The conveyance of estates in fee by deed : being a

CHAPTER XII .

CONCURRENT OWNERSHIP .

$ 148 . Concurrent ownership ingeneral .

149 . Joint tenancy - Its characteristics .

150 . Alienation by a joint tenant .

151 . Joint tenancy not now fa -vored - American stat -utes concerning it.

152 . Statutes reversing the com -mon law presumption

The estate still created byapt words.

153 . Exceptions to the modernrule favoring estates incommon - Trustees -Mortgagees .

154 . Statutes abolishing survivorship — They do not de-stroy joint tenancy .

155 . Joint tenancy expressly

abolished .

156. Tenancy in common - Its

characteristics - How created .

157 . Alienation by

tenant in

common - Effect of con

veyance of specific part .

158 . Conveyance of

the entireproperty by tenant in

common - Ouster .

159 . Coparcenary .

160 . Partition - By deed .

161 . Parol partition .

162 . Tenancy by

entireties .

163 . Has been generally recog

nized as common law in

the United States - Exceptions .

164 . In what states now recog

nized - Effect of

statutes

as

to joint tenancy andmarried women .

165 . In what states not recog

nized because of statutes .

166 . Conveyance of estates by

entireties .

167 . The community system .

§ 148 . Concurrent ownership in general . - Two ormorepersons may have concurrent interests in the same land .

These concurrent interests may arise from an express lim

itation of

the estate , or

several persons may take theestate concurrently by descent . Not all persons interested

in the same land are , however , co -owners ; for one of

them may be a tenant for years , another may have a re

(179 )

180 § 149THE LAW OF CONVEYANCING .

mainder in fee or for life , another may have an easementin the land ; or one may have an estate of one sort or another in the surface merely , while another may own theminerals beneath the surface . In such cases the right ofeach is several and distinct and may be connected withdifferent portions of the land.1Where co -ownership exists ,however , each owner has noseveral right as to any distinct partof the land , but is interested in every part of the whole . While this quality iscommon to the several kinds of concurrent ownershipeach has peculiarities of its own .

Though there is now in this country practically abso

lute ownership of lands rather than a holding of

and

from some superior , the chief kinds of

concurrent ownership are still known b

y

their common - law names as ten

ancies . The kinds of concurrent ownership are not of

equal practical importance and some of

them are known

to the law of

but few states . The several kinds are :

1 . Joint tenancy ;

2 . Tenancy in common ;

3 . Coparcenary ;

4 . Tenancy by

entireties ;

5 . Community ownership .

$ 149 . Joint tenancy - Its characteristics . - Joint tenancy can arise b

y“ purchase ” only , and not by

descent .

It may exist for any estate except an estate tail general .

So if lands be given to two persons without further

limitation they will , at common law , become joint ten .

ants for life ; after the death of

either the survivor will

be entitled to the whole during his life . If lands be

given to them and the heirs of

their bodies there will becreated an estate tail special , if they are capable of marrying ; but where they are not capable of marrying they

· Virginia Coal Co . v . Kelly , 1896 , 93 Va , 332 ; 24 S . E . 1020 ; Ames

v . Ames , 1896 , 160 Ill . 599 ; 43 N . E . 592 ; Powell v . Lantzy , 1896 , 173Pa . 543 ; 34 Atl . 450 .

$ 150 181CONCURRENT OWNERSHIP .

are joint tenants for life, and on the death of one thesurvivor takes the whole , but on his death the inheritance is divided between the heir of the body of the formerly deceased grantee and the heir of the body of thesurvivor , who become tenants in common . But a jointtenancy in fee simple is more usual than one fo

r

life or

in tail . And , generally , at common law a grant to two

or

more persons (not being husband and wife ) and theirheirs ,without further words , creates a joint tenancy in

fee . The distinguishing feature of joint tenancy is theright b

y survivorship ; on the death of one of several

joint tenants the survivors hold the whole estate . For so

far as tenure and survivorship are concerned the joint

tenants together are regarded as

one person .

Joint tenants are , by reason of their identity of

interestand title , said to have four unities , namely : time , title ,

interest and possession . 3

There must be “ unity of title , ” that is , the estate of

the joint tenants must arise under the same limitation ;

there is " unity of interest ” because there is but one es

tate created , which can only last as long as the estates of

all the joint tenants ; there is “ unity of possession ” if theestate is in possession , but there may be a limitation o

fa

remainder to two or more jointly ; by

the operation of

thestatute o

f

uses the former necessity that the titles of allthe joint tenants should begin at thesame time is avoided ,

for joint tenants under this statute may take their shares

at

different times , that is , if the use is declared jointly to

several persons , some of whom are not yet in being , they

will be joint tenants when they come into being . 4

$ 150 . Alienation bya joint tenant . — Though all the

joint tenants are for some purposes regarded as composing

one owner , each nevertheless has such a share that he

2 Williams Real Prop . , 17th ed . , p . 164 .

3 See 2 BI . Comm . 180 .

* Challis Real Prop . 295 ; 4 Kent Comm . 358 .


may alienate it inter vivos . As, however , at the instantof the death of one joint tenant the right of survivorshipattaches , alienation by will is prevented . A conveyance

by one joint tenant of his entire interest to a stranger

“ severs " the joint tenancy and turns it to a tenancy incommon , so fa

r

as his grantee is concerned . The interest

of

one joint tenant is also subject to levy and sale upon

an

execution against him . In conveying to a stranger a

joint tenant conveys in the ordinary manner and with

the usual words of

limitation ofa fee where necessary ,

but in conveying to a co -tenant he conveys by

release , in

which case no words of

inheritance are required to pass a

fee even where they are required in ordinary convey

ances . ?

