Many of the rules governing joint estates apply to those who hold land in the capacity of joint mortgagees. Under the common-law theory of mortgages, joint mortgagees are, after a strict foreclosure, tenants in common.25 Before the foreclosure of a mortgage given to two or more jointly, the doctrine of survivorship applies, and the survivor may foreclose the mortgage without making the heirs or the personal representative of the deceased mortgagee parties to the action.26 If the mortgage is given to secure debts which are several, the joint mortgagees hold as tenants in common.27
210. An estate in co-parcenary is an ownership of land in community in undivided shares by co-heirs. Unities of interest, title, and possession are necessary for estates in co-parcenary. Estates in co-parcenary exist in only a few states.
21 See Emerson v. Cutler, 14 Pick. (Mass.) 108; Martin v. Smith, 5 Bin. (Pa.) 16.
22 Preston v. Robinson, 24 Vt 583; Seckel v. Engle, 2 Rawle (Pa.) 68; Wallace v. Miller, 52 Cal. 655.
23 See Campau v. Campau, 44 Mich. 31, 5 N. W. 1062; Gregg v. Patterson, 0 Watts & S. (Pa.) 197.
24 Rankin v. Black, 1 Head (Tenn.) 650. 25 Goodwin v. Richardson, 11 Mass. 469.
26 Appleton v. Boyd, 7 Mass. 131. For the application of the principle of survivorship to the mortgage debt, see 2 Jones, Mortg. (5th Ed.) § 1382. 27 Burnett v. Pratt, 22 Pick. (Mass.) 556; Brown v. Bates, 55 Me. 520.
Under the American rules of descent both male and female heirs may hold as co-parceners,28 but under rules of primogeniture only co-heiresses could be co-parceners.29 An estate in co-parcenary arises only by descent. Co-parceners may hold unequal interests because some of them may be children and others grandchildren. The doctrine of survivorship does not apply to estates held in coparcenary.30 In an estate in co-parcenary the unities discussed under joint tenancies are necessary, except the unity of time.* Estates in co-parcenary differ from joint tenancies in that the doctrine of survivorship does not apply, and that they arise by descent, while joint tenancies arise only by purchase. In some states this estate has been abolished, and co-heirs take as tenants in common, though in a few the tenancy still exists.31
211. An estate in entirety is one conveyed to a man and his wife to hold jointly. The doctrine of survivorship applies to these estates.
212. Estates in entirety have been abolished in many states.
When at common law a joint estate was conveyed to a man and his wife, the effect was not the same as if the conveyance had been to two persons not married, but the peculiar joint holding known as a tenancy in entirety arose.32 It is, of course, possible to convey to a man and his wife land to be held as a tenancy in common or a joint tenancy by the use of words indicating such an intention.33 When an estate was conveyed to a man and his wife and
28 l stim. Am. St. Law, § 1375; Hoffar v. Dement, 5 Gill (Bid.) 132; Gilpin v. Hollinssworth, 3 Md. 190.
29 Co. LItt. §§ 241, 242, 254.
30 2 Bl. Comm. 188.
31 1 Stim. Am. St. Law, § 1375 A.
32 Thornton v. Thornton, 3 Rand. (Va.) 179; Hnnt t. Blackburn, 128 U. 8. 464. 9 Sup. Ct. 125.
33 Hicks v. Cochran, 4 Edw. Ch. (N. Y.) 107; Mcdermott v. French, 15 N. J. Eq. 78; Hoffman r. Stigers, 28 Iowa, 302; Fladung v. Rose, 58 Md. 18;
Real Prop.-22 a third person, the husband and wife took only one-half, which they held as tenants in entirety, while the third person took the other half, holding it in common, or as a joint tenancy, as the case might be, with the husband and wife. So, if there were more than three persons to whom the conveyance was made, the husband and wife would together take only one share.34 The doctrine of survivorship applies to estates in entirety, and they go to the heirs of the survivor only, the heirs of the first deceased taking nothing.35 During the joint lives of the husband and wife the husband has the control of the joint estate, and a conveyance made by him will be effectual during his life;36 but if he die first she may avoid the conveyance.37 So land held by this tenancy may be levied on by the husband's creditors, but such a conveyance will be no more effectual against a surviving wife than a voluntary alienation.38
Estates in Entirety in tjie United States- Community System.
