 539. Sale is a Matter of Right. — Actual partition was, 
 by the common law, a matter of absolute right, irrespective 
 
 » Baldwin i'. Aldrich, 34 Vt. 529. 
 
 '■' Fleet t). Borland. 11 How. Pr. 490; Bentley i'. Long Dock Co. 1 McCaa-tnor, 489. 
 
 3 Windley v. Barrow, 2 Jones Eq. 60. 
 
 * Royston v. I'lOybton, 13 Geo. 427. 
 
 ^ Wilson V. Duncan, 44 Miss. Gi2; Pankey v. Howard, 47 Miss. 87. 
 
 « Thurston v. Minke, 32 Md. 576. 
 
 ' Wilson V. Smith, 22 Gratt. 502. 
 
 " Burgess v. Eastham, 3 Bush, 476, See Rev. Code, Ala., sees. 3120-26; Gould's Dig. 
 Ark. 813, sec. 17; lb. 814, sec. 23 to 33; C. C. P. of Gal., sec. 763; Geul. St. Conn., 
 399, sees. 41-48; Busli's Dig. Fla., 619, sees. 9-12; Codo of Geo., sec. 4003; Gross' St. 
 of HI., 470, sec. 11; Code Iowa, sec. 3290; 1 Genl. Laws of Md., 91, sec. 99; 2 Comp. 
 Laws Mich., sees. 6267, 6287, 6298; Bissell's St. of Minn., 889, sec. 12; Rev. Codo Miss., 
 sec. 1829; Genl. St. of Mis., 611, sec. 1; 614, sec. 27; C. P. of Neb., sec. 814-844; 
 Comp. Laws Nov., sees. 1327-38; Nixon's N. J. Dig., 4th ed., 669, soo. 15; 3 Rev. St. 
 N. Y. G03, sees. 1, 29; Deady's Laws of Oregon, 256, sec. 426; Gt nl. St. R. I., 621, 
 sec. 16; Rev. St. 8. C. 530, sees. 8, 9; Tlionipsoa & Hteger's St. Tenn., sec. 3293; Tay- 
 lor's St. Wis., 1682, sees. 22-23; lb. 1684, xcc. 33. 
 
 '■> Pankey v. Howard, 47 Miss. 87.
 
 §§ 540-1 SALE IN PARTITION. 654 
 
 of the fact whether the partition would prove beneficial or 
 ruinous. Under the statutes authorizing the Court to order 
 a sale in preference to a partition, such sale is a matter of 
 absolute right when the circumstances designated bj the 
 statute are found to exist. It cannot be avoided on the 
 ground that the property is so valuable that no one person 
 can buy it, nor because one of the cotenants is unable to 
 purchase, and fears his interests may, on that account, be 
 sacrificed.' 
 
 g 540. The constitutionality of statutes authorizing 
 
 Courts to direct the sale of the property of cotenants has 
 never been very seriously questioned. The point was, how- 
 ever, pressed upon the attention of the Suj)reme Court of 
 Connecticut, and occasioned the following remarks: "A par- 
 tition of joint estates, made by a writ of partition, at com- 
 mon law, or as provided by statutes, operates to divest one 
 tenant of his interest in some part of the joint or common 
 estate, and vest it solely in another. The tenants are seized 
 ^er my or 'per my et per tout. This seizin is, by partition, de- 
 stroyed, as much as in a case like the present. It is said 
 that this common right is incapable of assessment or valua- 
 tion; that its essential value is beneath the ground, and be- 
 yond the inspection and judgment of men. This may be 
 true, and yet it presents no constitutional objection to the 
 law; nor indeed any greater difficulty than if the same rights 
 were to be appraised upon execution against one or all the 
 tenants. 
 
 ' ' The instances are common wherein it becomes necessary 
 to cause the sale of real estate, without the concurrence or 
 consent of the proprietor; and statutes authorizing this are 
 to be found in every State, as in the cases of the sale of 
 minor's land, and the lands of idiots, lunatics, and persons 
 under conservators and guardianship. No constitutional ob- 
 jections to any snch statute have ever been urged. "^ 
 
 g 541. Appraisement instead of Sale. — In some of the 
 States, when the nature and condition of the property are 
 
 ' Beutley v. Long Dock Co. 1 McCartner, 489. 
 ^ Ricliardsion v. Monson, 23 Conn. 97.
 
 655 SALE IN PARTITION. § 542 
 
 such that the statute will not compel an actual partition, the 
 commissioners are authorized to make an appraisement in- 
 stead of a partition. This appraisement is returned to the 
 Court. If one of the parties is willing to take the property 
 and pay the appraised value, he is permitted to do so. If 
 none of the parties offers to take the property at the commis- 
 sioner's valuation, or if two or more of them offer to take it 
 in opposition to one another, a sale is ordered to bo made. 
 These statutes generally require that the sale shall not be for 
 less than a specified portion of the aporaisement.' 
 
 ^ 542. Sale when preferred to Partition. — A sale may 
 be advantageous to some of the cotenants and prejudicial to 
 others. The question, then, to be determined is : Whose in- 
 terests are to be consulted and promoted? In deciding this 
 question, it must be remembered that the object of the stat- 
 utes authorizing a sale was to obviate the manifest hardship 
 and even destruction which arose in some cases in making a 
 division of property. Where it is clear that no special loss 
 or inconvenience will arise from partition, it ought to be or- 
 dered in preference to a sale, although it may happen that 
 some or even a majority of the cotenants are in such circum- 
 stances that they prefer the latter to the former. In New 
 York, in a suit to which some infants Avere parties, the 
 Master ordered a sale. Chancellor Walworth, in reviewing 
 this order, said: "The question is not, as supposed by the 
 Master, whether it would be for the benefit of the infants to 
 have their shares of the estate converted into money instead 
 of remaining in land producing a less income. For if it is 
 to their interest to sell their shares for the purpose of a 
 b'etter investment, it may be done afterwards under the gen- 
 eral law relative to the sale of infants' estates, and Avhon 
 they will not run the risk of having their interest in a largo 
 property sacrificed for want of funds to compete with their 
 adult tenant in common at the sale. The true question to bo 
 decided by the Master, under the statute, is whether the 
 
 ' C. P. of Kaiis., Kccri. G25-C; Genl. St. N. II., 405, hoc. 25; Hwun'ri St. of Ohio, 592, 
 BCCB. 8-11; Swan & Bawyer'H St. Ohio, 505; Biiglitly's Piirdon'B Dig., 1115, hi;c. 1H; 
 Gciil. St. Vt., 355, HocH. 14-15; Code Vii., '.>20, hco. :J; Code Went. Vu., 48G, boo. 3; King 
 V. r.itd, 11 Gray, 430; Dyer v. Lowell, 30 Me. 217.
 
 § 543 SALE IN PARTITION. 656 
 
 whole property, taken together, will be greatly injured or 
 diminished in value if separated into parts, in the hands of 
 different persons, according to their several rights and in- 
 terests in the whole : in other words, whether the aggregate 
 value of the several parts, when held by different individuals 
 in severalty, would be materially less than the whole value of 
 the property if owned by one person."^ "The words great 
 prejudice, as used in the statutes, will not justify a decree of 
 sale where the aggregate amount of the benefits to the parties 
 from a sale, instead of an actual partition, will be small, in 
 reference to the value of the property of which a partition or 
 sale is sought."^ "The prejudice spoken of means a preju- 
 dice to all the owners, and not to a part only."^ 
 
 § 543. The determination of the question "whether a 
 
 sale or a partition should be ordered must be made by the 
 Court. In some of the States, the application for a sale is 
 decided by the Court without the assistance or advice of the 
 commissioners.* The more usual practice, however, unless 
 in a case where it is clear that no actual division ought to be 
 attempted, is to refer the partition to the commissioners. 
 They then examine the property, and if, from such examina- 
 tion, they conclude that a sale is preferable to a partition, 
 they report their conclusion to the Court, accompanying their 
 report with a statement of the facts and reasons on which 
 their opinion is based.^ This report is not conclusive. Any 
 of the parties may show, if he can, that the decision of the 
 commissioners is erroneous.'* In one instance where, in a 
 suit for the division of certain slaves, the Court authorized 
 the commissioners to determine the necessity of the sale, the 
 decree was reversed, the appellate Court saying: "This is 
 delegating to the commissioners the power of deciding upon 
 the practicability of a partition and of directing a sale, which 
 
 ' Clason V. Clason, 6 Pai. 545. 
 
 •^ Smith V. Smith, 10 Pai. 475. 
 
 3 Van Arsdale v. Drake, 2 Bai-b. 601. 
 
 * At an early day in New York, it was held that the Court could decide on the neces- 
 sity of a sale, on the report of the Master as -well as on that of commissioners.— 
 Tliompson v. Hardman, 6 Johns. Ch. 436. 
 
 6 Tucker v. Tucker, 19 Wend. 226; Steedman v. Weeks, 2 Strob. Eq. 148; Lake v. 
 Jarrett, 12 Ind. 395. 
 
 « McCann v. Brown, 43 Geo. 386.
 
 657 SALE IN PARTITION. §§ 544-5 
 
 ought to be done by judicial authority, after the commission- 
 ers have reported the facts which obstruct partition and their 
 opinion thereon."' The order to sell the premises should not 
 be made until the Court has entered its interlocutory judg- 
 ment determining that the parties are entitled to partition, 
 and has also, after making the proper inquiries, decided that 
 a partition cannot be made without prejudice to the owners. 
 An order of sale, when the record fails to show the existence 
 of these preliminary steps, cannot support a sale made there- 
 under, "when exceptions are taken and interposed to its 
 confirmation."^ It may so happen that the moieties of a 
 jjortion of the cotenants can be assigned to them, while the 
 moieties of the other cotenants cannot be assigned without 
 working a great prejudice. In such case, the Court should 
 decree an actual partition, so far as the same can be bene- 
 ficially accomplished, and a sale of the moieties of which an 
 actual partition is impracticable.^ In making the sale, the 
 property may be subdivided and sold in separate parcels, if 
 that manner of proceeding be deemed best for the interests 
 of the parties.* 
 
 g 544. Proceedings after Ordering the Sale. — When the 
 Court determines upon a sale of the whole or of some part 
 of the property, it usually appoints a referee or commission- 
 ers to make the sale, though under some statutes this duty 
 devolves upon the sheriff of the count}^ The manner of con- 
 ducting the sale, the notice to be given thereof, and the 
 powers and duties of the referees or commissioners, are the 
 subjects of diverse statutory regulations, and can be best 
 ascertained from an inspection of the statutes of the various 
 States. When the sale is made, it must be reported to the 
 Court, where it may be vacated or approved. 
 
 ^ 545. Vacating Sale, against -wish of Purchaser. — "A 
 sale made by the Clerk and Master, under an order of a court 
 of equity, is in no case complete until it is reported to and 
 confirmed by the Court. Until tlien, the so-called purcliasor 
 is only a bidder, making an ofl'er of a certain price for tlio 
 
 ' Irvin V. Divine, 7 Monr. 248. ^ McLain d. Van Winklo, 40 111. 40G. 
 
 •* Haywood v. Judson, 4 Barb. 228. ^ Wainwright v. Rowland, 25 Mo. 53. 
 
 C. & p.— 42
 
 g 545 SALE IN PARTITION. 658 
 
 land, and showing his ability to pay by giving bond with 
 good and sufficient security. If the Court be satisfied, from 
 the Master's report, that the price offered is a good and fair 
 one, it will accept the bid, by confirming the report and de- 
 claring the bid to be purchaser. But if, on the contrary, the 
 Court be informed by the Master's report, or by affidavits, 
 that the sum bid for the land is not its full value, it will be 
 its duty to set aside the report and order a resale of the land. 
 Of this the so-called purchaser has no right to complain, be- 
 cause he knew, or ought to have known, that his bid was 
 made subject to the condition of its acceptance or rejection 
 by the Court. "^ In the case in which the foregoing language 
 was used, the appellant had bid in two parcels of land sold 
 under a decree of partition. A motion was made to set aside 
 the sale of one of the parcels for inadequacy in price, and 
 was resisted on the ground that he had paid enough for that 
 piece and had bid too much for the other unless the two par- 
 cels could be kept together. But the Court held that the 
 sale was subject to the Chancery rule, and that a resale 
 should be ordered, an offer of ten per cent, advance of the 
 appellant's bid having been made. But we apprehend that 
 this rule of the English Chancery is not usually applicable 
 to sales in partition made in the United States, and that 
 something beyond mare inadequacy of price must be shown 
 to prevent the confirmation of a sale made by commissioners 
 in partition. Paige, J., speaking for the Supreme Court of 
 New York, in the case of Lefevre v. Laraway,- said: "The 
 English practice, however, has not been adopted in this 
 State. Here, neither before nor after the confirmation of 
 the report of the sale, will a resale be ordered, upon an offer 
 of an increase of price, alone. In this State, special circum- 
 stances must in all cases exist, where the sale is not void, to 
 justify an order for a resale. A resale will be ordered where 
 there has been fraud, or misconduct in the purchase; fraud- 
 ulent negligence or misconduct in any other person connected 
 with the sale; surprise or misapprehension, created by the 
 conduct of the purchaser, or some person interested in the 
 
 I Bost Ex Parte, 3 Jones Eq. 483. 
 
 ^ 22 Barb. 173. See also Comstock v. Purple, 49 111. 167,
 
 659 SALE IX PAETITIOX. g§ 546-7 
 
 sale, or of the officer who conducts the sale." But it seems 
 that the special circumstances under which the sale will be 
 set aside, against the wishes of the i)urchascr, need not con- 
 nect him with any fraudulent device. Where a sale was va- 
 cated in Missouri, the Supreme Court said: "In the case 
 under consideration, it appears that rumors were afloat in the 
 country that the sale woiild not take place on the 12th, but 
 on the loth, of the month, and that by such rumors bidders 
 were prevented from attending the sale. If bidders were 
 kept away by these rumors, it is of no consequence how they 
 got into circulation, whether by act of the purchasers or 
 otherwise." ' 
 
 § 546. When a commissioner or other person author- 
 ized by the Court to conduct the sale is either the purchaser 
 himself or is beneficially interested though the purchase is 
 nominally made by some other person, this is a sufficient 
 ground for vacating the sale.^ This rule applies to all other 
 persons who are entrusted with some duty, the faithful per- 
 formance of which is not consistent with their making profit 
 out of the sale.^ Hence, where one of the parties was an 
 infant and the property was purchased by his guardian ad 
 litem, the sale was vacated, and a resale ordered.^ 
 
 ^ 547. Releasing the Purchaser. — A purchaser at a par- 
 tition sale may be released from his bid in certain cases. 
 These cases, however, are confined to instances where he has 
 become a purchaser through some fraud or misrepresentation, 
 or the proceedings are so defective that he cannot by his 
 purchase obtain the title sought to be affected by the parti- 
 tion. These sales import no warranty. The utmost that the 
 purchaser has the right to demand is the title of the parties 
 to the partition. He will, therefore, unless he has been 
 made the victim of fraud or misrepresentation, be compelled 
 to comply with his bid, although he can show the existence 
 
 ' Goodo V. Crow, 51 Mo. 214. 
 ^ Ilowery v. Ilelms, 20 Giatt. 1. 
 
