« 이전계속 »
the same interest; unity of title, by which is meant that they must all acquire their interest by the same title; unity of time, according to which the title must vest in the owners at the same time; unity of possession, that is, each has the possession of every part of the property as well as of all of it. Blackstone says joint tenants “have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same possession." The principal incident of joint tenancy is the right of survivorship. Although the property is owned by two or more, if they are joint tenants, the entire property goes to the survivor or survivors, free from the claim of the deceased's heirs or representatives.
A joint tenancy may be severed by the act of one of the tenants in selling his share, or by agreement among the joint tenants, or by a suit for partition, or by a judicial sale of a tenant's share. The parties acquiring the respective shares then become owners in common. A joint tenant cannot dispose of his share by will, since his will does not take effect until after death, when his interest is by the fact of death already extinguished.
Tenancy in common exists where two or more persons hold property together by a unity of possesion. Nothing more is required to constitute this tenancy. They may acquire their titles from different sources and at different times, and the extent of their interests may be different. The right of survivorship cannot exist in tenancy in common, because the tenants do not hold by entirety of interest. On the death of a tenant in common, his share in real estate goes to his heirs; in personalty, to his personal representatives.
Tenancy by the entirety. This is an estate which can only exist between husband and wife. Under the doctrines of the common law, spoken of later in this book, husband and wife were considered as one, and therefore a conveyance to them gave rise to a species of joint estate known by the above name. A deed to husband and wife does not now in Wisconsin create an estate by the entirety, although often spoken of as such. A deed to husband and wife now makes them joint tenants; they are both entitled to the possession, and each may sell his or her share and thus separate the joint tenancy, and the purchaser of such interest will become an owner in common with the one remaining. The
only difference between a deed to husband wife and one to two persons not husband and wife is, that in the former case the parties become joint tenants, while in the latter, tenants in common. A deed may be made, of course, making husband and wife tenants in common, if it is so specified in the deed.
Tenancy by partnership.-When property, either real or personal, is owned by a partnership, this tenancy arises. This tenancy differs from a joint tenancy in that all property held by a partnership is liable for the payment of partnership debts and one partner has a right to sell any part or all of the property without the consent of the co-partner. It differs from joint tenancy in that there is no right of survivorship, and from a tenancy in common in that in that it can be created only by agreement between the partners. All these tenancies resemble each other in that the tenants have an undivided interest in the property. See the chapter on Partnership in this book.
Joint tenancy not favored.-The doctrine of joint tenancy was favored by the English common law, and originated in the Feudal System. The tendency of American decisions and legislation has been to restrict joint tenancy, because it causes property to go on the death of a joint owner where he would not ordinarily have it go. In Wisconsin the statutes provide that “all grants and devises of land, made to two or more persons, except as provided in the following section, shall be construed to create estates in common, and not in joint tenancy, unless expressly declared to be in joint tenancy." The following section then declares that the above shall not apply to mortgages, nor to devises or grants made in trust, or made to executors, or to husband and wife,
There is no statute in Wisconsin applying to personal property, but the leaning of the courts is to declare all forms of ownership as being in common, rather than joint. The exceptions above mentioned leaves mortgages as at common law. In case a mortgage is given to two or more persons who have debts due them severally, they will be considered as owners in common of the mortgage; if they are joint owners of the debt, they will become joint owners of the mortgage. An exception is made in regard to devises and grants in trust for the reason that trustees take no beneficial interest, and it is more expedient to have the survivor of the trustees carry out the trust. The same is true of devises or
grants to executors. The exception in regard to conveyances to husband and wife is explained in the section explaining tenancy by entirety.
In case of a bequest of personal property, if it is made jointly, a joint estate would still be created in Wisconsin. Thus, it has been decided in Wisconsin that where a life insurance policy was made payable to a wife and daughter and one of them died before the insured, that the policy created in the beneficiaries a joint tenancy, and that the survivor was entitled to the whole insurance money. The question of whether property is held by joint tenancy or tenancy in common can be best disposed of by having a statement inserting in the deed or other evidence of transfer, stating the tenancy created.
