And so it comes about, as the generally settled law of to-day, that when one concurrent owner of realty, unobstructed, and without objection from the others, takes a crop or other product of the soil, he need not divide with his fellows; but when he receives a product from the hand of another, as from a tenant to whom he has let the property, he must divide with his coowners. Unaffected by this curious distinction, the law has always demanded that, if one of them either take or receive value from the substance of the land itself as distinguished from an annual product, as when he fells and cuts trees, or carries away minerals, rock, or soil, he must share the proceeds ratably with his fellow tenants.2 And one who wrongfully dispossesses his co-tenants, and keeps them out of their proper enjoyment of the property, can have no advantage of the statute; but he must account to them for their fair proportions, even of a crop that he raises and harvests, or he must allow them to come and take their respective shares.3 The conception of the unity of possession, as meaning that possession of one is possession of all, results inter alia in making it extremely difficult for one co-tenant ever to acquire the property absolutely by adverse possession against the others.* He is presumed to be holding for them, and not against them; and, in order to overcome this strong tendency of the law, he must be able to prove, not only that his holding was in fact adverse to his co-tenants, - that they were "ousted" by him,5- but also that in some way notice of its adverse character was clearly W. Va. 611; Cain v. Cain, 53 S. C. 350; McPherson v. McPherson, 33 N. C. 391; Huff v. McDonald, 22 Ga. 131; Freeman, Coten. & Parti. § 276. See Adams v. Bristol, 126 N. Y. App. Div. 660, 662. 1 Ibid.; Gedney v. Gedney, 160 N. Y. 471; Myers v. Bolton, 157 N. Y. 393; Brown v. Wellington, 106 Mass. 318. In the absence of express agreement, one joint tenant or tenant in common is not entitled to compensation for collecting rent return belonging to himself and his fellow owners. Myers v. Bolton, 157 N. Y. 393. 2 Cosgriff v. Dewey, 164 N.Y. 1; Freeman, Coten. & Parti. § 305; § 698, infra. 8 Mott v. Underwood, 148 N. Y. 463; Zapp v. Miller, 109 N. Y. 51; Badger v. Holmes, 6 Gray (Mass.), 118; Edsall v. Merrill, 37 N. J. Eq. 114; Fenton v. 4 McGahan v. Bank of Rondout, 156 U. S. 218; Zapp. v. Miller, 109 N. Y. 51; Ingalls v. Newhall, 139 Mass. 268; Brumback v. Brumback, 198 Ill. 66; Freeman, Coten. & Parti. § 222. 5 Co. Lit. 199 b; McClung v. Ross, 18 U. S. (5 Wheat.) 116; Millard v. McMullin, 68 N. Y. 352; Ingalls v. Newhall, 139 Mass. 268; Susquehanna, &c. Co. v. Quick, 61 Pa. St. 328; Loranger v. Carpenter, 148 Mich. 549; Stevens v. Wait, 112 Ill. 544; Donason v. Barbers, 230 Ill. 138; Stevens v. Martin, 168 Mo. 407; Unger v. Mooney, 63 Cal. 586; Harriss v. Howard, 126 Ga. 325; Hardee v. Weathington, 130 N. C. 91; Johnston v. Case, 131 N. C. 491; Ashford v. Ashford, 136 Ala. 631. brought home to them.1 This may be done by positive notice or by their being actually ousted and kept away from the land; or by such long-continued possession, accompanied by hostile acts brought to their attention, as would reasonably indicate that the occupation is not for their benefit; or, according to the weight of authority by the hostile act of one in conveying the entire estate, to a grantee who enters adversely and with notice to the others; or by his fraud or undue influence, that results in keeping them away from the land and so amounts to an ouster.4 3 § 679. Other Incidents of Joint Tenancy. Most of the characteristics and incidents of this form of co-ownership flow from the doctrine of survivorship and the four unities, and have been explained in discussing those elements. Thus, dower and curtesy, obligation for debt of any one of the owners, and the creation by one of them of a rent against the property, or a way or other easement over it,5 are excluded by the fact 1 Ibid.; Barr v. Gratz, 17 U. S. (4 Wheat) 213; Culver v. Rhodes, 87 N. Y. 348; Grand Tower M. M. & T. Co. v. Gill, 111 Ill. 541; Brumback v. Brumback, 198 Ill. 66; Ricks v. Pope, 129 N. C. 52; Bentley v. Callaghan, 79 Miss. 302; Packard v. Johnson, 57 Cal. 180. • Tarplee v. Sonn, 109 N. Y. App. Div. 241, 244; Warfield v. Lindell, 38 Mo. 581; Freeman, Coten. & Parti. § 221. Prescott v. Nevers, 4 Mason (U. S. Cir. Ct.), 330; Toun v. Needham, 3 Paige (N. Y.) 545; Ingalls v. Newhall, 139 Mass. 268; Appell v. Appell, 235 Ill. 178; Murray v. Quigley. 