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of single estates ordinarily are at the present day. But the general property created by this appropriation bears a strong resemblance to a cotenancy, in the relative rights which it assured to the several occupants, and in the fact that each occupant had rights in every part of the whole domain equal to every other occupant, and superior to all persons not joining with him in the original occupation.
2.2 Co-ownership adapted to all forms of Civilization:There is nothing which so generally strikes the imagination and engages the affections of mankind as the right of property, or that sole and despotic dominion which one man claims and exercises over the external things of the world in total exclusion of any other individual in the universe." No doubt, this love of "sole dominion" has increased as the number of occupants of the earth has been augmented. At first, the inhabitants were few, their tastes simple, and their desires easily gratified out of the abundant products of the earth. The fruits of the earth could be treated as the general property of all, and the special property of none. Lands for occupation and for the sustenance of flocks and herds were more than sufficient to accommodate the necessities of all, and no one had any occasion to segregate to himself a tract for his exclusive use. When this state of things no longer existed, it is not probable that a several or exclusive ownership at once succeeded it. A dominion or ownership by families, or by other relatives or associates, probably preceded the existence of exclusive appropriations, and answered the necessities of men long after the idea of property began to develop itself. But if co-ownership originated at some stage of the world's history, after a community of rights ceased to be practicable, and before the love of sole dominion became the strong passion described by Blackstone, it was nevertheless not destined to be completely superseded by ownership in severalty. The properties and advantages of co-ownership are such as to connect it inseparably with the highest as well as with the lowest forms of civilization. It commended itself to the lowest forms, as we have seen,
1 2 Bl. Comm. 2.
because it was suited to the wants of a people who considered property as belonging to families or clans, rather than to individuals. To the highest forms it is equally welcome, because it admits, to a considerable extent, of that aggregation of capital by which several persons, each of small means, are enabled to exercise the power and obtain the influence of wealth. Aside from the perpetuation of co-ownership on account of the advantages offered by it to a union of capital, estates in severalty are constantly turned into undivided. estates by the operation of laws regulating the transmission of property by descent.
23. The Subject and Scope of this Book.-By the Common as by the Civil Law, whenever the same thing becomes the property of two or more, there are formed between them divers "engagements by the bare effect of their interest in the thing that is common to them."1 Aside from the engagements thus formed between the common owners, other engagements are formed between them and third persons by which the respective rights and obligations of the common owners and such third persons are defined and enforced. The engagements here referred to are such as flow from the mere relation of co-ownership; and may be limited or extended by contracts entered into between the co-owners. The co-owners may obtain rights and assume obligations, both between themselves and as to third persons, by an infinite variety of agreements removing their property partly or wholly from the law of cotenancy and subjecting it to the law applicable to some new and different business relation. The most familiar instance of this is in the formation of a copartnership. In this instance, the property of the firm, though jointly owned, is not subject to the law of joint ownership, but to that of copartnership. And where several coowners form themselves into a corporate body and turn their joint property into corporate assets, this property henceforth, during its continuance in the corporation, is held in severalty by an artificial body, and is no longer subject to the law of co-ownership. Of the various purposes to which co-owners
1 Domat's Civil Law, Part I., Book II., Tit. 5. Sec. 1, Art. 5.
may devote their property, and the various engagements which in law may attach to it in consequence of such devotion, it is not our intention to treat. This book is an attempt to state the law of co-ownership existing by reason of such ownership, independent of the relation of copartnership and of all other relations and agreements entered into by the parties for the purpose of creating rights or imposing obligations not otherwise attached to their cotenancy.
4. Plan of the Work.-In treating of the law of coownership, we shall consider, 1st, the several kinds of cotenancy, the rules of law peculiar to each, and the tests by which each may be distinguished from the others; 2d, that portion of the law upon this subject having a general applicability to the various forms of co-ownership, and embracing the following subjects: conveyances and leases by cotenants; ouster of one cotenant by another; the relations, rights, and liabilities of cotenants between one another; the legal and equitable remedies by which those rights may be secured and those liabilities enforced; the rights and liabilities of cotenants as against third persons, and the legal and equitable remedies which may be employed by and against cotenants; 3d, the means by which a cotenancy may be changed into one or more estates in severalty, including all the various forms of severance and partition.
