he who enters by force is to be held for damages in a civil action, whenever he uses more force than is needed to acquire possession.1

152: Bristor v. Burr, 120 N. Y. 427; O'Donald v. MacIntyre, 118 N. Y. 156; and Liabstadter v. Federgreen, 80 Hun (N. Y.), 245. See, also, Jackson v. Farmer, 9 Wend. (N. Y.) 201; Schrier

v. Shaffer, 123 N. Y. App. Div. 545; Denver, etc. R. Co. v. Harris, 122 U. S.

597.

1 Last three preceding notes; Halsey v. Brown, 14 Conn. 270.

PART III.

ESTATES CLASSIFIED WITH REFERENCE TO THE NUMBER

AND CONNECTION OF THEIR OWNERS.

§ 671. Common-law preference

among co-tenancies Statutory changes.

§ 670. Estates in Severalty Joint Estates, classified. — Real property interests, classified with respect to the number and connection of their owners, are 1, Estates in severalty, and 2, Joint (or concurrent) estates, or co-tenancies.1

1. The former of these exists when one person owns real property, and has a right to enjoy it, separate and distinct from the interests of others.2 This is the most natural and common of all the forms of estates, when they are viewed from the standpoint now occupied. It is the individual interest normally preferred by dealers in realty; and so it is to be mentioned here, simply to distinguish it from the other and opposite group of interests, the co-tenancies, to which the present part of this treatise is primarily devoted.

2. Joint estates, co-tenancies, or concurrent interests, in realty are those in which the ownership belongs to two or more persons; and each owner is interested, according to his share, in each and every portion of the property; and neither of them has any absolute proprietorship of all or any part thereof. The common law, aided somewhat by statutes, has developed concurrent ownership in realty to a greater extent than it has

the

done in personalty. The resulting forms may be grouped within six headings or classes. These are, (1) joint tenancy (or a joint estate), which arises from some method of purchasing real property, is characterized by the important right of survivorship, and has all the four unities, so-called, of time, title, interest, and possession; (2), co-parcenary, the ordinary co-ownership of female heirs, inheriting real property in England; (3), tenancy (or estate) in common; in which there is no survivorship, and only the one unity of possession loosest and most advantageous of the concurrent ownerships; (4), tenancy (or estate) by the entirety, which arises from a conveyance of real property to husband and wife, and which carries with it the right of survivorship and forms even a more compact co-ownership than joint tenancy: with this may be associated generally, though perhaps somewhat loosely, the community ownership of real property by husband and wife, which is an outgrowth of the civil law and modifying legislation in a few states; (5), partnership property-realty bought with partnership funds and held for partnership purposes; and (6), joint mortgages, or mortgages held as security for loans made jointly by two or more persons.2 A separate chapter is required for the discussion of each of these forms of co-tenancies. (a) § 671. Common-Law Preference among Co-Tenancies utory Changes. - Before each of these forms of concurrent ownership is separately discussed, it is to be observed that the common-law courts, unaffected by statutory regulations, have uniformly preferred to treat co-tenancy of real property, when unexplained by the terms of the conveyance or other circumstances, as a joint tenancy.3 This preference is of feudal origin. All co-owners are treated as one proprietor, and feudal polity required that the death of one or more of them should not change relationships, nor bring in new owners, nor (a) The New York statute provides that: "Estates in respect to the number and connection of their owners, are divided into estates in severalty, in joint tenancy and in common; the nature and properties of which respectively shall continue to be such as are now established by law, except so far as the same may be modified by the provisions of this chapter." Real Prop. L. § 65, which was originally 1 R. S. 726, § 43. This act applies alike to realty and personalty. Matter of Kimberly, 150 N. Y. 90, 93. See Commercial Bank v. Sherwood, 162 N. Y. 310, 319; Dana v. Murray, 122 N. Y. 604.

12 Blackst. Com. pp. *182, *191; Digby, Hist. Law R. P. (5th ed.) p. 276. Chase's Blackst. pp. 358-371, 521.

- Stat

3 Lit. §§ 277, 281; Co. Lit. 183 b; 4 Kent, Com. p. *361; Purdy v. Hayt, 92 N. Y. 446, 452.

interfere with the duties of those who survived. The survivors of joint tenants, taking as they did all the property, best fulfilled these demands of the lord of the fee.1 As the stringency of feudalism wore away, the reason for thus strongly preferring joint tenancies also diminished; and, accordingly, courts of equity adopted, and have since ordinarily followed, the rule that they will regard a co-ownership as an estate in common, rather than a joint tenancy, whenever there are any reasonable circumstances to indicate such intention on the part of the grantors or owners.2 And Lord Hardwicke said that he thought the courts of law were inclined the same way.3 Strictly, however, it may be said that, in both law and equity, it is still true in most places that, where the statutes are silent on the subject, a transfer of property to two or more persons, without any indication or suggestion as to how they shall hold, makes them joint tenants.*

Because of the disappearance of the feudal reasons for continuing joint tenancy, and because also of the hardships that sometimes result from its severe doctrine of survivorship, legislation in most of the United States has either modified or done away with that doctrine, or made the preferred kind of concurrent ownership a tenancy in common. The favorite form assumed by this change is probably represented by the New York statute, which declares that, "every estate granted or devised" [or descending] "to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be a joint tenancy; but every estate, vested in executors or trustees as such, shall be held by them in joint tenancy."6 (a)

(a) This New York statute, without the exception as to trustees and executors, was first enacted as L. 1782, ch. 2. The provision as to them

1 Ibid.

2 Ibid.; Co. Lit. 185 b; Rigden v. Vallier, 2 Ves. Sr. 258; Steeds v. Steeds, L. R. 22 Q. B. Div. 537; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334; Matter of Russell, 168 N. Y. 169; Noble v. Teeple, 58 Kan. 398.

