as any crop is grown.

2101. Where the Agreement is to Divide the Profits.In the cases where the agreement provides for a division of the produce itself, it is quite obvious that all the materials necessary to create a tenancy in common are present as soon But there But there may be agreements contemplating a sale of the crops and a division of the moneys arising therefrom. Thus A was to cultivate B's plantation, and to furnish means so far as he was able. What means A could not provide were to be furnished by B. At the end of the year, B was to sell the crop, and have one-third, and then deduct all expenses and pay the residue to A. This agreement was held to be neither a leasing of land nor a hiring of labor, but a joint cultivation on account of both parties, "with a particular provision for disposing of the crop in a convenient time and manner, in order to close the transaction, by paying the expenses out of the proceeds, and dividing the residue in the proportions agreed on." Very similar to this agreement was one made in New York, by which T, a landowner, was to account to and pay one H, the value of one-half of all grain, butter, and net proceeds that might be produced on the land. The Supreme Court of that State, in determining the effect of this agreement, said: "The circumstance that the contract provided that T was to pay the value instead of dividing the crops, does not alter the case. The principle is the same, whether H furnished or delivered one-half the products, or T took them and sold them, and paid one-half of their value. The point is that there was to be a division, and that the occupier or cultivator was not to pay a certain number of bushels of grain, or a certain number of tons of hay, as rent of the premises, so as to make him a tenant. This provision as to a division was but a mode of ascertaining the value and dividing the proceeds."? In another case, cotton was to be raised and sold, and after the sale, the expenses were first to be paid, before any division of the proceeds. The Court before which this case was brought, thought that the test by which to determine whether such an agreement resulted in a tenancy in common, was to inquire whether, by

1 Moore v. Spruill, 13 Ired. 56.

* Tanner v. Hills, 44 Barb. 430; Wilber v. Sisson, 53 Barb. 262.

the terms of the contract, both parties were entitled to be in possession of the crop before the sale or division was made. That if the contract did not by its terms necessarily exclude one of the parties from the right to the possession; or, if though giving one the right to make the sale, it did not confer on him the exclusive possession, then, as in other cases where a joint right to possession existed, the parties were tenants in common.1 B and other farmers delivered milk to

a cheese factory: each was credited with the amount of his milk: the milk was mixed and manufactured into cheese, the factory company was to sell the cheese and to divide the preceeds among the farmers in proportion to the milk furnished by each, first deducting a certain amount, to pay for the manufacturing. It was held that, under this agreement, B was not a tenant in common of the cheese, and that the transaction constituted "a sale of the milk to the factory, for which they were to pay at a certain time and in a certain manner," and converted B's interest "into a mere demand for the price of the product as agreed upon.

? 102. Simultaneous Mortgages. Two tenants in common, V and D, agreed to sell their property to R. Part of the purchase money was to be paid upon the execution of the deed, and the balance was to be secured by separate mortgages in favor of each of the cotenants for his share of the unpaid purchase money. The mortgage in favor of V was executed and recorded before the mortgage to D was executed. The sale of the premises, together with the terms and mode of payment, were the result of a prior written contract 'between V and D. This contract was considered as "the embryo life of the mortgages subsequently executed." And as each mortgage had a common inception, and each mortgagee had, during all the time, full knowledge of the rights of the other, they were held to stand "upon an exact equality," and to be entitled to equally share the proceeds of the mortgaged premises. In this case, while the execution of the mortgages was not in fact simultaneous, yet it was so

3

Thompson v. Mawhinney, 17 Ala. 368. Butterfield v. Lathrop, 71 Pa. St. 225. 3 Daggett v. Rankin, 31 Cal. 322.

C. & P.-11

regarded because it had its origin in a common contract. If the mortgages took effect by relation, at the time of the execution of the contract, so as to be placed on an equal footing as to time, then there can be no doubt that neither had any precedence over the other. Simultaneous mortgages, whether real or chattel; of which both the mortgagees have notice, can have no rank over each other. The two separate mortgagees are therefore treated as though they were tenants in common of one.mortgage, and are allowed equal benefit of their seeurity.

But they have not, as mortgagees in common, such an estate that they can maintain an action for partition.2

103. Simultaneous Conveyances.-The same principles which impel Courts to treat simultaneous mortgages with equal favor, operate with like effect upon simultaneous conveyances, and upon all cases where two or more parties have acquired an equally good title to the same property. Where neither has the superior title, but each has a title which, but for the other's, would be perfect, they are tenants in common. A testator having separate patents, supposed himself to be owner of two distinct parcels of land. The larger parcel he devised to one daughter, and the smaller parcel to another daughter. The smaller parcel was afterwards found to be included within the larger. It was therefore within the devise to each daughter, and was adjudged to belong to them equally as tenants in common. Where land is levied upon under writs of execution or of attachment, and it cannot be ascertained that either levy preceded the other, subsequent sales under the different levies will make the purchasers thereunder tenants in common. So, if two patents be made of even date, on surveys recorded the same day and purporting to be by virtue of warrants issued on the same day, both including the same ground, the patentees are tenants in common."