92 N. W. Rep. 869 (Iowa); Sanford r. Safford, 99 Minn. 380; Godsey 2. Standifer, 31 Ky. Law Rep. 44; Bennett r. Pierce, 50 W. Va. 604. See Freeman, Coten. & Parti. §§ 224–226. * McGahan v. Bank of Roudout, 156 U.S. 218, 236; Zapp. v. Miller, 109 N. Y. 51; Tarplee v. Sonn, 109 N. Y. App. Div. 241; Wise v. Hyatt, 68 Miss. 714. Whether or not one owner of land has been ousted by his co-tenants is frequently a difficult question, and often involves matters of fact as to the conduct of the parties which must be submitted to the jury. The fundamental legal proposition is that, in order to establish such ouster, it must be made reasonably clear that one has deprived the other of possession of the property, in such manner as to bring that fact home to the knowledge of the latter. Ouster means emphatically depriving the co-owner of possession under such circumstances as to prove his knowledge, or means of knowledge, thereof. Therefore, the mere holding of possession by one for any reasonable length of time does not prove ouster, nor does his exclusive appropriation of the income, nor even his making and delivering of a deed of the whole property to another person; but if such deed be made and the grantee enter and openly act in such a way as to show adverse title, this will result in an ouster. Workman v. Guthrie, 29 Pa. St. 495; Appell v. Appell, 235 Ill. 178; Sanford v. Safford, 99 Minn. 380; Carpenter v. Mendenhall, 28 Cal. 484; Freeman, Coten. & Parti. § 232; 33 Cent. Law Jour. 297. 5 A joint tenant or tenant in common can not alone grant an easement, so as to confer any right that can be enforced against his co-owners; nor can such a person, who owns other land in severalty, so use it as to acquire in its favor that the survivors are to be entitled to the property free and clear of all such encumbrances and restrictions. If one of the joint tenants, however, create a charge against the property, and become ultimate survivor, the charge then is effectual, since he is estopped to deny its validity.2 So, when one alone creates a charge on the entire estate, and this is accepted or ratified by the others, it becomes binding against the land.3 Joint tenants, holding together and compactly as they do both the title and the possession, must sue or be sued together, with respect to either of these in the entire property. But either of them may sue or be sued separately, with respect to his undivided individual interest.5 Thus, if he mortgage that interest alone or contract to sell it, a suit, for specific performance or to foreclose the mortgage as the case may be, lies against him alone.6 So far as its incidents arising from the unity of possession are concerned, this form of ownership is governed by the same principles as those that relate to all other co-tenancies - the rules as to repairs, improvements and waste are the same for all of them. These are to be discussed, once for all, in connection with the favorite American kind of concurrent ownership, tenancy in common; and reference may be made to that discussion for the rights and duties of joint tenants in those particulars.8 § 680. Termination of Joint Tenancy. This form of coownership may be brought to an end naturally, either by the death of all the tenants but one and the vesting of the entire interest in him by the rule of survivorship, or through their partition of the property voluntarily or by compulsory process an easement over the property held in co-tenancy. Durham & S. R. Co. v. Wawn, 3 Beav. 119; Palmer v. Palmer, 150 N. Y. 139. Wash. Ease. & Ser. ch. i. § 3. 1 § 673, supra; Co. Lit. 185 b; Lord Abergaveny's Case, 6 Co. Rep. 78; § 673, supra. 2 Ibid. 8 Ibid. 4 Lit. § 311; Decker v. Livingston, 15 Johns. (N. Y.) 479; Webster v. Van Deventer, 6 Gray (Mass.), 428; Marshall v. Palmer, 91 Va. 344; Dewey v. Lambier, 7 Cal. 347. See Morgan v. Hudnell, 52 Ohio St. 552; Lowery v. Rowland, 104 Ala. 420. 5 Ibid.; Roe v. Lonsdale, 12 East, 39; Sherman v. Ballou, 8 Cow. (N. Y.) 304; Southworth v. Parker, 41 Mich. 198; Stevenson v. Cofferin, 20 N. H. 154; Clapp v. Pawtucket Sav. Inst., 15 R. I. 489; Hines v. Trantham, 27 Ala. 361; Freeman, Coten. & Parti. §§ 339, 340, 348, 371. 6 Ibid.; N. Y. Code Civ. Pro. § 449; Merrill v. Bischoff, 3 N. Y. App. Div. 361; Consolidated Nat. Bk. v. Hayes, 112 Cal. 75; § 841, infra. 