184. Pledge by onu Cotenant.-A pledge of the common property made by one of the cotenants has no effect on the rights of the others, except to confer on the pledgee the right to retain possession to the extent of the pledgor's interest, and no further.' This is equally true, whether the pledge be made to secure the individual debt of him who makes it, or the joint debt of himself and his cotenants. Thus, where one of two cotenants of a leasehold interest made an assignment thereof to secure their joint debt, the Court referred to its former decision, that "one partner was not authorized to execute an assignment of the property of the firm, in the firm name, for the benefit of creditors, without consent of his copartner;" and from this former decision, was sure that "if a partner cannot execute an assignment of the assets of the firm, clearly a joint debtor cannot of the joint property."

2185. Cotenants cannot Create an Easement.—As a tenant in common cannot inake a grant of any specific part of the common land, which will convey any title against his cotenants, it follows that he cannot grant any right or easement upon any specified portion so as to confer any right capable of successful assertion against the other owners. This rule is equally true whether an easement or right of way be claimed as a way of necessity, or as founded on an express grant. If a grantor convey lands from which it is necessary that the grantee shall have a right of way over other lands of the grantor, the law presumes that it was the intent of the parties that such right of way should be given, and the grantor will therefore be compelled to give it. But if the lands over which the right of way is claimed belong to others as cotenants with the grantor, they cannot be prejudiced by a presumed intent in which they did not participate. And so where it is claimed that a highway has been dedicated by the acts of the owners, it must be shown that all of the cotenants participated or concurred in those acts."

Smith v. Clarke, 7 Wis. 563.

*Gates v. Andrews, 37 N. Y. 659.

Washburn on Easements and Servitudes, ch. 1, sec. 3; Portmore v. Bunn, 3 Dowl. & R. 145; D. & S. Railway Co. v. Wawn, 3 Beav. 119.

+ Collins v. Prentice, 15 Conn. 426.

5 Scott v. State, 1 Sneed. 629.

186. May acquire Easement over Land held by one in Severalty.-Cotenants may acquire by adverse user easement over lands held in severalty by one of their number. This has recently been determined by the Supreme Court of Errors of the State of Connecticut. The question was thought by the Court to be one "not discussed in the books." The Judges considered it clear that such an easement may exist, and rested their conclusion on this reasoning: 1st, that if a way was appurtenant to an estate, it would not become extinct on the acquisition of the servient estate by one having a moiety of the dominant estate, but would remain unimpaired in favor of himself and his cotenants; 2d, that it was clear that an easement over A's land in favor of A and B, cotenants of other lands, may be acquired by grant; and 3dly, if such an easement could exist, founded on a grant, it might be presumed from such user as "shall be evidence of a grant."

187. Easement not Extinguished by Owner being Cotenant of Servient Tract.—Where the dominant tract of land is at one time owned by a person who is at the same time tenant in common in the servient tract, this ownership is not such a unity of title as extinguishes the right of way. "A unity of possession or right that extinguishes a prescriptive right must be such that the party should have an estate in the land a qua and in the land in qua, equal in duration, quality, and all other circumstances of right. The title to one undivided third part as tenant in common did not constitute such a unity, for it did not authorize him to set apart any portion for a private way for himself, as if he had been sole owner. "2

188. Agency and Ratification.-One cotenant may act as agent for the others when authorized so to do. This authorization may be inferred from the acts of the parties, and need not be established by any express delegation of authority. Where one of the cotenants had, after the execution of a lease, always acted as the managing owner, and there were many circumstances tending to show that in so doing he was

1 Bradley Fish Co. e. Dudley, 37 Conn. 144; Hickox v. Parmlee, 21 Conn. 86. Reed v. West, 16 Gray, 284.

acting within the scope of authority given him by his companion, it was said that it was properly a question to be left to the jury whether the latter was not bound by the act of the former in accepting a surrender of the term.1 So, where a tender of an appraisement of real estate was required to be made to the owners, and one of the owners had, during all the proceedings, acted on behalf of himself and the others who were members of his family; and the tender was made to him for the benefit of the family; and he, when such tender was made, said, "We will not receive it"- these facts were thought to satisfactorily show that the person to whom the tender was made was, by his cotenants, authorized to refuse it. A deed of a specific parcel of land made by one cotenant is not binding on the others, nor can their rights be, to any extent, prejudiced by it. Such a conveyance, however, is not void, but voidable only. It may therefore be approved and ratified by the cotenants, and thereby be made to operate as a conveyance in severalty. And so any act done by either co-tenant, in the name and as the act of his companion, becomes binding on the latter from and after his ratification thereof."

