session. But it is clear that an adverse holding and claim of title do not, of themselves, constitute an ouster. The tenant, out of possession, has a right to assume that the possession of his cotenant is his possession, until informed to the contrary, either by express notice or by acts and declarations which may possibly be equivalent to notice under certain circumstances. But until he has notice, either actual or constructive, in some form, that the possession of his cotenant has become hostile, it will be deemed in law to have been amicable, notwithstanding the tenant in possession may in fact have been holding adversely. If the rule were otherwise, the tenant out of possession might be disseized and lose his remedy by the bar of the Statute of Limitations, without notice that the possession of his cotenant, which before was amicable, had become hostile. To avoid this injustice, the law deems the possession to have continued amicable until the tenant out of possession has, in some method, been notified that it has become hostile. We are therefore of the opinion that the facts shown by the findings do not establish an ouster."

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2243. Possession of Trespasser made Amicable by his becoming Cotenant. The presumption that the possession of a part owner of land is not adverse to the other part owners has been held to prevail where such possession, when first acquired, was taken and held without any right or title whatever, and was therefore hostile to the title held by the cotenancy. Thus in one instance, it appeared that possession was taken by parties without any title, and that afterwards some of them acquired an undivided interest in the premises, the Court said: "It is insisted that the verdict finds an ouster of the plaintiff by all the defendants, except Stout, White, and Slanhard, to wit, their unlawful entry upon the premises in September, 1858—a year and a half before the rights of the defendants as tenants in common were acquired. It is said, in support of this position, that the possession acquired in 1858 was by disseizin, and it is added that the possession never lost its hostile character;' and it is upon this assump

Miller v. Myers, 46 Cal. 538.

tion of fact that the whole argument turns. But the verdict demonstrates that the possession unlawfully taken in 1858 did lose its hostile character, prima facie, on the 9th of March, 1860, when, as the verdict finds, they became tenants in common with the plaintiff. The moment the defendants became tenants in common with the plaintiff, their possession lost its hostile character by the legal effect of the fact, and it cannot be presumed that the possession was otherwise than amicable thereafter, until the contrary is made to appear.

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244. English Statute. The common law presumption that the entry and possession of one cotenant was the entry and possession of all, was, as we have stated, liable to be rebutted by showing that the entry was made as a sole owner or as a disseizor, or that, though the entry was made in the character of a cotenant, the possession, at some subsequent period, became adverse and exclusive. The difficulty of determining whether a given state of facts negatived this presumption of law was so insurmountable that no precise rules 'could be laid down for its solution. The most that the Courts could do in the cases ordinarily coming before them, requiring a finding upon the question of ouster, was to inform the jury that they might consider certain established facts, and if satisfied therefrom of the existence of an ouster, they might so find, though no direct ouster could be proved. In this state of the law no counsel, however sagacious or well informed, could confidently advise his client that an ouster had or had not been committed. Part owners in possession claiming and believing themselves to be owners in severalty, were exposed to the hazard of being called upon, after the lapse of long periods of time, to defend themselves against stale claims to a moiety of their lands; and this, perhaps, when the testimony necessary to rebut such claims could no longer be obtained. On the other hand, cotenants not in actual possession of their lands were exposed to the danger that the possession held by their cotenant, and which to them seemed to be perfectly amicable and entirely consistent with the rights and relations

'Carpentier v. Mendenhall, 28 Cal. 487. The purchase by defendant, pendente lite, of an undivided interest, divests his possession of its hostile character, prima facie. Carpentier v. Small, 35 Cal. 356; House v. Fuller. 13 Vt. 165.

of cotenancy, would be proved to be of a different character, and have attributed to it a different effect, from what they had always expected. We think it was wise, therefore, in Parliament to remove all these doubts and dangers by legislating the presumption itself out of existence, as it did in the following language:

"And be it further enacted, That when any one or more of several persons entitled to any Land or Rent as Coparceners, Joint Tenants, or Tenants in Common, shall have been in Possession or Receipt of the Entirety, or more than his or their undivided Share or Shares of such Land or the profits thereof, or of such Rent, for his or their own Benefit, or for the Benefit of any Person or Persons other than the Person or Persons entitled to the other Share or Shares of the same Land or Rent, such Possession or Receipt shall not be deemed to have been the Possession or Receipt of or by such last mentioned Person or Persons or any of them."1

