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husband in right of his wife, or held by them jointly; and on a re

conveyance, by the grantee, to the husband or the wife, the latter grantee will hold in severalty. (Jackson v. Stevens, 16 John. 110.) The deed of the wife, in these cases, to be available, must be acknowledged before a proper officer. (Id. Jackson v. Cairns, 20 John. 301. Doe v. Howland, 7 Cowen, 277. Gillet v. Stanley, 1 Hill, 121, 125.)

The act concerning the rights and liabilities of husband and wife, passed on the 20th March, 1860, (Laws of 1860, ch. 90,) does not seem to affect estates conveyed to husband and wife jointly; but leaves unaltered the common law in this respect, whatever effect it may have on the estate of curtesy or dower.

Trustees who take an estate either of real or personal property in trust, hold by virtue of the statute in joint tenancy. They cannot denude themselves of that character by any arrangement between themselves, nor do they fall within the statute of partition. If, in execution of their trust, it becomes necessary to alien the estate, in whole or in part, they must all unite in the conveyance, and their grantee, in good faith, takes the estate discharged of the trust; and their grantees, if there be more than one, take as tenants in common, unless it be otherwise expressed in the deed. (Ridgley v. Johnson, 11 Barb. 527.)

Executors and administrators hold the property of the testator or intestate, cast upon them by law, as joint tenants; but they cannot, by their own act, make partition among themselves. Their authority over the trust fund is, in general, regulated by the testamentary law; and their power over it subject in a great degree to the control of the proper surrogate's court. (2 R. S. 220.)

SECTION III.

Of estates in common.

The usual title by which a joint ownership of estates is held in this state is by tenancy in common; and it is invariably so, whether the title be by grant or devise, unless declared to be in joint tenancy, or it be vested in executors or trustees as such. (1 R. S. 727, § 44.) This estate arises where two or more persons hold lands or tenements in fee simple, or for term of life or years, by several titles, and occupy the same lands or tenements in common. Since the statute, it may as well arise under a joint title, as a several title. The only

unity required between the tenants is that of possession. (Littleton, § 292.)

This estate may be created by the destruction of an estate in joint tenancy, as well as by an express limitation in a deed, or by a grant or devise to several without expressing that the grant or devise is in joint tenancy.

There is no survivorship among tenants in common, and therefore, on the death of one, his interest, if it be an inheritable interest, goes to his heirs, who thus become tenants in common among each other with respect to that share, and tenants in common with the survivors with respect to the whole estate; their interest being limited to that of their ancestor.

Tenants in common may have several distinct estates, either of the same or of a different quantity, in any subject of property, real or personal, in equal or unequal shares, and either by the same act or by several acts. The estate differs from that of joint tenancy, in this among other respects. Joint tenants have one estate in the whole, and no estate in any particular part; they have the power of alienation over their respective aliquot parts, and by exercising that power, may give a separate and distinct right to their particular parts. Tenants in common have several and distinct estates in their respective parts. Each tenant in common has, in contemplation of law, a distinct tenement, a distinct freehold, &c. (1 Preston on Estates, 139.) Unity of tenure in the different portions of the land is not, nor is unity of estate necessary to a tenancy in common. Unity of right of possession merely is all that is required. (Per Walworth, Ch. in Putnam v. Ritchie, 6 Paige, 398.)

The widow, with respect to her dower, before assignment, is not a tenant in common with the heir. Her right rests in action only. (Jackson v. O'Donaghy, 7 John. 249, per Van Ness, J.) After the assignment of her dower, she holds it in severalty by operation of the statute.

One tenant in common cannot, as against the rights of his associates, convey a distinct portion of the estate by metes and bounds; nor can a judgment creditor of one tenant in common, sell by execution a distinct portion of the estate discharged of the right of the other tenants in common. (Bartless v. Harlow, 12 Mass. R. 348. Porter v. Hill, 9 id. 34.)

Although partners hold their partnership stock in joint tenancy, so far, at least, as the remedy is concerned, it is otherwise with re

gard to real estate. Such estate, though held for the purposes of the partnership, is in general held not as partners but as tenants in common, and the rules relative to partnership property do not apply to it. Hence one partner can only sell his individual interest, and when both join in the sale and conveyance, and one only receives the purchase money, the other may maintain an action against him for his proportion. (Coles v. Coles, 15 John. 159. Balmain v. Shore, 9 Ves. 500, 508.)

A deed of conveyance by one tenant in common to a stranger, of his entire interest in the land, though drawn as though he owned the whole, will be effectual to convey his undivided interest, and works no injury to his companion.

One tenant in common cannot sue his co-tenant to recover documents relative to their joint estate. (Cowes v. Hawley, 12 John. 484.) Nor can he recover for repairs, from his co-tenant, without a previous request and refusal of the co-tenant to join in making them. (Mumford v. Brower, 6 Cowen, 475.) Nor is he affected by a location of the land by his co-tenant unless he acquiesces, and acquiescence will not be presumed from mere lapse of time. (Jackson v. Moore, 6 Cowen, 706.) This principle does not seem to be affected by the subsequent reversal of the above case. (4 Wend. 58.)