 » Armstrong v. HuHt<>n'rt Iloira, 8 Ohio, 552; Bolmrt v. AtkiuHou, 14 Ohio, 236. 
 < Lelevro v. Laraway, 22 Burb. 175; Gullataiu v. Cuuuinghaiii, 8 Cow. 378; Jaolisou 
 V. Woolscy, 11 Johiia. tlO.
 
 § 547 SALE IN PAETITION. 660 
 
 of title paramount to that embraced in the parttiion.' Where 
 fraud was employed in inducing the bidding, but was par- 
 ticipated in by but one of the cotenants, it was held that 
 the purchaser could not successfully resist an action for the 
 purchase money. In this case, the Court reasoned as fol- 
 lows: "There is nothing in the answer to show that Daniel 
 Payne, who made the false representation complained of, 
 was in anywise the agent or representative of his cotenants 
 in or about the sale of the land; nor is there anything in the 
 relation of coparceners subsisting between him and his co- 
 heirs implying an authority in him to affect their interest in 
 the common property by any contract or representation of 
 his. If he was alone concerned in the sale, it would hardly 
 be questioned that the appellants, on the facts alleged, would 
 be entitled to be relieved from the obligation of the contract; 
 but here there are other parties interested in the contract, 
 and in its performance by the appellants, who, it is not pre- 
 tended, are at all in fault. Shall they be made to suffer loss 
 by a fraud, in the perpetration of which they had no partici- 
 pation? I think not. I would not say the appellant is 
 without remedy against Daniel Payne, who committed the 
 fraud; but that his remedy is not the one, in the circum- 
 stances of the case, which he has invoked."^ But the pur- 
 chaser at a partition sale is entitled to the whole title parti- 
 tioned. If, from any irregularities or defects in the suit or 
 in the proceedings, the purchaser would not, by completing 
 his bid and receiving his conveyance, become invested with 
 the whole title with which the Court assumed to deal, then 
 he will be released from his bid. Hence, if jurisdiction has 
 not been acquired over one of the cotenants, the purchaser 
 will be released.* The purchaser may also be released when, 
 without any fault of his, the completion of the sale has been 
 
 ' Cashion v. Faina, 47 Mo. 133; Owsley v. Smith's Heii-s, 14 Mo. 153; Schwartz v. 
 Dryden, 25 Mo. 57i; Evans v. Dendy, 2 Speer, 10; Eogers v. Horn, 6 Eich. 362; Seb- 
 ring V. Mersereau, 9 Cow. 3U. But in South Carolina, the purchaser of a chattel at 
 a partition sale may avoid the full payment of the price on the gi-ound that the chat- 
 tel was unsound.— Commissioner i'. Smith, 9 Eich. 51G. 
 
 ^ Matlock I!. Bigbee, Si Mo. 356. 
 
 3 Cook V. Farnam, 21 How. Pr. 286; S. C. 34 Barb. 95; S. C. 12 Abb. Pr. 359; Goode 
 V. Crow, 51 Mo. 214; Eogers v. McLean, 10 Abb. Pr. 306; Clark v. Clark, 14 Abb. Pr. 
 300.
 
 661 SALE IN PARTITION. § 548 
 
 SO long delayed that he cannot have the benefit of his pur- 
 chase substantially as if the sale had been completed with- 
 out delay.' If errors and irregularities occur in the course 
 of the proceedings, but are not of a character such as to ren- 
 der the sale in partition void in whole or in part, they have 
 no prejudicial effect on the purchaser. If the parties against 
 whose interests the errors and irregularities were committed 
 take no steps to set aside or otherwise avoid the sale, the 
 purchaser, by reason of their acquiescence, can acquire their 
 title, and must therefore make good his bid.^ 
 
 § 548. The Conveyance and its Effect. — If neither the 
 purchaser nor any of the cotenants show any sufficient reason 
 for setting aside the sale, the report of the commissioners is 
 approved, and they are directed to execute a conveyance. 
 When the purchaser makes his payment, or otherwise com- 
 plies wdth the terms of the sale, the commissioners execute 
 and deliver this conveyance, and the grantee therein succeeds 
 to all the rights of the parties to the partition. Without this 
 conveyance, the purchaser cannot be invested with the title.' 
 A sale in partition is a judicial sale.* The purchaser is pro- 
 tected by the judgments of the Court as fully as in any exe- 
 cution or judicial sale. The various matters necessarj- to 
 authorize the sale have all been made fhe subjects of judicial 
 inquiry and determination. If the Court acted erroneously 
 in deciding upon the sale, or committed any other error, this 
 should have been corrected by appeal or by some other ap- 
 propriate proceeding in the partition suit. Not being so cor- 
 rected, the parties interested have acquiesced in and ratified 
 it; and they cannot employ it in any collateral manner to de- 
 feat the purchaser's title. ^ 
 
 ' Jackson v. Edwards, 7 Pai. 412; S. C. 22 Wend. 498. 
 
 •^ Noble V. Cromwell, 27 How. Pr. 289; S. C. 20 Barb. 475; S. C. 6 Abb. Pr. .59; Bo- 
 gertt). Bogert, 45 Barl). 121; UogerH v. McLean, .U How. Pr. 279; S. C. 34 N. Y. 53G; 
 Mead v. Mitchell, 17 N. Y. 211; Crogan v. Livingston, 17 N. V. 218; Waring v. Waring, 
 7 .\bb. Pr. 472; Dunning v. Dunning, 37 111. 315. 
 
 ■' Lessee of Merritt v. Home, 5 Ohio St. 30H. 
 
 ^ Huttou V. Williams, 35 Ala. 504. 
 
 * Gkjudy V. Shank, 8 Ohio, 417; Rogers v. Tucker, 7 Ohio St. 427; Stokes t-. Middlo- 
 t<ju, 4 Dutch. 32; Lefcvre c. Laraway, 22 Barb. 107; Pentz v. Kuestor, 41 Mo. 450.
 
 § 649 SALE IN PARTITION. 662 
 
 § 549. Distribution of the Prooeeds. — When the sale in 
 partition has been consummated, and the sum realized there- 
 by is brought within the control of the Court, it is next to 
 be divided among the various parties in interest. In making 
 this division, the Court is often required to perform a very 
 difficult and intricate task. The parties before the Court 
 whose title has been divested by the sale may have a vast 
 variety of interests. Some of them may be in possession of 
 estates for life or for years ; others may have estates in rever- 
 sion or remainder; and still others may have mere contingent 
 interests. Upon each of these interests, other claims and 
 liens may have attached. It may happen also that some of 
 the parties in interest are femes covert, infants, or lunatics, 
 and therefore require the special protection of the Court to 
 prevent a misapplication of their proportion of the moneys 
 realized. The names and residences of others of the owners 
 may be unknown, and no one may appear to claim their 
 shares of the proceeds of the sale. In fact, the circum- 
 stances upon which the Courts are compelled to act are as 
 infinite as the circumstances in which property may be ac- 
 quired or held. The statutes of the various States whose 
 Courts have been authorized to sell lands in suits for par- 
 tition contain provisions designed to assist and control the 
 distribution of the proceeds of the sale. In some statutes, 
 these provisions are quite general in their terms, while in 
 others they are much more minute. These statutes could 
 not be copied into this work except by greatly enlarging its 
 size without adding anything to its contents that could not 
 as well be found elsewhere. We therefore leave the practi- 
 tioner to look for them in the statutory compilations of his 
 own State, deeming it sufficient for this work to state their 
 general features, which are these : 1st. The costs of the suit 
 and of the various necessary proceedings therein, including 
 the sale, are to be paid, and the residue, after making such 
 payment, constitutes the fund to be apportioned. 2d. The 
 various incumbrances are ascertained, and must be paid, in 
 the order of their priority, out of the share or shares of the 
 person or persons against whom such incumbrances are 
 chargeable. 3d. The Court is authorized to inquire and
 
 663 SALE IN PARTITION. § 549 
 
 determine tlie value of estates for life or years, and also of 
 all future estates, whether vested or contingent, and to direct 
 what amount shall be paid to the holders of each of such 
 estates. 4th. The persons authorized to receive the shares 
 of infants, liinatics, and femes covert, are designated. 5th. 
 When some of the shares belong to unknown or non-resident 
 owners, or when, from any cause, the persons entitled to 
 such shares are not in Court, or cannot at present be ascer- 
 tained, the moneys representing such shares may be invested 
 imder the order of the Coui't, and kept so invested until the 
 time arrives when the Court can make a proper distribution. 
 Where married women are parties, either as coteuants or as 
 the wives of cotenants, the proceeds of the share in which 
 they are interested are not usually paid to their husbands, 
 unless the wives' consent to such payment, by some instni- 
 ment executed in the same manner as instruments releasing 
 their dower interests or conveying their separate property, 
 are required to be executed, or unless the husbands, by some 
 means designated by the statute, give security to indemnify 
 the wives from loss. If the husband fails to give such se- 
 curity, and the wife does not consent to the money being 
 paid to him, without security, so much of it is invested, under 
 the direction of the Court, for the benefit of the wife, as may 
 be deemed proportionate to her interest in the property par- 
 titioned.^ 
 
 1 For statutory provisionsTregulating the sale of property and the distribntion of 
 the proceeds, consvdt the statutes cited at the conchision of section 537; and also C. 
 C. P. of Cal., sec. 773 to 791; Comp. Laws Nev., sees. 1345-72; Nixon's N. J. Digest, 
 4th ed., p. 669-79; 3 Rev. St. N. Y., 011-20; Deady's Laws Oregon, 258-6-1; Thompson 
 A Steger's St Tenn., 3293-3308; Taylor's St. of Wis., 1684-93.
 
 INDEX.
 
 INDEX. 
 
 N. B. — The figures referio-thesedions. 
 
 ABATEMENT, 
 
 plea of, in partition, 422, 496. 
 ACCORD AND SATISFACTION, 
 
 with one cotenant, when binding on all, 178. 
 ACCOUNTING BETWEEN COTENANTS.. 
 
 remedy at common law, 269. 
 
 remedy by statiate of Anne, 270. 
 
 demand must be made for, 270. 
 
 at what times sustainable, 270. 
 
 declaration for, 271. 
 
 what may be for, 272. 
 
 for receipts, 273. 
 
 for profits, 274. 
 
 for use and occupation, 274-276, 
 
 only for balance due, 277. 
 
 counter-claims, 277, 278. 
 
 assumpsit as a substitute for, 280-286. 
 
 in equity, 321. 
 
 in connection with partition, 511. 
 ACT OF ONE COTENANT, 
 
 does not bind another, 172. 
 
 except when beneficial, 174. 
 
 to preserve common property, 175. 
 
 in redeeming common property, 176. 
 
 in receiving payments, 177-178. 
 
 in granting a release, 179. 
 
 in giving notice to quit, 180-181 
 
 cannot create an easement, 185. 
 
 ratification, by the others, 188. 
 
 ACTIONS, 
 
 difference between judgment in real and personal, 529. 
 
 ACTIONS BETWEEN COTENANTS, 
 
 for matters independent of the cotenancy, 208. 
 
 (ib7
 
 668 
 
 INDEX. 
 
 ACTIONS BETWEEN COTENANTS {continued), 
 
 for moneys received and for use and occupation, § 269-286. 
 
 for use and occupation, at common law, 269. 
 statute of Anne giving action of account, 270. 
 
 statute of Anne, doubtful meaning of, 272. 
 
 declaration for accounting, 271. 
 
 for money received, under the statute, 273. 
 
 for use and occupation, under the statute, 274r-276, 286. 
 
 for balance due only, 277. 
 
 counter-claims, 277-278. 
 
 counter-claims for improvements, 279. 
 
 assumpsit, 280-286. 
 
 for possession of chattels, 287-289. 
 
 for possession of real estate, 290-296. 
 
 ejectment, 290. 
 
 ejectment, necessity of ouster, 291. 
 
 ejectment, waiver of proof of ouster, 292. 
 
 ejectment, judgment how entered, 293. 
 
 ejectment, where plaintiff sues for too much, 294, 
 
 forcible entry and unlawful detainer, 295. 
 
 trespass to try titles, 296. 
 
 for acts of trespass, 297-305. 
 
 action on the case, 297. 
 
 action of trespass, 298. 
 
 action of trespass for ouster or destruction, 299, 302. 
 
 action of trespass for ouster, 300, 301. 
 
 action of trespass for mesne profits, 303. 
 
 action of trespass against lessee of a cotenant, 304. 
 
 action of waste, 305. 
 
 for acts of conversion, 306-319. 
 
 trover, 306-307. 
 
 trover for sale of chattels, 308-9. 
 
 trover for sale of chattels under execution, 310. 
 
 trover for sale of chattels by vendee of a cotenant, 311. 
 
 trover for destruction of property, 312. 
 
 trover for destruction of rights, 313. 
 
 trover for destruction by emancipating a slave, 314. 
 
 ti'over for destruction by allowing property to be lost, 315. 
 
 trover for changing form of chattels, 316. 
 
 trover for removal of chattels, 317. 
 
 ti'over for refusal to apply j^roperty to its proper use^ 318. 
 
 trover for refusal to allow division, 319. 
 
 for repairs, 320. 
 
 statutory provisions, note to 320. 
 
 See Equitable Kemedies. 
 
 ACTIONS BY COTENANTS AGAINST STEANGEES, 
 general view of, 328. 
 
 joinder in, inile applicable to joint-tenants, 329. 
 joinder in, rule applicable to coparceners, 330,
 
 INDEX. 669 
 
 ACTIONS BY COTENANTS AGMNST STRAKGERS (cmtinued), 
 
 joinder in. nile applicable to tenants in common, 331. 
 joinder in. rule applicable to mixed cotenancy, 332. 
 joinder in, nile in assumpsit, 333. 
 joinder in, rule in avowries, 33-t. 
 • joinder in, rule in case, 335. 
 
 joinder in, rule in covenant, 336. 
 
 joinder in, rule in replevin and detinue, 337. 
 
 joinder in, rule in replevin for severable chattels, 338. 
 
 joinder in, rule in ejectment by joint-tenants, 339. 
 
 joinder in, rule in ejectment by coparceners, 340. 
 
 joinder in, rule in ejectment by tenants in common, 341. 
 
 joinder in, rule in forcible entry, 344. 
 
 joinder in, rule in action for insurance, 345. 
 
 joinder in, rule in action for rent, 346. 
 
 joinder in, rule in trespass, 347. 
 
 joinder in, rale in trespass to try titles, 348. 
 
 joinder in, rule in trover, 349. 
 
 joinder in, rale in waste, 350. 
 
 joinder in, rule in nuisance, 351. 
 
 joinder in, rule in application to assess damages, 352. 
 
 joinder in, rule in equity, 367. 
 
 whether plaintiff can recover less interest than he sued for, 342, 
 
 whether one cotenant can recover the whole in ejectment, 343. 
 
 failure to plead non-joinder, 353. 
 
 non-joinder, how available in actions ex contractu, 354. 
 
 non-joinder, how available hi detinue and replevin, 355. 
 
 non-joinder, how available under the Codes, 361. 
 
 whether one can recover the whole damages when non-joinder is not 
 
 pleaded, 356-357. 
 waiver of right to object to non-joinder, 358. 
 misjoinder with persons not cotcnants, 359. 
 misjoinder how available to defendant, 360. 
 misjoinder how available under the Codes, 361. 
 survivorship of cause of action, 362-363. 
 survivorship not affected by statutes, 365. 
 death of cotenant pendente tile, 364. 
 