1 Sec. 12, Ch. 27 of 3 and 4 Will. 4. This act was recommended by the Real Property Commissioners, and was brought in by Lord Brougham, (Daniel v. Woodroffe, 2 H. L. Cas. 834.) This statute was given a retrospective operation, (see 2 H. L. Cas. 833; Culley v. Taylerson, 11 Ad. and El. 1017.) Lord Denman, C. J., in delivering the judgment of the Court in the last named case, said: "The first question arising upon this clause is, whether it extends to make the possession of coparceners, joint-tenants, or tenants in common, separate possessions from the time the act came into operation, or whether it has relation back to all coparceners, joint-tenants, and tenants in common, who have ever been such, from the first time of their being coparceners, joint-tenants, and tenants in common. If it is confined to make their possession separate only from the time of the act coming into operation, then it would not affect the present case, because the lessor of the plaintiff would only have a separate possession for a few years before the ejectment, and his right to recover would be what it was at common law, and, as we have before said, upon the second section of the act. But we are of opinion that, from the language of the act, it has a relation back, at least as far as relates to the object of this act, and has the effect of making their possessions separate from the time when they first became coparceners, joint-tenants, or tenants in common."



Right to Possession of Chattels, § 245.

Right to Possession of Chattels by Bailee, § 246.

Right to Possession of Title Deeds, § 247.

Right to Possession of every part of Realty, § 248.
Right to Possession is not a right to injure, § 249.

Right to take Possession, § 250.

Right to use Common Property, § 251.

Right to sever Personal Property, § 252.

Right of Lessee or Licensee, § 253.

Right of Cotenants of Crops, § 254.

Right of Owners of Party Wall, § 255.

Right of Owners of Party Wall, duration of, § 256.

245. The possession of a chattel owned in any of the various species of cotenancy, like the possession of any realty so held, is something to which each of the cotenants is equally entitled. The result of this equality of right, when acting upon realty, is, as we shall show,' that each cotenant may at all times enter upon and enjoy every part and parcel of the common lands; but he must so do this as not to interfere with the equal right of each of his cotenants to possess and enjoy the same property, and every part thereof. Many kinds of personal property are not susceptible of beneficial enjoyment in common, nor even of a joint and equal possession. Hence the common law never undertook to assure to cotenants of personalty the common possession or enjoyment thereof. "If two be possessed of chattels, personalls in common by divers titles, as of a horse, an oxe, or a cowe, &c., if

See sec. 248.

the other take the whole to himselfe out of the possession of the other, the other hath no remedie but to take this from him who hath done him the wrong to occupie in common, &c., when he can see his time."1 As two or more persons could not, at the same time, well use or have actual possession of the same horse, cow, or other entire and inseverable chattel, and as each of the part owners was equally entitled to be in the exclusive enjoyment and possession of such chattel, and no one of them could exhibit any claim paramount to that of his fellows, the law refused to exercise any authority over the chattel, and left it with him who happened to have it in his possession. In a case determined by the Supreme Court of Illinois, where the parties were tenants in common of a machine, the Court seemed to be of the opinion that each cotenant would be compelled, upon a proper demand, to permit the other to have an equal use with him of the subject of the cotenancy. This portion of the opinion was, however, not necessary to the determination of the case. There is a class of chattels which we may term severable, because they are so susceptible of division that either of the cotenants may lawfully take his proportion from the mass, and thereafter hold it in severalty. While the law does not, in general, interpose in behalf of one cotenant because the other has the exclusive possession of any or all of the common property, and refuses to surrender or share such possession, yet, as we shall see hereafter, an exception exists in the case of severable chattels, where one of the cotenants, by maintaining exclusive control, prevents the other from making that severance of his moiety to which he is by law entitled.*


? 246. A bailee or pledgee of a cotenant, in possession of a chattel belonging to the cotenancy may retain such possession as long as he continues to be such bailee or pledgee.5 If the bailment be made by all the cotenants, it cannot be

Litt. sec. 323.

2 Conover v. Earl, 26 Iowa, 169; Frans v. Young, 24 Iowa, 378; Koningsberg v. Launitz, 1 E. D. Smith, 215; Farr v. Smith, 9 Wend. 338; Southworth v. Smith, 27 Conn. 359; Jones v. Brown, 38 E. L. & E. 304; Russell v. Allen, 13 N. Y. 177; Hart v. Fitzgerald, 2 Mass. 509; Wright v. Bennett, 3 Barb. 451.

3 Swartwout v. Evans, 37 Ill. 442.

See sec. 252.

Franz v. Young, 24 Iowa, 375.

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