This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
46. O'Neal v. Cooper, 191 Ala. 182, 67 So. 689; Middlecoff v. Cronise, 155 Cal. 185, 100 Pac. 232; Campau v. Godfrey, 18 Mich. 27; Pellow v. Artic Iron Co., 164 Mich. 87, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B. 827; 128 N. W. 918; Barnhart v. Campbell, 50 Mo. 597; Crook v. Vandervoort, 13 Neb. 505; Warner v. Eaton, - (N. H.) -102 Atl. 535 (statute) Dennison v. Foster, 9 Ohio, 126, 34 Am. Dec. 429; Cameron v. Thurmond, 56 Tex. 22; McKee v. Bailey, 11 Gratt.
In so far, however, as it means, as apparently it usually does mean, that a conveyance by a cotenant of a specific part, if ratified by the others, is valid and effective for the purpose of transferring, not only the grantor's undivided interest in that part, but the whole interest in such part in severalty, the difficulty in the acceptance of such a view appears to be considerable The doctrine of ratification applies only in the case of one who has undertaken to act as agent in behalf of another, without authority as such,55 and this requirement cannot well be said to exist in the ordinary case of a conveyance by a cotenant, even though it purports to convey the land in severalty, and moreover, in view of the general rule that if any formality, such as writing, is necessary to validate the authorization of one to act as agent, a like formality is necessary to ratify his act as such56 and since an authority to convey one's interest in land must ordinarily, if not invariably, be given in writing,57 a merely oral ratification by one cotenant of the action of the other in conveying the former's interest in the land should, it is submitted, be regarded as absolutely nugatory.
Even conceding that a conveyance by metes and bounds made by one cotenant is invalid as against the other cotenants, it is valid as against the grantor, and consequently, if that specific part of the land is allotted to the grantee on partition, or it is otherwise acquired by him in severalty, the conveyance may operate by way of estoppel,47 to vest in him the entire ownership of that part.48
Although one claiming under a transfer by one cotenant of his undivided interest in a particular part of the land cannot demand that a portion or all of that particular part be allotted to him on partition,49 a court of equity will frequently, in making partition, make such an allotment, if by so doing it does not injuriously affect the other cotenants.50 In case he fails to receive such an allotment, he cannot, it would seem clear, demand a part not included in the description in the conveyance to him, merely because it is allotted to his grantor.51
(Va.) 346; Phillips v. Delany, 114 Va. 681, 77 S. E. 449; Worthington v. Staunton, 16 W. Va. 208. See Finch v. Green, 225 111. 304, 80 N. E. 318; Hitt v. Caney Fork Gulf Coal Co., 124 Tenn. 334, 139 S. W. 693.
47. Post, Sec. 545.
48. Harris v. Winsted, 79 Ark. 499. 6 So. 146; Soutter v. Porter,
27 Me. 405; Varnum v. Abbot, 12 Mass. 474; Cunningham v. Pattee, 99 Mass. 250; Barnes v. Lynch, 151 Mass. 510, 21 Am. St. Rep. 470; Kenoye v. Hardison, 82 Miss. 607, 100 Am. St. Rep. 645, 35 So. 163; McElroy v. McLeay, 71 Vt. 396, 45 Atl. 498; Worthington v. Staunton, 16 W. Va. 208; Freeman, Cotenancy, Sec. 207.
49. Supra, this section, note 45.
50. Harrell v. Mason, 170 Ala. 282, 54 So. 104; O'Neal v. Cooper,
191 Ala. 182, 67 So. 689; Benedict v. Torrent, 83 Mich. 181, 13. L. R. A. 278, 21 Am. St. Rep. 582, 47 N. W. 129; Pellow v. Artie Iron Co., 164 Mich. 87, 47 L, R. A. (N. S.) 573, Ann. Cas. 19.2B, 827, 128 N. W. 918; Warner Eaton (N. H.), 102 Atl. 535; Hol comb v. Coryell, 11 N. J. Eq. 548; Young v. Edwards, 33 S. C. 404. 10 L. R. A. 55, 26 Am. St. Rep.
689, 11 S. E. 1066; Maverick v. Barney, 88 Tex 560, 32 S. W. 512, McKee v. Barley, 11 Grat. (Va.)
340; Worthington v. Staunton, 16
W. Va. 209; Highland Park Mfg.
Co. v. Steele, 149 C. C. A. 1, 235
51. Kenoye v. Brown, 82 Miss. 607, 100 Am. St. Rep. 645, 35 So. 163.
But in Young v. Edwards, 33 S, C. 404, 10 L. R. A. 55, 26 Am made it as their agent, his act is ratified by them.59 The effect of a lease by one cotenant, acting for himself alone, is at most merely to confer on the lessee a right to share in the possession for the term of the lease, that is, to make the lessee a cotenant for the term.60
Occasionally it has been stated or suggested that, although when the joint ownership extends to but a single tract, a conveyance by a cotenant of his undivided interest in a particular part of the tract is invalid as against his cotenants,52 it is otherwise when the joint ownership extends to two or more distinct tracts, and the conveyance by one cotenant is of his interest in one of such tracts.53 Such a distinction is evidently based on the theory that if the conveyance extends to all of the grantor's undivided interest in one particular tract, there is not, as there is when it extends to his undivided interest in a part merely of the tract in which he has such an interest, any possibility that the conveyance can affect the interest of the other cotenants in case of partition.
A conveyance by a cotenant of a specific portion of the land may, it has been quite frequently stated, be validated by a ratification thereof by the other co-tenants.54 In so far as this means that in states in which a conveyance by a cotenant of his undivided interest in a specific part of the land is ordinarily invalid has a right himself to make use of the land, and he may, no doubt, make such right available by authorizing others to enter on the land as his employees or agents. Such an entry, being in effect the entry of the cotenant himself, who has a share in the possession, does not involve an interference with the possession of the others. A license, however, to a stranger, if availed of by the licensee, does involve an interference with the possession of the others, and the licensee can, it would seem, justify his entry only on the theory that the licensor had authority to act in behalf of the others in granting such a license. In so far as the license involves a permission merely to enter on the land, and not to take anything therefrom, or in anyway injure the common property, an authority in one cotenant to grant such a license in behalf of all might well be inferred, but if one co-tenant has implied authority to grant the license, any other cotenant should have implied authority to revoke it, the effect of which would be that the license is valid only until one of the cotenants expresses his dissent. In so far as the license involves a right to take something from the common property, a license coupled with an interest,70 such as to mine or cut timber, since this involves a disposition of property in which he has an undivided interest only, it is difficult to see how the grant of such a license by one cotenant can be regarded as valid.71 The fact that, as is the case in some states, a cotenant has the privilege of taking minerals or cutting timber72 appears to be a somewhat insufficient reason for recognizing a right in him to transfer this privilege to another who is neither a cotenant nor acting in behalf of a cotenant.73 Ob70. Post, Sec. 349(d).