3

1 Dodd v. Acklom, 6 Man. & Gr. 672; 7 Scott N. R. 415.

Dyckman v. Mayor of N. Y. 7 Barb. 507; affirmed in 1 Selden, 434.

3 Dall v. Brown, 5 Cush. 289.

4 Dyckman v. Mayor of N. Y. 7 Barb. 507.

CHAPTER IX.

TRANSFERRING AND LEASING LANDS OF A COTENANCY.

Conveyance by one Tenant in Common to another, § 189.

Conveyance by one Joint-Tenant to another, § 190.

Conveyance by one Coparcener to another, § 191.
Conveyance by Cotenant out of possession, § 192.
Conveyance to Strangers, § 193.

Each may Convey his Moiety at pleasure, § 194.

Right to Convey by Metes and Bounds, § 195.

Conveyance by one Cotenant not to prejudice another, § 196.

Conveyance by one Cotenant as Color of Title, § 197.

Conveyance of Ores by one Cotenant, § 198.

Conveyance of part void as to other Cotenants, § 199.

Reasons for this rule, § 200.

Rule denied in Ohio, § 201.

Rule denied in Virginia, § 202.
Rule denied in California, § 203.

Rule denied in Missouri, § 204.

Grantee can acquire no higher Right than Grantor, § 205.

Conveyance of part as between Grantor and Grantee, § 206.

Conveyance of part, effect after Partition, § 207.

Conveyance where Cotenancy includes distinct Parcels, § 208.

Conveyance where each Grantor Covenants for himself alone, § 209.
Covenant of Seizin, when broken, § 210.

General words restrained to interest specified, § 211.

Relative Rights of different Grantees in Severalty, § 212.

Conveyance by Sale under Execution, § 213.

Officer may Levy and take exclusive Possession, § 214.

Officer must take exclusive Possession, § 215.

Levy upon and Sale of part by Metes and Bounds, 216.

Levy upon interest of one, under Execution against all, § 217.

Conveyance as affecting Policy of Insurance, § 218

Change of Possession, § 219.

Leasing, § 220.

189. A conveyance from one tenant in common to another must be in the same form as though the estate conveyed was in severalty, instead of an undivided interest.

Each tenant in common has a several and distinct freehold. And "as they were created by different acts, and different liveries, they must also pass to each other by distinct liveries." "When several persons are tenants in common, or when joint-tenants do by severance become tenants in common, the title to each share is to be carried on precisely in the same manner as if the title to that share was a title to a distinct farm."2 "Tenants in common cannot release to each other; for a release supposeth the party to have the thing in demand; but tenants in common have several distinct freeholds, which they cannot transfer otherwise than as persons who are sole seized." "The books may be traced to the earliest periods, and it will be found that no author has maintained that one tenant in common can convey to another in any other way, or by a conveyance whose operation is different from those used by feoffers between whom no such relationship exists. It follows from this that, however conveyances between tenants in common may operate, and they cannot operate by way of release, they must contain words of perpetuity to pass a fee.'

2190. A conveyance from one joint-tenant to another may and ought to be by release. "The proper conveyance in this case is by release; for one joint-tenant cannot enfeoff his companion, because they are both actually seized of the whole estate." "If there be two joint-tenants and one release to the other, this passeth a fee without the word heirs, because it refers to the whole fee, which they jointly took, and are possessed of by virtue of the first conveyance. But while a release is the proper form of conveyance when one joint-tenant wishes to transfer his interest to the other, yet other forms of conveyance, the terms of which are so broad as to comprehend a release, will be allowed to operate accord

14 Cruise Tit. 32, c. 6, sec. 25.

23 Pr. Absts. 49.

35 Bac. Ab. 240.

+ Rector v. Waugh, 17 Mo. 28. But see Johnson v. Stevens, 7 Cush. 433, where a release to one tenant in common from the others was treated as sufficient to pass their estate.

52 Cr. Tit. 18, c. 2, sec. 22; 2 Hil. Real P. 296; Harrison v. Belsey, T. Raym. 413. 5 Bac. Ab. 240.