§ 151 . Joint tenancy not now favored — American

statutes concerning it . - While by

the earlier common

law joint tenancy was , when contrasted with other forms

of

co -ownership , favored as being in accord with feudal

principles in preventing the division of

tenures , thereason for this preference ceased with the practical abolition o

f

tenures , and the doctrine of survivorship came to

be regarded as inequitable in making no provision for

posterity . 9 In this country , irrespective of legislation on

the subject , some courts early held that joint tenancy as

at

common law did not exist . 10 In most states , however ,

5Wilkins v . Young , 1895 , 144 Ind . 1 ; 41 N . E . 68 ; 55 Am . St. R . 162 .

&Midgley v . Walker , 1894 , 101 Mich . 583 ; 60 N . W . 296 .

? Co . Litt . 273b .

8Martin v . Smith , 5 Binn . ( Pa . ) 16 ; 6 Am . Dec . 395 .

9 Hawes v . Hawes , 1747 , 1 Wils . 165 ; 3 Atk . 524 ; though in Cray v .

Willis , 1729 , 2 P . Wms . 529 , the Master of the Rolls says there is

nothing unreasonable in the law of joint tenancy , each tenant having

an equal chance to survive , and as each is able to sever the joint tenancy

if he wishes to do so , survivorship can be no hardship where it may be

at pleasure prevented .

10 Sergeant v . Steinberger , 2 Ohio 305 ; 15 Am . Dec . 553 ; Miles v .

Fisher , 10 Ohio 1 ; in Connecticut the right of survivorship as a necessary incident o

f joint tenancy was never recognized . Whittlesey y .

Fuller , 11 Conn . 337 , 340 .


statutes have been enacted materially changing the common law and lessening the practical importance of jointtenancy . American statutes on the subject are of threeclasses :( a ) Those reversing the common law rule that an es .tate granted or devised to two or more persons is presumed to create a joint tenancy rather than a tenancy incommon ;

( b ) Those destroying survivorship ;

( c ) Those expressly abolishing joint tenancy .But hardly any two statutes on the subject , even of thesame class , are identical in all respects .

§ 152 . Statutes reversing the common -law presumption- The estate still created by apt words . - As examples ofthose of the first classmay be noted , the short statute ofIowa and the longer one of Massachusetts : “ Convey

ances to two ormore in their own right create a tenancyin common , unless a contrary intent is expressed .” 11" A conveyance or devise of land to two ormore personsor to husband and wife , except a mortgage , or a devise orconveyance in trust , shall create an estate in cominon andnot in joint tenancy , unless it is expressed in such conveyance or devise that the grantees or devisees shall takejointly , or as joint tenants , or in joint tenancy , or to themand the survivor of them , or unless it manifestly appearsfrom the tenor of the instrument that it was intended tocreate an estate in joint tenancy ."'12Statutes having the general effect of these exist in themajority of states where legislation has been had on thesubject.13

11 Iowa Ann . Co ., 1897 , § 2923 .12Massachusetts , R . L . 1902, ch . 134 , $ 6 .

13 Arkansas , Dig . Stat . 1894 , $ 704 ; California , Civ . Co . $ $683 , 686 ;

Colorado , Stats . 1891 , $ 429 ; Idaho , Civ . Co . 1901 , $ 2398 ; Illinois , R .

S . , ch . 30 , $ 5 ; Indiana , Burns ' R . S . 1901 , $ 3341 ; Iowa , Ann . Co . 1897 ,

$ 2923 ; Maine , R . S . 1883 , ch . 73 , $ 7 ; Maryland , G . L . 1888 , art . 50 ,

$ 13 ; Massachusetts , R . L . 1902 , ch . 134 , $ 6 ; Michigan , C . L . 1897 ,


Where statutes of this character are in force , estates injoint tenancy may still be created , though the termsmostapt to create them will vary somewhat in the differentstates. The general rule , however, is that the preciseterms of the statute need not be followed in order to create a joint tenancy rather than a tenancy in common ;

thus , under a statute providing that no estate in jointtenancy shall be held under a grant unless it shall “ expressly be declared to pass not in tenancy in common ,but in joint tenancy ,” a conveyance to two persons " andthe survivor of them , in his or her own right, " and reciting that it “ ismade in joint tenancy ” creates an estate injoint tenancy , although it is not expressly declared thatan estate in common is not granted ; 14 and where the

statute provides that a conveyance to two or more shallbe construed to create an estate in common , " unless itshall be expressed therein that the grantees * * *

shall hold the same in joint tenancy and to the survivorof them , or it shall manifestly appear , from the tenor ofthe instrument , that it was intended to create an estatein joint tenancy, ” by the use of the word " jointly ” afterthe names of the grantees an estate in joint tenancy iscreated .15

§ 153 . Exceptions to the modern rule favoring estatesin common - Trustees - Mortgagees . - It will be noticedthat many of the statutes make important exceptions, in

$$ 8826 , 8827 ; Minnesota , G . S . 1894 , § 4405 ; Missouri, R . S . 1899 ,$ 4600 ; Montana , Ci

v. Co . 1895 , 1105 ; New Hampshire , Pub . St .1901 , ch .