 ADMINISTRATOR, 
 
 not entitled to partition, 454. 
 
 when properly defendant in partition, 471. 
 
 ADMISSIONS, 
 
 made by one joint-tenant, 169. 
 made by one tenant in common, 169. 
 made by one devisee, 169. 
 
 ADVERSE HOLDING, 
 
 au evidence of an ouster, 223. 
 notice of, when necessary, 229, 242.
 
 670 INDEX. 
 
 ADVERSE HOLDING (continued), 
 
 bars right to partition of realty, § 439, 4A7, 500. 
 
 no bar to partition of personalty, 448. 
 
 no bar when Chancery has jurisdiction for another purposer 449, 500. 
 
 no bar in certain States, 450. 
 
 ADVERSE TITLE, < 
 
 purchase by cotenant, 154, 155. 
 cotenant -wishing benefit of, must contribute, 156. 
 
 ADVOWSON, 
 
 coparcenary in, 80. 
 partition of, 434. 
 
 AFTER-ACQUIRED TITLE, 
 
 subject to previous homestead claim, 56, 57. 
 enures to grantee in severalty, 207. 
 dvu-ing suit for partition, 460. 
 whether bound by prior partition, 532. 
 
 AGENCY OF COTENANTS, 
 
 to redeem for one another, 176. 
 
 to receive payments for one another, 177-178. 
 
 to release payments for one another, 179. 
 
 to give notice to quit for one another, 180. 
 
 to receive notice to quit for one another, 18L 
 
 to conti-act for one another, 182. 
 
 to transfer for one another, 183. 
 
 to make partition for one another, 416. 
 
 ratification, 188. 
 
 part owners of ships, 383-384. 
 
 AGREEMENT, 
 
 to sell, severs joint-tenancy, 30. 
 
 to sever joint-tenancy, 31. 
 
 to divide crops makes parties tenants in common, 100-101. 
 
 to purchase lands, as cotenants, 151. 
 
 to make partition, 417. 
 
 not to demand partition, 442. 
 
 ALABAMA, 
 
 survivorship aboUshed, 35. 
 
 coiu-ts having jurisdiction in partition, 428. 
 
 what may be partitioned and who may apply,-461 n. 
 
 parties defendant in partition, 483 n. 
 
 ' ALIENATION, 
 
 See Conveyance. 
 
 ALLODIAL TITLE, 6. 
 
 ALLOTMENTS IN PARTITION, 
 
 how made at common law, 394. 
 eldest had the first choice, 394. 
 duties of commissioners in making, 521.
 
 INDEX. 671 
 
 AMEKICAN TENURES, $ 6. 
 ANIMALS, 
 
 increase of, belong to the common property, 140. 
 ANS^VEE IN PARTITION, 
 
 generally, 495, 496. 
 
 pleas in abatement, 496. 
 
 the general issue, 497. 
 
 the general issue, form of, 497 n. 
 
 statement of defendant's title and equities, 499. 
 APPEAL, 
 
 from interlocutory judgment in partition, 518. 
 APPRAISEMENT, 
 
 in partition, 541. 
 ARBITRATION, 
 
 partition by, 395. 
 ARIZONA, 
 
 community property in, 129. 
 ARKANSAS, 
 
 survivorship abolished, 35. 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction of partition, 428. 
 
 what may be partitioned, and who may apply, 461 n. 
 
 parties defendant in partition, 483 ?t. 
 ASSAILING COMMON TITLE, 
 
 by one cotenaut not encouraged, 152. 
 ASSUMPSIT, 
 
 between cotenants, rule in Massachusetts, 280. 
 between cotenants, rule in Maine, 281. 
 between cotenants, rule in Michigan, 282. 
 between cotenants, rule in Pennsylvania, 283. 
 between cotenants, rule in New York, 284. 
 between cotenants, rule in England, 285. 
 between cotenants, rule in United States, 286. 
 joinder of cotenants, in 333. 
 non-joinder of cotenants in, 354. 
 AVOWRY. 
 
 joinder of cotenants in, 334. 
 
 BAILEE OF COTENANTS, 
 
 right to retain jjossession, 246, 288. 
 
 BENEFICIAL ACTS, 
 
 of one cotenant, bind the others, 174. 
 BEQUEST, 
 
 in joint-tenancy, rights of survivor, 28. 
 
 when held to be in joint-tonanoy, and when in tenancy in common, 234. 
 BUILDINGS, 
 
 as evidence of au ouster, 240.
 
 672 INDEX. 
 
 BUEDEN OF PROOF, 
 
 of an ouster, $ 222. 
 
 CALIFORNIA, 
 
 presumption against joint-tenancy, 35. 
 
 homestead is a joint-tenancy, 4:8. 
 
 early homestead decisions, 52. 
 
 law of community property, 123, 128. 
 
 law of community, grants from Mexico, 133. 
 
 law of community, effect of deed to wife, 147. 
 
 conveyance of tenant in common by metes and bounds, 203. 
 
 actions between cotenants, 320 n. 
 
 actions by cotenants, 372 n. 
 
 com-ts having jurisdiction in partition, 428 n. 
 
 who may apply for partition, 461 n. 
 
 parties in partition, 483 n. 
 
 CANADA, 
 
 tenancy by entirety in, 65. 
 coparcenary in, 85. 
 commimity in, 127. 
 
 CASE, ACTION ON THE 
 
 when sustainable between cotenants, 297. 
 
 CASTLE FOR DEFENCE, 
 
 not subject to partition, 438. 
 
 CEMETERY, 
 
 not subject to partition, 438. 
 
 CHANCERY, 
 
 See Equity. 
 
 CHANGE OF POSSESSION, 
 
 on sale of personalty, 219. 
 CHEESE, 
 
 made for farmers at a factory,- 101. 
 
 CHOSES IN ACTION, 
 
 tenancy by entireties in, 68. 
 CIVIL DEATH, 
 
 of joint-tenant, 12. 
 CIVIL LAW, 
 
 property relations of husband and mfe, 122. 
 CLASS, 
 
 devise or gift to several as a, 110. 
 
 CLASSIFICATION, 
 
 of property into general and special, 1. 
 
 of tenancies, 7. 
 
 of parceners, 78. 
 
 of community, 124-126.
 
 INDEX. 673 
 
 CLASSIFICATION {conHnued), 
 
 of liabilities of coteuants, v^ 257. 
 
 of partition, 394. 
 
 of property subject to partition,430. 
 
 COLLATERAL ATTACK, 
 
 on judgment in pai-tition, 528. 
 on sale in partition, 548. 
 
 COMMISSION IN CHANCERY, 
 
 form of, 520. 
 COMMISSIONERS, 
 
 duties in Chancery, 521, 522. 
 
 duties in United States, 522. 
 
 cannot determine title, 522. 
 
 should be sworn, 522. 
 
 shoxild give notice of their meetings, 522, 
 
 may employ a surveyor, 522. 
 
 duties in making allotments, 522. 
 
 incidental powers, 522. 
 
 how many must act, 523. 
 
 report, 523. 
 
 vacancies, how filled, 524. 
 
 vacating report for errors, 525. 
 
 vacating report for irregularity, 526. 
 
 report as to necessity of sale, 543. 
 
 appointment of, to seU property in partition, 544. 
 
 purchase at their own sale, 546. 
 
 conveyance by, 547. 
 
 COMMON PROPERTY. 
 
 See CoMMtTNiTY Peopektt. 
 COMMON SAUNS NOMBRE, 
 
 not liable to partition, 434. 
 COMMUNITY PROPERTY, 
 
 is the only co-ownership resulting from marriage, 121. 
 
 by the civil law, 122. 
 
 is a species of co-ownership, 123. 
 
 legal community, 124. 
 
 conventional community, 124. 
 
 conventional community, preBumptions ngainst, 143. 
 
 when commences, 124. 
 
 modifications, 125. 
 
 proijerty embraced in, 120. 
 
 property embraced in, in Lower Canada, 127. 
 
 property embraced in, in California, 128. 
 
 property embraced in, in Arizona, 129. 
 
 property embraced in, in Idaho, 129. 
 
 property emlnaced in, in Nevada, 129. 
 
 c. & p. -4a
 
 674 INDEX. 
 
 COMMUNITY PROPERTY (continued), 
 
 property embraced in, in Louisiana, v) 130. 
 
 property |mbraced in, in Texas, 131. 
 
 law of, is a real law, 132. 
 
 how affected by law of domicil, 132. 
 
 does not embrace gifts from the sovereign, 133. 
 
 does not embrace purchases before marriage, 134, 
 
 does not embrace gift to M-ife, 136. 
 
 does not embrace purchase with wife's money, 137. 
 
 does not embrace rents and profits in California. 141. 
 
 purchases during marriage, 135. 
 
 improvements, 138. 
 
 crops, 139. 
 
 increase of animals, 140, 
 
 property partly community and partly separate estate, 142. 
 
 presumptions in favor of community, 143. 
 
 presumptions arising from deed to wife, 144. 
 
 presumptions arising from deed to wife, how rebutted, 145-147. 
 
 authority of husband and vdfe respectively, 148. 
 
 death of husband or wife, 149. 
 
 partition, 445. 
 
 COMPLAINT IN PARTITION, 
 at common law, 484. 
 allegation of joint holding, 485. 
 deraingment of title, 486. 
 description of jiremises, 487. 
 description of the respective moieties, 488. 
 variance between, and the proofs, 489. 
 allegation of demand, 490. 
 allegation of necessity of sale, 491. 
 form of, 491 n. 
 
 CONDITION BROKEN, 
 
 does not entitle party to partition, 446. 
 
 CONFUSION OF GOODS, 
 
 when creates tenancy in common, 95. 
 when occasions a forfeiture, 95. 
 
 CONTRIBUTION IN EQUITY, 
 
 between co tenants, 322. 
 
 for failui-e of title after partition, 533. 
 
 CONNECTICUT, 
 
 sui-vivorship abolished, 35. 
 
 tenancy by entirety in, 66. 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction of partition, 428 n. 
 
 who may have partition, and of what, 461 «. 
 
 parties in partition, 483 ?).
 
 INDEX. 675 
 
 CONVERSION, 
 
 of realty into personalty, $ 114-118. 
 of personalty by a cotenant, 306, 319. 
 See Trovek. 
 
 CONVEYANCE, 
 
 creating joint-t«nancy, 25. 
 to woman and her children, 26. 
 in joint-tenancy where some grantees are dead, 2y. 
 in tenancy in common where some of the gi-antees are dead, 109. 
 by one joint-tenant, 34. 
 of homestead, 52, 53, 58. 
 of tenancy by entireties, 73. 
 of tenancy by entireties, eflfect aft«r divorce, 76. 
 by one coparcener, 84. 
 of uulocated interest, 96. 
 creating party wall, 98. 
 acceptance of, from a part owner, 106. 
 by partner, 112, 119. 
 by surviving partner, 119. 
 to wife, presumed to be common property, 144. 
 
 to wife, evidence to rebut presumption in favor of community, 145-147. 
 form of, between cotenants, 189-191. 
 by cotenant out of possession, 192. 
 by cotenant to third persons, 193. 
 each cotenant may make, at pleasure, 194. 
 by grantor to himself and others, 193 n. 
 by cotenant, as color of title, 197. 
 by cotenant, adverse possession under, 197, 224, 225. 
 by cotenant, of minerals in the land, 198. 
 by cotenant, by metes and bounds, 199-205. 
 
 by cotenant, by metes and bounds, valid between the parties, 206. 
 by cotenant, by metes and bounds, eflfect in partition, 207. 
 by cotenant, by metes and bounds, eflfect on after-acquired title, 207. 
 by cotenant, by metes and bounds, where cotenancy embraces several 
 parcels, 208. 
 
 covenants l)ind each cotenant as to his moiety only, 209. 
 
 covenants of seizin, when broken, 210. 
 
 interpretation of, 211. 
 
 involuntary, 213. 
 
 involuntary, by metes and bfiunds, 216. 
 
 effect on insurance, 218. 
 
 right to possession of, 247. 
 
 necessary to complete partition at equity, 427. 
 
 not necessary to complete partition at law, 427. 
 
 whether necessary in partition, 395—105, 527. 
 
 form of, in parkition, WG. 
 
 in severalty \>y one cotenant, whether a cloud on the title, 326. 
 
 transfers right to partition, 151. 
 
 when compelled in partition, 513.
 
 676 INDEX. 
 
 CONVEYANCE {cmiinued), 
 
 in partition, when infant is a party, $ 468. 
 in partition, when lunatic is a party, 469. 
 
 COPARCENERS, 
 
 defined, 77. 
 
 may be males, 77. 
 
 classified, 78. 
 
 by common law, 79. 
 
 by custom, 78. 
 
 with one's self, 79. 
 
 of what estates, 80. 
 
 how to enjoy indivisible property, 80. 
 
 unities of their estate, 81. 
 
 have no survivorship, 81. 
 
 make but one heir, 82. 
 
 continuance of their estate, 83. 
 
 destruction of their estate, 84. 
 
 effect of conveyance by one, 84. 
 
 in the United States, 85. 
 
 form of conveyance by, 191. 
 
 methods of making partition between, 395, 396. 
 
 writ of partition between, at common law, 420-421. 
 
 joinder in actions, 330. 
 
 COPATENTEES, 
 
 rights and relations of, 89. 
 
 COPYHOLD ESTATE, 
 
 partition of, 439. 
 CORODY UNCERTAIN, 
 
 not subject to pai*tition, 434. 
 
 CORPORATIONS, 
 
 cannot hold as joint-tenants, 15. 
 can hold as tenants in common, 90. 
 
 COTENANCY, 
 origin, 1. 
 
 adaptation to all forms of society, 2. 
 engagements formed by, 3. 
 evidence to establish, 22. 
 homesteads, when held by, 48-50. 
 homesteads, when not held by, 51-53. 
 
 See Joint-Tenancy, Tenancy by Entiketies, Copaecenebs, Tenancy in 
 Common, Part Owners of Ships, Commttnity Peopekty. 
 COTENANTS. 
 
 See Joint-Tenants, Tenants in Common, Copaecenebs, Paet Ownees of Ships, 
 Relations of Cotenants, Conveyances, Oustee, Rights of Coten- 
 ants. Liabilities of Cotenants, Actions between Cotenants, Ac- 
 tions BY Cotenants, Paetition.
 
