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tutes have prescribed to the courts of law and the court of chancery, in respect to partition, that whenever there shall be a denial of co-tenancy, an issue shall be formed, and submitted to a jury to try the fact; and the respective rights of the parties are to be ascertained and settled before partition be made, or a sale directed.
A final judgment or decree, upon partition at law, under the New-York Revised Statutes, binds all parties named in the proceedings, and having, at the time, any interest in the premises divided, as owners in fee, or as tenants for years; or as entitled to the reversion, remainder, or inheritance, after the termination of any particular estate; or as having a contingent interest therein, or an interest in any undivided share of the premises, as tenants for years, for life, by the curtesy, or in dower. But the judgment does not affect persons having claims as tenants in dower, by the curtesy, or life, in the whole of the premises subject to the partition.
proceedings by petition for a partition of lands held in common, the application must show a seisin and actual possession. A disseisin, or an adverse possession, destroys the common possession, and bars a suit for a partition, so long as the ouster continues. Clapp v. Bromagham, 9 Cowen's Rep. 530. ■ Vol. ii. 320, sec. 18. Ibid. 329, sec. 79.
A judgment in partition establishes the title and concludes the parties. Clapp v. Bromagham, 9 Cowen, 569. Mills v. Witherington, 2 Dev. & Battle, 434. There may be a partition of a mere equitable estate. Hitchcock v. Skinner, 1 Hoffman's Ch. Rep. 21.
• New-York Revised Statutes, vol. ii. 322. sec. 35, 36. Ibid. 330. sec. 84. In cases of actual partition, and the husband be alive, the wife need not be a party to the suit in partition, and her inchoate right of dower will attach upon that part of the premises which shall be set off to him in severalty. Her right of dower cannot in any case be barred by a decree in a partition suit to which she was not a party, but if she be a party, the dower may be assigned to her in severalty, and if a sale of the premises be decreed, it would seem to be the opinion of Chancellor Walworth, that her contingent right of dower would be barred by the sale, and the purchaser will obtain a perfect title discharged of the claim of the dower. Wilkinson v. Parish, 3 Paige, 653. I presume, however, that in such a case some provision would be made out of the proceeds of the sale for the eventual consummation of her dower. If her contingent right of dower be thus barred by a sale without her con
It is likewise provided, in respect to the exercise of equity jurisdiction, in the case of partition, that if it should appear that equal partition cannot be made without prejudice to the rights and interests of some of the parties, the court may decree compensation to
be made by one party to the other, for equality. *366 of partition, *according to the equity of the case.* This is the rule in equity, independent of any statute provision, when owelty of partition cannot otherwise be made.b
II. An estate in coparcenary always arises from descent. At common law, it took place when a man died seised of an estate of inheritance, and left no male issue, but two or more daughters, or other female representa
sent, it must arise from the operation of the proceedings in partition as authorized by the New-York Revised Statutes, vol. ii. 318, sec. 5, 6. Ibid. 323, sec. 38, 39. Ibid. 325, 326, sec. 50-54. In Jackson v. Edwards, 7 Paige, 386. S. C. 22 Wendell, 498, it was held that in proceeding in partition, the wife's inchoate right of dower, whether she be an infant or adult, in the undivided share of her husband, would (she being a party to the proceeding) be divested by a sale under a judgment or decree, so as to protect the purchaser under the sale. All future estates, vested or contingent, may be sold under a judgment or decree in partition, and the court will ascertain and protect the value of the dower or other future and contingent estates thus affected by the judgment or decree, and order it to be deducted from the proceeds of the sales. And if some of the tenants have made improvements on the common lands, they are entitled to their full shares of the land as it would be estimated without them. In Jackson v. Edwards above cited, it was left a doubtful question in the court of errors, whether the inchoate right of dower in lands sold under a decree in partition, would be barred in law by the sale. If practicable, the shares allotted to them should include their improvements, and if not, and the improvements in whole or in part are allotted to others, allowance ought to be made for them. Bovar v. Archers, 7 Dana's Ken. Rep. 177. Hitchcock v. Skinner, 1 Hoffman's Ch. Rep. 21.
