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PARTITION:

A TREATISE ON THE LAW OF CO-OWNERSHIP AS IT EXISTS INDEPENDENT OF PARTNERSHIP RELATIONS

BETWEEN THE CO-OWNERS.

BY

A. C. FREEMAN,

AUTHOR OF THE LAW OF JUDGMENTS.

Second Edition.

SAN FRANCISCO:

BANCROFT-WHITNEY CO.

LAW PUBLISHERS AND LAW BOOKSELLERS.

LIBRARY OF THE

LELAND STANFORD JR. UNIVERSITY.

742718

Entered, according to Act of Congress, in the year 1874, by
A. C. FREEMAN,

In the Office of the Librarian of Congress at Washington.

COPYRIGHT, 1886.

By A. C. FREEMAN.

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THE importance of the law of cotenancy is, we think, generally underestimated. That occasions very frequently arise requiring the investigation and application of its principles, is manifest from the fact that in preparing the second edition. of this work, a little more than a decade after the issue of the first, we have found it necessary to increase the number of citations fully one-third. It is true that joint-tenancy and tenancy in coparcenary have been so nearly abolished in the United States, that the rules applicable thereto have only that interest which we accord to ancient history. Tenancy by the entireties, though rarely mentioned, and still more rarely understood, has, perhaps for that reason, generally escaped the blows of iconoclastic legislators. Tenancies in common have increased rather than diminished; and this increase has not resulted wholly from the statutes directing that every cotenancy be presumed to be in common unless a contrary intent is declared in the instrument creating it, but has been largely due to the necessities of commerce, the multiplication of partition fences and party walls, the union of capital and labor in raising or producing crops or other products to be held and owned "on the shares," and to the intermixture and confusion of goods while stored in great grain elevators and warehouses, or in transit from one part of the world to another. Other forms of cotenancy, unknown to the common law, have received legislative sanction in many of the States. Thus, most of the States organized out of territory acquired from France or Spain have retained in some form the law whereby husband and wife have a common interest in the property acquired after their marriage. A tender regard for the families of unfortunate debtors has manifested itself in statutes defining the homeC. & P.-1.

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stead, exempting it from execution, and giving both husband and wife such beneficial interests in its possession and enjoyment as to warrant us in regarding it as a limited cotenancy.

In the first part of this work we have endeavored to define the various cotenancies, and to state the rules of law especially applicable thereto. Besides a chapter on each of the cotenancies known to the common law, there is one on the Homestead as a Joint-Tenancy, one on the Law of Community Property, and another on Part Owners of Ships. In the chapter on Tenancy in Common we have also treated the subject of partnership real estate, and sought to ascertain to what extent it remained subject to the law of cotenancy, and for what purposes and by what means it may be controlled by the law of partnership. Next we have considered the relations, rights, and liabilities of cotenants among one another, including the restraints imposed upon them by the cotenancy, and the effect of those restraints upon their conveying or leasing the common property or acquiring title thereto by prescription or disseizin. The remedies between cotenants, both legal and equitable, are then treated; and the chapters on this subject are followed by a chapter on actions by cotenants against strangers to the cotenancy, and another on the effect of the Statute of Limitations on actions by and between cotenants.

The law of partition might more logically have been included in the chapters on the rights and remedies of cotenants among one another, but it is so generally regarded as an independent topic, that we reserved it for separate consideration. We fear that the law of partition is too commonly supposed to embrace about all there is of practical value in the law of cotenancy, whereas it is in truth with respect to the whole law of cotenancy, of no greater comparative importance than are the rules respecting the dissolution and settlement of a partnership to the whole law of copartnership.

Of the chapters on Partition, the first treats of voluntary partition; the second, of courts having jurisdiction to compel partition, and the source and nature of their authority; the third, of what partition may be compelled; the fourth, of who may compel partition; the fifth, of parties defendant and the persons bound by partition; the sixth, of the applicant's pleadings; the seventh, of defences and their presentation;

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