137 , $ 14 ; New York , R . S . & G . L . 1901 , Birdseye , p . 3023 , $ 56 ; North

Dakota , R . Co . 1899 , $ $ 3283 , 3286 ; Rhode Island , G . L . 1896 , ch . 201 ,

$ 1 ; South Dakota , Ann . St. 1901 , $ $ 3604 , 3606 ; Utah , R . S . 1898 ,

$ 1973 ; Vermont , R . S . 1894 , $ 2202 ; Wisconsin , St . 1898 , S8 2068 , 2069 .

14 Slater v . Granger , 1897 , 165 IN . 329 ; 46 N . E . 235 .

15 Case v . Owen , 1894 , 139 Ind . 22 ; 38 N . E . 395 ; 47 Am . St . R . 253 ,

though not ( in Indiana ) if they are husband and wife ; Simons y . Bollinger , 1900 , 154 Ind . 83 ; 56 N . E . 23 ; 48 L . R . A . 234 . And seeMorris v .

McCarty , 1893 , 158 Mass . 11 ; 32 N . E . 938 ; Purdy v . Hayt , 92 N . Y .

446 , 453 .


dicating that the policy of the law is not opposed to thedoctrine of survivorship in all cases . A very generalexception is that made concerning estates granted or devised in trust . Joint tenancy is a convenient form ofownership in such cases as it is not desirable that therepresentatives of a deceased trustee should interfere with

themanagement of the property ; therefore , even wherethe statute makes no express exception , it seems that" slighter indications will suffice in a trust deed than inother deeds to amount to a 'manifest showing ,' becausethe courts are inclined to hold that trustees are joint tenants ; ’’ 16 and where , in a statute changing joint tenanciesto tenancies in common , or in one abolishing survivorship , an express exception ismade of trust estates, if it isintended in a particular case that the rule of survivorship

should not apply , this intent should appear in the instrument creating the trust estate.17In several states, for example , Indiana ,Maine, Massachusetts, Michigan and Wisconsin , the statutes exceptmortgages ; but this does not prevent the making of amortgage with covenants several as to each mortgagee so

that there shall be no survivorship between the mortgagees. 18

§ 154 . Statutes abolishing survivorship — They do notdestroy joint tenancy . – Of the statutes abolishing survivorship , that of Alabama may be taken as an illustration :“ When one joint tenant dies before the severance ,his interest does not survive to the other joint tenants , but descends and vests as if his interest had been severed andascertained . ” 19 Statutes of this character are found in

16Franklin Institution v. Savings Bank , 14 R . I.632 ; Parsons v. Boyd ,20 Ala . 112 .17Norris v. Hall , 1900 , 124 Mich . 170 ; 82 N . W . 832 ; 7 Det . Leg .News 155 ; Boyer v . Sims, 1900 ,61 Kan . 593 ; 60 Pac . 309 .is Cooley v . Kinney, 1896 , 109 Mich . 34 ; 66 N . W . 674 .19Ala . Code 1896 , § 1033 . 34

;66N. Pac . 309 . 7 Det . Lege


some states that also have those of the kind discussedabove ; this is so in Colorado and Illinois .20 Otherstates having similar statutes are : Kansas , North Carolina , Pennsylvania , South Carolina , Tennessee , Virginia ,Washington and West Virginia .21But these acts abolishing survivorship as an incident

to joint tenancy do notgenerally prohibit a grant or deviseof an estate with survivorship . They do not , therefore ,actually abolish joint tenancy . So, though the Pennsylvania statute provides that " if partition be notmade between joint tenants * * * the parts of those who diefirst shall not accrue to the survivors , but shall descend or pass by devise * * * and be considered toevery other intent and purpose in the same manner as ifsuch deceased joint tenants had been tenants in common , ” a grant to four " as joint tenants , and not as tenants in common ,” preserves the right of survivorship , asit shows an intent on the grantor ' s part not to follow thestatute , but to convey an estate subject to survivorship

the distinguishing incident of joint tenancy .22 And where ,as in Connecticut , the right of survivorship as an incidentto joint tenancy has long been disregarded without legisla

tion of this kind , it may , nevertheless , be expressly con :ferred by a grantor or testator .23

§ 155 . Joint tenancy expressly abolished . — Statutesexpressly abolishing joint tenancy exist apparently inbut two states , Georgia and Oregon .24 Under the Georgia

20 Colo . Stats . 1891, $ 2526 ; III . R . S . , ch . 71 , § 1 . See ante , $ 8 152 , 153 .

81 Kan . G . S . 1901 , $ 2534 ; Ky. G . S . 1899 , $ 2348 ; N . C . Co . 1883 ,

$ 1326 ; Pa . Bright . Purd . Dig . 1894 , p . 1089 ; S . C . R . S . 1893 , § 1985 ;

Tenn . Shannon Co . 1896 , § 3677 ; Va . Co . 1887 , § 2430 ; Wash . Ball . Co .

1897 , § 4623 ; W . Va . Co . 1899 , ch . 71 , $ 18 .

23 Redemptorist Fathers v . Lawler , 1903 , 205 Pa . St . - ; 54 Atl . 487 .

And see Lockhart v . Vandyke , 1899 , 97 Va . 356 ; 33 S . E .613 ; Rowland

v . Rowland , 1885 , 93 N . C . 214 ; Bank of Greenbrier v . Effingham , 1902 ,

51 W . Va . 267 ; 41 S . E . 143 .

23 Rockwell v . -Swift , 1890 , 59 Conn . 289 ; 20 Atl. 200.

24Ga . Co . 1895 , $ $ 3142 , 3143 ; Ore . Hill ' s Ann . L . 1892 , $ 2991 .