New-York Revised Statutes, vol. ii. 330, sec. 83.
b Clarendon v. Hornby, 1 P. Wms. 446. In Pennsylvania, on partition of an intestate's estate under a decree of the orphan's court, the eldest son and his alienee are entitled to the first choice of the estate at the valuation when it cannot be advantageously divided among the heirs. A right of choice is given to the sons successively and their lineal descendants, by statute of 1832. Ragan's Estate, 7 Watts, 438.
tives in a remoter degree. In this case, they all inherited equally as co-heirs in the same degree, or in unequal proportions, as co-heirs in different degrees.* They have distinct estates, with a right to the possession in common, and each has a power of alienation over her particular share. Coparceners, in like manner as joint tenants, may release to each other, and if one of them conveys to a third person, the alienee and the other coparceners, will be tenants in common, though the remaining coparcen ers, as between themselves, will continue to hold in coparcenary.
Coparceners resemble joint tenants in having the same unities of title, interest, and posssession. The seisin of one coparcener is generally the seisin of the others; and the possession of one is the possession of all, except in cases of actual ouster. But they differ from joint tenants in other respects in a most material degree. They are said to be seised like joint tenants per my et per tout; and yet each parcener has a devisable interest; and the doctrine of survivorship does not apply to them. The shares of the partners descend severally to their respective heirs. They may sever their possession, and dissolve the estate in coparcenary, by consent or by writ of partition at common law. The common law learning of partition, in respect to parceners, is displayed at large by Lord Coke." He calls it a "cunning learning;" and it is replete with subtle distinc- #367 tions, and antiquated erudition. The statute of 8
⚫ Litt. sec. 241, 242.
Preston on Estates, vol. i. 138.
Parceners have the same remedy in equity for an account as against each other for their share of rents and profits, as joint tenants and tenants in common, though they are not mentioned in the statute of 3 and 4 Anne. This results from the equity cases prior to the statute, and the manifest reason of the thing. 1 Eq. Cas. Abr. tit. Account, A. 1, note. Drury v. Drury,» 1 Rep. in Chan. 26. O'Bannon v. Roberts, 2 Dana's Ken. Rep. 54.
a Co. Litt. tit. Parceners, 163–175.
and 9 Westm. 3, c. 31., prescribed an easier method of carrying on the proceedings on a writ of partition than 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 doctrine 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 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.b
III. Tenants in common are persons who hold by unity of possession; and they may hold by several and distinct titles, 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
Vol. i. 753, sec. 17.
In Virginia the statute of descents calls all the heirs, male as well as female, parceners.
• Litt. sec. 292. 294. 298. 302. 2 Blacks. Com. 192. Preston on Abstracts, vol. ii. 75, 76.
created by act of the party, or by descent, in either case tenants in common are deemed to *have *368 several and distinct freeholds; for that circum
stance is a leading characteristic of tenancy in common. Each tenant is considered to be solely or severally seised of his share. As estates in joint tenancy are so much discouraged by the statute laws of this country, and the doctrine of survivorship, in so many of the states, exploded, even where joint tenancy, with its other unimportant 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, becomes comparatively unimportant.
The conveyance of the undivided share of an estate in common, is made in like manner as if the tenant in common was seised of the entirety. But one joint tenant, or tenant in common, cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice his co-tenants or their assignees, even though it may bind him by way of estoppel. As against the cotenants, 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
Preston on Abstracts, vol. ii. 277.
Bartlett v. Harlow, 12 Mass. Rep. 348. Peabody v. Minot, 24 Pick. Rep. 329. Duncan v. Sylvester, 24 Maine. Rep. 482. Mitchell v. Hazen, 4 Conn. Rep. 495. Griswold v. Johnson, 5 ibid. 363. Jewett v. Stockton, 3 Yerger's Rep. 492. In Lessee of White v. Sayre, (2 Ohio Rep. 110,) the majority of the court held, that a tenant in common could lawfully convey a part of his undivided estate by specific bounds; but it was admitted that the point was attended with considerable difficulty, by reason of the injurious consequences of such a sale to the co-tenant; and Judge Burnet, who dissented, went at large into the question. The decision in Duncan v. Sylvester directly overrules this case. So, again, in E. Prentiss' case, 7 Ohio Rep. part 2, p. 129, the law was considered to be settled in Ohio, that a tenant in common could convey a part of his undivided interest in the whole land, or his whole undivided interest in a part of the land.