3 Hawes v. Hawes, I Wils. 166; 4 Kent, Com. p. *361.

Last two preceding notes; Purdy v. Hayt, 92 N. Y. 446, 452; Fisher v. New Jersey Bank, 48 N. J. L. 390; Noble v. Teeple, 58 Kan. 398; Greer v. Blanchar, 40 Cal. 194; 1 Stim. Amer. Stat. L. § 1371 (D).

5 N. Y. L. 1909, ch. 52, § 66; 1 Stim. Amer. Stat. L. § 1371; 4 Kent, Com. p. 361. In some states, joint tenancy in form is still retained, but shorn of its important incident of survivorship. Arnold v. Jack, 24 Pa. St. 57; Kyte v. Kyte, 67 Atl. Rep. 933 (N. J. Eq.); Redemptorist Fathers v. Lawler, 205 Pa. St. 24; Equitable Loan & Security Co. v. Waring, 117 Ga. 599; Rowland v. Rowland, 93 N. C. 214; Lockhart v. Van Dyke, 97 Va. 356.

6 N. Y. L. 1896, ch. 547, §§ 56, 293; 1 Stim. Amer. Stat. L. § 1371 (B), (3). See Matter of Russell, 168 N. Y. 169;

It is generally held, as is hereafter more fully explained, that such legislation has not abolished tenancy by the entirety - resulting from transfer to husband and wife. It is to be noted, also, that the exception, so commonly made by the statutes themselves in favor of joint estates in trustees or executors, by thus retaining survivorship, preserves the best means of keeping such interests intact and undivided when one or more of the representative owners die.2 So important is this, that several states have held the presumption to be in favor of joint tenancy for trustees, even though their legislation in favor of tenancy in common has no provision like that of the last clause of the statute above quoted.3

was added by L. 1786, ch. 12. Substantially as it now is, it was 1 J. & V. 245, § 6; 1 R. L. (1813), p. 14; 1 R. S. 727, § 44; now Real Prop. L. § 66. It adds to the quotation in the text the sentence: "This section shall apply as well to estates already created or vested as to estates hereafter granted or devised." It is true here, as stated generally in the text, that this statute does not abolish tenancy by the entirety. Bertles v. Nunan, 92 N. Y. 152; Miner v. Brown, 133 N. Y. 308; Hiles v. Fisher, 144 N. Y. 306; § 688, infra. The net result is that, while no particular words or forms of expression are needed to create a joint tenancy, yet, except in cases of transfer to executors or trustees, or to husband and wife, a conveyance or devise to two or more persons makes them owners in common, unless a different intention is clearly expressed. Matter of Russell, 168 N. Y. 169; Moffett v. Elmendorf, 152 N. Y. 475; Matter of Kimberly, 150 N. Y. 93; Commercial Bank v. Sherwood, 162 N. Y. 310; Steinway v. Steinway, 163 N. Y. 183; Dana v. Murray, 122 N. Y. 604; Purdy v. Hayt, 92 N. Y. 446; Everitt v. Everitt, 29 N. Y. 39; Matter of Conger, 81 App. Div. 493; Tompkins v. Verplanck, 10 App. Div. 572. Descent of real property to two or more heirs is also made to create a tenancy in common, by Deced. Est. L. § 94 (originally 1 R. S. 753, § 17), which declares that, "When there is but one person entitled to inherit, he shall take and hold the inheritance solely; when an inheritance or a share of an inheritance descends to several persons they shall take as tenants in common, in proportion to their respective rights."

Purdy v. Hayt, 92 N. Y. 446; Cochran v. Goodell, 131 Mass. 464; Bowen v. Swander, 121 Ind. 164; Lemmons v. Reynolds, 170 Mo. 227; Farwell v. Warren, 76 Wis. 527; Tully v. Tully, 71 Cal. 338; 1 Wash. R. P. (6th ed.) § 857, note 8.

1 Bertles v. Nunan, 92 N. Y. 152; Miner v. Brown, 133 N. Y. 308; Hardenbergh v. Hardenbergh, 10 N. J. L. 42; McCurdy v. Canning, 64 Pa. St. 39; Harrer v. Wallner, 80 Ill. 197; Lash v. Lash, 58 Ind. 526; Harrison v. Ray, 108 N. C. 215; § 688, infra. But

in some states, a transfer of realty to husband and wife, without indication of any other intent, makes them tenants in common. Pease v. Inhabitants, etc., 182 Mass. 363; McNeeley v. South Pa. Oil Co., 52 W. Va. 616; Hoffman v. Stigers, 28 Iowa, 302.

21 Stim. Amer. Stat. L. § 1371 (B), (3); 4 Kent, Com. p. *361.

3 Ibid.; Webster v. Van Deventer, 6 Gray (Mass.), 428; Franklin Inst. for Savings v. People's Sav. Bk., 14 R. I. 632; Fisher v. New Jersey Bk., 48 N. J. L. 390; Ely v. Dix, 118 Ill. 477.