CHAPTER VIII. RELATIONS OF COTENANTS. General Statement and Division of the Subject, § 150. RESTRAINTS ARISING FROM FACT OF COTENANCY. Relations generally those of Mutual Trust, § 151. Cannot assail Common Title, § 152. An apparent exception to this rule, § 153. Acquisition of Adverse Title, § 154. Whether Adverse Title may be asserted by Tenants in Common holding under different Deeds, § 155. Waiver of right to claim benefit of purchase of Adverse Title, § 156. Procuring renewal of Lease by Co-Lessee, in his own name, § 157. Purchase from Grantee in Tax Deed, § 159. Husband of Cotenant, § 160. Duration of Restraints arising from Cotenancy, § 161. Restraints of Cotenancy terminated by Eviction, § 162. Whether there must be Title to make Cotenancy, § 163. No Restraint on Cotenants contracting with one another, § 164. ACTS PRESUMED TO BE IN SUPPORT OF COMMON TITLE. Act of one presumed to be for Common Benefit, § 166. Entry of one confers Seizin on all, § 167. ACTS AND RESTRAINTS OF ONE COTENANT AFFECTING THE OTHERS. Estoppel against one, § 168. Admissions of one, § 169. Representations of one, § 170. Notice to one, § 171. Acts of one not to prejudice the other, § 172. Refusal by one, § 173. Beneficial Acts, § 174. Acts to save Common Property, § 175. Receiving Payment of Joint Rents, § 177. Receiving Payment of Joint Demand, § 178. Giving Notice to Quit, § 180. Receiving Notice to Quit, § 181. Cannot Contract for one another, § 182. Cannot Transfer for one another, § 183. Cannot Pledge for one another, § 184. Cannot create Easement, § 185. May acquire Easement, § 186. Easement, when not extinguished, § 187. 2150. General Statement and Division of the Subject.— It is self-evident that two or more persons cannot own the same piece of property in undivided interests, without being placed in a different relation towards one another than though their ownership consisted of tenancies in severalty of distinct articles of personalty or of segregated parcels of real estate. In the first place, the unity of possession incident to every species of cotenancy necessarily brings those entitled to the possession in frequent contact with one another, and thereby affords to the designing abundant opportunities for securing the confidence of the unwary. The interests of the different co-owners seem so identical that neither is likely to mistrust the other of harboring any schemes at variance with a continued reliance upon and respect of the common title. And while the relation of cotenancy is generally thus productive of sentiments of mutual trust between the several owners, it would, but for the imposition of legal restraints, enable each to betray those trusts, by taking advantage of those infirmities in the common title, which, by reason of his common interest, had been disclosed to him. In the second place, the fact that the interest of each cotenant can usually be advanced only through the general welfare of all, naturally induces one to act for the advantage of the other; and creates a presumption, in the absence of circumstances indicating a different design, that the act of one is intended for the benefit of all. In the third place, the fact that each cotenant is in law deemed to be in possession with the others, and is in fact often appar ently in the exclusive possession, frequently invests one of the cotenants with the most important indicia of title, and leads third persons to believe either that he is the sole owner, or at least the accredited agent of all the owners. It is not to be expected that any system of jurisprudence, which, like the common law, is to a great extent composed of the precedents made, from time to time, by the application of preconceived ideas of justice to the actual and ever varying exigencies of business affairs, would be created without adapting itself to the various relations under which men may be called upon to act; nor without containing distinct recognitions of the principle, that an act proper and harmless enough in some of the relations of life, should be discountenanced and forbidden in others. And therefore, as cotenants must always in fact have stood in different relations towards one another, than though they were tenants in severalty, the common law came into being recognizing those differences, and creating such rules as their existence made necessary. These rules are the subject of this chapter; and in attempting to show what they are, we shall consider our subject under the three divisions in which, in our judgment, it is naturally divided: 1st. What restraints are imposed by law to prevent a cotenant from betraying the trust arising out of the fact of cotenancy; 2d. What acts may a cotenant safely presume to exist in support of, and in subordination to, the common claim of right; and 3d. By what acts, and under what circumstances, can one cotenant affect the others, in dealing with third parties. RESTRAINTS ARISING FROM FACT OF COTENANCY. ? 