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 .
So if the husband is the cotenant and the conveyance is made to the wife. Goundie v. Northampton Water Co., 7 Pa. 238; without the consent of the mortgagee, be so altered or transferred.59
Harrison v. Ray, 108 N. C. 215, 11 L. R. A. 722, 12 S. E. 993; but Sharpe v. Davis, 76 Ind. 17 appears to be contra.
So if husband and wife are both cotenants, under a conveyance to them of a part set off to them both, they take as tenants in common and not as tenants by the entireties. Harrison v. Mc-Reynolds, 183 Mo. 533, 82 S. W. 120.
47. Weeks v. Haas, 3 Watts & S. (Pa.) 520, 39 Am. Dec. 39; Farmers & M. Nat. Bank v. Wallace, 45 Ohio St. 152, 12 N. E. 439. But Dooley v. Barnes, 86 Va. 644, 10 S. E. 974, appears to be contra. Snyder v. Grandstaff, 96 Va. 473, 31 S. E. 647, does not appear fully to accord with this latter case.
48. Conkling v. Brown, 8 Abb. Prac. N. S. 348, 57 Barb. (N. Y.) 265; Carter v. Day, 59 Ohio St. 96, 51 N. E. 967; Dooley v. Baynes,
[Sec. 203 partition.49 The rights of the wife of a cotenant as regards dower, even though she does not join in the partition deed, have been regarded as being ipso facto transferred from the undivided interest in the whole to the part allotted to the husband in severalty.50 And it was held that where a cotenant undertook to convey the entire interest in a portion of the land, and subsequently received such portion upon partition, he did not thereby acquire a new interest or title which he could assert as against his grantee.51 Likewise, it has been held that upon a partition between joint devisees, each holds the part acquired by him subject to the limitations in the will.52
It is on the same theory, that a partition deed creates no estate, that it has been occasionally decided that the grantor in such a deed, although he enters into an express covenant of warranty, is not estopped to assert, as against the grantee therein, a paramount title subsequently acquired by him.53 But
86 Va. 644, 10 S. E. 974; Lucas v. Rhodes, 48 Ind. App. 211, 94 N. E. 914. But that this is the case only to the extent that the part allotted to him equals his share, see Freeman v. Allen, 17 Ohio St. 527.
49 Mickels v. Ellsesser, 149 Ind. 415, 49 N. E. 373.
50. Potter v. Wheeler, 13 Mass. 506; Napper v. Mutual Life Ins. Co., 21 Ky. L. Rep. 791, 53 S. W. 28; Lloyd v. Conover, 25 N. J. L. 47 (dictum). If the portions allotted in severalty to the various owners are not in proportion to their undivided interests, as when the equalization is effected by an award of owelty, the dower claim of the widow of a co-owner who receives the lesser proportional share is not, it has been held, restricted to dower in the land set apart to her husband. Mosher v.
Mosher, 32 Me. 412.
51. Wade v. Deray, 50 Cal. 376.
52. Chace v. Gregg, 88 Tex. 553, 32 S. W. 520.
But it has been decided that when the partition deed was made to the cotenant in terms for life with remainder to her children, she took, not the estate in fee simple, which she previously had in an undivided share, but an estate for life merely. Eggner v. Hovekamp, 134 Ky. 224, 119 S. W. 818. And in Re Coates Street, 2 Ashon (Pa.) 12, the deed of partition was construed as intended to vest an absolute interest fre6 from the executory limitations of the will. Compare Pitzer v. Morrison, 272 111. 291, 111 N. E. 1017.
53. Chace v. Gregg, 88 Tex. 552. 32 S. W. 520; Townseml v. Out ten, 95 Va. 536, 28 S. E. 958.
Sec. 203 ]
Co-Ownership in other cases the view has apparently been adopted that, without reference to whether anything passes by the deed, the covenant of title, express or implied, estops the covenantor from asserting a paramount title, subsequently acquired.54
- Effect on lien. In several cases it has been decided, by way of application of the doctrine above referred to, that upon the making of a voluntary partition, provided it is fair and reasonable, one who has a mortgage,55 or other lien,56 upon an undivided interest acquires, in lieu thereof, without reference to his will in the matter, a mortgage on the portion acquired in severalty by the mortgagor. In England a mortgage does not appears to be regarded as thus following the partition,57 and in Massachusetts a like position is suggested by the emphasis placed by the court upon the joinder of the mortgage in the partition deed as conducing to such a change in the subject of the mortgage.58 In New Jersey the court refused thus to transfer the lien of a judgment against a cotenant, and incidentally stated that the lien of a mortgage would not,
