to dower, courtesy, and debts,1 and capable of being sold, encumbered, devised, or passed by descent to his or her heirs.2 The one emphatic restriction, as stated above, is that such owner can not alone convey, encumber, devise, or affect by his individual contract, the minutest portion of the property by metes and bounds, and that his attempt to do so can affect at most his individual, undivided interest therein, however great or small it may be.3 It follows that no separate divided portion of the property can be wholly taken on execution, against any one or more of the owners less than all; nor can some of them, without the others, create an effectual easement against it. Attempts to do or permit these things may bind the undivided interests of those who so act; but they can not ordinarily affect the rights of their fellow owners. Releases by the latter, of course, may subsequently validate and make good these attempted transfers or encumbrances. And in some cases it is said that an act of one, clearly for the good of the common property, and unquestionably beneficial to the other owners, may be binding upon them.5 1 Freeman, Coten. & Parti. § 107; §§ 477, 685, supra. 2 Ibid.; Barson v. Mulligan, 191 N.Y. 306, 323. Valentine v. Healey, 158 N. Y. 369; Crippen v. Morss, 49 N. Y. 67; State v. Klein, 52 N. J. L. 479; Benjamin v. American Telephone & Telegraph Co., 196 Mass. 454; Clark v. Parker, 106 Mass. 555; Tainter v. Cole, 120 Mass. 162; Morrison v. Clark, 89 Me. 103; Dexter L. Co. v. Dexter, 6 R. L. 353; Markoe v. Wakeman, 107 III. 251; Freeman, Coten. & Parti. § 168 et seq. An attempted transfer, by one co-tenant, of a distinct portion of the property by metes and bounds, will not be allowed to affect the rights of his fellow owners; yet in many states it gives the purchaser a right to possess that portion with them; and equity, if fairly possible, will set off that part to him when partition is made. Dennison v. Foster, 9 Ohio St. 126; Holcomb v. Coryell, 11 N. J. Eq. 548; Barnhart v. Campbell, 50 Mo. 599; Crook v. Van Devoort, 13 Neb. 505; Benedict v. Torrent, 83 Mich. 181; Freeman, Coten. & Parti. § 198 et seq. See Barnes v. Lynch, 151 Mass. 510; Green v. Arnold, 11 R. I. 364; Whitton v. Whitton, 38 4 It follows from these principles that, when A owns one piece of land in severalty and an adjoining piece as cotenant with B, A can not so use the former parcel as to acquire adversely in his favor an easement over the latter. Being a fellow proprietor with B, his action in relation to that land must be in subordination to B's title, and not adverse to it. Palmer v. Palmer, 150 N. Y. 139; Crippen v. Morss, 49 N. Y. 67; Holcombe v. Coryell, 11 N. J. Eq. 548. See Deavitt v. Ring, 73 Vt. 298. 5 Barnes v. Lynch, 151 Mass. 510; Eaton v. Tallmadge, 24 Wis. 217. "Every act done by one joint tenant " (or tenant in common) "which is for the benefit of his companions will bind them; but those acts which prejudice his companions in estate will not bind them; and if the benefit be doubtful, two joint tenants have no right to elect for a third." Addison, Cont. 334. "The general proposition of law, as above quoted, is well sustained by the commonlaw authorities. But it is evident that many distressing questions may arise as It is the duty of each co-owner of real property to protect it, in respect to the title and possession. This obligation flows from the unity of possession, and from each one's duty to his fellows; and it applies to all co-tenancies, as do also the principles here discussed as to repairs, improvements, contribution, and waste.1 Accordingly, without consulting his fellows, he may pay off taxes or assessments, that are liens on the land, or remove other encumbrances when reasonably necessary; and may then have contribution from his co-owners toward the expenses thus incurred.2 So, if he act under an agreement express or implied with them, or pursuant to their consent to be responsible with him, he may make repairs or improvements and compel them to contribute to the cost. But here the limits of the authority of one coowner, to bind his associates to help make additions to the land, are approached. Each has a legal right to insist that he shall not be called on, against his will, to enhance, or ordinarily even to maintain, the value of his property. "At common law, no action lies by