terminated by any less number, and the bailee may successfully resist a suit for the possession until a demand has been made by all the co-owners.1


247. Title Deeds pass with the Land.2-He in whom the title to land is exclusively vested, has a right to the sole custody of all the deeds which in their operation are limited to his land. An equal right to the custody of a deed, or other muniment of title, may exist: 1st, when two or more persons are cotenants of the property described in the deed; 2d, where two or more persons have different parcels of land in severalty, the title to which is deraigned through the same conveyance. In either case, the rights of the parties to the possession of the common muniment of title seem to be identical with the rights of cotenants to the possession of their common, inseverable chattels. Whoever has possession may retain it. If, however, it happens to be out of his custody, and another equally entitled take it, he may keep it. In other words, the right to the possession of the deed being equal, the law will not interfere to take it away from either. Hence one lessee cannot sustain detinue against his co-lessee for the possession of their common lease. Nor can such action be maintained by any person for a muniment of title, as against another equally entitled to its custody. "It is well established by the second resolution in Lord Buckhurst's Case, 1 Co. Rep. 1, and by other authorities, that he who has occasion to use a deed is entitled to the legal custody of it; but, where two have an equal interest in a deed, and each may have occasion to use it, as, for instance, where the same deed grants Whiteacre to A and Blackacre to B, as it is manifest that both cannot hold the deed at the same time, to whom does the legal custody belong? If it were a chattel, it might be used in turn by several having an interest in it; but it is not so with a deed, which must remain in some custody until the occasion for using it may arise. Upon this subject there are few authorities, for the cases relating to property do not apply. In the

Atwood v. Ernest, 13 Com. B. 889; 76 E. C. L. 889.

Lord v. Wardle, 3 Bing. N. C. 680; 4 Scott, 402.

3 Jickling on the Analogy between Legal and Equitable Estates, 240.
Clowes v. Hawley, 12 Johns. 484.

case put, each has a common interest, and each may have occasion to use the deed, but both cannot use it at the same time. The only way of avoiding unseemly contest for the possession is to rule that he who first has it may keep it; and this seems to be the result of the only authority which bears directly on the subject. In Vin. Abr. Faits (Z) pl. 15, it is laid down, from Bro. Abr. Charters de Terre and the Year Book, 4 H. 7, fo. 10, that if land be given to A for life, remainder over (to several) by deed, any of them who first gets the deed shall retain it; and, therefore, whoever has any land entered in the deed, where others have residue of the land, yet he that has this parcel may on account thereof retain the deed.'

"The reason which gives the first possessor a right to hold the deed so long as he retains it in his possession, gives the other party having an interest in the deed a right to keep it should it come to his custody. It is the interest which each has in the deed, and the occasion which each may have to use it, which gives each the title to have it. In the case put, it may hold the deed against B, because he has an interest in it and may have occasion to use it, and therefore if he get it from A, he may hold it against A. For fraud or force which may be used to get possession of the deed, either party may perhaps have a remedy against the other; but the title to the deed is ambulatory between those who have an interest in and may have occasion to use it, and each is entitled to keep the deed from the other so long only as he actually retains it in his custody and control, but no longer." While a tenant in common cannot sustain any action at law against his cotenant for the possession of their title deeds, he may, by proceedings in equity, compel them to be produced for his inspection. Courts of equity will also make such orders in regard to the custody and preservation of title deeds as may be necessary to secure the rights and promote the convenience of the cotenants.3

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I Foster v. Crabb, 12 Com. B. 149; 16 Jur. 835; 21 L. J. C. P. 189; Yea v. Field, 2 T. R. 708.

Wright v. Plumptree, 3 Mad. Ch. 481.

3 Elton v. Elton, 6 Jur. N. S. 136; Yates v. Plumbe, 2 Smale & G. 174; Burton v. Neville, 2 Cox, 242; Lambert v. Rogers, 2 Mer. 489.

248. Right to be in Possession of Realty.-Every member of a cotenancy, irrespective of the quantity of his interest, has the right at all times to be in possession of every part and parcel of the real estate of the cotenancy. This right neither of his cotenants can lawfully impair or abridge. Neither has any right to restrain the entry of the other, though such entry is sought to be made in order to accomplish some act prejudicial to the rights of the cotenant who resists it. Thus, where two were tenants in common of a barn-floor, on which one of them sought to enter for the avowed purpose of removing the other's wagon, and the latter resisted the entry, the Supreme Judicial Court of Massachusetts were of the opinion "that the defendant, as tenant in common of a barn-floor, occupied by complainant and himself, had no right to use force and violence to prevent his cotenant from entering the door, though it was for the declared purpose of removing defendant's wagon; and that such declared purpose afforded no justification for the assault." In an important and well considered case, decided by the Supreme Court of California, the defendant resisted an action of ejectment brought by his cotenant, and justified his resistance on the ground that his possession, though exclusive as to a parcel, did not embrace any greater area than he would be entitled to upon a partition of the entire tract. The portion of the opinion of the Court disposing of this branch of the case is as follows:

"Had the defendant a right to the exclusive posssession of the sixty acres, on the ground that it did not exceed his share?