§ 157 187CONCURRENT OWNERSHIP .

provision that " Joint tenancy does not exist in this state ,and a

ll

such estates , under the English law , will be heldto be tenancies in common under this code , ” it seems

that an estate in " joint tenancy ” may not be created by

express terms in a deed or will as it may be in most states ,

but that , nevertheless , survivorship may still be provided

for . 25 In states where by

such statutes , or

by

decision

( as in Ohio ) , joint tenancy does not exist , a grant to two

or

more jointly , their heirs , etc . , and to the survivor of

the grantees , his heirs , etc . ,might be construed , in order

to carry out the intention of

the parties without , perhaps ,

violating the law abolishing joint tenancies , as a joint es

tate for life with remainder to the survivor in fee . 26

$ 156 . Tenancy in common - Its

characteristics — Howcreated . — Tenants in common hold severally , but b

y unity

of possession , because none of them knows his own sev

eralty . Unity of

possession is the only unity required in

a tenancy in common . The possession of

the tenants maybegin a

t

different times , their titles may be diverse , andthey may own different estates in the land , but so long a

s

there is unity of possession there will be a tenancy in com

mon . 27 Without , however , this unity of possession - or

an equal right to the possession of

every part of the subject

matter of

the tenancy - several persons having interests in

the same realty are not tenants in common . Where onehas the exclusive right o

f

possession in one part and

others have such exclusive rights in other parts , thistenancy does not exist . 28 Nor are tenants for life and remainder -men tenants in common , fo

r

the possession of

the tenant for

life is exclusive of possession by

the remainder -men . 29 The right o

f survivorship is not a legal

characteristic of tenancy in common .

25 Harrison v . Harrison , 1898 , 105 Ga . 517 , 521 ; 31 S . E . 455 .

26 Lewis v . Baldwin , 11 Ohio 352 .

27Spencer v . Austin , 38 Vt. 258 .

28 See ante , $ 148 .

19 Chamberlain v . Gleason , 1900 , 163 N . Y . 214 , 218 ; 57 N . E . 487 .


At common law a tenancy in common originated onlyby purchase , and not by descent, fo

r

two or

more heirs of

the same person were coparceners . In the United Statesthe estate may arise b

y

descent as well as by

deed or de

vise . At common law , as joint tenancies were favored ,

to create a tenancy in common there must have been a

limitation to two or more expressly as tenants in common

orin such a way as

to imply a severance of

interests , butnow the terms o

fa deed ora will are of less importance

than they were in former times , owing to the general rule

that a conveyance or

devise to two or more is presumed

to create a tenancy in common . A tenancy in common

will also be created by

the “ severance ” ofa joint tenancy

by

alienation .

Where one conveys an undivided interest in a tract of

land in which he holds all

interests not thus conveyed ,

he and his grantee become tenants in common ; and the

creation of

this tenancy as

between grantor and grantee ,

in many cases where a grantor conveys an undefined part

ofa larger tract , has been mentioned in the chapter on

Description . 30

§ 157 . Alienation by

tenant in common - Effect of

conveyance of

specific part . - In consequence of

the

character ofa tenancy in common , one tenant in com

mon may convey his own undivided interest , and hisgrantee will become a tenant in common with the remaining tenants , 31 or he may mortgage his undividedinterest and if the mortgage be foreclosed the purchaser

at

the foreclosure sale becomes tenant in common withthe former co -tenant of the mortgagor . 32 But as one tenant in common cannot without his co -tenant ' s consent

80 Ante , $ 79 .

31 Fleming v . Katahdin Pulp & c . Co . , 1899 , 93 Me . 110 ; 44 Atl . 378 ;

Banzer v . Banzer , 1898 , 156 N . Y . 429 ; 51 N . E . 291 ; Tindell v . Tindell ,

1896 , 37 S . W . 1105 .

32Moreland v . Strong , 1897 , 115

Mich . 211 ; 73 N . W . 140 ; 4 Det . Leg .

News 837 .


appropriate to himself any exclusive rights in a specificportion of the land held in common , so he cannot bygrants or conveyances give to others any such rights ; forexample , he cannot grant an easement , so as to conferrights which can be enforced against his co-tenants . 33Nor may he grant the right to cut and remove timberfrom the land owned in common . 34 The vendee of thetimber in such a case does not become a tenant in common of the timber with his vendor ' s co -tenants .35The conveyance by one co - tenant of a portion of thecommon property by metes and bounds, though said to be" void " in some of the earlier decisions , will generally beheld to be valid as against the grantor , though hisgrantee takes subject to the risk of loss if , on partition ,

the land should not be so divided as to give him the portion conveyed ; for such a conveyance cannot be allowedto prejudice the rights of the co -tenants to a partition ofthe land as if it had not been made , and the grantee hasno absolute right on partition to have the part attempted

to be conveyed allotted to him . 36That such a conveyance is not “ void ” is indicated by

the fact that the other cotenants may confirm it if they

choose to do so ;37 and , according to many decisions, inmaking partition a court of equity will so far recognize

83 Palmer v . Palmer , 1896 , 150 N . Y . 139 , 149 ; 44 N . E . 966 .34 Sullivan v. Sherry , 1901 , 111 Wis . 476 ; 87 N . W . 471 ; Nevels v.Kentucky Lumber Co ., 1900 , 108 Ky . 550 ; 56 S . W . 969 ; 49 L . R . A .416 .35Benedict v . Torrent, 1890 , 83 Mich . 181 ; 47 N . W . 129 ; 11 L . R . A .278 ; 21 Am . St. R . 589 , though it was afterward held that, while the

vendee of the timber was not entitled to partition of the timber , hemight enforce a partition of the land and the timber as a whole , eventhough all the tenants in common had conveyed the land to a thirdperson without reservation of the timber . Mee v. Benedict , 1893 , 98Mich . 260 ; 57 N . W . 175; 22 L . R . A . 641 ; 39 Am . St . R . 543 . .