54. Tewksbury v. Provizzo, 12 Cal. 20; Venable v. Beauchamp, 3 Dana (Ky.) 321, 28 Am. Dec. 74.
The partition deed, if it purports to convey only the interest of each grantor as cotenant at the time of its execution, cannot operate by estoppel upon an interest subsequently acquired by him by descent from another co-tenant. Carson v. Carson, 122 N. C. 645, 30 S. E. 4; White v. Bro-caw, 14 Ohio St. 339.
55. Green v. Brown, 146 Ind. 1, 44 N. E. 805; Williams College v. Mallett, 12 Me. 398; Randell v. Mallett, 14 Me. 51; Webb v. Rowe, 35 Mich. 58; Thruston v.. Minke,
32 Md. 57; Jackson v. Pierce, 10 Johns. (N. Y.) 415; Long's Appeal, 77 Pa. 151; Lawrence v. Korn, 184 Pa. 500, 39 Atl. 295; Port v. Parfit, 4 Wash. 369.
56. Manley v. Pettee, 38 111. 128; Wright v. Stice, 173 111. 571, 51 N. E. 71; Hall v. Morris, 13 Bush (Ky.) 322; Harwood v. Kirby, 1 Paige N. Y. 470; Barrington v. Clarke, 2 Pen. & W. (Pa.) 124; Longwell v. Bently, 23 Pa. St. 162; Robisson v. Miller, 158 Pa. 177, 27 Atl. 887.
57. Sinclair v. James  3 Ch. 559.
58. Torrey v. Cook, 116 Mass. 163.
The prevailing view, as to the transfer in such case of the lien or mortgage to the portion allotted in severalty, in place of the undivided interest originally subject, might, it seems, be supported on the theory that the right of partition, in connection with property held in cotenancy, is such an integral characteristic of the holding that it cannot be affected by the creation of an incumbrance on a cotenant's undivided interest.
A mortgage by a cotenant upon an undivided share in part only of the tract is not, it seems, upon partition, to be extended to land outside of such part, merely because it is included in the allotment to the mortgagor.59a But it has apparently been decided that if a cotenant mortgages his undivided share in the whole, and then acquires another undivided share, upon partition the mortgage extends to the whole part allotted to him.59b
- Implication of warranty. Whether, in case of voluntary partition between coparceners, a warranty was, at common law, to be implied, as in the case of compulsory partition, the modern authorities are not agreed,59c The older authorities appear to contain no explicit statement on the subject. On the assumption that a warranty was implied at common law in such case, it has occasionally been implied in this country on a voluntary partition between coparceners, and also
59. Emson v. Polhenius, 28 N. J. Eq. 439.
59a. Green v. Arnold, 11 R. I. 364, 23 Am. Rep. 466; Martin v. Kennedy, 83 Ky. 335.
59b. Randell v. Mallett, 14 Me. 51.
59c. That it was implied, see Venable v. Beauchamp, 3 Dana (Ky.) 321; Jones v. Bigstaff, 95 Ky. 395, 44 Am. St. Rep. 245, 25
S. W. 889; and cases cited in the next following note. In Allnatt, Partition 156; 1 Preston, Abstracts, 303, it is broadly stated that every partition between coparceners implies a warranty. That it was not implied at common law, see Rawle, Covenants for Title, Sec.Sec. 227, 278; Sawyers v. Cator, 8 Humph. (Tenn.) 256, 47 Am. Dec. 608.
Sec. 204 ]
Co-Ownership between tenants in common who, as holding by descent, are in the position of coparceners at common law.60 But the presence of an express warranty will exclude the implication of a warranty.61
No implication of warranty was recognized at common law in the case of a voluntary partition between tenants in common or between joint tenants, and there are several decisions in this country in which the existence of an implied warranty in such a case was denied.62 Occasionally, however, it has been asserted in effect that the reason of the common law rule lay in the fact that there was no right of compulsory partition as between tenants in common and joint tenants, and that since this right has become fully established by statute or otherwise, and a warranty is implied on compulsory partition, it should also be implied when the parties do, by voluntary act, what they might have been compelled by law to do.63