 INDEX. 677 
 
 CO-TRUSTEES. 
 
 See Teustees. 
 
 COUNTER-CLAIMS, 
 
 in accounting, 277, 278. 
 for improvements, 279. 
 
 COVENANTS IN DEEDS, 
 
 each cotenant covenants for himself only, 209. 
 of seizin, when broken, 210. 
 joinder in actions on, 336. 
 
 CREATION, 
 
 of joint-tenancy by devise or bequest, 23, '24. 
 
 of joint tenancy by deed, 26. 
 
 of joint-tenancy by deed to woman and her children, 26. 
 
 of joint-tenancy under American statutes, 37. 
 
 of tenancy in common, 23, 21, 92. 
 
 of tenancy by entireties, 63, 69. 
 
 of coparcenary, 81. 
 
 of party waU, 98. 
 
 of partnership. 111. 
 
 CROPPING ON THE SHARES, 
 
 makes the parties tenants in common, 100. 
 
 gives right to enter on the lands, 254. 
 CROPS, 
 
 when community and when separate property, 139, 
 CROSS-BILL, 
 
 in partition, 504. 
 
 DAMAGES, 
 
 joinder of cotenants entitles to, 352. 
 
 DEATH OF COTENANT, 
 
 cause of action survives, 362, 363. 
 
 pendente lite, 364. 
 
 peTidente lite suit must be revived to bind heirs, 464. 
 
 does not abate suit of partition, 496. 
 
 DECREE OF PARTITION, 
 
 possession taken under, is adverse. 227. 
 See Judgments m Pabtition. 
 
 DEFAULT, 
 
 in partition, 494. 
 
 DEFENDANT IN PARTITION, 
 pleadings of, 494-497. 
 statement of his title, 498. 
 adverse holding of, 500. 
 cross-bill, when ncicossary, 504. 
 Sec PAitnEs Defknijant in PABimow.
 
 678 INDEX. 
 
 DEFINITIONS AND DESCRIPTIONS, 
 
 of compulsory partition, $ 394. 
 
 of confusion of goods, 95. 
 
 of conventional community, 124. 
 
 of coparceners, 77. 
 
 of cotenancy, 2. 
 
 of destruction for which cotenant is liable, 251, 312-319. 
 
 of dos, or dotal property, 122. 
 
 of estate by entireties, 63, 64. 
 
 of general property, 1. 
 
 of homestead, 47. 
 
 of joint-tenancy, 9, 10. 
 
 of legal community, 124. 
 
 of mixed, imperfect, and redundant cotenancies, 8. 
 
 of onerous title, 133. 
 
 of ouster, 221, 301. 
 
 of parceners, 77. 
 
 of partition, 393. 
 
 of partition by lot, 394. 
 
 of severable chattels, 252. 
 
 of special property, 1. 
 
 of tenancy in common, 86. 
 
 of voluntary jjartition, 394. 
 
 of necessary parties in partition, 463. 
 
 DELAWARE, 
 
 presumption against joint-tenancy, 35. 
 actions between cotenants, 320 n. 
 courts having jurisdiction of partition, 428 n. 
 who may compel partition, and of what, 461 n. 
 parties defendant, 483 n. 
 
 DEMAND, 
 
 for possession, when necessary, 231. 
 for possesion, refusal of, 236. 
 for possession, how made, 237, 
 on bailee of cotenants, 246. 
 for accounting, 270. 
 for partition, 489. 
 
 DEMURRER, 
 
 in partition suit, 494. 
 
 DENIAL OP COTENANT'S TITLE, 
 when evidence of- an ouster, 235. 
 must be unequivocal, 235. 
 
 DESCENT, 
 
 of homestead, 62. 
 
 of partnership realty, 118. 
 
 of community property, 149.
 
 INDEX. 679 
 
 DESCRIPTION, 
 
 of premises in partition, ^ 486. 
 
 of premises in partition, uncertainty, how objected to, 494, 
 
 DESTRUCTION AND DESTRUCTIVE USE. 
 of real estate, what is, "251 . 
 
 by cutting timber, 251. » 
 
 by plowing up crops, 251 
 by appropriating water, 251. 
 through negligence, 266. 
 trover against cotenant for^l2-319. 
 
 DEVISE, 
 
 by joint-tenant is void, 14. 
 
 in joint-tenancy, 23. 
 
 in tenancy in common, 24, < 
 
 in joint-tenancy, svu-\-ivor takes all, 28. 
 
 under statute in regard to joint-tenancy, 40. 
 
 simultaneous devises of same property, 103. 
 
 lapse of, to tenants in common, 109. 
 
 to several as a class, 110. 
 
 DEVISEES, 
 
 one not bound by the other's admiB8ions,-169. 
 
 DETINUE, 
 
 between cotenants, 288. 
 against a bailee of the cotenants, 289, 
 joinder of cotenants in, 337. 
 non-joinder of cotenants in, 355, 
 
 DIFFERENCES AND DISTINCTIONS, 
 
 between joint-tenancy and tenancy by entireties, 64. 
 
 between joint-tenancy and coparcenai-y, 81. 
 
 between various kinds of cotenancy, 86. 
 
 between partnership and cotenancy, 111. 
 
 between interest of husband and that of wife in community, 123. 
 
 between presumption from a deed to wife and deed to husband, 145. 
 
 between admission of a joint-tenant, and of a tenant in common, 169, 
 
 between proof of ouster by a cotemmt, and by a stranger, 221. 
 
 between partition at law and in chancery, 425. 
 
 between a judgment and a decree of partition, 427. 
 
 between tenancy in common and part ownership of shipa, 381. 
 
 DIFFICULTY, 
 
 in making division, no defense to partition,. 433. 
 
 DISABILITY OF A COTENANT, 
 
 whether it avoids statute of Umitations, 375, 376. 
 effect when he Hues alone, 377. 
 
 DISPUTED TITLE, 
 
 when may be determined in partition, 502, 503.
 
 680 
 
 INDEX. 
 
 DESSEIZIN, 
 
 one cotenant cannot be disseized unless all are, § 167. 
 
 joint-tenancy by, 17. 
 
 bars right to partition, 447. 
 
 except of personal property, 448. 
 
 except when chancery has jmisdiction, 449. 
 
 no bar in certain States, 450. 
 
 See OusTEE. 
 
 DESSEIZOE, 
 
 not proper defendant in partition, 481. 
 DISTRAINING, 
 
 one cotenant may distrain for another, 164, 268. 
 
 one cotenant may distrain from another, 174, 177. 
 DIVOECE, 
 
 effect on homestead, 60. 
 
 effect on tenancy by entireties, 76, 92. 
 
 creation of tenancy in common by, 92. 
 
 DOTAL PEOPERTY, 
 
 defined, 122. 
 
 DOWEE, 
 
 none in joint-tenancy, 14. 
 where survivorship is abolished, 39. 
 in tenancy in common, 107. 
 effect of voluntary partition on, 411. 
 effect of compulsory partition on, 432. 
 effect of sale in partition on, 474. 
 DOWEESS, 
 
 is not a tenant in common, 108, 121. 
 is not subject to partition, 432, 472. 
 sale in partition, 474. 
 
 EAETH, 
 
 cotenant has no right to seU nor remove, 251. 
 
 EASEMENT, 
 
 in i^arty wall, 98. 
 
 cannot be created by one cotenant, 185, 186. 
 
 extinguishment of, 187, 
 EJECTMENT, 
 
 between cotenants, 290. 
 
 between cotenants, when demand must be proved, 231. 
 
 between cotenants, jury must find ouster, 232, 233. 
 
 between cotenants, ouster necessary, 291. 
 
 between cotenants, ouster, when need not be proved, 292. 
 
 between cotenants, judgment in, 293. 
 
 against strangers, where plaintiff sues for too much, 294, 342. 
 
 against strangers, joinder of joint-tenants in, 339. 
 
 against strangers, joinder of coparceners, 340.
 
 INDEX. 6S1 
 
 EJECTMENT (continued), 
 
 against strangers, joinder of tenants in common, ^ 341. 
 
 against strangers, whether one cotenant can recover the -whole, 343, 
 
 ENJOYMENT OF COMMON PEOPEETY, 
 how limited, 251. 
 
 ENTRY, 
 
 by one presumed to be for aU, 166. 
 under deed in severalty, 224, 225. 
 
 EQUALITY OF INTERESTS, 
 
 presumed among cotenants, 105. 
 
 EQUALITY OF TITLES, 
 
 makes holders tenants in common,- 103. 
 
 EQUITABLE REMEDIES, 
 accounting, 321. 
 for conti-ibution, 322. 
 injunction, 323-325. 
 quieting title, 326. 
 in partition, 505-515. 
 correcting and vacating partitions, 534. 
 
 EQUITABLE TITLE, 
 
 partition at law, 453. 
 partition in equity, 500, 512. 
 
 EQUITY, 
 
 survivorship in, 12. 
 
 history of its jui'isdiction in partition, 423. 
 
 right to partition in, when absolute, 424. 
 
 advantages of partition in, 425. 
 
 will partition personal property, 426. 
 
 ERROR, 
 
 does not afifect validity of partition, 528. 
 
 ESTATES, 
 
 of trustees, 44, 45. 
 
 of executors, 46. 
 
 of administrators, 46. 
 
 of husband and wife in the homestead, 45-53. 
 
 ESTATES SUBJECT TO PARTITION, 
 
 must bo in possession, 439. 
 
 not at will, 439. 
 
 not copyholds, 439. 
 
 not reversions nor remainders, 440, 
 
 not partnership property, 443. 
 
 not tenancy by entireties, 444. 
 
 not community property, 445.
 
 682 INDEX. 
 
 ESTOPPEL, 
 
 gainst one cotenant does not bind another, § 168. 
 
 arising from common law partition, 529, 530. 
 
 arising from partition iinder statutes, 531. 
 EVICTION BY TITLE PARAMOUNT, 
 
 terminates relation of cotenancy, 162. 
 
 after voluntary partition, 409, 410. 
 
 after compulsory partition, 533. 
 EVIDENCE, 
 
 to rebut presumption of joint-tenancy, 21, 
 
 to rebut presumption of community, 145-147. 
 
 to establish cotenancy, 22. 
 
 to establish ouster, 221-242, 
 
 EXCLUSIVE POSSESSION, 
 
 as evidence of ouster, 242. 
 
 EXECUTION AGAINST A COTENANT, 
 
 when severs joint-tenancy, 33. 
 
 against a tenant by entireties, 74. 
 
 simultaneous levies, 103. 
 
 cotenant may buy vmder, 165. 
 
 authorizes officer to take exclusive possession, 214. 
 
 officer must not sell more than a moiety, 214. 
 
 must be levied on defendant's interest in the whole tract, 216, 
 
 affects only interests levied upon, 217. 
 
 affects only defendant in the writ, 217. 
 
 levy on severable chatties, 252. 
 
 levy does not entitle plaintiff to partition, 451. 
 EXECUTORS, 
 
 survivorship among, 44. 
 
 estate of, 45. 
 
 FINAL JUDGMENT IN PARTITION, 
 
 form and effect, 527. 
 
 collateral assault on, 528. 
 
 conclusive at common law on possession only, 529, 
 
 conclusive on all issues, 530. 
 
 conclusive on title in some States, 531, 
 
 conclusive on homestead right, 531. 
 
 at law not conclusive on equities, 531. 
 
 after-acquired title, 532. 
 
 control of equity over, 534. 
 
 confirmation by act of the parties, 535. 
 
 FLORIDA, 
 
 survivorship in, 35. 
 
 courts having jurisdiction in partition,. 428 n. 
 
 what may be partitioned, 461 n. 
 
 who may apply for pai-tition, 461 n. 
 
 parties defendant, 483 n.
 
 INDEX. 683 
 
 FORCE, 
 
 may produce ouster, $ 234. 
 
 not essential to ouster, 234. 
 FORCIBLE ENTRY, 
 
 action of, between cotenants, 295. 
 
 action of, by cotenants, 344. 
 FORECLOSURE OF MORTGAGE, 
 
 all mortgagors must be defendants, 371. 
 
 all mortgagees must be plaintiffs, 372. 
 FORFEITURE, 
 
 incurred by mixing goods, 95. 
 FRANCE, 
 
 law of community in, 127. 
 FRANCHISE, 
 
 may be held in cotenancy, 88. 
 FORM OF CONVEYANCE, 
 
 from one tenant in common to another, 189. 
 
 from one joint-tenant to stranger, 189. 
 
 from one joint-tenant to another, 190. 
 
 from one parcener to another, 191. 
 
 from cotenants to third persons, 193. 
 
 GENERAL ISSUE, 
 
 in partition, 497. 
 GENERAL PROPERTY, 
 
 definition and origin, 1. 
 GEORGIA, 
 
 joint-tenancy abolished, 35 n. 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction in partition, 428 n. 
 
 actions against third persons, 372 n. 
 
 what may be partitioned, 461 n. 
 
 who may apply for partition 461 n. 
 
 parties defendant, 483 n. 
 
 GIFTS, 
 
 to several as a class, 110. 
 
 from the sovereign, 133. ; 
 
 to husband and wife, 136. 
 
 by husband, of community property, 148. 
 GOODS, 
 
 confusion of, 95. 
 GRANTEES, 
 
 where grant is in joint-tenancy, 28. 
 
 of special location from one cotenant, 199-203, 
 
 of special location, as defendants in partition, 203, 425, 465. 
 
 entitled to partition, 451. 
 
 of defeasible estate, 465. 
 
 in severalty, equities of, are equal, 212.
 
 684 INDEX. 
 
 HEIRS, 
 
 not "boniid by partition made after death erf their ancestor, 9 464. 
 HISTORY, 
 
 of partition "by lot, 394. 
 
 of writ of partition, 420. 
 
 of chancery jiu-isdiction, 423. 
 
 of sale instead of partition, 536. 
 HOIVIESTEAD, 
 
 as a joint-tenancy, 47. 
 
 as a joint-tenancy in California, 48. 
 
 as a joint-tenancy in Idaho, 48. 
 
 as a joint-tenancy in Nevada, 48. 
 
 resembles tenancy by entireties, 49, 
 
 general description of, 50. 
 
 not ordinarily a cotenancy, 51, 52. 
 
 in Iowa, 53. 
 
 wife's right to redeem, 53. 
 
 in undivided lands, 54. 
 
 estates held by, 55, 
 
 holds after-acquired title, 56, 57. 
 
 conveyance of, 58. 
 
 incumbrance of, 58. 
 
 limit of, 59. 
 
 not liable to partition, 60. 
 
 effect of divorce, 61. 
 
 effect of partition, 61. 
 
 survivorship, 62. 
 
 descent, 62. 
 HUSBAND, 
 
 of coteuant, restraints on, 160. 
 
 should be party to partition, 477. ■ 
 HUSBAND AND WIFE, 
 
 cannot receive as joint-tenants, 64. 
 
 receive as one person, 70-72. 
 
 respective authority over tenancy by entirety, 73-75, 
 
 respective authority over community, 148, 149. 
 
 voluntary partition between, 413. 
 
 compulsory partition between, 458. 
 