36Gates v . Salmon , 35 Cal . 576 ; 95 Am . Dec . 139 ; Markoe v .Wakeman , 107 Ill . 251 ; Warthen v . Siefert , 1894 , 139 Ind . 233 ; 38 N . E . 464 .

31Gordon v . City of San Diego , 1894 , 101 Cal .522 : 36 Pac . 18 ; 40 Am .

St . R . 73 ; Goodwin v . Keney , 49 Conn . 563 .

190 $ 158THE LAW OF CONVEYANCING .

the conveyance as to allot to the grantee the portion soattempted to be conveyed , if such allotment may bemadewithout injuriously affecting the rights of the other cotenants. 38

$ 158 . Conveyance of the entire property by tenant incommon - Ouster . — If one tenant in common attempts aconveyance by deed of thewhole property , and his granteeenters and claims the whole title under his conveyance ,this will generally be considered an " ouster ” of the othertenants. The grantee 's possession thus becomes adverseas to the co -tenants of his grantor , and his title may ultimately become good by this adverse possession .39 But toamount to “ ouster , ” so that title by adverse possession

may be acquired , the facts must have come to the notice,actually or constructively , of the co -tenant who is out ofpossession .40 Nor will possession by the grantee of oneco -tenant amount to ouster if it is in recognition of theother co -tenants ' rights and not adverse to them .41

$ 159 . Coparcenary. - An estate in coparcenary , orparcenary , arises by descent and not by purchase , thusdiffering from both joint tenancy and tenancy in common . It comes about when , either by virtue of the common law or special custom , an estate in fee or taildescends upon two or more as co -heirs of a deceased person . All the coparceners together form but one heir and

38Maverick v. Burney , 1895 , 88 Texas 560 ; 32 S . W . 512 ; Young v .Edwards , 1890 , 33 S. C . 404 ; 11 S . E . 1066 ; 26 Am . St . R . 689 ; Worthington v . Staunton , 16 W . Va . 209 ; Mee v. Benedict , 1893 , 98 Mich .260 ; 57 N . W . 175 ; 22 L . R . A . 641 ; 39 Am . St. R . 543 .39 Sweetland v. Buell , 1900 , 164 N . Y . 541 ; 58 N . E . 663 ; Bennett v .Pierce, 1901, 50 W . Va. 604 ; 40 S . E . 395 ; Murray v . Quigley , 1902, --Iowa — ; 92 N . W . 869 ; Frost v. Courtis, 1899 , 172 Mass . 401 ; 52 N . E .515 ; Johnston v . Virginia Coal & c. Co., 1898 , 96 Va . 158 ; 31 S . E . 85 .40Roberts v. Morgan , 30 Vt. 319 ; Warfield v . Lindell , 38 Mo. 581 ; 90Am . Dec . 443 .41 Van Ormer v. Harley , 1897 , 102 Iowa 150 ; 71 N . W . 241 ; Price v .Hall , 1895 , 140 Ind . 314 ; 39 N . E . 941.


have but a single freehold ,42 and yet there is no right ofsurvivorship among them .In lands which descend by virtue of common law rulescoparcenary among males is impossible , so that at com .mon law the estate arose among females only , but in gavel

kind lands coparceners may be males or females .13 Aslong as the descent is uninterrupted the parcenary continues , but one parcener may convey his share to anotherparcener or to a third person or may devise it. 44If one parcener alien his or her entire estate in landsto a stranger this is a severance and the alienee is tenant

in common with the other parcener or parceners .46In this country parcenary is of little practical impor

tance as distinguished from tenancy in common ; for coheirs take generally as tenants in common , either underexpress statutory provisions which exist in some states ,46or without such statutes .

In a few states , however , statutes provide for descent“ in parcenary ” to the kindred of the intestate in the order designated in the statutes .47

$ 160 . Partition - By deed . - Partition is a division ofthe interests of co -owners into severalty .There are two general methods of accomplishing this :( a ) Voluntary partition , by the act of the parties ; ( b )compulsory partition , by judicial proceedings.48

62 Co . Litt. 164a .48Digby Hist. L . R . Prop ., pp . 280 , 281.* Challis Real Prop ., 301 .45 Co . Litt . 167b .46 For example , Ala . Co . 1896 , § 1461 ; N . H . Pub. St. 1901, ch . 137 ,$ 15 : " Joint heirs shall be deemed tenants in common ;' N . Y . RealProp . L ., $ 293 , Birdseye 1901, p . 3081 .47For example , Colo . Ann . St. 1891, $ 1524 ; Ky . Stats . 1899 , $ 1393 ;Mo. R . S. 1899, $ 2908 ; Ohio R. S. , $ 4158 ; Va . Co. 1887 , $ 2548 . Ameri .can decisions discussing coparcenary are infrequent. See Stevenson v.Cofferin , 20 N . H . 150 ; Ward v . Ward , 1895 , 40 W . Va .611 ; 21 S . E .