3

104. Where a voluntary, unincorporated association

Welch v. Sackett, 12 Wis. 253; Beers v. Hawley, 2 Conn. 469; Ewer v. Hobbs, 5 Met. 1.

Ewer v. Hobbs, 5 Met 1.

Seckel v. Engle, 2 Rawle, 68.

Shore v Dow, 13 Mass. 529.

5 Young r. De Bruhi, 11 Rich. Law, 641.

1

is formed, and acquires property, the members thereof are tenants in common of such property, each having an equal interest therein.' But, in Massachusetts, a religious society, acting in a parochial capacity, may, though unincorporated, receive a grant of real estate, and use and manage it for the ordinary purposes of such society. Therefore, a grant to such a society vests the title in it as a body, instead of creating a tenancy in common between the several members.2

105. Presumption of Relative Interests. If a tenancy in common be established, but no proof is made in regard to the relative interests of the several cotenants, the presumption of law arises that their shares are equal. If it be shown that title has been acquired by a deed executed by two or more, as grantors, a like presumption arises that these several grantors were tenants in common of equal interests.* A levy was made by an officer upon process issued against A. It was shown that A and B were cotenants of a tract of land. The return of the officer certified that he had levied upon the undivided one-half of this tract. This return was objected to, on the ground that it did not properly describe A's interest. But the Court held that because of the deed to A and B, the officer had, in the absence of other information, a right to presume that the interest of each was an undivided one-half, and that the levy must be sustained, at least until an affirmative showing was made that A's interest was different from what it had been presumed to be."

106. Presumption of, does not necessarily arise from Joint Deed.-The introduction of deeds from a common grantor to a plaintiff and defendant respectively, purporting to convey an undivided interest in the subject-matter of a suit, does not create the presumption that the parties are tenants in common. "The mere production of a deed from a stranger

'Higgins e. Riddell, 12 Wis. 587; Benjamin v. Stremple, 13 Ill. 466.

Hamblett v. Bennett, 6 Allen, 144.

* Jarrett v. Johnson, 11 Gratt. 327; Edwards v. Edwards, 39 Pa. St. 369; Shields v. Stark, 14 Geo. 429.

Dashiel v. Collier, 4 J. J. Marsh. 602.

5 Baker r. Shepherd, 37 Geo. 15.

is not sufficient to show either that he had title, or that the grantee entered under or holds in subordination to his deed. The deed may have been taken merely to quiet a better title or to fortify a possession already taken under a precedent and better claim." A person in possession of land may protect himself from litigation by purchasing any outstanding claim against his property. By so purchasing, he does not necessarily admit the superiority of the title bought, nor change his possession, which was before adverse, into a possession subordinate to the newly acquired title. Therefore, one who is in possession of real estate, does not become a tenant in common thereof, by merely accepting a deed therefor from the owner of an undivided interest therein."

107. "Lands held in common are subject to Dower."— The right of the wife to dower is subject to the right of the cotenants of her husband to compel partition of the land. Upon such partition, her claim for dower is confined to the part which has been assigned to him in severalty. Under what circumstances and to what extent her rights may be affected by a partition, whether voluntary or involuntary, to which she is not a party, will be considered in another part of this work.

? 108. Widow entitled to Dower is not a Tenant in Common.-A widow entitled to dower did not, at common law, have any estate in the lands until assignment." She was not entitled to joint possession with the heirs; therefore, she was not a tenant in common. But wherever the common law has been succeeded by statutory enactment, or by judicial construction, under which the widow, at the death of her husband, has the right to the possession of one-third of his real estate, there she is a tenant in common with the heirs. In such case, "her right of entry does not depend upon the

1 Woodbeck v. Wilders, 18 Cal. 136.

* Cannon v. Stockmon, 36 Cal. 539; Schuhman v. Garratt, 16 Cal. 100; Sparrow v. Kingman, 1 N. Y. 246; Watkins v. Holman, 16 Pet. 53.

3 Jackson v. Smith, 13 Johns. 406.

'Scribner on Dower, 326; Ham v. Ham, 14 Q. B. (Upper Canada) 497; Sutton v. Rolfe, 3 Lev. 84; Davis v. Bartholomew, 3 Ind. 485; Brown v. Adams, 2 Whart. 188. 5 4 Kent Comm. 62.