by descent, it may be terminated by partition, by alienation, or by a union of the interests of all the coparceners in one parcener as heir of the others. An alienation by any of the parceners, disunites her title and interest from that of the others, and the coparcenary is thereby destroyed if there were but two parceners, but if there were more than two, those who did not convey remain coparceners as between one another, but are tenants in common with the alienee of the part so conveyed.1

285. Generally Abolished.-As persons to whom estates jointly descend are, in the United States, generally treated as tenants in common, "the distinction of estates in coparcenary is of comparatively little practical importance, and properly gives place to the familiar form of joint estates in universal use, tenancy in common." The same remark is equally applicable to the province of Upper Canada, coparcenary having there been changed into tenancy in common, by sec. 38 Ch. 82 of Cons. Statutes.'

1 Chitty on Descents, 78; 2 Bl. Comm. 191; 2 Cruise, 394.

*1 Washb. on Real Est. 415; Sec. 1909 Code of Ala.; Laws of R. I. ed. of 1872, 348; Miller's Appeal, 3 Grant, 247; Stevenson v. Cofferin, 20 N. H. 150.

* Leith's Real Property Statutes, 55, 195,

interests of parceners may be equal or unequal. The number of the parceners may be augmented by the decease of one of them, leaving several heirs; but the number of jointtenants necessarily diminishes with each succeeding death, until the whole estate ultimately vests in the last survivor. But the most important distinction between these two tenancies arises from the fact that between coparceners "there is no jus accrescendi, or survivorship, for each part descends severally to their respective heirs, though the unity of possession continues."1

882. "Coparceners make but one heir, wherefore it follows that although, where there are two parceners, they have moieties in the lands descended to them, yet are they both but one heir; and one of them is not the moiety of an heir, but both of them are but unus hæres."?

883. Continuance of Coparcenary.-As long as an estate is held by two or more persons by descent, they are parceners. Thus, if one of two daughters, to whom an estate passed by descent from their ancestor, die, her heir becomes parcener with the survivor. If both of the daughters die, their heirs become parceners. "And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners." Hence, in the case of coparceners, the descent may be either in stirpes, or in capita. Thus if a man die, leaving as his heirs two daughters, the descent to them is in capita. But if, prior to the death of the father, the daughters had died, the elder of them leaving three daughters, and the younger leaving one daughter, the descent must be in stirpes, and the daughter of the younger must receive the same share as the three daughters of the elder."

884. Destruction.-Though an estate in coparcenary cannot be destroyed, as long as it remains in two or more persons

12 Cruise by Greenl. 391, 392; 4 Dane Ab. 758; 2 Bl. Comm. 188; Chitty on Descents, 77.

3 Chitty on Descents, 75; 2 Cruise, 891; Co. L 62 b; Hoffar v. Dement, 5 Gill, 137.

3 Chitty on Descents, 78; 4 Dane Ab. 758.

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? 86. Definitions.—"Tenants in common are they which have lands or tenements in fee-simple, fee-taile, or for terme of life, &c., and they have such lands or tenements by severall titles, and not by a joynt title, and none of them know of this his severall, but they ought by law to occupie these lands or tenements in common."1 The several tenancies are best distinguished from one another by considering the unities of each. Beginning with tenancy by entireties, we find five unities, viz., a unity of possession, of title, of estate, of time, and of person. Next comes joint-tenancy with the same unities as tenancy by entirety, except that of person. Then, next below joint-tenancy, as coparcenary, with its three unities, viz., of title, of possession, and of estate. And lastly, we have tenancy in common, which is different from the other tenancies in this, that it requires but one unity-that of possession. It is therefore a sufficient description of tenants in common to say that they "are persons who hold by unity of possession." "It is not necessary that there should be either unity of tenure in the different portions of the land, or unity of estate in the several owners thereof, to constitute a tenancy in common. Unity of right of possession merely is all that is required." But tenants in common may also have a unity of interest, title, and time."

8 87. Equal Right to Possession essential to.-To constitute a tenancy in common, there must be an equal right to the possession of every part and parcel of the subject-matter of the tenancy. Several persons may together own an entire thing without being cotenants. This is always the case where one of them has the exclusive right of possession in

1 Litt. sec. 292; 2 Cruise Dig. 399.

2 Kent Comm. 367.

Putman v. Ritchie, 6 Paige Ch. 398. Co-heirs may be tenants in common. Malcom v. Rogars, 5 Cow. 188; 15 Am. Dec. 464; also co-devisees, Pruden v. Paxton, 69 N. C. 446. It has been held that there can be no tenancy in common in the mere possession of lands; that there must be soine title as well as possession. Lillianskyoldt v. Goss, 2 Utah, 292. Tenants in common have not the benefit of survivorship. It is said that they cannot convert their estate into a technical joint-tenancy; but may by deed inter parties, vest each other with the right of survivorship. Truesdell v. White, 13 Bush, 616. This latter proposition has been denied in Arkansas, where an agreement between tenants in common, that the survivor should have the other's estate, was pronounced invalid. Hershy v. Clark, 35 Ark. 17; S. C. 37 Am. Rep. 1 Smith on Real and Pers. Prop. 246 (4th ed.)