"As the case does not show that there had been any partition between the parties, and as it does not disclose a lease from the plaintiff to the defendant, nor any agreement or license to occupy, it follows, that if the defendant had the exclusive right asserted, it must be found in the law of the relation that existed between the parties as tenants in com


"A tenancy in common is where two or more hold possession of lands or tenements at the same time by several and distinct titles. The quantities of their estates may be

Commonwealth v. Lakeman, 4 Cush. 597.


different; their proportionate shares of the premises may be unequal; the modes of acquiring their titles may be unlike, and the only unity between them be that of possession. Thus, one may hold in fee and another for life; one may acquire his title by purchase, another by descent; one may hold a fifth, another a twentieth, and the like.' Tenancies in common differ in nothing from sole estates but the blending and unity of possession. Neither of the cotenants knoweth his own severalty, and therefore they all occupy promiscuously. Tenants in common are they which have lands and tenements in fee-simple, fee-taile, or for term of life, etc.; and they have such lands or tenements by several titles, and not by a joint title; and none of them knoweth his severall, but they ought by the law to occupie these lands or tenements in common, and pro indiviso, to take the profits in common. And because they come to such lands or tenements by severall titles, and not by one joint title, and their occupation and possession shall be by law between them in common, they are called tenants in common." Coke, in commenting on the foregoing passage, remarks as follows: 'The essential difference between joint-tenants and tenants in common is, that joint-tenants have the land by one joint title and in one right, and tenants in common by severall titles, or by one title and severall rights; which is the reason that joint-tenants have one joint freehold, and tenants in common severall freeholds. Onely, this property is common to them both, viz., that their occupation is undivided, and neither of them knoweth his part in severall.' In section three hundred and twenty-three, it is stated that each of the tenants in common may enter and occupy in common, per my et per tout, the lands and tenements which they hold in common; and this notwithstanding they are severally seized.'


"From these citations it is manifest that by the very law of the relation existing between tenants in common, each and every of them has the right to enter upon and occupy the whole of the common lands and every part thereof. The rule that tenants in common hold their lands by unity of

12 Bl. Com. 191; Co. Litt. 189 a.
Litt. 188 b.

2 Bl. Com. 194. Coke Litt. sec. 292.

possession inculcates something more than the technical truth that the possession of one tenant is prima facie the possession of the other. In our judgment, it also involves the doctrine that the tenants, respectively, have a right to enter upon the whole, and upon every part of the whole land, and to occupy and enjoy the whole and every part of it, and that the tenants, respectively, are restrained, by correlative obligation, from resisting the exercise of this right in either of its branches. *** Before partition, a tenant in common has no share, except one which is undivided; and that he cannot possess in severalty, for the reason that it is undivided; and, furthermore, he knoweth not of this, his severall.' The only unity between tenants in common is the unity of possession, and if each man knew and could designate his part in severalty, without partition, even this unity would soon be destroyed. He who has no right to possess, except in common with others, in claiming the right to possess solely any part of that to which the common right extends, utters a solecism.

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"Counsel insist that 'while defendant occupies no more than his proportionate share, such possession is consistent with the common title, and therefore his possession is no ouster.' It is true that the bare occupation of the sixty acres by the defendant is not inconsistent with the common title; but couple with that occupation a refusal on his part to allow the plaintiff to enter and occupy the sixty acres with him, and we have then a possession in him that is not consistent with the common title, and which, therefore, does amount to an ouster.'

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Carpentier v. Webster, 27 Cal. 544. This decision was made the subject of a lengthy and unfriendly review in the numbers of The Pacific Law Magazine published respectively in January and February, 1867, (vol. 1 p. 1, and vol. 1 p. 67.) The reviewer, no doubt, considered the doctrine that different cotenants may at the same time be "in the actual possession-the positive pedis possessione-not only of the same identical piece of land, but of every part, parcel, and particle thereof-all claiming under separate derivations of title-all having diverse views and interests as to the use to be made of the premises-and each being equally entitled with every other to occupy the same spot, at the same time," as involving a legal, moral, and physical heresy. As a legal heresy, because inconsistent with the authorities; as a moral heresy, because it permits a cotenant to enter upon and enjoy the lands improved and beautified by another; as a physical heresy, because it authorizes two or more persons at the same time to occupy the same space. In the forty odd pages devoted to this review, no single opinion, whether of a Judge or of a text-writer, has

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