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 .
A tenant in common, though owner of an undivided share only in the land, differs from a joint tenant in having a several and distinct estate therein, and, except for the fact that he has not the exclusive possession, he has the same rights in respect to his share as a tenant in severalty.76 So distinct are the interests of tenants in common that if they join in a lease, it is regarded as the distinct lease of each, and a conveyance by one tenant to another must be made as if to a stranger, a deed of release being by the common law authorities, insufficient to convey his title.77
It is immaterial, for the purpose of creating a tenancy in common, whether the cotenants obtain their titles simultaneously, or from the same person, as it is whether they have each the same quantum of estate: this class of tenancy differing in this respect from a joint tenancy. Accordingly, one tenant in common may have an estate in fee and another for life, and one may have acquired his title from one person by conveyance, and the other from another person by descent, and the title of one may have vested yesterday, and that of the other fifty years ago.78
73. Litt. Sec. 304; 2 Blackst. Comm. 186; 2 Preston, Abstracts, 61.
74. Co. Litt. 182b; Wiscot's case, 2 Coke 60, 2 Blackst. Comm. 186; 2 Cruise's Dig. tit. 18 c. 2 Sec.Sec. 2-7.
75. Post Sec.Sec. 203, 204.
76. 4 Kent, Comm. 368; 2 Blackst. Comm. 191 Challis, Real Prop. 368.
77. Freeman, Cotenancy, Sec. 189; 4 Kent, Comm. 368, 369; 1 Platt, Leases 131; Rector v. Waugh, 17 Mo. 28, 57 Am. Dec. 251; Spencer v. Austin, 38 Vt. 258.
Tenants in common, since they hold separate interests, need not have equal shares in the property.79 One may, for instance, have an estate in two thirds and the other in one-third. They are, however, presumed to take equal shares in the absence of evidence of a contrary intention.80 That they contributed in unequal amounts to the payment of the purchase price has occasionally been regarded as evidence of such a contrary intention.81
- Creation. A tenancy in common will, as a result of the distinct character of the titles of the several tenants, arise whenever the terms of the instrument under which the property is held indicate an intent that each tenant shall hold his interest as a separate moiety, and the courts have shown a strong disposition to construe language as indicative of such an intent. So, a tenancy in common has been held to be created when the language of the instrument looks towards a division of the property, or provides that it shall be held by two or more persons "equally," or "share and share" alike,82 and even when it is given
78. 2 Blackst. Comm. 191; 2 Cruise, Dig. tit. 20, Sec. 2; Freeman, Cotenancy, Sec. 86; Spencer v. Austin, 38 Vt. 258.
79. 2 Preston, Abstracts 76, Challis, Real Prop. (3rd Ed.) 370.
80. Nippel v. Hammond, 4 Colo. 211; Adams v. Leavens, 20 Conn. 73; Shields v. Clark, 14 Ga. 429; Keuper v. Mette's Heirs, 239 111. 586, 88 N. E. 218; Dashiel v. Collier, 4 J. J. Marsh (Ky.) 601; Campau v. Campau, 44 Mich. 31; Hill v. Reiner, 167 Mich. 400, 132
N. W. 1031; Jackson v. Moore, 94 App. Div. N. Y. 504, 87 N. Y. Supp. 1101; Smith v. Alderson, 116 Va. 986, 83 S. E. 373.
81. In re McConnell, 197 Fed. 483; Walker v. Barrow, 43 La. Ann. 863, 9 So. 479; Bittle v. Clement (N. J. Ch.) 54 Atl. 138.
82. 2 Blackst. Comm. 193, Christian's note; 4 Cruise, Dig tit. 32 c. 21, Sec.Sec. 50-58; 2 Jarman, Wills, 1121; Fisher v. Wigg, 1 P. Wms. 14; Rigden v. Vallier, 2 Ves. Sr. 257; Griswold v. Johnson, 5
"amongst" or "between" certain persons, or to them "respectively."83 The terms of the instrument are, however, of comparatively little importance at the present day, owning to the frequent adoption of statutes providing that a conveyance or devise to two or more shall be presumed to create a tenancy in common.84
When the owner of a tract of land conveys a part thereof, without designating or attempting to designate the part so conveyed, the grantor and grantee will become tenants in common of the whole tract, in proportion to the respective quantities of each.85
Occasionally the view has been asserted that when each of two persons appears to be the owner of a tract of land by conveyance or its equivalent under the government, there being nothing to show the title of one to be superior to that of the other, they are to be regarded as tenants in common of the tract.86 And it has been laid down, as a general principle, that when two men have each a title to the same piece of land, which title in itself is apparently perfect, and by which either might hold the whole, but for an equally good title in the other, they must take each a moiety.86a the same person, since this made the heirs coparceners. In this country, however, joint heirs more usually lake as tenants in common.87
At common law, a tenancy in common was never created by the descent of land to two or more heirs of
Conn. 363; Gaunt v. Stevens, 241 111. 542, 89 N. E. 812; Gilpin v. Hollingsworth, 3 Md. 190, 56 Am. Dec. 737; Westcott v. Cady, 5 Johns. Ch. (N. Y.) 334, 9 Am. Dec. 306; Weir v. Tate, 39 N. C. 264; Pruden v. Paxton, 79 N. C. 446, 28 Am. Rep. 333; Evans v. Brittain, 3 Serg. & R. (Pa.) 135; Martin v. Smith, 5 Binn. (?a.)16. 83. Richardson v. Richardson, 14 Sim. 526; Atty. Gen. v. Fletcher, 13 L. R. Eq. 128; Hawes v. Hawes, 1 Ves. 13; Tudor's Leading Cases on Real Prop. p. 896, notes to
Morley v. Bird.
84. Ante Sec. 191, note 37.
85. Litt. Sec. 299; Co. Litt. 190b; Freeman, Cotenancy, Sec. 96; Wallace v. Miller, 52 Cal. 655; Gibbs v. Swift, 12 Cush. (Mass.) 393; Pipkin v. Allen, 29 Mo. 229; Jackson v. Livingston, 7 Wend. (N. Y.) 136; Sheafe v. Wait, 30 Vt. 735.
86. Erskin v. Wood, 77 Kan. 577, 95 Pac. 413; Young v. De Bruhl, 11 Rich. L. (S. C.) 638, 73 Am. Dec. 127; Challefoux v. Ducharme, 4 Wis. 554.
8Ga. Shore v. Dow, 13 Mass. 529.
- Termination. A tenancy in common may be terminated either by uniting all the interests in the land in .one tenant, by purchase or otherwise, which makes him the owner of the whole in severalty, or by making partition between the several tenants, which gives them each an interest in severalty in a specific part of the land.88