This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(p) Robinson v. Preston, (1858) 4 K. & J. 505 ; 27 L. J. Ch. 394 ; Re Jackson, (1887) 34 Ch. D. 732; 56 L. J. Ch. 593 ; but see contra, Re Hughes' Tr., (1877) 19 W. R. 468 ; and ef. Re Rowe, (1889) 61 L. T. 581.
(q) Harrison v. Barton, (I860) 1 J. & H. 287 ; 30 L. J. Ch. 213, where the purchase-money was contributed equally.
(r) Devoy v. D., (1857) 3 Sm. & G. 403 ; 26 L. J. Ch. 290 ; and quccre, see inf. p. 970.
(s) Edwards v. Fashion, (1712) Ch. Prec. 332; Aveling v. Knipe, (1815) 19 Ves. 411, 444.
(t) Morris v. Barrett, (1829) 3 Y.
& J. 384; Elliot v. Brown, (1791) 3 Sw. 489 ; Houghton v. H., (1841) 11 Si. 491 ; 10 L. J. N. S. Ch. 310.
(u) Lake v. Craddock, (1732) 3 P. W. 158 ; Lyster v. Holland, (1792) 1 Ves. 431 ; Dale v. Hamilton, (1846) 5 Ha. 369; (1847) 2 Ph. 266 ; 16 L. J. Ch. 397 ; Clements v. Hall, (1857) 2 D. & J. 173 ; 27 L. J. Ch. 349 ; Harby v. I)., (1850) 3 Dr. 495; 25 L. J. Ch. 371 ; and ef. Steward v. Blakeuay, (1869) 4 Ch. 603 ; Re Hulton, (1890) 62 L. T. 200.
(x) Per Lord Eldon in Jackson v. J., (1804) 9 Ves. at p. 597.
(y) See Harrison v. Barton, (1860) 1 J. & H. 287; 30 L. J. Ch. 213;
And where partners purchased land out of partnership profits, and let it, but brought the profits into the partnership accounts, it was held that there was no survivorship, though the conveyance was to them as joint tenants (b). So, where three brothers, tenants in common of a farm, carried on business together, and one of them, on dying, left his one third to A., who conveyed it for value to the surviving brothers, B. and C, as joint tenants, and they continued to carry on the business, it was held that, on a sale after the death of B., 0. was not entitled to more than a half of the proceeds of the one third conveyed by A., on the ground that it had become involved in partnership dealings, and must be regarded as partnership property (c). So, where two partners purchased real estate out of partnership moneys, and had it conveyed to them in separate moieties to uses in bar of dower, it was held that the entire estate was partnership property, notwithstanding that each partner had, at his own expense, built a private residence for himself upon a portion of the estate set apart for this purpose (d) : the bulk of the estate appeared from the books of the partnership to have been treated as a joint speculation; and there was no sufficient evidence of any specific appropriation of the dwelling-houses as part of the separate estates of the partners.
Property as if in trade.
Now under the Partnership Act, 1890, s. 20, property acquired on account of the firm for the purpose of the partnership business must be held exclusively for the partnership and the legal estate is made to devolve in trust for the persons beneficially interested; and where there is a partnership as to the profits only of land belonging to co-owners and other land is purchased out of such profits, in the absence of agreement to the contrary, the land so purchased is to be held by them not as partners but as co-owners for the respective estates and interests held by them in the land first mentioned at the date of the purchase. And by sect. 21 it is provided that unless a contrary intention appears, property bought with the firm's money is deemed to be bought on account of the firm (e).
Partnership Act, 1890, ss. 20, 21.
Robinson v. Preston, (1858) 4 K. & J. 605 ; 27 L. J. Ch. 394 ; Be Jackson, (1887) 34 Ch. D. 732; 56 L. J. Ch. 593.
(z) Re WilforoVs Est., (1879) 11 Ch. D. 267; 48 L. J. Ch. 243.
(a) Jeffereys v. Small, (1683) 1 Vern. 217; see Dale v. Hamilton, (1846) 5 Ha. 384 ; and see also cases cited 2 Wh. & T. L. C. 7th ed. 961 et seq.
(b) Morris v. Barrett, (1829) 3 Y. & J. 384.
(c) Davies v. Games, (1879) 12 Ch. D. 813 ; Murtagh v. Costello, (1881) 7 L. R. Ir. 428.
(d) Batik of England case, (1861) 3 D. F. & J. 645 ; 30 L. J. Bkcy. 25.
And in the case of a joint purchase, if one joint tenant lays out money in repairs or improvements (f), - which may be either necessary, or sanctioned by the other joint tenants,- or, in the case of renewable leaseholds, advances money for the expense of a renewal (g), he has a lien upon the estate for the amount; but not, it would seem, upon the share of the other joint owner, for moneys which he has advanced to him, and which, without any agreement, have been laid out in the repairs of the property (h) ; and if one purchaser advance more than his share of the purchase-money, he acquires no lien on the estate; nor, it appears, has he any remedy except an action for contribution (i).
Joint tenant has a lien on estate for expenses of repairs, etc., and renewal fines.
Where, however, the property is acquired in joint tenancy, not by purchase but by devise, then, though it may be used for partnership purposes, a tenancy in common will not be inferred in Equity ; unless by express agreement, or by the mode of dealing with the property for a long period, an intention to sever the joint tenancy must be presumed (/.•).
Joint tenancy created by-devise.
(e) See Lindley on Partnership, 6th ed. 331 et seq.
(f) Lake v. Gibson, (1729) 1 Eq. Ca. Abr. 201 ; 2 Wh. & T. L. C. 7th ed. 952; and see Re Jones, 1893, 2 Ch. 461 ; 62 L. J. Ch. 996.
(g) Hamilton v. Benny, (1809) 1 B. &B. 199.
(h) Kay v. Johnston, (1856) 21
(i) See Wood v. Birch, (1804) Sug. 14th ed. 700.
(k) Jackson v. J., (1804) 9 Ves. 591, reversing S. C. 7 Ves. 535 ; Broun v. Oakshot, (1837) 24 Beav. 254; but see Morris v. Barrett, (1829) 3 Y. & J. 381 ; Essex v. E., (1855) 20 Beav. 442 ; Waterer v. W., (1873) 15 Eq. 402 ; and see inf. p. 964.
As between tenants in common there is no fiduciary relationship ; hence, one co-tenant can purchase from the mortgagees of the land selling in good faith under their power of sale without becoming by implication a trustee of one moiety for his co-tenant (I) ; and the fact that one co-tenant collects the rents and manages the estate does not make him an agent or bailiff for his co-tenant (m), though he is liable to an action of account at the suit of his co-tenant; but he is not liable to account for the crops or other profits (not pecuniary) of the land received by him during a sole occupancy (n). "Where two persons were tenants in common of a mine, and owners in severalty of different portions of the surface, and their lessee of the mine sunk a shaft in the estate belonging to one for the purpose of raising the minerals, it was held that both were entitled to the benefit of it (o). A tenant in common, who cannot prove the relative actual or minimum amount of his share, can recover nothing at Law (p), nor in Equity.