746 ; 52 Am . St. R . 911 .48By the common law only parceners were entitled to insist on partition , but by statutes in 1539 - 40 joint tenants and tenants in com .


Joint tenants , tenants in common and coparcenersmay , bymutual agreement, make partition among themselves , by conveying or releasing to one another so thateach co - tenant receives from the others a certain part,

designated specifically by metes and bounds, of the entireproperty .The partition may be effected by one deed , executed byall the co -tenants , under which a share of the property inseveralty is assigned to each ,19 or by mutual deeds underwhich each co -tenant has transferred or released to him

the interest of all the other co -tenants in the part assignedto him . Such deeds create no new title to the portionsset off to the parties to be held in severalty , but merelydesignate each share by metes and bounds.50

§ 161 . Parol partition. - In many states a partition by

mutual agreement may be by parol , followed by posses

sion by the several tenants respectively of the portionsassigned to them ,51 though the effect of such parol parti

tion is not always to give the legal title to the tenant taking possession of his part under it, butmerely an equita

ble title and the right to exclusive possession ;52 and inall cases the parol partition must be established by clearevidence that exclusive possession was taken of the partassigned .53In other states, however , it is held that a parol partition

mon were given this right . In this country the matter of partition byjudicial proceedings is regulated by statute . The subject is not withinthe scope of this volume.19 Townsend y. Qutten , 1898 , 95 Va .536 ; 28 S. E . 958 . See Center v .Davis , 1896 , 113 Cal. 307 ; 45 Pac. 468 ; 54 Am , St . R . 352 .50Whitsett v . Wamack , 1900 , 159 Mo. 14 ; 59 S . W , 961 ; 81 Am . St .R . 339 ; Carter v . Day, 1898 , 59 Ohio St. 96 ; 51 N . E . 967 ; 69 Am . St .R . 757.51Byers v . Byers , 1898 , 183 Pa . 509 ; 38 Atl. 1027 ; 39 L . R . A . 537 ;63 Am . St. R . 765 ; Wood v. Fleet, 36 N . Y . 499 ; 93 Am . Dec . 528 .52Kash v. Coleman , 1898 , 145 Mo. 645 ; 47 S. W . 503 ; Bruce v. Og.good , 113 Ind . 360 ; 14 N . E . 563 .53 Justice v. Lawson , 1899 , 46 W . Va . 163 ; 33 S. E . 102 ; Sanger v .Merritt , 1892 , 13 N . Y . 614 ; 30 N . E . 100 .


is invalid , as the statute of frauds requires an agreementfor such a division of lands to be in writing ,54 thoughwhere this view is held , possession taken under a parolpartition , if continued long enough ,will give a legal titleby virtue of the statute of limitations .56

§ 162. Tenancy by entireties . - At common law , " tenancy by entireties '' - or “ by the entirety ' - occurs whena gift or conveyance , which , if made to two strangers ,

would create a joint tenancy , is made to a husband andwife during the coverture . The peculiarities of thisestate arise out of the identity which the common law appears generally to have assumed to exist between husbandand wife. At common law a husband and wife are tenants by entirety , unless the conveyance to them indicates

an intention to create a different estate . “ It constitutesthe most intimate union of ownership known to thelaw ." 56 The most important characteristic of the estateby the entirety is the right of survivorship by which thesurvivor, whether husband or wife , becomes seized of theentirety . In this it resembles joint tenancy , but it differsfrom the latter in that this right of survivorship cannotbe defeated by either spouse by a conveyance to a stranger.57

$ 163 . Has been generally recognized as common lawin the United States — Exceptions . This estate seems tohave been very generally recognized as part of the common la

w

of

this country until affected by

comparatively

54 Woodhull v . Longstreet , 18 N . J . L . 405 ; Berry v . Seawall , 1895 , 65

Fed . 742 .

55 Slone v .Grider ( 1898 Ky . ) , 44 S . W . 384 .

56 Challis Real Prop . , 304 .

57 On divorce the estate is destroyed and husband and wife become

tenants in common , as a general rule . Russell v . Russell , 1894 , 122 Mo .

235 ; 26 S . W . 677 ; 43 Am . St. R . 581 ; Stelz v . Shreck , 1891 , 128 N . Y .

263 ; 28 N . E . 510 ; 26 Am . St . R . 475 ; contra , Appeal of Lewis , 1891 , 85

Mich . 340 ; 48 N . W . 580 ; 24 Am . St . R . 94 .

13 - BREWS . Con .


recent statutes . But in two states — Connecticut and Ohio- irrespective of such statutes , it seems never to haveexisted ,58 and in Nebraska , without reference to any spe

cial legislation , it is declared to be inapplicable to modernconditions and not the common law of that state,59 norhas it obtained in Oklahoma,60 nor, generally , in thosestates where the " community system ” prevails .61

§ 164. In what states now recognized - Effect ofstatutes as to joint tenancy and married women . - Tenancy by entireties seems still recognized with many of its

common law attributes in about one -third of

the states ,

among these being , Arkansas , Indiana , Michigan , Missouri , New York , North Carolina , Oregon , Pennsylvania ,

South Carolina , Tennessee and Vermont . 67

In several of

these states the acts changing estates in

joint tenancy to estates in common , or abolishing jointtenancy d

o not apply to estates by

the entirety , becausehusband and wife are expressly excepted from their oper

ation ; 63 and in the others they have been held inapplicable , because estates in entirety are not estates in jointtenancy .