7 Leigh v. Dickeson, L. R. 12 Q. B. Div. 194; Stevens v. Melcher, 152 N. Y. 551; Converse v. Ferre, 11 Mass. 326; Phipps . Phipps, 47 Kan. 328; Freeman, Coten. & Parti. § 261. 8 § 686, infra. in court. The subject of partition, as affecting all forms of coownership, is dealt with in a separate chapter hereafter.1 Joint tenancy may also be terminated by the destruction of any one or more of its unities.2 This most frequently occurs with respect to the unities of time and title. If either joint owner make a "severance," by conveying his individual undivided interest, the purchaser acquires it at that time, and by a title different from that of the other tenants; therefore, he can not be a joint tenant with the other owners, though they still remain joint tenants among themselves; but his tenancy with them becomes one in common. It has been held, also, that a binding contract by either joint tenant to convey his undivided portion has in equity the same effect; also, his lease for a term of years does the same during its continuance. And, in those states in which a mortgage transfers the legal estate, though probably not in those in which it only creates a lien, it has been decided that even his mortgaging his individual interest produced the same result." To illustrate briefly this method of ending a joint tenancy, by severance, suppose that property has been conveyed to A, B, and C as such owners. A grants his undivided interest to D in fee simple. Thereupon, D owns one-third of the land as a tenant in common with B and C; and B and C retain the other undivided two-thirds, as tenants in common with him, and as joint tenants still between themselves. If now B should convey his individual third to E; then C, D, and E would be tenants in common of the entire property, and the joint tenancy would have been totally destroyed. Likewise, if A own land jointly with B and C, and A should lease his undivided third interest to D for five years, D would hold that portion during the term of five years 1 Ch. liv, infra. Partition, voluntary or compulsory, may materially affect the interests of reversioners or remaindermen, when the joint tenancy is of a life estate. Thus, if land be granted or devised to A and B as joint tenants for life, remainder to C and his heirs, and A and B partition the property, C is entitled to the portion thus allotted to each life owner, A or B, at the time of his death; whereas, if there had been no partition, C could have taken none of the property until after the death of both A and B. 1 Wash. R. P. (6th ed.) $869. 22 Blackst. Com. p. *185; § 672, supra. 8 Lit. §§ 292, 294; Brown v. Raindle, 3 Ves. 256; Robison v. Codman, 1 Sumn. (U. S. Cir. Ct.) 121; Freeman, Coten. & Parti. §§ 29, 30. 4 Ibid.; Burnaby v. Equitable Reversionary Int. Soc., L. R. 28 Ch. Div. 416. 5 Ibid.; Gould v. Kemp, 2 M. & K. 310; Clerk v. Clerk, 2 Vern. 323. 6 York v. Stone, 1 Salk. 158; Simpson v. Ammons, 1 Binn. (Pa.) 175. See Wilkins v. Young, 144 Ind. 1; 1 Wash. R. P. (6th ed.) § 864; Freeman, Coten. & Parti. § 30. 7 Last four preceding notes. as a tenant in common with B and C.1 It follows from these rules, that, if one joint tenant convey his undivided share to another, the purchaser holds that portion as tenant in common with the remaining co-owners, and continues to have the residue as a joint tenant with them.2 Termination of joint tenancy by destruction of the unity of interest has been heretofore discussed. It occurs whenever one of several joint tenants of a temporary interest acquires in any manner the reversion or remainder, and has his undivided estate merged thereby. Thus, if A, B, and C own land for life as joint tenants, and A purchase the reversion in fee, and B and C refuse to contribute their pro-rata payments for its acquisitions, but let A's life interest merge in the fee, the result is that A becomes a tenant in common with them as to his share of the life ownership.* The ending of a joint tenancy by destruction of the unity of possession most frequently occurs by survivorship, or partition, as heretofore explained; and it may be brought about by a disseisin, and the co-owners' consequent loss of possession, or by their uniting in a conveyance of the entire property to a stranger.5 1 Last preceding note but two. 2 Lit. § 304; 2 Blackst. Com. p. *186. 3 Co. Lit. 182 b; 2 Blackst. Com. p. *186; Wiscot's Case, 2 Co. Rep. 60; § 677, supra. 4 Ibid. 5 § 673, supra; ch. liv, infra. |