 See OoMMUNiTT Peopeety, Homestead, Tenancy by Entiebtibs. 
 
 IDAHO, 
 
 homesteads in, 48. 
 community property in, 129. 
 ILLINOIS, 
 
 presumption against joint-tenancy, 35 n. 
 wife has no estate in the homestead, 52. 
 tenancy by entirety in, 65. 
 actions between cotenants, 320 n. 
 actions by cotenants, 372 n.
 
 INDEX. 685 
 
 ILLINOIS {continaed), 
 
 courts having jxirisdiction in partition, ^ 428 n. 
 
 what may be iDai-titioned. 4i'il n. 
 
 who may apply for pai*tition, 461 ?i. 
 
 parties to partitions, 483 n. 
 IMPERFECT COTENANCY, 8. 
 IMPROVEMENTS, 
 
 on separate property, 138. 
 
 as evidence of ouster, 240. 
 
 liability of cotenant to contribute for, 261, 262. 
 
 eotenant not compelled to join in making, 262. 
 
 as counter-claims in accounting, 279. 
 
 in partition, allotted to party making, 508. 
 
 in partition, compensation for, 509, 510. 
 
 INCOEPOEEAL HEEEDITAilENTS, 
 
 when liable to partition, 434. 
 INCUMBEANCE, 
 
 of homestead, 58. 
 
 of homestead cannot be renewed by husband, 58. 
 
 of tenancy by entireties, 73, 74. 
 
 effect of voluntary partition on, 415. 
 
 eftect of compulsory partition on, 478. 
 
 effect of partition sale on, 479. 
 
 contribution between cotenants for the removal of, 512. 
 
 INDIANA, 
 
 presumption against joint-tenancy, 35 n. 
 
 tenancy by entireties, 65. 
 
 actions between cotenants, 320 n. 
 
 actions by cotenants, 372 n. 
 
 courts having jurisdiction in partition, 428 n. 
 
 what may be partitioned, 461 n. 
 
 who may compel partition, 461 n. 
 
 parties defendant in partition, 483 n. 
 
 INFANTS, 
 
 voluntary partition by, 414. 
 
 suing with adults who are bai-red by the statute of hmitations, 375, 376. 
 
 as plaintiff in partition, 457. 
 
 as defendant iu partition, 467. 
 
 when granted a new partition, 468. 
 INFERENCE OF OUSTEE, 
 
 what facts produced, 242. 
 INJUNCTION, 
 
 for what granted between cotenants, 323. 
 
 to restrain partition, 323, 514. 
 
 to restrain waste, 324. 
 
 to restrain judgment, 325. 
 
 against a cotenant who is also trustee, 325. 
 
 iu partition suits, 514,
 
 686 INDEX. 
 
 INSURANCE POLICY, 
 
 effect of conveyance by one cotenant to another, $ 218. 
 liability of cotenant for moneys collected under, 264. 
 
 INTEEESTS, 
 
 of tenants in common presumed to be equal, 105. 
 
 INTEELOCUTORY JUDGMENT, 
 in partition, form, 515. 
 
 in partition, determines respective moietiea, 516. 
 in partition, special directions in, 517. 
 in partition, when appeal may be from, 518. 
 
 INTEEPEETATION, 
 
 of general words in a deed, 211. 
 
 INTEEVENOES, 
 
 in partition, 499. 
 
 [NVOLUNTAEY TEANSFEE, 
 
 of lands of cotenancy, 214. 
 
 IOWA, 
 
 presumption against joint-tenancy, 35 n. 
 
 wife's estate in homestead, 53. 
 
 tenancy by entireties, 66. 
 
 courts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 n, 
 
 parties defendant in partition, 483 n. 
 
 JOINDEE, 
 
 of several parcels in one suit for partition, 371. 
 
 JOINDEE OF COTENANTS IN ACTIONS AT LAW, 
 general rule as to joint-tenants, 329. 
 general rule as to coparceners, 330. 
 general rule as to tenants in common, 331. 
 general rule as to mixed cotenancies, 332. 
 in assumpsit, 333. 
 in avowries, 334. 
 in actions on the case, 335. 
 in covenant, 336. 
 in detinue and replevin, 337. 
 in replevin for severable chattels, 338. 
 in ejectment, by joint- tenants, 339. 
 in ejectment, by coparceners, 340. 
 in ejectment, by tenants in common, 341 
 in forcible entry, 344. 
 in actions for insurance, 345. 
 in actions for rent, 346. 
 in trespass, 347. 
 in trespass to try titles, 348. 
 in trover, 349.
 
 INDEX. 687 
 
 JOINDER OF COTENANTS IN ACTIONS AT LAW (^continued), 
 in waste, '6 350. 
 in nuisance, 351. 
 
 in application for assessment of damages, 352. 
 as defendants, 366. 
 in partition, 459. 
 part ownerships, 387. 
 See MisJOixDEB, Nonjodtdee. 
 
 JOINDER OF COTENANTS IN EQUITY, 
 general rule, 367. 
 general rule, joint-tenants, 368. 
 general rule, tenants in common, 369. 
 general rule, legatees, 370. 
 
 general rule, foreclosure by joint-mortgagees, 372. 
 general rule, foreclosure against joint-mortgagors, 371. 
 
 JOINT CAUSE OF ACTION, 
 survivorship of, 362, 363. 
 effect of statute of limitations on. 375, 376. 
 
 JOINT-TENANCY, 
 
 defined, 9, 10. 
 
 properties of, 11. 
 
 unities of, 11. 
 
 survivorship, 12-14, 28. 
 
 who may hold by, 15. 
 
 •what may be held by, 16. 
 
 how created, 17, 23, 25. 
 
 presumption in favor of, 18. 
 
 presumption where property was acquired in trade, 19. 
 
 presumption from unequal payments, 20. 
 
 evidence to disprove, 21. 
 
 words creating, in devise or bequest, 2:i 
 
 words creating, in deed, 25. 
 
 creation by deed to woman and her children, 26. 
 
 executory settlements, 27. 
 
 surviving grantees, legatees, and devisees, 28. 
 
 severance of, 29. 
 
 severance by act of cotenant, 30. 
 
 severance by agreement, 31. 
 
 severance by dealing, as in trade, 32. 
 
 severance by execution against cotenant, 33. 
 
 severance, partial, 34. 
 
 statutes in America, limiting or abolishing, US, 65. 
 
 statutes whether retroactive, 36. 
 
 creation notwithstanding statutes, 37. 
 
 dower in, where survivorship is abolished, :J'J. 
 
 lapsing of legacies and devises where survivorship is abolished, 40. 
 
 property still held by, 41. 
 
 mortgages, 42.
 
 INDEX. 
 
 JOINT-TENANCY, (cmHnued), 
 trust estates, § 43, 44. 
 
 difference between, and tenancy by entireties, 64. 
 husband and wife holding by, 71, 72. 
 legislative grantees do not hold by, 91. 
 in ships, 379. 
 
 JOINT-TENANTS, 
 
 conveyance by, 189, 190. 
 lease by, 220. 
 
 voluntary partition between, 396. 
 joinder in actions at law, 329. 
 joinder in actions in equity, 368. 
 
 JUDGMENT, 
 
 may be held by tenancy by eutu-eties, 68. 
 against one cotenant does not bind the other, 168. 
 
 JUDGMENTS IN PAETITION, 
 
 the first judgment, 516. 
 
 the first judgment determines the moieties, 517. 
 
 the first judgment may give special directions, 518, 
 
 the first judgment is not final, 519. 
 
 See Final Judgment. 
 
 JUBISDICTION IN PAETITION, 
 
 at common law, 420. 
 
 by English statutes, 421. 
 
 history of chancery jurisdiction, 423, 
 
 advantages of chancery jurisdiction, 425, 
 
 personal property, 426. 
 
 in the United States, 428. 
 
 presumption in favor of, 528. 
 
 JUEY, 
 
 are judges of ouster, 232. ' 
 
 must find ouster in direct terms, 233. 
 from what may infer ouster, 242. 
 
 KANSAS, 
 
 actions between cotenants, 320 n. 
 who may compel partition, 461 n. 
 what may be partitioned, 461 n. 
 parties in partition, 483 n. 
 
 KENTUCKY, 
 
 survivorship aboUshed, 35. 
 
 tenancy by entireties, 65. 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction of partition, 428 n, 
 
 who may compel partition, 461 n. 
 
 what may be pai-titioned, 461 n. 
 
 parties in partition, 483 n.
 
 INDEX. 689 
 
 LAPSE OF LEGACY OR DEVISE, 
 
 none when in joint-tenancy, ^ 28. 
 under American statutes, 40. 
 ■when made, in tenancy in common, 109. 
 when made to several as a class, 110. 
 
 LEASE, 
 
 may sever a joint-tenancy, 30. 
 
 agreement to croj) on the shares is not a, 100. 
 
 of one cotenant to another,. 164, 268. 
 
 of one cotenant to another gives right to distrain, 164, 268. 
 
 whether one lessor can terminate, 180. 
 
 whether notice to one lessee terminates, 181. 
 
 by cotenants, general effect of, 226. 
 
 possession acquired by, must be surrendered, 250. 
 
 gives the lessee the rights of the lessor, 253. 
 
 joinder of lessees in actions under, 336, 346. 
 
 division of rents, 346. 
 LEGACY, 
 
 lapsing of, 28, 40, 109, 111. 
 
 tenancy by entirety in, 68, 
 LEGAL COMMUNITY, 
 
 defined, 124. 
 
 modifications of, 125. 
 
 of what property composed, 126. 
 
 LEGISLATIVE GRANTEES, 
 
 are tenants in common, 91. 
 LESSEES, 
 
 joinder in actions on covenants, 336. 
 
 as parties in partition, 480. 
 LESSORS, 
 
 joinder in actions for rent, 446. 
 
 whether entitled to partition, 446. 
 LEVY, 
 
 of execution on interest of a cotenant, 213-215. 
 
 of execution must embrace cotenant's interest in the whole tract, 216. 
 
 of execution on severable chatties, 252. 
 LIABILITIES, 
 
 of part owners of ships, 384-388. 
 LIABILITIES OF COTENANTS INTER 8ESE, 
 
 classified, 257. 
 
 for use and occupation, 258. 
 
 to account, 259. 
 
 for services, 200. 
 
 for repairs and improvements, 261. 262. 
 
 for removal of leins, 263, 176. 
 
 for removal of adverse titles, 203. 
 
 for expenditures for common benefit, 263. 
 
 for moneys collected for insurance. 264. 
 
 C. & p.— 44
 
 INDEX. 690 
 
 LIABILITIES OF COTENANTS INTER 8ESE {cfmtinued), 
 
 for injuries to common property, § 265, 176. 
 
 for neglect of common property, 266. 
 
 of copatentees, 89. 
 
 of part owners ships, 384, 385. 
 
 of owners party wall, 385. 
 LIENS, 
 
 on homestead, 58. 
 
 on homestead cannot be renewed by husband, 58. 
 
 on tenancy by entireties, 73, 74. 
 
 of part owners of ships, 386. 
 
 how affected by voluntary partition, 415. 
 
 how affected by compulsory partition, 478. 
 
 how affected by sale in partition, 479. 
 LIMIT OF HOMESTEADS, 59. 
 LIMITATIONS, STATUTE OF, 
 
 cotenant may jilead, 153. 
 
 commencement of, 373. 
 
 in actions against strangers to the cotenancy, 374. 
 
 where part of plaintiffs are exempt from, 359, 375, 376. 
 
 where person exempt from, sues alone, 377. 
 
 claim under deed for the whole, 197, 224. 
 
 title under, against a cotenant, 224, 242. 
 
 does not bar suit for partition, 491. 
 
 LIS PENDENS, 
 
 in partition, 470. 
 
 LOUISIANA, 
 
 community law of, in, 130. 
 deed to wife, effect of in, 146. 
 
 LUNATICS, 
 
 as defendants in partition, 469, 
 
 MAINE, 
 
 presumption against joint^tenancy, 35 n. 
 
 tenancy by entfreties, 65. 
 
 actions between cotenants, 320 n. 
 
 actions by cotenants, 372 n. 
 
 who may compel partition, and of what, 461 n. 
 
 parties defendant in partition, 483 n. 
 MAKRIED WOMEN, 
 
 when bound by voluutar3- partition, 411—413. 
 
 as plaintiffs in i:)ai'tition, 458. 
 
 as defendants in partition, 460. 
 
 should join husband in suit for partition, 477. 
 
 See CoMMtTNiTY Pkopkkty, Dowp:i;, Homestead. 
 
 MAKYLAND, 
 
 presumption against joint-tenancy, 35 n. 
 who may compel partition, and of what, 461 n.
 
 INDEX. G91 
 
 MASSACHUSETTS, 
 
 presumption agaiust joiut-teiiaucj-, vi 35 n. 
 
 homestead, estate in, 52 n. 
 
 tenancy by entireties, 65. 
 
 actions between colenants, 320 u. 
 
 actions by cotenants, 372 n. 
 
 coirrts lia\ing jurisdiction in partition, 428 >i. 
 
 who may compel partition, and of what, 461 n. 
 
 parties defendant in partition, 483 n. 
 
 MEN. 
 
 may liold as coparceners, 77, 79. 
 
 MERCHANTS, 
 
 do not hold together as joint-tenants, 20. 
 
 METES AND BOUNDS, 
 
 conveyance of cotenant by, held void, 199. 
 
 conveyance of cotenant, reasons for holding void, 200. 
 
 lease by, 200. 
 
 conveyance by, .sustained in certain States, 201-205. 
 
 conveyance by. valid between the parties, 206. 
 
 conveyance by, effect after partition, 207. 
 
 conveyance by. gi-antee of, as defendant in partition, 465. 
 
 MICHIGAN, 
 
 presumption against joint-tenancy, 35 n. 
 
 tenancy by entireties, 65. 
 
 actions between cotenants, .320 n. 
 
 actions by c(-)tenants, 372 ><. 
 
 courts having jui'isdictioii of partition, 428 a. 
 
 who may a})ply for partition, and of what, 461 n. 
 
 MILLS, 
 
 partition of, 433. 
 
 MINERALS, 
 
 conveyance of, by one cotenant, 198, 
 
 MINES AND MINING RIGHTS, 
 
 partition of, 433, 435. t 
 
 MINNESOTA, 
 
 j)resumption against joint-tenancy, 35 n. 
 actions between cotenants, 320 n. 
 courts having juiisdiction in partition, 428 n. 
 who may comijel jjartition, and of what, 161 n. 
 parties defendiint in partition, 483 n. 
 
 MISJOINDER. 
 
 of i)ersons as cotenants who are not, 359. 
 
 of cotenants barred by statute of limitations, 3511, 378. 
 
 how taken advantage of, 300. 
 
 how taken advantage of under the codes, 361. 
 
 of applicant for partition, 459.
 