So

also the married women ' s property acts have been

58Whittlesey v . Fuller , 11 Conn . 337 ; Farmers ' & c . Bank v .Wallace ,

45 Ohio St . 152 , 165 ; 12 N . E . 439 .

59 Kerner v . McDonald , 1900 , 60 Neb . 663 ; 84 N . W . 92 ; 83 Am . St . R .

550 .60 Helvie v . Hoover , 1902 , 12 Okl . — ; 69 Pac . 958 .

61 Though see the commissioners ' amendments to Cal . Civ . Co . 1901 ,

$ $ 161 , 682 , 686 .

62 Roulston v . Hall , 1899 , 66 Ark . 305 ; 50 S . W . 690 ; 74 Am . St. R . 97 ;

Simons v . Bollinger , 1900 , 154 Ind . 83 ; 56 N . E . 23 ; 48 L . R . A . 234 ;

Doane v . Feather ' s Est . , 1899 , 119 Mich . 691 ; 78 N . W . 884 ; 6 Det . Leg .

News 25 ; Hume v . Hopkins , 1897 , 140 Mo . 65 ; 41 S . W . 784 ; Hiles y .

Fisher , 1895 , 144 N . Y . 306 ; 39 N . E . 337 ; 30 L . R . A . 305 ; 43 Am . St . R .

762 ; Ray v . Long , 1903 , 132 N . C . 891 ; 44 S . E . 652 ; Noblitt v . Beebe ,

23 Ore . 4 ; Bramberry ' s Est . , 1893 , 156

Pa . St . 628 ; 36 Am . St . R . 64 ; 22

L . R . A . 594 ; McLeod v . Tarrant , 1893 , 39 S . C . 271 ; 17 S . E . 773 ; 20

L . R . A . 846 .

63 For example , Indiana ,Michigan , Missouri and Vermont .


held in many states not to have had the effect of abolishing tenancy by the entireties .64

§ 165 . In what states not recognized because of statutes . — On the other hand , statutes like that of Iowa ,6 relating to joint tenancy , have been considered to apply tothe estate by entireties ,66 and in some states modernstatutes enlarging the property rights of married womenhave been held to have had the effect of abolishing thisestate by removing whatever reason there had once beenfor it at common law in the supposed identity of husbandand wife .67In addition to such statutes are those like that of Massachusetts quoted above , which expressly name estatesgranted to husband and wife as being estates in common ; and statutes which , in abolishing survivorship

in joint tenancy , expressly name estates in entirety ,68 orexpressly apply the rule abolishing survivorship to estates granted to husband and wife .69As a general result of these different statutes, directlyand indirectly affecting tenancy by entireties , it appearsthat in the majority of states the estate does not exist atpresent except in cases where it was created before suchstatutes took effect . But in jurisdictions where it hasbeen recognized , but is not now , it is to be noted that it

s

former recognition may still affect titles , and that , therefore , the doctrines regarding it cannot be ignored .

64 See the cases cited above , in note 62 , from Arkansas , Michigan ,

New York and Pennsylvania .

65 Ante , $ 152 .

66 Bader v . Dyer , 1898 , 106

Iowa 715 ; 77 N . W . 469 ; 68 Am . St . R .

332 ; Wilson v . Wilson , 1890 , 43 Minn . 398 ; 45 N . W . 710 .

67Mittel v . Karl , 1890 , 133 Ill . 65 ; 24 N . E . 553 ; 8 L . R . A . 655 ; Rob

inson , Appellant , 1895 , 88 Me . 17 ; 33 Atl . 652 ; 51 Am . St. R . 367 ; 30 L .

R . A . 331 ; Donegan v . Donegan , 1893 , 103 Ala . 488 ; 15 So . 823 ; 49 Am .

St. R . 53 ; Citizens ' Loan & c . Co . y . Witte , 1902 , 116 Wis . 60 .

68 Stewart v . Thomas , 1902 , 64 Kan . 511 ; 68 Pac . 70 .

69McNeeley v . South Pa . Oil Co . , 1903 , 52 W . Va . 616 ; 44 S . E . 508 .

See ante , $ 154 . .


For example , in a recent action for flowing the plaintiff's land in a state where tenancy by entireties is notnow created by a grant to husband and wife, 70 the defendant claimed , under the husband 's conveyance made whilethe title to the land stood in the names of husband and

wife , but after conveyances to husband and wife had beendeclared by statute to create estates in common , and theplaintiff claimed title by a subsequent conveyance madeby the surviving wife : it was held that , as the conveyance to the husband and wife was made before the statutechanging the law took effect , the wife 's right by survivorship became then vested , and a verdict fo

r

the plaintiff

was proper .

§ 166 . Conveyance of

estates by entireties . - A husband and wife may convey lands held in entirety b

y

theirjoint conveyance , though in such a case the wife shouldnot join in the conveyance " to release her dower , " e

tc . ,

but should be named in the granting part ofthe deed . 71

Neither tenant , however , can alone make a conveyance

that will defeat or prejudice the right of survivorship in

the other .

One of

the husband ' s generalmarital rights at commonlaw being the right to control and dispose of his wife ' slands during their joint lives , he was entitled to the

rents and profits of

land held under this tenancy and couldconvey the land for his life , 72 or incumber it subject to hiswife ' s right of survivorship . 73 This power of control bythe husband o

f

his wife ' s share is generally regarded as

taken from him by

the laws extending the property rights

of

married women . 74 He may , however , in some statesconvey his own interest subject to his wife ' s right of sur

70 Pease v . Inhabitants of Whitman , 1903 , 182Mass . 363 ; 65 N . E . 795 .

71Wales v . Coffin , 13 Allen 213 .