151. Relations are those of Mutual Trust.-All the restraints imposed upon cotenants in regard to their dealing between one another in reference to the common property, are founded mainly, if not exclusively, upon the theory that, so far as the common subject of ownership is concerned, they are each bound to defend the interest of the other; or if not to defend, at least not to make any direct or indirect assault upon such interest. The case of tenants in common coming into joint possession of real estate as co-heirs or co-devisees, has always been spoken of as creating special obligations between the joint owners; in fact, as forbidding either to do any act which could be unlawful or improper, if done by a trustee charged with the care and preservation of a trust estate. The general theory of the law upon this subject is correctly represented by the following extract from an opinion delivered in the highest judicial tribunal of the State of Ten nessee: "Tenants in common by descent are placed in confidential relations to each other by operation of law, as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. Being associated in interest as tenants in common, an implied obligation exists to sustain the common interest. This reciprocal obligation will be enforced in equity, as a trust. These relations of trust and confidence bind all to put forth their best exertions, and to embrace every opportunity to protect and secure the common interest, and forbid the assumption of a hostile attitude by either."1 Tenants in common by descent are under no other or greater obligations towards one another than other cotenants frequently are. Where two or more come to an estate by devise or descent from a common source of title, the relations between them are presumed to be relations of trust and confidence. Such a presumption may not appear so strong where the cotenants acquire their respective interests, at different times and by different conveyances; and it may, in certain cases, disappear altogether. But where the cotenants acquired their interest by a joint conveyance, under which they both went into possession, there can be no doubt that the relation necessarily produced is as much one of trust and confidence as though it originated in devise or descent. And even where the cotenants come to their titles at different times and from different grantors, they may, by being in the actual joint possession, and by a course of behavior in reference to one another and to the common subject of ownership indicating an intent to support and respect the common title, create relations Tisdale v. Tisdale, 2 Sneed, 599. See also Van Horne v. Fonda, 5 Johns. Ch. 388; Lee v. Fox, 6 Dana. 171; Picot v. Page, 26 Mo. 421. of mutual trust and confidence as strong in fact and as worthy of consideration in law, as the relations growing out of the acquisition of title from a common source, by the same purchase or descent. If two or more agree to become tenants in common of a tract of land, and one of their number is deputed to make the necessary negotiations for its purchase, at the most reasonable price for which it can be obtained, he occupies such a relation towards the others as binds him to guard their interests, and to make no profit for himself in the transaction. If he represents to them that the land can be had at a specified price, and they thereupon contribute to the purchase by paying their proportion of this price, they may, upon discovering that he in fact procured the land for less than the amount represented, retain their interest in the land, and recover back from him the amount paid by them in excess of their proportions of the true price.' One cannot assail Common Title. ? 152. "The rule of law, that a person coming into possession of lands under the agreement or license of another, cannot be permitted to deny the title of the latter, when called upon to surrender, is of almost universal application." This principle extends to one who takes possession by virtue of a claim of title, of which title he is cotenant with others. Upon any contest arising between himself and his cotenants, he cannot, at least while remaining in possession, deny the validity of the common source of title, nor defend himself by proving that the paramount title is in some third person. Thus, where property descended to several as co-heirs, and one of them subsequently undertook to assail the ancestor's title, the Court, in determining that he could not be permitted to do so, said: "John Streeter was the common source of title. His children, there being no will, are presumed to have taken the premises by descent, as tenants in common. It is not for the defendant to say that the common ancestor had no title, and that his possession is not as a tenant in common, but in King v. Wise, 43 Cal. 633. * Phelan v. Kelley, 25 Wend. 391. Braintree v. Battles, 6 Vt. 395; Funk v. Newcomer, 10 Md. 301; Burnhams r. Van Zandt, 7 Barb. 91. |