several and distinct interests, not by a joint title but in common, the only unity recognized being that of possession. There may be a common ownership of personal property as there is a tenancy in common of real estate, and a common ownership may arise, moreover, either from the actual severance of a joint ownership or from a transfer to two or more to hold in common.1 It is true that at law a chose in action (or incorporeal chattel) cannot be severed by joint owners thereof so as to effect an ownership in common, and this for the reason that such property is not legally assignable; but in equity the case is different, and such assignments are protected.2 The sole owner of chattels may sell an undivided interest and thus create the relation. Where two or more are made tenants in common by deed or some general instrument well written, a difficulty will seldom arise. But in wills there is greater indulgence given to informal expressions, in order to effect a testator's wishes, and it is a rule that any words which denote an intention to give to each of the legatees a distinct interest in the subject of the gift will create them common owners therein, or in a contrary case joint tenants.5

Of course the various species of chattels which were enumerated as capable of being subjected to joint ownership may as well be owned in common. And as common owners can hold by several and distinct titles, unlike joint owners, whose title must have been created by one and the same will or other instrument, so a common ownership of chattels may arise in a variety of ways. Thus, a contract that A. shall find timber, and B. shall manufacture it into shingles and

12 Bl. Com. 399; 2 Kent Com. 350; Wms. Pers. Prop. 280.

2 Wms. Pers. Prop. 5th Eng. ed. 280, 281. The subject of assignment is treated supra, §§ 72-86.

3 Such interest may be designated by dollars' worth as well as by a specified fraction. 74 Mich. 652.

4 Wms. Pers. Prop. 280, 281; Davis v. Smith, 4 Harring. 68; Hart v. Marks, 4 Bradf. 161; Phene's

have a certain proportion of the number manufactured, is held to make A. and B. tenants in common of the shingles.1 And parties may be tenants in common of grain which is mingled in a grain elevator before actual division has been made.2 Transactions of this sort, however, border very closely upon the law of partnership, as we shall see hereafter, though there is sufficient difference left to support a distinction; as where the main object of the relation is not to sell again and trade but to own together and finally to divide among themselves. Steam-engines put up as fixtures for two or more to use as a common source of power are frequently owned by them as in common. The simultaneous delivery of absolute bills of sale of the same personal property, one to each of two purchasers, each purchaser having knowledge of the transaction with the other, renders them owners in common; and a like principle applies to the concurrent execution and delivery of two chattel mortgages to different persons. For in the latter case the legal effect is the same as if the goods were mortgaged to them by one instrument.4

Owners in common, unlike joint owners, have, then, but one unity that of possession. The interest of one may be larger or smaller than that of another, and it may have been acquired at a different time or in some different manner. Joint owners, like joint tenants, may be said to have their title per my et per tout, and each has the entire possession as well of every portion as of the whole. If there be two of

1 White v. Brooks, 43 N. H. 402. 2 Cushing v. Breed, 14 Allen, 376; Sexton v. Graham, 53 Iowa, 181; 61 Iowa, 648. See in vol. ii., the doctrine of Confusion of Goods.

3 Hill v. Hill, 43 Penn. St. 521. 4 Welch v. Sackett, 12 Wis. 243. There may be tenants in common of a machine. Osborn v. Schenck,

83 N. Y. 201; Given v. Kelly, 85 Penn. St. 309. Of a yacht. Ennis v. Hutchinson, 30 N. J. Eq. 110. Of a steamboat. Coursin's Appeal, 79 Penn. St. 220. Of a horse. Goell v.

Morse, 126 Mass. 480. Of property saved from a wreck. Boylston Ins. Co. v. Davis, 68 N. C. 17. As to tenants in common of a growing crop, see Gafford v. Stearns, 51 Ala. 434; McKeithen v. Pratt, 53 Ala. 116; 113 Md. 127; 73 Mich. 582; 97 N. C. 216; Brown v. Wellington, 106 Mass. 318; Bird v. Bird, 15 Fla. 424; Creed v. People, 81 Ill. 565. There may be tenants in common of the wool growing upon sheep, under some special agreement. 14 Or. 473.

them, for instance, each one has an undivided moiety of the whole. But with respect to a common ownership, each owner is considered to be solely and severally entitled to his share, whether it be one-half, or three-fourths, or any other proportion. And while an ownership in common may be expressly created by will, deed, or contract, or by a change of title from joint ownership, it often arises by implication upon a legal construction.3

§ 162. The Same Subject; Special Exceptions. Some of the modern kinds of incorporeal personal property are of so peculiar a nature that the principles of ownership in common cannot, as yet, be declared to apply broadly to them. Thus it is tolerably clear that letters-patent may even at law be the subject of joint or common ownership; yet the use of a patent right is different from the use of any other kind of property, and it is not safe to argue from analogy, or to apply precedents regarding a joint or common ownership which are borrowed from such chattels as horses and grain. Whether one owner in common of letters-patent can work the patent on his own account without the concurrence of the others is uncertain.5 Beneficiaries together under a life insurance policy may well be presumed joint tenants, since this is akin to a legacy from the party whose life is insured."

