in part of prudent, careful men, a company may be willing to insure the property of the firm, though the others are of an entirely different character. But if, after this was done, those who were prudent and careful, could, by selling out to the others, leave the company exposed to the unguarded negligence of the latter, it might suffer the same evil as from a sale to strangers." But this line of reasoning has not always been regarded as conclusive, and, in a number of cases, it has been adjudged that a transfer from one part owner to another is not within the general prohibition of alienation of the property insured. In deciding this question, the Court of Appeals of the State of New York said: "It is suggested that the proviso may have been designed to secure the continuance in the firm of the only member in whom the insurers reposed confidence. The only evidence of their confidence in either is the fact that they contracted with all; and the theory is rather fanciful than sound, that they may have intended to conclude a bargain with rogues, on the faith of a proviso that an honest man should be kept in the firm to watch them. Certainly, nothing appears in the present case to indicate that all the assured were not equally worthy of confidence; and it is not to be presumed that, in any case, underwriters would deliberately insure those whose integrity they had reason to distrust." The answer here given to the argument that the proviso may have been inserted to retain in the firm some member in whose honesty the assurers had especial confidence, is equally applicable as a reply to the other argument, that such proviso may have been incorporated in the policy to secure the continuance in the firm of the member upon whose discretion and caution the insurers chiefly relied. The theory is truly more fanciful than real. If any such special confidence induced the granting of the policy, this fact ought to be proved rather than presumed. But the chief 3 Keeler . Niagara Fire Ins. Co., 16 Wis. 536; Finley v. The Lycoming County Mutual Ins. Co., 30 Pa. St. 312; Buckley v. Garrett, 47 Pa. St. 204. 2 McMasters r. The Westchester Mutual Ins. Co., 25 Wend. 379; Tillou v. Kingston Mutual Ins. Co., 7 Barb. 570; Wilson r. The Genesee Mutual Ins. Co., 16 Barb. 511; 4 Kern, 418; Dey r. The Poughkeepsie Mutual Ins. Co., 23 Barb. 627; Buffalo Steam Engine Works . The Sun Mutual Ins. Co.. 17 N. Y. 412; Hobbs v. Memphis Ins. Co., 1 Sneed, 444. Hoffman . Etna Ins. Co., 32 N. Y. 411. vice of the rule that alienation between joint owners avoids a policy of insurance is, that it seems to be as applicable to the transfer of the interest of the dishonest and imprudent, as to that of the honest and prudent cotenant. 219. The change of possession necessary to free a sale of personal property from the imputation of fraud, and to render it valid as against the creditors of the vendor, cannot always be accomplished when the chattel belongs to cotenants, only one of whom parts with his interest. If a chattel be in the possession of A, B, the cotenant of A, has no legal means of acquiring possession. B may sell his interest to C, but he cannot authorize C to take possession. C must therefore wait until A is willing to surrender possession, or until, in some unguarded moment, he allows C an opportunity of seizing and carrying it away. The law does not require C to obtain possession from A, in order to establish, even as against creditors, the validity of his purchase from B.1 ? 220. Cotenants may lease either to one another or to strangers. They may all concur in the lease, or each may lease his moiety separately. If, however, the lessors be coparceners or tenants in common, the lease operates as the separate demise of each, and must be so treated. Leases made by cotenants are subject to the same limitation in their effect to which conveyances are subject: viz., they cannot transfer any higher right than the cotenant making them possessed; they cannot impair the rights of the other cotenants, nor confer a right to occupy the whole, nor any particular part in severalty. But one joint-tenant may impair or postpone the rights of the other, as survivor. "As each of several joint-tenants in fee, or for their lives, has an estate not only for his own life, but for his companion's too, he may grant a lease for years of his own share, to commence at a future day, nay, even after his death, the term in the meantime existing in interest, though not in possession. And the same rule prevails in the case of joint-tenants for years." Beaumont v. Crane, 14 Mass. 400; Cushing v. Breed, 14 Allen, 380. * See 1 Platt on Leases, p. 125 to 138, for full treatment of subject of leases by and between joint-tenants, tenants in common, and coparceners. CHAPTER X. OF THE OUSTER OF ONE COTENANT BY ANOTHER. Difference between Evidence of, and of ordinary Ouster, § 221. By Adverse Entry, § 223. By Entry under Deed of the Whole, § 224. By Entry under Deed of the Whole, § 225. Conveyance of the Whole, without Entry, § 226. Exclusive Possession of Part, § 228. Notice of Ouster, whether must be given Tenant Ousted, § 229. Must be found in direct terms, § 233. Ouster by Force, § 234. Ouster by Denial of Cotenant's Right, § 235. Ouster by Refusal to let Cotenant in Possession, § 236. Ouster by Refusal, what demand necessary to, § 237. Ouster by Receiving Rents, § 238. Ouster by Cutting Timber, § 239. Ouster by Building Permanent Structure, 240. Ouster, unequivocal acts essential to, § 241. Ouster, when may be inferred, § 242. Disseizor, taking Deed from a Cotenant, § 243. Ouster, Statute in England concerning § 244. 