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 .
One cotenant has no authority, as a result of the relation, to bind another cotenant by a contract in regard to the common property, or, as a rule, by any other character of act.41 Acts by one cotenant, however, which could be regarded as for the benefit of his cotenants, have occasionally been regarded as the acts of all, when no liability was directly imposed thereby upon the others.42 "It is doubtful whether these adjudications can be referred to any one general principle. Some of them proceed upon the theory that the act was binding because for the common benefit, others, upon the theory that for certain purposes, and under certain circumstances, one cotenant has necessarily the right to act on behalf of the others, and still other cases proceed upon the assumption that, in certain instances, co-tenants or co-obligees may be treated in law as one person; and that a payment to, or a release by, one must therefore be regarded as a satisfaction to all."43 each of these distinct parts of the tract, which portions of distinct parts would probably not adjoin one another. Such an assumption appears to be uncalled for. It is sufficiently obvious that one cotenant's right to demand a partition should not be affected by any conveyance which the other may make, and likewise, that such a conveyance should not be allowed to affect the benefit which may accrue to him by reason of a partition. The cotenant must make the transferee of each undivided interest in each part of the land a party to any proceeding instituted by him to effect a partition, but he is entitled to receive on partition one distinct portion of the whole tract just as if no such transfer had been made. In other words, any transferee of an undivided share in a particular part of the land must take subject to the possibility that all that part will, on partition, be allotted to another, so that he will acquire nothing as a result of the transfer. That this is so, has frequently been recognized,45 and accordingly, in a majority of the states, a transfer by one cotenant of a specific part of the land jointly owned, a conveyance by metes and bounds, as it is ordinarily termed, is perfectly valid as regards his undivided interest in such part.46
(54 Mass.) 404, 46 Am. Dec. 739, and Gowen v. Shaw, 40 Me. 56, it is said that an express promise is necessary to create such a liability on the part of a cotenant. This would seem however to be questionable, provided the relation of landlord and tenant clearly appears. What these decisions really mean is perhaps that such a relation between cotenants will not be inferred from the mere fact of the exclusive occupation of the premises by one of them.
40a. Fuller v. Fuller, 23 Fla. 236, 2 So. 426; Harry v. Harry, 127 Ind. 91, 26 N. E. 562; Gay v. Berkey, 137 Mich. 658, 100 N. W. 920; Ranstead v. Ranstead, 74 Md. 378, 22 Atl. 405; Franklin v. Robinson, 1 Johns. Ch. 157; Redfield v.
Gleason, 61 Vt. 220, 15 Am. St. Rep. 889.
41. Freeman, Cotenancy, Sec.Sec. 168 173, 182; Pearis v. Covillaud, 6 Cal. 617, 65 Am. Dec. 543; Omaha & Grant Smelting & Refining Co. v. Tabor, 13 Colo. 41, 16 Am. St. Rep. 185; Clark v. Parker, 106 Mass. 535; Morrison v. Clark, 89 Me. 103, 56 Am. St. Rep. 395; City of St. Louis v. Laclede Gas Light Co., 96 Mo. 197, 9 Am. St. Rep. 334; State v. Klein (N. J.) 27 Atl. 902; Crippen v. Morse, 49 N. Y. 67; Dexter Lime Rock Co. v. Dexter, 6 R. I. 353; Hanks v. Enloe, 33 Tex. 624.
42. Freeman, Cotenancy, Sec.Sec. 174-178; Rud v. Tucker, Cro. Eliz. 802; Crary v. Campbell, 24 Cal. 637; Loomis v. Pingree, 43 Me. 299.
- Conveyance of specific part. In some states it is apparently the law that a conveyance of his interest in a specific part of the land by one cotenant thereof, if not ratified by his cotenants, is absolutely nugatory except as between the grantor and the grantee, and that it need not be recognized in any way by the cotenants.44 The view referred to, which has perhaps been asserted most strongly in Massachusetts, that a conveyance by a cotenant of his undivided interest in a part only of the land held in cotenancy is invalid, as regards the other cotenants, is based on the assumption that, for instance, if A and B are cotenants, A might convey his interest in distinct parts of the tract to a number, perhaps a very large number, of persons, and that B, on seeking to obtain partition, would have to consent to a division of each particular part of the land between himself and the grantee of A's interest in that particular part, with the result that he would acquire, on partition, instead of a distinct portion of the whole tract, lying in one body, merely a portion of as against the other cotenants, it is valid even as against them in case they acquiesce therein, it appears to be a reasonable qualification of the doctrine
43. Freeman, Cotenancy, Sec. 174.
44. Mitchell v. Hazen, 4 Conn. 495 10 Am. Dec. 169; Hartford & S. Ore Co. v. Miller, 41 Conn. 112, Duncan v. Sylvester, 16 Me. 388; Bartlet v. Harlow, 12 Mass. 348, 7 Am. Dec. 76; Adams v. Briggs Iron Co., 7 Cush. (Mass.) 361; Barnes v. Lynch, 151 Mass. 510,
21 Am. St. Rep. 470; Cressey v. Cressey, 215 Mass. 65, 102 N. E. 314; Whitton v. Whitton, 38 N. H. 127, 75 Am. Dec. 163; Boston Franklinite Co. v. Condit, 19 N. J. Eq. 394; Green v. Arnold, 11 R. I. 364; Smith v. Benson, 9 Vt. 138, 31 Am. Dec. 614.
45. Freeman, Cotenancy, Sec. 205; coleman v. Stewart, 170 Ala. 255, 53 So. 1020; Gates v. Salmon, 35 Cal. 576, 95 Am. Dec. 139; Walton v. Ward, 142 Ga. 385, 82 S. E. 1067; Markoe v. Wakeman, 107 111. 251; Warthen v. Siefert, 139 Ind. 233, 38 N. E. 464; Tainter v. Cole, 120 Mass. 162; Dennison v. Foster, 9 Ohio, 126, 34 Am. Dec. 429; Charleston C. & C. R. Co. v. Leech, 33 S. C. 175, 26 Am. St. Rep. 667; Jewett's Lessee v. Stockton, 3 Yerg. (Tenn.) 492; Dorn v. Dunham, 24 Tex. 366; Robinett v. Preston's Heirs, 2 Rob. (Va.) 278; Solesberry v. Virginian R. Co., 73 W. Va. 642, 81 S. E. 985.