one tenant in common (or other co-tenant) "who has expended more than his share in repairing the common property, against the deficient tenants."4 By the weight of authority to-day, however, though with some very important dissents, such repairs as are essential to the preservation or utility of the property, as distinguished from improvements or additions thereto, may be made by one or more co-tenants, especially when they have first demanded assistance from the others which has not been given; and they may then have contribution from the latter. The rule as to improvements, per to what acts are necessarily presumed to be so beneficial as to authorize either joint tenant to bind the others." Freeman, Coten. & Parti. §§ 174-179; Loomis v. Pingree, 43 Me. 299. 1 See § 678, supra. 2 Campbell v. Mesier, 4 Johns. (N. Y.) 337; Dickinson v. Williams, 11 Cush. (Mass.) 258; Watkins v. Eaton, 30 Me. 529; Wilmot v. Lathrop, 67 Vt. 671; Clark v. Lindsey, 47 Ohio St. 437; Titsworth v. Stout, 49 Ill. 78; Eads v. Rutherford, 114 Ind. 273; Cocks v. Simmons, 55 Ark. 104; Emeric v. Averado, 90 Cal. 444. 8 Putnam v. Richy, 6 Paige (N. Y.), 380; Haven v. Mehlgarten, 19 Ill. 95; Baird v. Jackson, 98 Ill. 78; Phipps v. Phipps, 47 Kan. 328; Reed v. Jones, 8 Wis. 421; Freeman, Coten. & 4 Converse v. Ferre, 11 Mass. 326; Calvert v. Aldrich, 99 Mass. 76; Stevens v. Melcher, 152 N. Y. 551, 565; Kidder v. Bixford, 16 Vt. 172. The common. law remedy available to a tenant who wished the others to assist in necessary repairs was by writ de reparatione facienda. But this writ was allowed only when a mill or house fell into decay. It was not employed to obtain contribution for repairs previously made; but to compel a co-tenant to make, under 'the order and discretion of the court, such repairs as it adjudged to be proper." Freeman, Coten. & Parti. § 261; 4 Kent's Com. p. *370. 5 Denman v. Prince, 40 Barb. (N. Y.) ---- manent additions, still follows generally the old common law; 1 and, except in cases in which they are required by circumstances of special necessity to be made to mills or house, or where peculiar conditions give rise to unusual equities, he who, without the consent or agreement of his associates, adds improvements to property belonging to himself and them does so at his peril, and without any right, even in equity, to have contribution from them. But when this occurs, and the property is thereafter partitioned in equity, that court will, if reasonably possible, assign the improved portion to him who made the addition; or otherwise, so far as is feasible and fair, it will favor him.3 Since each one of the co-tenants is obligated to protect and conserve the common property, he readily becomes guilty of waste by his failure to do this, or, of course, by his voluntary injury. The remedies against him for this wrong, resting in England on the statute II Westminster, ch. 22, are substantially the same as those explained in the discussion of waste in a previous chapter. And it is simply to be added here that many statutes in this country give his co-owners an election, either 217; Mumford v. Brown, 6 Cow. (N. Y.) 476; Stevens v. Melcher, 152 N. Y. 551, 565; Baety v. Bordwell, 91 Pa. St. 441; Farrand v. Gleason, 56 Vt. 633; Fowler e. Fowler, 50 Conn. 256; Goodenow v. Ewer, 16 Cal. 461. Contra, Leigh r Dickeson, L. R. 15 Q. B. Div. 60; Kennedy v. De Trafford (1896), 1 Ch. 762; Calvert v. Aldrich, 99 Mass. 74. 1 Scott v. Guernsey, 48 N. Y. 106, 124; Stevens v. Melcher, 152 N. Y. 551, 565; Husband v. Aldrich, 135 Mass. 317; Kidder v. Rixford, 16 Vt. 169; Brown v. Cooper, 98 Iowa, 144; Ferris #. Montgomery, 94 Ala. 537. * Ibid.; Cosgriff v. Foss, 152 N. Y. 104; Stevens v. Melcher, 152 N. Y. 551; Clapp v. Nichols, 31 N. Y. App. Div. 531; Ward v. Ward, 50 W. Va. 517; Walter v. Greenwood, 29 Minn. 87; Phipps . Phipps, 47 Kan. 328. When improvements are made by one co-owner in such a manner that he can not obtain contribution against his fellow tenants, a court of equity will, if possible, award to him in a partition suit that portion of the property so improved, and will not demand any compensation from him to the others for the added value of the part that he thus ob tains; or in some other way, when fair and reasonable, that court will seek to compensate him for the value that he alone has added to the property. Ibid.; Green