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 .
As a general rule, tenants in common should sue separately in a real action, since each has a separate and distinct freehold, while in trespass and other personal actions based on injury to the possession, which they have in common, they must join, unless there has been a severance of the claims.21 Joint tenants likewise should sue together for injuries to the possession, and, as they hold by one title, they v. Freedman, 259 111. 416, 102 N. E. 815; Hinters v. Hinters, 114 Mo. 26, 21 S. W. 456.
20. Flagg v. Mann, 2 Sumn. 487, Fed. Cas. No. 4847; Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Stevenson v. Boyd, 153 Cal. 630, 19 L. R. A. (U. S.) 525, 96 Pac. 284; Smith v. Goethe, 159 Cal. 628, Ann. Cas. 1912C, 1205. 115 Pac. 223; Harrison v. Cole, 50 Colo. 470, 116 Pac. 1123 Titsworth v. Stout, 49 111. 78, 95 Am. Dec. 577; Stevens v. Reynolds, 143 Ind. 467, 52 Am. St. Rep. 422, 41 N. E. 931; Spurlock v. Spurlock, 161 Ky. 248, 170 S. W. 605; Darcey v. Bayne, 105 Md. 365, 10 L. R. A. 863, 66 Atl. 434; Hurley v. Hurley, 148 Mass. 444, 2 L. R. A. 172, 19 N. E. 545; Brown v. Howard, 264 Mo. 464. 175 S. W. 52; Carson v. Broady, 56 Neb. 648, 71 Am. St. Rep. 691,
77 N. W. 80; Boskowitz v. Davis, 12 Nev. 446; Weaver v. Wible, 25 Pa. St. 270, 64 Am. Dec. 696; Buchanan v. King's Heirs, 22 Gratt. (Va.) 414; Dwight v. Wald-ron, 96 Wash. 156, 164 Pac. 761; James v. James, 77 W. Va. 229 87 S. E. 364.
But, in one state, it has been said that the right to share in the benefit of the purchase of the paramount title is not barred by lapse of time, but that for this purpose circumstances creating an estoppel are necessary. Dickerson v. Weeks, 106 Miss. 804, 64 So. 731; Barksdale v. Learnard, 112 Miss. 8G1, 73 So. 736.
21. Litt. Sec.Sec. 311, 315; Freeman. Cotenancy, Sec. 331; Cochran v. Bran-nan, 196 Fed. 219; Throckmorton v. Burr, 5 Cal. 400; Gilmore v. Wilbur, 12 Pick. (Mass.) 120; Stevenson v. Cofferin, 20 N. H.
In ejectment, joint tenants and coparceners could sue either jointly or severally, according to the nature of the fictitious demise on which the action was based,23 and the rule is presumably the same since the fictitious demise has boon done away with. Tenants in common, on the other hand, since they have separate estates only, cannot make a joint demise, and accordingly, by some authorities, they cannot join in ejectment.24 By other authorities it is stated that, though tenants in common cannot make a joint demise, they may, in one action, recover as on separate demises of their undivided interests,25 and the statute in some states provides that they may join.26
One tenant in common may, according to some authorities, recover the whole property, as against a stranger, for the benefit of all the cotenants, on the theory that, except as against his cotenants, he is entitled to possession of the whole.27 According to other
151; Hill v. Gibbs, 5 Hill (N. Y.) 56; Austin v. Hall, 13 Johns. (N. Y.) 286; Irwin's Adm'r. v. Brown's Ex'rs, 35 Pa. St. 331; Clapp v. Pawtucket Inst, for Sav., 15 R. I. 489, 2 Am. St. Rep. 915, 8 Atl. 697; May v. Slade, 24 Tex. 207. That one cotenant may obtain an injunction to prevent a trespass, see Rush v. Cornett, 169 Ky. 714, 185 S. W.'88.
22. Litt. Sec. 311; 5 Bac. Abr. Joint Tenants. (K), Dewey v. Lam-bier, 7 Cal. 347; Webster v. Van-deventer, 6 Gray (Mass.) 428. For statutory provisions on the subject, see 3 Sharswood & B. Lead. Cas. Real Prop. 29.
23. Freeman, Cotenancy, Sec.Sec. 339, 340; Adams, Ejectment, 210: Rap-er v. Lonsdale, 12 East, 39.
24. Mantle v. Wollington, Cro. Jac. 166; White v. Pickering's Lessee, 12 Serg. & R. (Pa.) 435.
25. Jackson v. Sidney, 12 Johns. (N. Y.) 185; Bronson v. Paynter, the taking of possession of their allotted parts by the various cotenants, has been upheld in courts exercising equitable powers on the ground that the partition is in effect an agreement for the mutual transfer of the various interests, and that the taking of possession constitutes such part performance as takes the case out the statute, and authorizes a decree for specific performance.34
20 N. C. 393: Wheat v. Morris,
21 D. C. 118; Carroll v. Norwood's Heirs, 5 Har. & J. (Md.) 155; Ferguson v. Prince, 136 Tenn. 543, 190 S. W. 548. See Adams, Ejectment, 210. In Jackson v. Bradt, 2 Caines (N. Y.) 173, Hoyle v. Stowe, 13 N. C. 318, and Bronson v. Paynter, 20 N. C. 393, it was even held that tenants in common could recover on a joint demise.
26. Freeman, Cotenancy, Sec. 341, Newell, Ejectment, 143-149.
27. Lacroix v. Malone, 157 Ala. 434, 47 So. 725; Newman v. Bank of California, 80 Cal. 368; 5 L.