one part of the thing, and the others have such exclusive right in the other parts. Thus, A may own the basement of a house, and B the first story above; or C and D may own contiguous rooms on the same floor; and E may have the right to enter and re-enter for specified purposes. Here, though no one person fully owns the entire house, yet each as to his part has an estate in severalty. As between each other, they have neither the rights, remedies, nor relations of tenants in common. Each has a separate dwelling in law.1

88. What may be held by.-A tenancy in common may exist in every species of property, real, personal, or mixed. Two or more persons may, therefore, be tenants in common of a fixture,2 or of the right to use or convey water in a ditch. "It is true that the mere right to water is a sort of incorporeal thing; but the water itself is substantial and tangible, and as the right gives the party control and possession of this commodity, and entitles the party to damages for its diversion by another, we do not see why this right may not be acquired by two or more acting together, or why, when they do acquire it, they do not hold it as other property.' And if a number of persons adopt a trade-mark for their united interest, or had inherited such mark, it is said that they are tenants in common thereof. So, too, a franchise may be held by two or more persons as tenants in common.5


89. Co-Patentees.-No doubt, the rights and privileges created by virtue of the issuing of letters patent for an invention may be held by two or more persons. But whether, when so held, the parties are tenants in common, is a question not fully determined in this country. The parties may, beyond all question, enter into such an agreement in regard to their patent as will make them tenants in common. But in the absence of any stipulation, what are the relations of co

1 Wiggin v. Wiggin, 43 N. H. 561; Abbott v. Wood, 13 Me. 115; McCormack v. Bishop, 28 Iowa, 233; Loring v. Bacon, 4 Mass. 575; Cheeseborough v. Green, 10 Conn. 320; S. C. 26 Am. Dec. 396; Weller v. Weller, 131 Mass. 446.

2 Hill v. Hill, 43 Penn. St. 521.

3 Kimball v. Gearhart, 12 Cal. 47; Bradley v. Harkness, 26 Cal. 69; Reed v. Spicer, 27 Cal. 57.

Browne on Trade-Marks, sec. 604.

Harven v. Mehlgarten, 19 Ill. 95; Livingston v. Lynch, 4 Johns. Ch. 573.


patentees by mere operation of their patent? In one instance, the answer given is that they "are simply joint-owners, or tenants in common, of the rights and property secured by the patent; and their rights, powers, and duties as respects each other, must be substantially those of the joint-owners of a chattel." In the first opinion by an American Judge, in which this subject seems to have been much considered, the conclusions were announced as being subject to further discussion of the question, and as being put forth "in the hope that the attention of the parties interested may be attracted to the subject, and that the question may be brought before the Supreme Court of the United States for adjudication." The conclusions so announced were that joint-patentees were substantially tenants in common, and having between each other the rights and remedies accorded by law to such tenants; and that if either "appropriates any portion of the exclusive right or common property to his separate use or benefit, by either the use or sale of the patented machine, he does what is in principle the same as a conversion, by destruction or sale of the joint property by a tenant in common, which authorizes his cotenant to maintain trover."2 The Court, therefore, considered that no objection existed to the maintaining, by one joint-owner of a patent, of an action against his coowner for infringement. But other American authorities at least doubt the correctness of the conclusion that one jointpatentee is responsible to his co-owner for using the patent or manufacturing and selling the article patented; and deny the right of one of the co-patentees to require the other to account unless, perhaps, for moneys received for the sale to others of the right to use or manufacture the invention patented. In Massachusetts, an action was brought to compel the defendants to account with plaintiffs, and to pay over to them such sums as might be found due. The facts on which the plaintiff relied were as follows: The owners of an invention, and letters patent issued therefor, transferred to three other persons the

1 Pitts v. Hall, 3 Blatchf. C. C. 206.

2 Pitts v. Hall, 3 Blatchf. C. C. 208.

Curtis on Patents, sec. 188-190; Clum v. Brewer, 2 Curtis C. C. 524; De Witt v. Elmira Noble's Manuf. Co. 5 Hun, 301; Affirmed, 66 N. Y. 459; S. C. 23 Am. Rep. 73; Gates v. Fraser, 9 Bradwell's Ill. App. 626; Whiting v. Graves, 3 Barn. & Ald. 227.

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