In some of our states estates in entirety still exist. In some states the married women's acts are held to have abolished them,39 though in other states the contrary is held.40 In some jurisdictions they are treated as tenancies in common,41 in others as joint tenancies.42
Thornburg v. Wiggins, 135 Ind. 178, 34 N. E. 999. But see, contra, Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397.
34 Barber v. Harris, 15 Wend. (N Y.) 616; Johnson v. Hart, 6 Watts & S. (Pa.) 319.
35 Stuckey v. Keefe's Ex'rs, 26 Pa. St. 397. Cf. Thornton v. Thornton, 3 Rand. (Va.) 179.
36 Barber v. Harris, 15 Wend. (N. Y.) 616; Bennett v. Child, 19 Wis. 362; Ames v. Norman, 4 Sneed (Tenn.) 6S3.
37 Pierce v. Chace, 108 Mass. 254; Mccurdy v. Canning, 64 Pa. St. 39; Chandler v. Cheney, 37 Ind. 391; Washburn v. Burns, 34 N. J. Law, 18.
38 Farmers' & Mechanics' Bank v. Gregory, 49 Barb. (N. Y.) 155. And see Mccurdy v. Canning, 64 Pa. St. 39.
39 Cooper v. Cooper, 76 111. 57.
40 Bennett v. Child, 19 Wis. 362; Lewis' Appeal, 85 Mich. 340, 48 N. W. 580; Carver v. Smith, 90 Ind. 222; Zorntlein v. Bram, 100 N. Y. 13, 2 N. E. 388; Diver v. Diver, 56 Pa. St. 106.
41 Hoffman v. Stigers, 28 Iowa, 302; Farmers' & Merchants' Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439.
42 Whittlesey v. Fuller, 11 Conn. 337. Land may be conveyed to husband and wife as joint tenants. Wilken v. Young (Ind. Sup.) 41 N. E. 68. And see Hiles v. Fisher, 144 N. Y. 306, 39 N. E. 337.
In a number of our Southern and Western states, owing to the influence of French and Spanish law, a system of property ownership by married persons has been adopted, called the community system. This regards the relation of husband and wife, as far as their property rights are concerned, as a kind of partnership, and as such the property is primarily liable for the debts of the community.43 The community doctrine, however, applies only to property acquired by the spouses during the marriage,44 and even as to this property there is merely a presumption that it is held in community. The presumption may be rebutted, and it may be shown that the property belongs individually to the husband or to the wife.45 The husband, under the community system, has the right to control the common property.46 On the death of either spouse the common property goes one-half to the survivor and one-half to the heirs of the deceased. If there are no heirs, then the survivor takes it all.47
213. An estate in partnership is one -where land purchased •with partnership funds is held by the members of a partnership for partnership purposes.
In order that land may be held as an estate in partnership, it must be purchased with partnership funds, and for partnership purposes.48 The equitable title to such property belongs to the partnership as an entity in severalty, the legal title being held in trust for the firm.49 The legal title may be in one partner 50 or in all the partners. In the latter case they hold as tenants in common.51 The firm's interest in the land is personalty,52 and is primarily liable for partnership debts.53 The surplus, if any, goes to the partners as tenants in common.54
43 Jones v. Jones, 15 Tex. 143; Carter v. Conner, 60 Tex. 52. But see Chaffe v. Mcintosh, 36 La. Ann. 824. It is also liable for any debts of the husband. Adams v. Knowlton, 22 Cal. 283; Forbes v. Dunham, 24 Tex. 611. And for the wife's antenuptial debts. Vlautin v. Bumpus, 35 Cal. 214; Taylor v. Murphy, 50 Tex. 291.
44 Pancoast v. Pancoast, 57 Cal. 320; Althof v. Conheim, 38 Cal. 230; Burns v. Thompson. 39 La. 377, 1 South. 913.
45 Cooke v. Bremond, 27 Tex. 457; Mcdonald v. Badger, 23 Cal. 393; Higgins v. Higgins, 46 Cal. 259; Schuyler v. Broughton, 70 Cal. 2S2, 11 Pac. 719.
46 1 Stim. Am. St. Law, § 6433.
47 1 Stim. Am. St. Law, art. 340.
48 Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802; Alkire v. Kahle, 123 I1l 496, 17 N. E. 693; Buchan v. Sumner, 2 Barb. Ch. (N. Y.) 165.