 692 INDEX. 
 
 MISSISSIPPI, 
 
 tenancy by entireties in, ^ 65. 
 
 actions by cotenants, 372 n. 
 
 courts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 ». 
 
 parties defendant in partition, 483 n. 
 
 MISSOURI, 
 
 presumption against joint-tenancy^ 35 n, 
 
 tenancy by entireties, 65. 
 
 community property, 126. 
 
 actions between cotenants, 320 n. 
 
 actions by cotenants, 372 n. 
 
 courts having jurisdiction in partition^ 428 n. 
 
 who may compel partition, and of what, 461 n, 
 
 parties defendant in partition, 483 n, 
 
 MISTAKE IN PARTITION, 
 
 ground for relief in equity, 534. 
 
 MIXED COTENANCY,' 
 
 what is, 8. 
 
 in separate and common property, 142. 
 
 actions in regard to, 332. 
 
 MORTGAGE, 
 
 severance of joint-tenancy by, 30. 
 
 of jjie whole as evidence of an ouster, 226. 
 
 simultaneous mortgages, 102. 
 
 cannot be redeemed by moieties, 371. 
 
 MORTGAGEES, 
 
 when hold as joint-tenants and when tenants in common, 16, 42. 
 
 survivor of, 16. 
 
 under simultaneous mortgages, 102. 
 
 right to partition, 102, 452. 
 
 one may release for all, 178. 
 
 how affected by partition, 478. 
 
 cannot be compelled to take payment in moieties, 371» 
 
 MORTGAGORS, 
 
 must pay and redeem jointly, 371, 
 right to partition, 452. 
 
 NECESSARY PARTIES, 
 
 to suits for partition, 462-483. 
 
 all cotenants are in partition, 463. 
 
 death of one, heirs must be brought in, 464. 
 
 see parties defendant in partition. 
 
 NEGLIGENCE, 
 
 liability of coteuant for, 266.
 
 INDEX. 693 
 
 NEVADA, 
 
 presumption against joint-tenancy, $ 35. 
 
 homestead, 48. 
 
 community property, 129, 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction of partition, 428 n. 
 
 who may compel partition, and of what, 461 n. 
 
 pai'ties defendant in jDartition, 483 n. 
 
 NEW HAilPSHIKE, 
 
 presumption against joint-tenancy, 35 ?i. 
 actions between cotenants, 320 n. 
 courts ha'S'ing jurisdiction of partition, 428 n. 
 who may compel pai-tition, and of what, 461 n. 
 parties defendant in partition, 483 n. 
 
 NEW-JEKSEY, 
 
 presumption against joint-tenancy, 35 n. 
 
 tenancy by entireties, 65. 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction in partition, 428 Ji. 
 
 who may compel partition, and of what, 461 n. 
 
 parties defendant in partition, 483 n. 
 
 NET\^ YOKE, 
 
 presumption against joint-tenancy, 35 n. 
 
 tenancy by entireties, 65. 
 
 actions between cotenants, 320 n. 
 
 courts ha\nng jui'isdiction in partition, 428 n. 
 
 who may compel partition, and of vrbat, 461 n 
 
 parties defendent in partition, 483 n. 
 
 NONJOINDEK OF COTENANTS, 
 
 how objected to in trespass and trover, 353. 
 
 how objected to in actions on contract, 354. 
 
 how objected to in detinue and replevin, 355. 
 
 how objected to under the codes, 361. 
 
 whether failure to object to, permits plaintiff to recover the whole, 356, 
 
 357. 
 waiver of right to object to, 358. 
 
 NON TENENT INSIMUL, 
 plea of, 496. 
 
 NORTH CAROLINA, 
 
 survivorship abolished, 35 n. 
 
 tenancy hy entireties in, 05. 
 
 actions between cotenants, 320 n. 
 
 courts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 n.
 
 694 INDEX. 
 
 NOTICE, 
 
 of partnership character of real estate. § 120. 
 of community character of real estate, 135. 
 of separate property character of real estate, 145. 
 to one cotenant does not bind the others, 171. 
 to hnsband does not afl'ect wife, 171. 
 to quit, given by one lessor, 180. 
 to quit, given to one lessee, 181. 
 of adverse claim, 224, 225. 
 
 of ouster, what is, and when necessary, 229, 230, 242. 
 to defendants in partition, 492. 
 of meeting of commissioners in partition, 521. 
 NUISANCE, 
 
 joinder of cotenants in actions for, 351. 
 
 OFFICER, 
 
 right to levy under execution against cotenant, 213, 214. 
 
 levying on interest of cotenant must take exclusive possession, 215. 
 OHIO. 
 
 joint-tenancy abolished, 35 n. 
 
 tenancy by entireties, 66. 
 
 actions between cotenants, 32U n. 
 
 comts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 ti. 
 
 parties defendant in partition, 483 n. 
 ONEROUS TITLE, 
 
 defined, 133, 140. 
 ONUS OF PROOF, 
 
 to show severaiice of joints tenancy, 32. 
 
 to show whether property is community, 143. 
 
 to obtain sale in partition, 537. 
 OREGON, 
 
 joint-tenancy aboUshed, 35. 
 
 actions between cotenants, 320 /*. 
 
 courts having jru'isdictiou of partition, 428 n. 
 
 who may compel partition, and of what, 4G1 n. 
 
 parties defendant in partition, 483 n. 
 
 ORIGIN, 
 
 of cotenancy, 1. 
 
 OUSTER OF ONE COTENANT BY ANOTHER. 
 
 general description of, 221, 301. 
 
 is a question of intent, 221. 
 
 burden of proving, 22. 
 
 waiver of proof of, 222. 
 
 by adverse entry, 223. 
 
 by entry under conveyance in severalty, 224, 225. 
 
 not by conveyance without entry, 226. 
 
 not by mortgage without entry, 226.
 
 INDEX. 
 
 OUSTER OF ONE COTENANT BY ANOTHER {contbiMd), 
 by entrj' nnder decree of partition, ^ '2'27. 
 from part only, 228. 
 
 notice of, what is and when necessary, 229, 230. 
 as a defense, and as a cause of action, 231. 
 when demand for possession and refusal, ai-e essential to, 231. 
 is question of fact for the jury, 232. 
 must be found in direct terms, 233. 
 by force, 234. 
 may be without force, 234. 
 by denial of title, 235. 
 
 by refusal to let cotenant into possession, 236. 
 by exclusive receipt of rents, 238. 
 by cutting timber, 239. 
 by erecting bviikliugs, 240. 
 must be by unequivocal acts, 241. 
 from What inferred, 242. 
 pui'chase after, 243. 
 EngUsh statutes, 244. 
 proof of, in ejectment, 291, 292. 
 trespass for, 300. 
 
 OUTSTANDING TITLE, 
 
 pui-chase of, does not concede its validity, 106. 
 
 by one cotenant, 1.54. 
 
 by one cotenant. when he may enforce, 156. 
 
 OWELTY, 
 
 in partition, 506. 
 
 OWNERSHIP, 
 
 of line ti-ees, 97. 
 of x^arty walls, 98. 
 
 PARCENERS. 
 
 See COPAEOENEBS. 
 
 PABOL PARTITION, 
 
 when valid at common law, 396. 
 
 claimed to be invalid since the statute of frauds, 397. 
 
 upheld notwithstanding the statutes, 398, 
 
 Qf trust estates, 399. 
 
 efifect on the legal titles, 100. 
 
 enforcing in equity, 402. , 
 
 under the Mexican law, 403. 
 
 PARTIES DEFENDANT IN PARTITION, 
 
 division of the subject, 462. 
 
 all the cotenants are necessary parties, 463. 
 
 death of defendant pendente lite, 464. 
 
 grantee of special location, 465. 
 
 married women, 466. 
 
 5iifiintH, 407. 
 
 695
 
 696 INDEX. 
 
 PARTIES DEFENDANT IN PARTITION (continued), 
 infants when granted a new partition, § 468. 
 lunatics, 469. 
 
 purchasers pendente lite, 470. 
 administrators, 471. 
 wife of a tenant in common, 472, 474. 
 widow of tenant in common, 472. 
 widow of tenant in severalty, 472. 
 claimant of homestead, 473. 
 
 wife of cotenant, where a sale is sought, 474, 475 
 widow's dower, where sale is sought, 476. 
 husband of cotenant, 477. 
 Uenholders, 478. 
 
 lienholders, where sale is sought, 479. 
 lessees, 480. 
 disseizors, 481. 
 persons not in esse, 482. 
 holders of contingent interests, 482. 
 untnown owners, 483. 
 
 PARTIAL PARTITION, 508. 
 
 PARTITION, 
 
 none of homestead, between husband and wife, 60. 
 
 destroys homestead, 61. 
 
 none of tenancy by entireties, 71. 
 
 certain property not divisible, 80. 
 
 of lands of proprietary, 99. 
 
 of mortgagee's estate, 102. 
 
 effect on holder of special location, 203, 207. 
 
 talcing possession under decree of, 227. 
 
 defined, 393. 
 
 when voluntary and when compulsory, 394. 
 
 allotments, how made, 394. 
 
 by arbitration, 395. 
 
 by deed to take effect on condition subsequent, 395. 
 
 joint-tenants must make, by deed, 396. 
 
 tenants in common, could make by parol, 396. 
 
 coparceners could make by jDarol, 396. 
 
 history of the wiit of, 420. 
 
 at common law, issued only to coparceners, 420. 
 
 statutes of Henrj^VIII., 421. 
 
 statutes of William III., 421. 
 
 outline of proceedings at common law, 422. 
 
 origin and history of chancery jmisdiction, 423. 
 
 right to partition in chancery is absolute, 424. 
 
 advantages of proceeding in chancery, 425. 
 
 personal property, 426. 
 
 in equity, required to be completed by conveyances, 427. 
 
 at law, did not require to be completed by conveyances, 427.
 
 INDEX. 697 
 
 PAETITION {contimted), 
 
 courts having jurisdiction trf, in United States, § 429. 
 
 remedy given by statiites, wlietlier cumulative, 428. 
 
 is a matter of absolute right, 133. 
 
 not gi-anted against i^aramount rights, 434, 438. 
 
 not gi-anted against public policj', 438. 
 
 not granted iu ships, 391, 392. 
 
 whether suit for, must be adversary, 452, 458, 459. 
 
 all equities may be adjusted in, 505, 506. 
 
 owelty, 507. 
 
 partial partition, 508. 
 
 setting off improvements, 509. 
 
 granting compensation for improvements, 510, 511. 
 
 accounting in, 512. 
 
 compelling conveyance in, 513. 
 
 injunction in, 514. 
 
 the first judgment, 515. 
 
 the first judgment determines the moieties, 517. 
 
 the first judgment may give special directions, 518. 
 
 the first judgment is not final, 519. 
 
 writ, form and retm-n of, 520. 
 
 commission, contents of, 521. 
 
 final judgment, 527. 
 
 final judgment not collaterally assailable, 528. 
 
 final judgment has effect as in actions real, 529. 
 
 final judgment bound possession only, 529 . 
 
 final judgment now binds title where it is in issue, 531. 
 
 final judgment, effect on after-acquired title, 532. 
 
 failure of title after partition, 533. 
 
 correcting and vacating in equity, 534. 
 
 See VoLUNTAKY Paktition, Peopkett Liable to Partition, Peesons 
 
 ENTITLED TO PARTITION, PLEADINGS IN PARTITION, PARTIES DEFEN- 
 DANT IN Partition, Sale in Partition, Warranty. 
 
 PAETNEESHIP, 
 
 not embraced in the plan of this work, 3. 
 
 difference from cotenancy. 111. 
 
 how created. 111. 
 
 real estate of, is held in cotenancy at law, 112. 
 
 real estate of, how treated in equity, 113. 
 
 real estate of, effect of mere purchase by partners, 114. 
 
 real estate of, effect of jiayment for, out of firm assests, 115. 
 
 real estate brought into the partnership, 116. 
 
 real estate of, when treated as personalty, 117. 
 
 real estate of, to what extent treated as personalty, 118. 
 
 real estate of, how conveyed, 112, 119. 
 
 real estate of, purchase by stranger without notice, 120. 
 
 real estate of, partition of, 443.
 
 B98 INDEX. 
 
 PAET OWNERS OF SHIPS, 
 
 are tenants in common of the ship, 5* 379, 386. 
 
 are pailners of the earnings, 379, 386. 
 
 clifi'er from other tenants in common, 381, 382. 
 
 relations, 383. 
 
 agency, 383, 384. 
 
 lien, 386. 
 
 rights, remedies, and liabilities, inte>- sese, 385. 
 
 joinder in actions, 387. 
 
 liable in solido, 388. 
 
 disagreeing, in reference to ship's employment, 389. 
 
 whether sale can be compelled, 391, 392. 
 PARTY WAJLLS, 
 
 presumed to be held in cotenancy, 98. 
 
 title to, follows that of land beneath, 98. 
 
 creation of, 98. 
 
 rights of owners of, 255. 
 
 continuance of, 256. 
 
 rebuilding, 256. 
 
 liability for injuries occasioned in repairing, 267. 
 PATENT EIGHT, 
 
 rights of part owners of, 89. 
 PATENT FOR LANDS, 
 
 simultaneous patents for same land, 103. 
 
 where one patentee is dead, 109. 
 PAYMENT, 
 
 when may be made to one cotenant for all, 177, 178. 
 
 PENNSYLVANIA, 
 
 suiwivorship abolished, 35 n. 
 
 tenancy by entireties in, 65. 
 
 actions between cotenants, 320 n . 
 
 courts having jurisdiction in partition in, 428 >i. 
 
 who may compel partition, and of what, 461 n. . 
 
 parties defendant in partition, 483 n. 
 
 PERSONAL PROPERTY, 
 
 joint-tenancy in, 16. 
 
 tenancy by entireties in, 68. 
 
 real estate of partnership treated as, 117, 133. 
 
 change of possession, when necessary to vahd sale, 219. 
 
 right of each cotenant to be in possession of, 245. 
 
 one cotenant cannot recover from another by law, 245. 
 
 right to se-ver and partition, 252. 
 
 actions between coteuants for possession of, 287-289. 
 
 actions between cotenants for trespass on, 297, 304. 
 
 actions between cotenants for conversion of, 306-319. 
 
 partition of, in chancery, 426. 
 
 partition of, none at law, 426. 
 
 partition of, while adversely held, 448.
 
 INDEX. 699 
 
 PEESONS ENTITLED TO PAKTITION, 
 
 only owners of estates in possession, S 446. 
 
 disseized cotenants are not, 447. 
 
 disseized cotenants of personal property, 448. 
 
 disseized cotenants when chancery will grant partiiiou for, 449. 
 
 states where adverse possession is no bar to partition, 450. 
 
 transfer of right to partition, 451 . 
 
 moi-tgagors and mortgagees, 452. 
 
 holder of equitable title, 453. 
 
 administiator and heir, 454. 
 
 tenants for Kfo or for years, 455. 
 
 tenants by curtesy or in dower, 456. 
 
 infants, 457. 
 
 married women, 458. 
 
 joinder and misjoinder of applicants. 459, 
 
 must be entitled when petition is filed, 460. 
 
 cotenant by disseizin or tax title, 461. 
 
