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 .
In this country, it is considered that the community of interest between cotenants of land is such that it is not consistent with good faith or with the duty which each owes to the other that either of them should purchase and set up as against the others an outstanding adverse title, and consequently a conveyance of such title to one tenant is regarded as enuring to the benefit of all, provided the other or others contribute a proportionate part of the cost of procuring it.95 A few decisions hold, however, that the doctrine applies only when the cotenants claim under the same title, and that, when tenants in common claim under different titles, there is no such relation of trust and confidence as calls for the application of the rule.96 For the purposes of the rule referred to, the acquisition of an outstanding lien, it seems, stands on the same either under legal process or under a power in a trust deed given to secure debts.2
91. See Freeman, Cotenancy Sec. 263, where it is well remarked that "if a different rule prevailed, every part owner would constantly incur the hazard of being required to pay for the removal of incumbrances much in excess of the value of the estate." This is quoted and applied in Troy v. Protestant Episcopal Church, 174 Ala. 380, Ann. Cas. 1914B, 815, 56 So. 982.
In Dickenson v. Williams, 11 Cush. (Mass.) 260, 59 Am. Dec. 142, it was held that a cotenant could recover in assumpsit against his cotenant on account of sums paid to remove an incumbrance, but there a personal liability existed as to the incumbrance by reason of covenants of title entered into by them.
92. See Clute v. Clute, 197 N. Y. 439, 27 L. R. A. (N. S.) 146, 134 Am. St. Rep. 891, 90 N. E. 988; Cole v. Cole, 57 Misc. (N. Y.) 490 108 N. Y. Supp. 124; Contra, Leake v. Hayes, 13 Wash. 213, 52 Am. St. Rep. 34, 43 Pac. 48; Willmon v. Koyer, 168 Cal. 369, L. R. A. 1915B, 961, 143 Pac. 694.
93. See Wistar's Appeal, 125 Pa. 526, 11 Am. St. Rep. 917, 17 Atl. 460.
94. In Victoria Copper Min. Co. v. Rich, 193 Fed. 314, 113 C C. A. 238, it is said that the co-tenant in possession, if his possession is adverse, is conclusively presumed to have received such benefits, while the presumption is otherwise if his possession is not adverse.
95. Rothwell v. Dewees, 2 Black (U. S.) 619, 17 L. Ed. 309; Flagg v. Mann, 2 Sumn. 490, Fed. Cas. No. 4,847; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Mandeville v. Solomon, 39 Cal. 125; Franklin Min. Co. v. O'Brien, 22 Colo. 129, 55 Am. St. Rep. 118, 43 Pac. 1016; Boyd v. Boyd, 176 111. 40, 68 Am. St. Rep. 169; Stevens v. Reynolds, 143 Ind. 167, 52 Am. St. Rep. 422; Venable v. Beauchamp, 3 Dana. (Ky.) 321, 28 Am. Dec. 74; Van Home v. Fonda, 5 Johns. Ch. (N. Y.) 388; Clark v. Lindsey, 47 Ohio St. 437, 9 L. R. A. 740, 25 N. E. 422; Arthur v. Coyne, 32 Okla. 527, 122 Pac. 688; Dray v. Dray, 21 Ore. 59, 27 Pac. 223; Tanney v. Tan-ney, 159 Pa. St. 277, 39 Am. St. Rep. 678; Tisdale v. Tisdale, 2 Sneed (Tenn.) 596, 64 Am. Dec. 775. S. e article by Fred L. Gross, Esq., 24 Yale Law Journ., 316 et seq.
In Illinois the doctrine appears to be limited to the case of a purchase by a cotenant who is actually in possession. Carpenter v. Fletcher, 139 111. 440, 88 N. E. 162.
In England the doctrine has been repudiated. Kennedy v. De Trafford (1897), App. Cas. 180.
In Sweetland v. Buell, 164 N. Y. 541, 79 Am. St. Rep. 676, 58 N. E. 663, the singular view appears to be asserted that if there is an outstanding paramount title, two persons in possession under a conveyance to them are not cotenants, and consequently the rule refer red to cannot apply. Such a view would reduce the rule to a nullity, and is based on an erroneous assumption. Two persons in joint possession are cotenants irrespective of the validity of their title. See ante Sec. 191 note 48a.
96. Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Moon v. Jennings, 119 Ind. 130, 12 Am. St. Rep. 383; King v. Rowan, 10 Heisk. (Tenn.) 675; Roberts v. Thorn, 25 Tex. 728, 78 Am. Dec. 522; Frentz v. Klotsch, 28 Wis. 312. See Van Horne v. Fonds, 5 Johns. Ch. (N. Y.) 388; Hobe v. Rudd, 165 Wis. 152, 161 N. W. 351. Such a qualification of the doctrine is not mentioned in the decisions generally, and has been basis as the acquisition of an outstanding title.97 Whether, in the ordinary case, even when the cotenants claim under the same instrument, a relation of trust and confidence does exist, may be doubted;98 but the doctrine referred to serves a useful purpose in those cases in which such a relation exists, and it works no particular hardship in other cases. The rule has been held not to apply as between cotenants obviously occupying antagonistic positions, as when one claims the whole title, to the exclusion of the others, the relation of trust and confidence on which the rule is regarded as based not then existing.98a
The doctrine referred to has been held, in a number of cases, to apply to a purchase at foreclosure sale of the common property,99 and it has also been applied in connection with a purchase at execution sale.1 It has on the other hand been asserted by high authority, that the doctrine has no application to a public sale, expressly repudiated. Bracken v. Cooper, 80 111. 221; Montague v. Selb, 106 111. 49; Coburn v. Page, 105 Me. 458, 74 Atl. 1026; Ream v. Robinson, 128 Mich. 92, 87 N. W. 115; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216. And see Roth-well v. Dewees, 2 Black (U. S.) 619, 17 L. Ed. 309.
97. Randolph v. Vails, 180 Ala. 82, 60 So. 159; Scanlon v. Parish, 85 Conn. 379. 82 Atl. 969; Jennings v. Moon, 135 Ind. 168, 34 N. E. 996; Mahoney v. Nevins, 190 Mo. 360, 88 S. W. 731; Becker v. Becker, 254 Mo. 668, 163 S. W. 865; Tisdale v. Tisdale, 2 Sneed (Tenn.) 596, 64 Am. Dec. 775. But see, as to purchase of a mortgage, Blodgett v. Hildreth, 8 Allen (Mass.) 186.
98. See editorial note, 9 Harv. Law Rev. at p. 429.
98a. Larman v. Huey's Heirs, 13 B. Mon. (Ky.) 436; Shelby v. Rhodes, 105 Miss. 255, Ann. Cas. 1916D, 1306. 62 So. 232; Wells v. Chapman, 4 Sandf. Ch. (N. Y.) 312, 13 Barb. 561; Wheeler v. Taylor, 32 Ore. 421, 67 Am. St. Rep. 540, 52 Pac. 183; King v. Rowan, 10 Heisk. (Tenn.) 675; Wright v. Sperry, 21 Wis. 336.