25. English Tenures.-All land in England, excepting Crown land, not tenanted, "was supposed to be holden of some superior lord, by and in consideration of certain services to be rendered to the lord or possessor of this property. The thing holden is therefore styled a tenement, the possessors thereof tenants, and the manner of their holding a tenure."1 The tenure by which the lands in England were held was "a branch of the feudal system, established by the Germans in many of the Roman provinces on the decline of the Empire. By the theory of that system, the whole of a territory which the Germans conquered, immediately became, in a qualified manner, the property of their general, who was intrusted with
12 Bl. Comm. 59; 1 Greenl, Cruise, 23.
the important prerogative to divide the land as he pleased amongst himself and followers. In effect, the parting of the land reached two objects: it rewarded the soldiers for their past, and beforehand gave them the wages of their future service; yet, in theoretical strictness, the latter alone was the object of a feudal gift. The chief gave, and the soldier took, the land for future service. A gift of this kind created a tenancy. The soldier took the land to hold to his chief as landlord, and thus became his tenant. To strengthen the bond between them, and establish the relative duties of lord and tenant, the tenant afterwards bound himself by an oath to do the prescribed services of the feud, and to be true to his lord for the land he held of him. In the same way, the tenants became the lords of others, by again parting their lands to be held of themselves by feudal services; and thus a chain of subordinate and connected landed interests was made to depend from the head of the community, and to extend to a great proportion of the subjects."
8 6. American Tenures.-In England, the original acquisition of title to lands was by conquest; in America, it was by discovery. All the European nations that ever obtained a footing upon American soil recognized the right of discovery, as entitling the sovereignty by whose subjects the discovery was made to an absolute dominion and ownership over the lands discovered. By virtue of this right, the Crown of England was invested with the title to most of the lands within the present boundaries of the United States." "It is now a settled and fundamental doctrine, that all valid individual title to land within the United States is derived from the grant of our own local governments, or from that of the United States, or from the Crown, or the royal chartered provincial governments. This great feudal principle, that all lands are held of the sovereign, being thus acknowledged, the remark of Lord Coke seems in strictness to apply as justly to the United States as to England, we having no lands which are properly allodial, that is, which are not holden."
Ram. on Tenure and Tenancy, 1, 2.
2 Johnson v. McIntosh, 8 Wheat., 543.
31 Greenl. Cruise, note to p. 19; 3 Kent's Comm. 378; Jackson v. Ingraham, 4 Johns. 163; DeArmas v. Mayor of N. Orleans, 5 La. R. 132; Jackson v. Waters, 12 Johns. 365.
But in some of the United States, statutes have been enacted declaring all their lands allodial. By these declarations, it is probable, nothing was meant to be affirmed except that the lands were to be "free from all feudal burdens and exactions, except those due to the State, and not as intended to change any of the established rules of acquiring and transmitting real property."1 But in none of the States is there anything beyond a mere theoretical holding from a superior sovereignty. Practically, all lands are held by allodial title. Real estate, as much as personal property, is the subject of absolute ownership. It is not therefore a very accurate use of language to characterize the several persons who together own a thing as "tenants," nor their estate as a "tenancy. But the language of the common law has been so uniformly adopted in this country, both by judges and text-book writers, that we shall follow their example, and hereafter designate the several kinds of co-ownership by the same terms by which they are known in the common law; and shall use the term cotenancy to indicate the ownership of property by two or more in undivided interests.
27. Classification of Tenancies.-The most approved writers upon the common law assert that, with respect to the number and connection of their owners, lands and tenements may be held in four different ways, namely, in severalty, in joint tenancy, in coparcenary, and in common. This classification ignores a tenancy which is treated at length in all the commentaries on the common law, and which still exists in England and in nearly all the United States, namely, tenancy by entireties. In the progress of this work, we shall have occasion to treat of still another species of co-ownership, one adopted in Lower Canada and in a few of the States of the American Union, namely, the Communio Bonorum, or community of property between husband and wife.
28. Mixed, Imperfect, and Redundant Tenancies.-It must not be inferred from what has been said, that every
Note to p. 19 vol. 1 Greenl. Cruise.
22 Bl. Comm., 179; 2 Greenl. Cruise, 351.