v. Putnam, 1 Barb. (N. Y.) 500; Ford v. Knapp, 102 N. Y. 135; Hall v. Paddock, 21 N. J. Eq. 311; Kelsey's Appeal, 113 Pa. St. 119; Fenton v. Miller, 116 Mich. 45; Hannah v. Carver, 121 Ind. 278; Killner v. Wuchner, 79 Iowa, 722; Carson v. Brody, 56 Neb. 648; Drennen v. Walker, 21 Ark. 539; Donnor v. Quartermas, 90 Ala. 164; Freeman, Coten. & Parti. §§ 258-262. See Cosgriff v. Foss, 152 N. Y. 104; Stevens v. Melcher, 152 N. Y. 551; Husband v. Aldrich, 135 Mass. 317. When one has held the land, believing he owned it all, he may have, on partitioning it with those who are his co-tenants, ratable compensation for improvements made by him in good faith. Clapp v. Nichols, 31 N. Y. App. Div. 531; Shepherd v. Jernigan, 51 Ark. 275. 4 Co. Lit. 200 b; Twort v. Twort, 16 Ves. 128; Elwell v. Burnside, 44 Barb. (N. Y.) 454; Childs v. Kansas City, etc. R. Co., 117 Mo. 414; Dodge v. Davis, 85 Iowa, 77; § 552, supra. 6 § 558, supra. to let the concurrent tenancy continue and recover treble damages against him for the injury, or, because of the waste, to have partition and recover single damages in that action.1 (a) Tenants in common, owning the property as they do in undivided portions, may always sue or be sued separately, with regard to their respective individual interests.2 But, since their possession is unified, they must join or be joined in actions affecting the common property, so long as they remain such concurrent owners.3 § 687. Termination of Tenancies in Common."Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise, which brings the whole to one in severalty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession." The termination of them by partition is discussed hereafter.5 4 (a) The New York statute is as follows:- "An action for waste may also be maintained, by a joint tenant or tenant in common, against his cotenant, who commits waste upon the real property held in joint tenancy or in common. If the plaintiff recovers therein, he is entitled, at his election, either to a final judgment for treble damages, as specified in the last section, or to have partition of the property, as prescribed in the next two sections." Code Civ. Pro. § 1656. If he elect to have partition, he obtains the benefit of single damages only. Code Civ. Pro. §§ 1657, 1658; Hall v. Fisher, 20 Barb. 441; Elwell v. Burnside, 44 Barb. 454; Cosgriff v. Dewey, 164 N. Y. 3; Donald v. Elliott, 11 Misc. 120. 1 N. Y. Code Civ. Pro. §§ 1656-1658; 1 Stim. Amer. Stat. L. § 1377. 2 Lit. §§ 311,315; Jackson v. Moore, 94 N. Y. App. Div. 504. Ibid.; DePuy v. Strong, 37 N. Y. 372; Eckerson v. Village of Haverstray, 6 N. Y. App. Div. 102; Clapp v. Pawtucket Sav. Inst., 15 R. I. 489; Halliday v. Manton, 69 Atl. Rep. 847 (R. I.); 42 Blackst. Com. pp. 194, * 195 ; CHAPTER LI. (4) ESTATES, OR TENANCIES, BY THE ENTIRETY COMMUNITY PROPERTY AND INTERESTS. Tenancy by the Entirety. § 688. Tenancy by the entirety defined and explained - Its creation. § 689. Nature and incidents of tenancy by the entirety. § 690. Termination of tenancy by the entirety. Community Property and Interests. § 691. Origin and nature of community ownership. § 692. Incidents of community ownership. Tenancy by the Entirety. - Its § 688. Tenancy by the Entirety defined and explained Creation. A conveyance of real property to a husband and his wife makes them owners by the entirety (or by entireties), at common law; and also in most of the United States to-day, notwithstanding the wide scope of the married women's legislation, and that making tenancy in common so generally favored.1 The law's theory that husband and wife are one person is a very strong principle, which can not usually be set aside except by explicit statute.2 Therefore, in most jurisdictions where 1 Lit. § 291; 4 Kent, Com. p. * 362; Bertles v. Nunan, 92 N. Y. 152; Zorntlein v. Bram, 100 N. Y. 13; Price v. Pestka, 54 N. Y. App. Div. 59; Butler r. Rosenblath, 42 N. J. Eq. 651; Morris r. McCarty, 158 Mass. 11; Diver v. Diver, 56 Pa. St. 106; Brownson v. Hull, 16 Vt. 309; Fisher v. Provin, 25 Mich. 347; Chandler v. Cheney, 37 Ind. 391; Harrison v. Ray, 108 N. C. 215; Ray v. Long, 132 N. C. 890; Loughran v. Lemmon, 19 App. Dist. Colum. 141; Noblitt t. Beebe, 23 Or. 4. This kind of coownership has been held in many jurisdictions to apply even to personal property, when nothing to the contrary *442. |