72 Pray v . Stebbins , 141 Mass . 219 ; 4 N . E . 824 ; 55 Am . R . 462 .

78Washburn v . Burns , 34 N . J . L . 18 .

74Hiles v . Fisher , 1895 , 144

N . Y . 306 ; 39 N . E . 337 ; 43 Am . St . R .

762 ; 30 L . R . A . 305 .


vivorship ,75 and the effect of statutes permitting the wifeto convey either “ as a feme sole ,” or “ in the samemanner as her husband, ” has been held to give her conveyance an equal force .76 On the other hand , in a fe

w

states (notably Indiana and Michigan ) a conveyance ,

while both are living , by either spouse alone to a thirdperson has n

oforce , even though the one that conveyed

survives the other . 77 But in these states a husband mayconvey his interest in the tenancy b

y

entireties directly

to his wife , 78 and in Michigan she may convey her interest

in such an

estate directly to him . 79

§ 167 . The " community system . ” — The " communitysystem " exists at present in Arizona , California , Idaho ,

Louisiana , Nevada , New Mexico , Texas and Washington ,

though it formerly prevailed in Missouri also . 80

This system originated in the civil law , and was adoptedby these states and territories from the French , Spanish

or

Mexican law .

Its general characteristic is that it reserves to the husband and the wife separately all property acquired by

either before marriage , and what is acquired by gift , de

vise , or

inheritance from others during marriage , but , in

general , all other property acquired by

either during themarriage is held a

s" community property . " 81 There is ,

15 Hiles y . Fisher , 1895 , 144 N . Y . 306 ; 39 N . E . 337 ; 43 Am . St . R .

762 ; 30 L . R . A . 305 ; Atkison v . Henry , 80 Mo . 151 ; Berrigan v .

Fleming , 70 Tenn . 271 .

76 Howell v . Folsom , 1900 , 38 Ore . 184 ; 63 Pac . 116 ; 84 Am . St . R .

785 ; Branch v . Polk , 1895 , 61 Ark . 388 ; 33 S . W . 424 ; 54 Am . St. R .

266 .77 Naylor v .Minock , 1893 , 96 Mich . 182 ; 55 N . W . 664 ; 35 Am . St. R .

595 ; Dyer v . Eldridge , 1893 , 136

Ind . 654 , 662 ; 36 N . E . 522 .

78 Enyeart v . Kepler , 118 Ind . 34 ; 20 N . E .539 ; 10 Am . St . R . 94 .

79Wilkinson v . Kneeland , 1900 , 125 Mich . 261 ; 84 N . W . 142 ; 7 Det .

Leg . News 499 .

50 Moreau v . Detchemendy , 18 Mo . 522 .

1 Meyer v . Kinzer , 12 Cal . 247 ; 73 Am . D . 538 ; De Blanc v . Lynch ,

23 Texas 25 .


in general, a presumption that property acquired aftermarriage by either husband or wife is community property until it is shown to be separate property .82But the system does not prevent either one of themarried persons from having separate property which is distinct from the community property ; though when thetitle is apparently in the community the evidence to establish it

s separate character must be such as to counterbal

ance the presumption that it is community property . 83

A husband may convey community property to hiswife , and when h

e

does so the presumption is that its *

character is changed to her separate property . 84

The wife , however , has such a slight interest in thecommunity property that she alone can convey no title to

it , unless she is abandoned by

her husband . 86 On theother hand , the general rule is that the husband has themanagement o

fit and power to convey it or

encumber it ,

except that he

cannot convey it without consideration ,

unless with his wife ' s consent , nor can he convey it with

intent to defraud her . 86 Where this system prevails ,

courtesy and dower have either been abolished or

have

never existed ; the rights of the survivor in the commonproperty take the place o

f

the one and the other . 87

82 Morris v . Hastings , 70 Texas 26 ; 8 Am . St . R . 570 ; Hanna v .

Reeves , 1900 , 22 Wash . 6 ; 60 Pac . 62 ; Svetinich y . Sheean , 1899 , 124Cal . 216 ; 56 Pac , 1028 ; 71 Am . St . R . 50 . But see Cal . Civ . Co . , $ 164 ,

as amended , 1901 .

83Mattson v .Mattson , 1902 , 29 Wash . 417 ; 69 Pac , 1087 .

84Main v . Main (Ariz . 1900 ) , 60 Pac . 888 ; Hamilton v . Hubbard , 1901 ,

134 Cal . 603 , 606 ; 65 Pac . 321 .

86 Zimpelman v . Robb , 53 Texas 274 .

86 Spreckels v .Spreckels , 1897 , 116 Cal . 339 ; 48 Pac . 228 ; 58 Am . St . R .

170 ; Wilson v . Wilson , 1899 , 6 Idaho 597 ; 57 Pac . 708 . In Washington , however , he cannot convey it or

encumber it unless she joins withhim in the deed , etc . Wash . Ball . Co . 1897 , $ 4491 .

87 Local statutes and decisions have so far divergently modified the sys

tem astomake a further discussion of

its doctrines impracticable . Theleading treatise o

n the subject is Ballinger ' s Community Property , 1895 .

Documents

The conveyance of estates in fee by deed : being a