 PERSONS NOT IN ESSE, 
 
 bound by partition, 482. 
 
 PISCARY UNCERTAIN, ' 
 
 is not subject to partition, 434. 
 
 PLEA IN ABATEMENT, 
 
 not allowed in jjartition, 422, 496. 
 
 PLEADINGS IN PARTITION, 
 
 the declaration at common law, 484. 
 
 the allegation of holding together, 485. 
 
 the deraignment of title, 486. 
 
 the description of the premises. 487. 
 
 the description of the moieties of the respective parties, 488. 
 
 variance between the interest stated and that proved, 489. 
 
 allegation of a demand for partition, 490. 
 
 allegation of necessity for a sale, 191. 
 
 form of complaint, 491 n. 
 
 the repUcatiou, 492. 
 
 the defendant's pleadings, 495, 496. 
 
 the defendant's demurrer, 495. 
 
 the defendant's objection for uncertainty in description, 495. 
 
 pleas in abatement, 496. 
 
 the general issue, 497. 
 
 the general issue, form of, 497 n. 
 
 statement of defendant's title and equities, 499. 
 
 cross-Vjill, .504. 
 
 PLEDGE OF PROFER'IY, 
 
 made by out; (totenant, 184. 
 
 POLICY OF INSURANCE, 
 
 how affected by conveyance by one cot«nant, 218.
 
 700 INDEX. 
 
 POSSESSION, 
 
 equal rights of cotenants to, ^ 87. 
 
 is notice of partnership, character of real estate, 120. 
 
 by one cotenant presumed to be for all, 166, 167, 222. 
 
 change of, not necessary to sale, 167, 219. 
 
 conveyance by cotenant out of, 192. 
 
 how taken by ofl&cer levying execution, 214, 215. 
 
 taken under deed for the whole, 224. 
 
 refusal to let cotenant in, is an ouster, 236. 
 
 demand for, how made, 237. 
 
 adverse, as evidence of ouster, 242. 
 
 hostile character of, how lost, 243. 
 
 of personal property, no action against cotenant to recover, 245. 
 
 of pledgee or bailee of the cotenants, 246. 
 
 of deed or lease, who entitled to, 247, 248. 
 
 acquired by lease must be surrendered, 250. 
 
 does not include right to destroy, 251. 
 
 actions between cotenants for, personalty, 287, 289. 
 
 right to, necessary in partition, 446, 447. 
 
 of personal property not necessary to partition, 448. 
 
 POSSESSORY INTEREST, 
 
 may be held as a homestead, 55. 
 
 POWTERS, 
 
 coupled with an interest, defined, 44. 
 coupled with an interest, survive, 44. 
 what authorize making of partition, 416. 
 PRESUMPTIONS, 
 
 in favor of joint-tenancy, 18. 
 
 against joint-tenancy where property is acquired in trade, 19, 20. 
 
 against joint-tenancy from inequality in purchase money, 20. 
 
 in favor of joint-tenancy, how rebutted, 21, 22. 
 
 in regard to joint-tenancy, statutes changing, 35. 
 
 of relative interests of cotenants, 105. 
 
 from deed to two, 106. 
 
 from j)urchase of realty with partnership funds, 115. 
 
 from appropriating realty to partnership uses, 116. 
 
 of community property, 143. 
 
 from deed to a wife, 144. 
 
 that the entry of one cotenant is for all, 166, 222. 
 
 that the possession of one cotenant is for all, 166, 167. 
 
 that the relations of cotenants are amicable, 166. 
 
 against ouster, 222. 
 
 from adverse entry, 223. 
 
 from entry under deed in severalty, 224. 
 
 from entry under decree of partition, 226. 
 
 what warrants presumption of ouster, 242. 
 
 what warrants presumption of partition, 408. 
 
 PROCEEDS OF SALE, 
 
 in partition, how distributed, 549.
 
 INDEX. 
 
 PROCESS, 
 
 service of, iu partition, ^ 493. 
 
 PROMISSORY NOTE, 
 
 may be assigned in moieties, 93. 
 PROPERTY, 
 
 is general or special, 1. 
 all kinds may be held iu joint-tenancy, 16. 
 what held in joint-tenancy under American statutes, 41. 
 what may be held by entireties, 67, 68. 
 what may be held by coparcenary, 80. 
 what may be held by tenancy in common, 88. 
 what is embraced iu community assets, 126. 
 PROPERTY SUBJECT TO COMPULSORY PARTITION, 
 general division of, -430. 
 must be held in cotenancy, 431. 
 dower interests, 432. 
 difficulty of partition, 433. 
 mUls, mining and water rights, 433, 435. 
 incorporeal hereditaments, 434. 
 advowsins, tithes, estovers, corodies, commons, 434. 
 standing trees, 436. 
 of several tracts in one suit, 437. 
 no partition against public pohcy, 438. 
 no partition against paramoiant rights, 438. 
 no partition, castle for defense, 438. 
 no partition, cemetery, 438. 
 estates liable to partition, 439. 
 estates at will, 439. 
 copyholds, 439. 
 
 estates in adverse possession, 439. 
 estates in reversion or remainder, 440, 441. 
 agreements not to partition, 442. 
 custom not to partition, 442. 
 partnership property, 443. 
 tenancy by entireties, 444. 
 community property, 445. 
 PROPRIETARIES, 
 
 held by tenancy in common, 99. 
 managed like corporations, 99. 
 partition of, 99, 405. 
 one member cannot release for all, 179. 
 
 PURCHASE, 
 
 of realty without notice of its partnership character, 120. 
 
 of realty held in name of wife, 145. 
 
 of adverse title by a cotenaut, 154-156. 
 
 of adverse title by husband of a cotenant, 160. 
 
 by a cotenant at voluntary sale, 165. 
 
 by a cotenant at execution sale, 165. 
 
 from a cotenaut, when niakcs previous possession amicable, 234. 
 
 701
 
 702 INDEX. 
 
 PURCHASE MONEY, 
 
 inequality in paying, creates presumption that the parties are not joint- 
 tenants, v^ 20. 
 
 QUIETING TITLE, 
 
 by action between cotenants, 326. 
 
 RATIFICATION, 
 
 by one cotenant of act of another, 188. 
 of invalid partition, 535. 
 
 REAL ACTION, 
 
 res judicata of, 529. 
 partition is, 529. 
 
 REAL ESTATE. 
 
 rights of each cotenant to possession of, 248. . 
 
 right of each cotenant to take possession of, 250. 
 destructive use of, 251. 
 redemption by one cotenant, 176. 
 
 REAL ESTATE OF A PARTNERSHIP, 
 
 the legal title is held in cotenancy, 112, 
 treated in equity as personalty, 113. 117. 
 convei-sion into personalty, 114. 
 presumption from purchase with tinii assets, 115. 
 presumption from appropriating to iirm use, J 16. 
 to what extent treated as personalty, 118. 
 conveyance of, 112, 119. 
 conveyance to person having no notice, 120. 
 RECEIVER, 
 
 when appointed for cotenants, 327. 
 when appointed in i^artition, 513. 
 
 REDEMPTION OF LANDS, 
 
 by one cotenant for another, 176. 
 
 by one cotenant under disability, 176. 
 
 (4aim for contribution for, 176. 
 
 cannot be made in moieties, 176, 371. 
 REDUNDANT COTENANCY, 
 
 defined, 8. 
 RE-ENTRY, 
 
 mere right to, does not •entitle cotenant to partition, 533. 
 REFUSAL BY ONE COTENANT, 
 
 when affects the others, 173. 
 
 RELATIONS OF COTENANTS, 
 genei-al statement of, 150. 
 are those of mutual trust, 151. 
 commencement and duration of, 161, 162. 
 jirevent either from assailing common title, 152. 
 do not prevent operation of statute of limitations, 153.
 
 INDEX. 
 
 RELATIONS OF COTENANTS (continued), 
 purchase of adverse title, ^ 154, 156. 
 
 difference between joint-tenants and tenants in common, 155. 
 renewal of lease, 157. 
 buying tax title, 158. 
 
 purcliase from grantee of a tax title, 159. 
 husband of cotenant, 160. 
 whether depends ou valid title, 163. 
 
 does not i^reveut their contracting with one another, 164. 
 does not jireveut Iheir leasing from one another, 164. 
 does not prevent their buying at execution sale, 165. 
 presumed to be amicable, 160. 
 seizin of one, when the seizin of all, 167. 
 one not boiuid by estoppel against another, 168. 
 one may be witness for or against another, 168. 
 one not bound by judgment against anoUier, 168. 
 one not bound by admissions of another, 169. 
 one not bound by covenants of another, 196. 
 one not bound by representations of another, 170. 
 one not bound by notice to another, 171. 
 one not bound by act of another, 172. 
 one when bound bj- refiisal of another, 173. 
 one when bound by beneficial acts of another, 174, 175. 
 redemption by one for all, I7f'>. 
 payment to one, 177, 17(S. 
 accord and satisfaction \vith one, 178. 
 release of one, 179. 
 notice to quit given by one only, 180. 
 notice to quit given to one only, 181. 
 are not agents for one another, 182, 183. 
 pledge made by one only, 184. 
 easement made by one only, 185. 
 of part owners of slii])s, 383. 
 
 ItELEASE. 
 
 by one cotenant for all, 179. 
 
 how pleaded. 179. 
 
 of purchaser at partition sale, 547. 
 
 IIELEASE, DEED OF, 
 
 tenants in common cannot convey by, 189. 
 
 is proper.froiii joi)it-t(iiiint to joint-tenant, 190. 
 
 is) rn])( r, fmni < ojiarcener tocoparcener, 191. 
 
 KELIGIOUS SOCIETY, 
 
 members of, are tenants in common, 114. 
 
 i{EM(nAL OF PERSONALTY, 
 whether a conversion, 317. 
 
 RENEWAL OF INCUMBRANCE, 
 ou a homestead, 58. 
 
 703
 
 704 INDEX. 
 
 BENTS, 
 
 of separate property, $ 141. 
 
 exclusive receipt as evidence of an ouster, 238, 242. 
 
 accounting for, between cotenants, 273. 
 
 liability of cotenants to account for, 274-276. 
 
 assumpsit for, 280-286. 
 
 apportionment of, where there are several cotenants, 346. 
 
 REPAIRS, 
 
 liability of cotenant for, 261. 
 
 remedy at common law, 261. 
 REPLEVIN, 
 
 between cotenants, 289. 
 
 joinder of cotenants against third persons, 337, 338. 
 
 non-joinder of cotenants, how available, 355. 
 REPRESENTATIONS, 
 
 made by one cotenant do not bind another, 170. 
 RESTRAINTS ON COTENANTS, 
 
 in assailing common title, 152. 
 
 in renewing lease, 153. 
 
 in buying tax title, 158. 
 
 none against contracting inter sese, 164. 
 
 none against buying interest of the other at execution sale, 165. 
 
 commencement and duration of, 161, 162. 
 
 whether dependent on valid title, 163. 
 
 See Relations of Cotenants. 
 RETROACTIVE STATUTES, 
 
 in reference to joint-tenancy, 36. 
 
 RETURN, 
 
 to writ of partition, 519. 
 to commission in partition, 522. 
 vacating, 524, 525. 
 REVERSION AND REMAINDER, 
 
 partition of estates in, 440, 441. 
 
 REVOCATION, 
 
 of devise to cotenants, 109. 
 
 RHODE ISLAND, 
 
 presumption against joint-tenancy, 35. 
 
 actions between cotenants, 320 n. 
 
 actions by cotenants, 372 n. 
 
 courts having jurisdiction in partition, 428 n, 
 
 who may compel partition, and of what, 461 n. 
 RIGHTS OF COTENANTS INTER SESE, 
 
 to possession of their personalty, 245. 
 
 to pledge their personalty, 246. 
 
 to possession of their deed or lease, 247. 
 
 to possession of their real estate, 248, 249. 
 
 to take possession of their property, 250. 
 
 to enjoy, but not to destroy, 251. 
 
 to sever personal projierty, 252.
 
 INDEX. 705 
 
 RIGHTS OF COTENANTS INTER SESE (coniimud), 
 of lessee or licensee of cotenant, § 253. 
 of tenant in common of a crop, 254. 
 of owners of party wall, 255, 256. 
 of owners of ship, 385. 
 
 SALE, 
 
 agreement for, severs joint-tenancy, 30. 
 
 by one cotenant assuming to act for all, 183, 311. 
 
 change of possession not necessary between cotenants, 167, 219. 
 
 SALE IN PARTITION, 
 
 allegation for, in the complaint, 491. 
 
 when invalid, for non-compliance with statute, 466 
 
 where there are infants, 467. 
 
 where there are married women claiming dower, 474. 
 
 effect on lienholders, 479. 
 
 courts formerly had no power to decree a sale, 536. 
 
 present English law of, 536. 
 
 present American law of, 537. 
 
 grounds for, 537. . . . 
 
 parties must be entitled to partition, 538. 
 
 when a matter of right, 539. 
 
 laws authorizing, are constitutional, 541. 
 
 appraisement, 541. 
 
 when preferred, 542. 
 
 necessity of, by whom determined, 543. 
 
 not ordered until after the interlocutory judgment, 543. 
 
 may sell part and divide part, 543. 
 
 may sell in parcels, 543. 
 
 vacating sale, 545. 
 
 purchase by commissioner, 546. 
 
 release of purchaser, 547. 
 
 conveyance to purchaser, 548. 
 
 the purchaser's title, 548. 
 
 distributing the proceeds, 549. 
 
 SEIZIN, 
 
 of one cotenant, when the seizin of all, 167. 
 necessary to applicant for partition, 446, 447. 
 
 SEPARATE PROPERTY, 
 
 gift to husband and wife may be shown to be, 136. i 
 
 lands purchased with wife's funds, 137. 
 
 improvements on, 138. 
 
 crops on, 139. 
 
 increase of, 140. 
 
 rents and profits of, 141. 
 
 onus of establishing, 143. 
 
 presumption against, 143. 
 
 presumption from deed to wife, 144. 
 
 preeumption when may be overthrown, 145. 
 
 C. & p.— 45
 
 706 INDEX. 
 
 SEVERABLE CHATTELS, 
 
 defined, $ 252. 
 
 levy on, under execution, 252, 
 
 joinder, in suit for, 338. 
 
 SEVERALTY, 
 
 claimant in, whether bound by judgment against unknown owners, 483. 
 
 SEVERALTY, CONVEYANCE IN, 
 
 possession under, is adverse, 192. 
 
 gives no right to exclusive possession, 205. 
 
 rights of grantee in, 205. 
 
 effect when grantor acquires the whole title, 207. 
 
 grantees under different deeds, 212. 
 
 presumption from entry under, 224, 225. 
 
 not an ouster, unless possession is taken, 226. 
 