With respect to the acts which one tenant in common may do, and bind his co-tenant, it has been held, that before distress and avowry, he may receive the whole rent, and discharge the lessee. (Decker v. Livingston, 15 John. 479.) When the lands of tenants in common were taken by the state and appropriated for the canal, and the appraised damages were paid to one, it was held that he was liable to account to the others for their proportion. (Brinkerhoff v. Wemple, 1 Wend. 470.)

A tenant in common in possession accounting with his co-tenants is chargeable only with the net rents and profits, after deducting for necessary repairs, and taxes, and assessments. (Hanna v. Osborn, 4 Paige, 336.)

There may be a tenancy in common of chattel interests. A letting of land upon shares makes the parties tenants in common of the crops raised under the agreement. (Demott v. Hagaman, 8 Cowen, 220. Caswell v. Districh, 15 Wend. 379. Putnam v. Wise, 1 Hill, 234.) But a person who raises a crop of corn on the land of another, on an agreement to give the owner a certain number of bushels of corn by way of rent, is not a tenant in common of the crop with the

owner of the land. He owns the crop in severalty, and the owner of the land is entitled only to his rent, the amount of which is ascertained by the value of the corn. (Newcomb v. Agan, 2 Jolin. 421, n.) The owner of the land has no lien upon the specific corn, for the rent may be paid in any corn. (Id.)

One tenant in common of a chattel cannot maintain trespass or trover against the other, unless the thing held in common be destroyed. (Selden v. Hickock, 2 Cain. 166. St. John v. Standring, 2 John. 468. Wilson v. Reed, 3 id. 175. Mersereau v. Norton, 15 id. 179.) But he may recover, in a proper action, half of the money received by the other owner in common on the sale of the property. (Id. Cochran v. Carrington, 25 Wend. 409.)

The mere sale by one tenant in common, of the entire chattel, is in itself a conversion, and entitles his co-tenant to an action. (White v. Osborn, 21 Wend. 72.) When several persons voluntarily mingle their wheat in a common bin, they become tenants in common, and the sale of the entire mass by one of them, subjects him to an action. (Nowlen v. Colt, 6 Hill, 461.)

Though the sale of the whole chattel by one tenant in common, without the consent of his co-tenant, is a conversion, yet one tenant in common may sell the whole chattel, for the benefit of all, and they may ratify his act by joining in an action for the price. (Putnam v. Wise, 1 Hill, 234.) The subsequent ratification is equivalent to an original authority; and the sale by one thus becomes the sale by all.

Many of the incidents of an estate in joint tenancy are applicable to a tenancy in common. They can make partition by their voluntary act, each conveying to the other by a deed of grant or release, the proportion to which he is entitled. They will thus own their respective shares in severalty.

But if any one is unwilling voluntarily to sever his interest from that of the others, he can be compelled, as matter of right, to make partition, by the common law, as well as by the statute referred to in the preceding section. (Smith v. Smith, 10 Paige, 470. 3 R. S. 602, 5th ed. Code of Procedure, § 448.)

There are cases in which a partition of the lands and tenements, held in common, cannot be made by metes and bounds, without great prejudice to the owners. In such a case the court may order a sale of the premises, at public auction, to the highest bidder, and pay the proceeds, after deducting the costs and charges, to the respective

parties, according to their respective interest in the fund. (3 R. S. 611, § 46-54, 5th ed.) This course may be adopted with respect to any distinct lot, tract or portion of the premises of which partition is sought. The sale may be for cash, or upon a credit for portions of the purchase money, and upon such security as the court may direct. (Id.)

Where the real estate, of which partition was sought, consisted of a mill dam, and the lands overflowed by the mill pond, constituting the water power, which was necessary for the use of various mills which belonged, in severalty, to the respective tenants in common of such dam and pond, it has been held that an actual partition of the water power should be made, instead of a sale thereof, if the whole water power in connection with the mill property, held in severalty by either party, would not be worth more than the same water power equally divided by a proper partition thereof, the one half to be used by the mills of each, in the hands of different proprietors. (Smith v. Smith, 10 Paige, 470.) In the same case it was held that the commissioners assigned to make partition might divide the mill dam, and the lands under the same and under the waters of the pond, and might make such provision for keeping the different portions of the dam and of the water gates and flumes in repair, and such regulations for the use of the water power, which was not capable of actual partition without a destruction of its value, as the parties themselves might make, by a partition deed of the same property. And the Chancellor thought, that in making partition of real property, the commissioners might assign a portion of the premises held in common, to one of the parties, charged with a servitude, or easement for the benefit of another party, to whom a distinct portion of the premises was assigned in severalty. (Id.)

Where any of the defendants in partition are absentees, or infants, or unknown, the court, before making the decree, will see that all proper persons are before it, so as to make the decree effectual. (Braker v. Devereaux, 8 Paige, 513.) In like manner, proper measures should be adopted by the court, to ascertain general liens or encumbrances on the undivided shares or interests of the parties, before making a decree of sale. (2 R. S. 418, § 43. Wilde v. Jenkins, 4 Paige, 48.)

It is not indispensable that all the shares should exactly correspond in value; but one party may be decreed to make compensation to another for equality of partition. (Smith v. Smith, supra. Lar

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