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that which was used at common law; and this, or a still simpler method, without the expense of a writ of partition, has been generally adopted in this country. By the New-York Revised Statutes, persons who take by descent under the statute, if there be more than one person entitled, take as tenants in common in proportion to their respective rights; and it is only in very remote cases, which can scarcely ever arise, that the rules of the common law doetrine of descent can apply. As estates descend in every state to all the children equally, there is no substantial difference left between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the states, expressly declared to be a tenancy in common, as in New York and New-Jersey, and where it is not so declared the effect is the same; and the technical distinction between coparcenary and estates in common, may be considered as essentially extinguished in the United States.
(3 Tenants in common are persons who hold by unity of possession, and they may hold by several and distinct atles, or by title derived at the same time, by the same deed or descent. In this respect the American law differs from the English common law. This tenancy, according to the common law, is created by deed or will, or by change of title from joint tenancy or coparcenary, or it arises, in many cases, by construction of law. In this country, it may be created by descent, as well as by deed or will; and whether the estate be created by act of the party, or by descent, in either case tenants in common are deemed to have several and distinct freeholds, for that circumstance is a leading characteristic of ténāncy in common. Each tenant is considered to be solely or severally
a Vol. i. 753. sec. 17.
6 In Virginia, the statute of descents calls all the heirs, male as well as female, parceners.
c Litt. sec. 292. 294. 298. 302. 2 Blacks. Com. 192. Preston on Abstracts, vol. ii. 75, 76.
seised of his share. As estates in joint tenancy are so much discouraged by the statute laws of this country, and i the doctrine of survivorship, in so many of the states, esploded, even where joint tenancy, with its other unimport ant incidents, may continue to exist, the many questions in the books, arising upon the construction of the words of a deed or will, operating to create the one or the other tenancy, become comparatively unimportant.
The conveyance of the undivided share of an estate in Ammon, is made in like manner as if the tenant in common was seised of the entiety. But one joint tenant, or tenant in common, cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice bis cotenants or their assignees, even though it may bind him by way of estoppel. As against the co-tenants, such a deed is inoperative and void. If tenants in common join in a lease, it is, in judgment of law, the distinct lease of each of them, for they are separately seised, and there is no privity of estate between them. They may enfeoff or convey to each other, the same as if they dealt with a stranger. They are deemed to be seised per my, but not per tout, and, consequently, they must sue separately in actions that savour of the realty. But they join in actions relating to some entire and indivisible thing, and in actions of trespass rela: ting to the possession, and in debt for rent, though not an avowry for rent. The ancient law raised this very ar] tificial distinction, that tenants in common might deliver seisin to each other, but they could not convey to each other by release. A joint tenant could not enfeoff bis comie
a Preston on Abstracts, vol. ï. 277.
b Bartlett v. Harlow, 12 Mass. Rep. 348. Mitchell v. Fa 4 Conn. Rep. 495. Griswold v. Johnson, 5 ibid. 363.
c Bro. tit. Feofiment, pl. 45. Pleatherley v. Weston, 2 Wils. 10 232.
d Litt. sec. 311. 314. Co. Litt. ibid. Rehoboth v. Huut, ?" Rep. 224. Decker v. Livingston, 15 Johns. Rep. 479.
panion, because they were both actually seised, but for that very reason they might release to each other; whereas, on the other hand, tenants in common might enfeoff each other, but they could not release to each other, because they were not jointly seised. Nothing contributes more to perplex and obscure the law of real property, than such idle and unprofitable refinements.
The incidents to an estate in common are similar to those applicable to joint estates. The owners can compel each other, by the like process of law, to a partition, and they are liable to each other for waste, and they are bound, to account to each other for a due share of the profits of the estate in common. The mere occupation of the premises by one joint tenant, or tenant in common, would not, of itself, at common law, have entitled his co-tenant to call him to an account. He must have stood in the light of a bailiff or receiver, in order to be rendered responsible. But the statute of 4 Anne, c. 16. rendered joint tenants, and tenants in common, liable in account as bailiffs for re. ceiving more than their just share; and this provision was re-enacted in New-York in 1788, and is now incorporated into the revised statutes. It is to be presumed, from the reasonableness of the provision, that it has been introduced, in substance, into the general law of this country.d
The possession of one tenant in common, is the posses sion of the others, and the taking of the whole profits byl one, does not amount to an ouster of his companions. But if one actually ousts the other, or affords, by his acts, sufficient ground for a jury to presume an ouster, the one that is
a Bro. tit. Feoffment, pl. 45. Butler's note 80. to Co, Litt. 193, a. b Co. Litt. 200. b. ( Vol. i. 750. sec. 9.
d See Jones v. Harraden, 9 Mass. Rep. 541. Brigham v. Eveleth, ibid. 538.
ousted will be driven to his action of ejectment. So, one tenant in common cannot bring an action of trespass against another for entry upon, and enjoyment of the common property, nor sue him to recover the documents relative to the joint estate. If, however, one tenant occupies a particular part of the premises by agreement, and his co-tenant disturbs him in his occupation, he becomes a trespasser.
Opé joint tenant, or tenant in common, can compel the others to unite in the expense of necessary reparations to
house or mill belonging to them; though the rule is limited to those parts of the common property, and does not apply to the case of fences enclosing wood or arable lands. The writ de reparatione facienda lay, at common law, in such cases, when one tenant was willing to repair, and the others would not:C In Massachusetts, it is doubted whether this rule applies in that state to mills, and it is, at least, so far equitably modified by statute, that if one part owner of a mill repairs against the consent of his partners, he must look to the profits for his indemnity. To sustain the action there must be a request to join in the reparation, and a refusal; and the expenditures must have been previously made. The doctrine of contabile tion, in such cases, rests on the principle, that where par. ties stand in æquali jure, equality of burthen becomes
a Co. Litt. 199.. b. Fairclaim v. Shackleton, 5 Burr. Rep. 2004 Doe v. Prosser, Cowp. Rep. 217. Peaceable v. Read, 1 East's lepi 568.
b Keay v. Goodwin, 16 Mass. Rep. 1. Clowes v. Hawley, 12 JON. Rep. 484.
CF. N. B. 127. a. Co. Litt. 54. b. 200. b. Bowles' case, 11 cui 82. b.
d Carver v. Miller, 4 Mass. Rep. 559.
e Jackson, J., in Doane v. Badger, 12 Mass. Rep. 70. Mamions v. Brown, 6 Coven's Rep. 475.
equity; but the necessity of the rule does not press with the like overbearing force that it does in many other cases arising out of the law of vicinage ; for the co-tenant who wishes to repair beyond the inclination or any or his companion, has his easy and prompt remedy, by procuring a partition or sale of the common property.