Rights of co-tenants. In all of the tenancies mentioned, except tenancy by the entirety, there is a unity of possession in the property by all the tenants. From this it follows that each tenant is entitled to the possession of the whole property with the other tenants and the possesion by one tenant of the entire property, so long as he does not exclude the rest, is lawful. Where one of the tenants has entire possession, the other or others may take possession if they can do so without a breach of the peace. A co-tenant of personal property has the right to the possession of the whole of it, and the only way for the others to get control is to take possession when a suitable occasion for doing so can be found. No co-tenant can do anything to the injury of the common property, however, without incurring liability to the other or others, and he can make no contract with third parties which will bind any one but himself. There is a relation of trust between co-tenants on account of their unity of possession, which precludes any tenant from acquiring an advantage over the others in dealing with the property. Thus, one co-tenant cannot acquire a tax title against the others, nor assert a superior title, unless he obtain it by purchase from an independent source. In case one tenant pays a mortgage or taxes against the common property, he is entitled to re-imbursement from the others. In case a co-tenant makes a profit out of the common property he is accountable to the others for their share. He cannot be deprived of the possession of the common property while the relation of co-tenancy exists, but can be held responsible for its misuse
and the use of more than his share, and profits realized. Against strangers to the common property, co-tenants have the same rights and remedies that an individual would have.
There are certain remedies which one who wishes to put an end to a co-tenancy, or to assert his right respecting the common property, may pursue, the most usual of which are mentioned in the next section. It has been decided in Wisconsin that co-tenants of real and personal property may submit the matter of partition or any other dispute concerning their property to arbitration.
Suits between co- tenants. When the common property is real estate a tenant may avail himself of the following remedies:
a) Partition. The statutes of Wisconsin provide that "all persons holding land as joint tenants or tenants in common, may have partition thereof by civil action..." The object of this action is to set over to each co-owner a specific share of the property, or in case it cannot be divided, to have a sale thereof, and a division of the proceeds. All persons interested in the land must be made parties to the suit. When real estate is assigned to heirs or devisees by the county court, in the administration of estates, that court may also make a partition. Co-owners of water powers may also have partition in this state.
b) Ejectment. This is an action for the recovery of specific real estate. One co-owner of real estate may bring it against another, but only in case his title to the premises is denied, that is, in case his rights are not recognized by the other tenant or tenants. The statute in this state provides, that if ejectment be brought “by one or more tenants in common or joint tenants against their co-tenants, the plaintiff, in addition to all evidence which he may be bound to give, shall be required to prove on the trial of the cause that the defendant actually ousted such plaintiff, or did some other act amounting to a total denial of his right as such cotenant."
c) Waste. Waste is an act or omission of duty by a tenant which does a lasting injury to the estate, and tends to permanent loss, or to destroy or lesson the value of the same, or to destroy the identity of the property. Thus, the destruction of a building, or the cutting down of an undue quantity of timber on a farm by one co-tenant, is waste
against the other. The statute provides that “If one joint tenant or tenant in common shall commit waste of the estate held in joint tenancy or tenancy in common, he shall be subject to an action for such waste at the suit of his cotenant or co-tenants. (See, also, the section on Waste in the chapter on Real Property.)
d) Forcible Entry and Detainer. Where one co-tenant is in peaceable possession and the other or others unlawfully out him therefrom, he may bring this action to be restored to the possession. (See this subject in the chapter on Landlord and Tenant.)
e) Trespass and Trover. Trespass is an action for any injury wrongfully done to real property by force. There may also be trespass to the person, or personal property. Trover is an action for the unlawful taking and conversion of personal property. Usually one co-tenant cannot maintain either of these actions against another, but it has been decided in this state, that if one co-tenant destroys the common property or converts it to his own use, any co-tenant may maintain either of these action, as the case may be.
f) Accounting. The statute provides that "one joint tenant or tenant in common, and his executors or administrators, may maintain an action for money had and received against his co-tenant 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.
When the common property is personal, co-tenants have the following remedies against each other:
a) One co-tenant may bring an action of trespass or trover, defined in the last section, against his co-tenant or tenants.
b) He may have partition of the common property in the same manner that partition is had in the case of real estate. The property is divided by the court if practicable; if not, it is sold and the proceeds are divided. When personal property is distributed by order of the county court, in the administration of estates, any co-tenant may have a partition by order of the court.
c) One co-tenant may sue another for his share of profits made with the common property, or for his share of proceeds of a sale, or for re-imbursement for money necessarily expended for the preservation of the common property.