 SEVERANCE OF JOINT-TENANCY, 
 
 generally, 29. 
 
 by act of tenant, 30. 
 
 by agreement, 31. 
 
 by course of dealing, 32. 
 
 by execution, 33. 
 
 by part only of the joint-tenants, 34. 
 
 SHIPS, 
 
 part owners, are tenants in common of, 379. 
 
 shares into which divided, 380. 
 
 difference between part owners and tenants in common, 381. 
 
 cause of this difference, 382. 
 
 relations of part owners, 383. 
 
 agency and powers of part owners, 383, 384. 
 
 rights, remedies, and liabilities of part owners, 385. 
 
 lien of part owners, 386. 
 
 emploj'ment of, 389. 
 
 security for return of, 390, 391. 
 
 compulsory sale of, 391, 392. 
 
 SIMULTANEOUS CONVEYANCES, 
 of same property, 103. 
 
 SIMULTANEOUS LEVIES, 
 under executions, 103. 
 
 SIMULTANEOUS MORTGAGES, 
 on same property, 103. 
 
 SOUTH CAROLINA, 
 
 survivorship abolished, 35 n. 
 courts having jurisdiction of partition, 428 n. 
 who may compel partition, and of what, 461 n. 
 parties defendant in partition, 483 n. 
 
 SPAIN, 
 
 law of community property, 126. 
 law of voluntary partition, 404.
 
 INDEX. 707 
 
 SPECIFIC PEKFOEMANCE, 
 
 of agreement to partition, $ 402. 
 STATUTES. 
 
 abolishing and limiting joint-tenancy, 35 n. 
 
 when retroactive. 3G. 
 
 creating of joint-tenancy under, 37. 
 
 property not aflected by, 41. 
 
 do not apply to trust estates, 43. 
 
 afleeting husband's rights as tenant by entietires, 75. 
 
 in England, in regard to ouster, 244. 
 
 of Anne, gi^'ing action of account, 270. 
 
 regarding actions between cotenants, 320 n. 
 
 regarding actions by cotenants, 372 n. 
 
 of Henry YIII., in reference to partition, 421 >i. 
 
 of Wm. III., in reference to partition, 421. 
 
 regarding jui-isdiction of court in partition, 428 n. 
 
 regarding what may be partitioned, 451 n. 
 
 regarding -who may compel partition, 461 Ji. 
 
 regarding parties defendant in partition, 483 n. 
 
 regarding sale in partition in England, 536. 
 STATUTES OF FRAUD, 
 
 when not apjjUcable to sale from one cotenant to another, 167. 
 
 effect on parol partitions, 397, 398. 
 SUEVIVOESHIP, 
 
 between joint-tenants, 12. 
 
 between persons not joint-tenants, 12. 
 
 none between coparceners, 81. 
 
 in equity, 13, 
 
 defense of doctrine of, 13. 
 
 is paramount to dower and cui-tesy, 14. 
 
 is paramount to devise, 14. 
 
 between grantees, devisees, legatees, 28. 
 
 aboUshed in certain States, 35. 
 
 among trustees, 43. 
 
 among executors, 44. 
 
 of power coupled with an interest, 44. 
 
 in homesteads, 48, 62. 
 
 of cause of action on death of cotenant, 362. 
 
 of cause of action on death of all cotenants, 363. 
 
 of cause of action on death, pendente lite, 364. 
 
 of cause of action, rule not changed by statute, 365. 
 
 none between part owners of ships, 379. 
 
 TAX TITLE, 
 
 purchase of, by a cotenant, 158. 
 docs not affect those who have paid, 158. 
 purchase from grantee of, 159. 
 TENANCIES, 
 
 classified, 7, 8.
 
 708 INDEX. 
 
 TENANCY BY ENTIRETIES, 
 
 homestead resembles, $ 49, 
 
 definition, 63. 
 
 creation, 63, 69. 
 
 difference between, and joint-ten nncy, 64. 
 
 prevails generally in the United States, 65. 
 
 but not iti Ohio, Connecticut, nor Iowa, 66. 
 
 embraces every kind of realty, 67. 
 
 embraces every kind of personalty, 68. 
 
 husband and wife hold as one person, 70-72. 
 
 husband's powers, 73. 
 
 husband's powers, statutes affecting, 75. 
 
 sale under execution, 74. 
 
 divorce, 76. 
 
 notice to one spouse does not affect the other, 171. 
 
 partition, 444. 
 
 TENAJ^CY IN COMMON, 
 
 words creating, 23. 
 
 executory settlements, 23. 
 
 husband and wife holding in, 71, 72. 
 
 defined and described, 86. 
 
 entitles each cotenant to possession, 87. 
 
 embraces all kinds of property, 88. 
 
 of water, 88. 
 
 of franchises, 88 
 
 of trade mark, 88. 
 
 of patent rights, 89. 
 
 who may hold in, 90. 
 
 legislative grantees hold by, 91. 
 
 how created, 92. 
 
 creation by transfer of a part, 93. 
 
 creation by contract for shares, 94. 
 
 creation by confusion of goods, 95. 
 
 creation by grant of part not located, 96, 
 
 creation by grant cf part to be located, 96. 
 
 creation by trees growing across the line, 97. 
 
 creation by party walls, 98. 
 
 creation by proprietaries, 99. 
 
 creation by cropping on the shares, 100, 101. 
 
 creation by simultaneous mortgages, 102. 
 
 creation by simultaneous conveyances, 103. 
 
 creation by simultaneous devises, patents, or levies under execution, 103. 
 
 creation by equality of title, 103. 
 
 creation by voluntary associations, 104. 
 
 dower in lands held by, 107. 
 TENANT BY CURTESY, 
 
 entitled to partition, 456. 
 TENANT IN DOWER, 
 
 not entitled to partition, 456.
 
 INDEX. 709 
 
 TENANT FOE LIFE, 
 
 entitled to partition, $ 455. 
 
 TENANT FOK YEARS, 
 
 entitled to partition, 455. 
 homestead, rights of, 55. 
 
 TENANTS IN COMMON, 
 
 deed by one, to a person in possession, 104. 
 
 widow entitled to dower is not a, 108. 
 
 deed to several, when one is dead, 109. 
 
 gift to a class, 110. 
 
 conveyances between, 189. 
 
 joinder iti actions at law against third persons, 331. 
 
 joinder in actions in equity against thii'd persons, 369. 
 
 part owners of ships are, 379. 
 
 voluntary partition between, 396. 
 
 TENNESSEE, 
 
 joint-tenancy abolished, 35. 
 
 tenancy by entireties, 65. 
 
 courts ha^'ing jurisdiction in partition, 428 n. 
 
 who may comj^el partition, and of what, 461 n. 
 
 parties defendant in partition, 483 ?i. 
 
 TEXAS, 
 
 survivorship abolished, 35. 
 
 community, law of, 131. 
 
 coui-ts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 n. 
 
 TENURES, 
 
 English, 5. 
 American, 6. 
 
 TIMBER, 
 
 cutting, as evidence of ouster, 239. 
 cutting, when a destructive use, 251. 
 partition of, 436. 
 
 TITHES, 
 
 partition of, 434. 
 
 TITLE, 
 
 source of, in England, 5. 
 
 source of, in America, 6. 
 
 equality of, makes the holders cotenauts, 103. 
 
 when one cotenant may assail, 152. 
 
 purchase of adverse, 154, 263. 
 
 purchase of adverse, when may be asserted, 156. 
 
 purchase of adverse, by husband of a cotenant, J 60. 
 
 afttr-ucquired, subject to homestead, 56, 57. 
 
 tax title purchased by one cotenant, 159. 
 
 statement of, in partition, 485. 
 
 commissioners cannot determine, 521.
 
 710 INDEX. 
 
 TITLE (contimied), 
 
 not bound by common law partition, $ 529. 
 bound by partition under statutes, 531. 
 after-acquii-ed, how affected by prior partition, 532. 
 warranty in voluntary partition, 409, 410. 
 warranty in compulsory partition, 533. 
 
 TKADE, 
 
 teniu-e of property acquired in, 19, 20, 32. 
 
 TRADE MARK, 
 
 cotenancy in, 88. 
 
 TREES ON BOUNDARY LINE, 
 
 cotenancy in, 97. 
 
 TRESPASS, 
 
 between cotenants, 298. 
 
 between cotenants, for destruction, 299. 
 
 between cotenants, for ouster, 300. 
 
 between cotenants, for what ouster sustainable, 301, 302. 
 
 between cotenants, for mesne profits, 303. 
 
 against lessee of cotenant, 304. 
 
 against strangers to the cotenancy, 347. 
 
 against strangers to the cotenancy, nonjoinder in, 353. 
 
 TRESPASS TO TRY TITLES, 
 between cotenants, 296. 
 by cotenants against third persons, 348. 
 
 TROVER, 
 
 by cotenant for selling under execution, 310, 
 
 hy cotenant against third persons, 349. 
 
 by cotenant against third persons, when nonjoinder is not pleaded, 353, 
 
 against vendee of a cotenant, 311. 
 
 TROVER BETWEEN COTENANTS, 
 generally, 306. 
 when sustainable, 307. 
 for seUing chattels, 308-311. 
 for destruction of property, 312. 
 for destruction of rights, 313. 
 for destruction by emancipation, 314. 
 for allowing property to be lost, 315. 
 for changing form of chattels, 316. 
 for i-emoval of chattels, 317. 
 for refusing to put chattel to proper use, 318. 
 for refusing to divide chattels, 319. 
 
 TRUSTEES, 
 
 still hold as joint-tenants, 43, 44. 
 
 those who accept take the whole estate, 45. 
 
 TRUSTORS, 
 
 parol partition between, 399.
 
 INDEX. 
 
 UNITED STATES. 
 
 joinUtenancy in, § 35-46. 
 tenancy by entireties, 65. 
 coparcenary, 85. 
 
 UNITIES, 
 
 of joint-tenancy, 11. 
 
 of tenancy by entireties, 6i, 74. 
 
 of husband and wife, 70-73. 
 
 of coparcenary, 81. 
 
 of different cotenancies compared, 86. 
 
 UNKNOWN OWNERS, 
 
 applicant iu partition, may proceed against, 483. 
 are bound by the partition, 483. 
 claimants iu severalty, 183. 
 
 USE AND OCCUPATION. 
 
 Uability of cotenants for, 258, 269, 274-276. 
 
 VACATING, 
 
 the report of the commissioners in partition, 525, 526. 
 the sale in partition, 545, 547. 
 partition for mistake, fraud, etc., 534. 
 
 VARIANCE, 
 
 between complaint and proofs in partition, 488. 
 
 VERMONT, 
 
 presumption against joint-tenancy, 35 n. 
 
 tenancy by entireties in, 65. 
 
 actions between cotenants, 320 7i. 
 
 courts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 n. 
 
 parties defendant in partition, 483 n. 
 
 VIRGINIA, 
 
 survivorship aboUshed, 35. 
 
 tenancy by entireties, 65. 
 
 actions between cotenants, 320 n, 
 
 actions by cotenants, 372 n. 
 
 courts ha\ing jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 n. 
 
 VOLUNTARY PARTITION, 
 
 defined, 394. 
 
 methods of making allotments, 394. 
 
 by arbitration, 395. 
 
 how perfected, 396. 
 
 parol evidence to prove, 397. 
 
 by parol, effect of statute of frauds, 397. 
 
 by parol, followed by poKsoHsion, 398. 
 
 by parol of trust estate, 399. 
 
 by parol, effect on legal title, 400. 
 
 711
 
 712 INDEX. 
 
 VOLUNTARY PARTITION {continued), 
 
 by parol, American text-writers opposed to, ^ 401. 
 
 by parol, compelling performance of, 402. 
 
 by grantee of i^arcel to be located, 403. 
 
 by parol, under Mexican law, 404. 
 
 by parol, between owners of a proprietary, 405. 
 
 conveyances to perfect, 406. 
 
 by conveyances to strangers in severalty, 407. 
 
 presumption of, 408. 
 
 no warranty implied, 409. 
 
 States where warranty is implied, 410. 
 
 effect of wife of cotenant, 411. 
 
 effect of cotenant who is/e»ie covert, 412. 
 
 betweeii husband and wife, 413. 
 
 between infants, 414. 
 
 effect on interest in reversion, 415. 
 
 powers authorizing, 416. 
 
 agreements for, 417. 
 
 void in part void in whole, 418. 
 
 WARRANTY, 
 
 in voluntary partition, 409, 410. 
 
 in compulsory partition, 533. 
 WASTE, 
 
 action for, between cotenants, 305. 
 
 action for by cotenants, 350. 
 WATER RIGHTS, 
 
 may be held in cotenancy, 88. . 
 
 rights of cotenants of, 251. 
 
 partition of, 433. 
 WEST VIRGINIA, 
 
 survivorship aboHshed, 35 n. 
 
 actons between cotenants, 320 n. 
 
 courts having jurisdiction in partition, 428 n. 
 
 who may compel partition, and of what, 461 n. 
 WIDOW, 
 
 as party defendant in 23artition, 472. 
 
 as party defendant where sale is sought, 476. 
 
 WIFE, 
 
 interest in homestead, 48-53. 
 
 interest in property at civil law, 122. 
 
 interest in property at common law, 121. 
 
 when aiithorized to convey community assets, 148. 
 
 not bound by notice to her husband, 171. 
 
 of tenant in common as pai-ty to partition, 472. 
 
 claiming homestead as party to partition, 473. 
 
 of cotenant, how affected by sale in partition, 474. 
 
 See Community Pkopekty, Homestead, Sepabate Property, Tknanct 
 
 BY EnTIKETIES.
 
 INDEX. 713 
 
 WILL. 
 
 of husband, cannot affect wife's share of the community assets, $ 149. 
 
 WISCONSIN, 
 
 tenancy by entireties, G5. 
 
 actions between coteuants, 320 n. 
 
 actions bj- cotenants, 372 n. 
 
 who may compel partition, and of what, 461 n. 
 
 parties defendant in partition, 483 n. 
 
 WORDS, 
 
 creating joint-tenancy, 25. 
 
 creating tenancy in common, 23, 24. 
 
 creating tenancy by entireties, G9. 
 
 WORDS OF INHERITANCE, 
 
 not required in deed between joint-tenants, 190. 
 
 not required in deed between coparceners, 191. 
 
 required in deed between tenants in common, 189. 
 
 required in deed from all cotenants to third persons, 189-191. 
 
 WRIT OF PARTITION, 
 history of, 421. 
 
 granted at first to coparceners only, 421, 
 statutes extending, 421. 
 abolished in England, 421. 
 outline of proceedings by, 422, 
 «» issuing and form of, 520. 
 return, 520.
 
 ]0 732 540
 
 LAW LIBRARY 
 UNIVERSITY OF CALIFORNU 
 
 LOS ANGELES SEP 6 1952