221. An ouster of his cotenant by a tenant in common is an act which may, in general terms, be described in the same language as any other ouster, i. e., it "is a wrongful dispossession or exclusion of a party from real property, who is entitled to the possession." Ouster, both where the property is owned in severalty and where it is held in undivided interests, depends upon the intent of the party taking and holding possession. This intent can rarely be established by the declarations or confessions of the party in whose mind it is claimed to have been formed. It must therefore generally be evidenced from the acts of the party. If a person having no title thereto enter upon a parcel of land and subject it to his dominion, and claim and exercise the rights of ownership over it, little or no doubt can exist, in the absence of explanatory circumstances, that he intended to oust the true owner. But if, on the other hand, a cotenant enter upon the whole or any part of the realty of the cotenancy, as he has a legal right to enter, the law presumes that he intends nothing beyond an assertion of his right. There must, therefore, exist other and stronger evidence to prove that one cotenant has ousted another, than would be required to prove that a person having no right to the possession had ousted an owner in severalty.' An ouster, "as against a cotenant, cannot be proved merely by acts which are consistent with an honest intent to acknowledge and conform to the rights of the cotenant, although such acts might be sufficient evidence of an ouster between the parties, if there was no tenancy in common, and each claimed the whole."" "From the peculiar and intimate connection existing between tenants in common of real estate, the proof of an ouster, by one of another of them, ought to be of the most satisfactory nature." "The acts and declarations of the party in possession are to be construed much more strongly against him, than where there is no privity of title."4 "There must be outward acts of exclusive ownership of an unequivocal character, overt and notorious, and of such a nature as by their own import to impart information and give notice to the cotenants that an adverse possession and an actual disseizin are intended to be asserted against them."5 "There can be no legal doubt that one tenant in common may disseize another. The only difference between that and the other cases is, that the acts which, if done by a stranger, would per se be a disseizin, are, in the case of tenancies in common, susceptible of explanation consistently with the real title. Acts of ownership are not, in tenancies in common, Barret v. Coburn, 3 Met. Ky. 513; Forward v. Deetz, 32 Pa. St. 72. Newell v. Woodruff, 30 Conn. 498. 3 Adam v. Ames Iron Co., 24 Conn. 235. Baily v. Trammell, 27 Tex. 328. 5 Warfield v. Lindell, 38 Mo. 581. See same case in 30 Mo. 283. C. & P.-18 necessarily acts of disseizin. It depends on the intent with which they are done." ? 222. The burden of proving an ouster always devolves upon the cotenant who asserts its existence. If the action be in ejectment, and the fact of ouster be denied by the defendant, the plaintiff must show that he has been ousted before he can prevail. If, on the other hand, the defendant avers the existence of an ouster and a continuous adverse holding for a time sufficient to bar the plaintiff's remedy by operation of the Statute of Limitations, the burden of proving such ouster is shifted from the plaintiff to the defendant. Prima facie, the possession of every cotenant is presumed to be by virtue of his title, and not in hostility to the rights of his cotenants. Whoever seeks to assert a remedy, to the granting of which the fact of ouster is a prerequisite, must first remove this prima facie presumption. "The law will not presume, without evidence, that any man intends to do an unlawful act, but will presume that every man, having a right of entry or possession, enters or occupies according to his title."2 But in order to throw upon plaintiff the onus of establishing that the possession of the defendant is hostile, the latter must show that he is a cotenant with the plaintiff. This rule is applicable whether the declaration proceeds upon the theory that the plaintiff is the sole owner, or upon the theory that he is the owner of a specified undivided interest. It does not follow necessarily, nor will any prima facie presumption be indulged, that because plaintiff is entitled to one moiety, the defendant is entitled to the other. But when the defendant proves his cotenancy with plaintiff, the presumption of law arises that the possession is not adverse; and the plaintiff must then overcome this presumption before he can recover." ? 223. Adverse Entry.-The difficulty of determining whether a given state of facts constitutes an ouster of one cotenant by another may be removed by circumstances or dec 1 Prescott v. Nevers, 4 Mason C. C. 330; Thornton v. York Bank, 45 Me. 161. * Van Bibber's Lessee v. Frazier, 17 Md. 443; Berthold v. Fox, 13 Minn. 507. "Gillett v. Stanley, 1 Hill, 127; Sharp v. Ingraham, 4 Hill, 116; Sigler r. Van Riper, 10 Wend, 419; Arnot e. Beadle, Hill & Denio, 181. |