1 See 2 Kent Com. 359.

2 There is no presumption that the interests of tenants in common are equal. But where a conveyance or deed to two or more persons does not state the interest of each, their interests are presumed equal. Campau v. Campau, 44 Mich. 31.

8 Thus, where personal property descends and is distributed under the intestate acts, it might be said that brothers and sisters or other persons entitled as a class were as to one another like owners in common while their respective shares remained undistributed; for if one should die pending a distribution, his personal representatives, and not the survivors, would be entitled to his share. See

2 Kent Com. 368. And see U. S. Dig. Joint Tenants, 633.

4 See Vose v. Singer, 4 Allen, 226. Hence, it is held that one jointly interested in a patent right cannot maintain a bill in equity against the other who owns it with him, to compel contribution of a portion of the profits of sales of the patented article, in the absence of a special agreement. Vose v. Singer, 4 Allen, 226. See Pitts v. Hall, 3 Blatchf. 201.

5 Wms. Pers. Prop. 5th Eng. ed. 291; Hancock v. Bewley, 1 Johns. (Eng.) 601; Grim v. Wicker, 80 N. C. 343.

6 Farr v. Lodge, 83 Wis. 446; Davies Re [1892], 1 Ch. 90.

§ 163. Incidents of Joint and Common Ownership; As to Third Persons.—- That right of survivorship which so strongly characterizes the interest of joint owners has no application, of course, to an ownership in common. But in most other respects the incidents of joint and common ownership are quite similar; and in the few cases which discuss these doctrines, little attempt is made to discriminate between the two kinds of interests, both of them being frequently classed under the head of "joint ownership," or of "part ownership," which last is better applied to the peculiar relation of shipowners.1 Joint owners and owners in common of a chattel have each an independent though undivided interest therein. Subject to such restrictions upon the assignment of incorporeal things as we have elsewhere noticed, each has the right to dispose of his own undivided share; but he cannot sell the whole property, nor in fact any portion except his own; and if he undertakes to dispose of any larger interest on his own responsibility, his fellow-owners are not bound thereby.2 Nor can one joint or common owner pledge or mortgage the interest of the other joint or common owners; though he can either sell, mortgage, or pledge his own interest without their consent, and by such transaction the new party becomes a common owner with the others. It matters not that the purchaser, mortgagee, or pledgee was ignorant of the existence of other parties in interest when he acquired rights in the chattel, provided they were guilty of no laches; for it is a general principle that the seller can convey no greater title than he has; but to the extent of his own title, and subject, we may suppose, to the usual exceptions in favor of negotiable instruments, the transaction will be upheld. In case property is sold under a chattel mort

1 See post, as to Shipowners.

2 White v. Brooks, 43 N. H. 402; Russell v. Allen, 13 N. Y. 173; Story Partn. § 89; Goell v. Morse, 126 Mass. 480; Perry v. Granger, 21 Neb. 579.

3 Ib.; Frans v. Young, 24 Iowa, 375; Welch v. Sackett, 12 Wis. 243.

A co-owner may separately insure his interest against fire, and in case of loss recover and retain the insurance; for this is taking no title or advantage to the prejudice of his coowner. Harvey v. Cherry, 76 N. Y. 436.

gage, the proceeds should be divided among the co-owners in proportion to their several interests.1

So, too, the share of a joint or common owner in a chattel may be taken and sold in execution against him. But the sheriff has no right to take and sell, on an execution issued against only one or more of several joint or common owners, the entire chattel; and where he has done so, the injured co-owner may sue him for his own share in the proceeds; or, perhaps, regarding him as a trespasser, prevent him in season from taking exclusive possession of the thing and selling it at all.2 The practical difficulty which would thus be encountered where the chattel was indivisible, like a horse, is quite apparent. For the rule appears to be general that if two persons own personal property, jointly or in common, one of them may maintain an action against any third person who appropriates the whole to the exclusion of the joint or common interest; in respect at least of his own portion. On the other hand, the undivided interest of a co-owner of chattels may be seized and sold in attachment or execution if the property is severable.1

But the ordinary presumption is that the sole possession of a chattel by one joint or common owner is the possession

1 See Welch v. Sackett, 12 Wis. 243. Where one of two tenants in common has paid his share of a joint mortgage, and the other has mortgaged his portion a second time, the former is entitled to a discharge. Southworth v. Parker, 41 Mich. 198. If one, disregarding the rights of his co-owner, authorizes a third person to sell a horse and receives the proceeds to himself, it is a conversion for which the co-owner may sue both wrong-doers. Goell v. Morse, 126 Mass. 480. And see Needham v. Hill, 127 Mass. 133; Russell v. Russell, 62 Ala. 48; Williams v. Brassell, 51 Ala. 397. Or the co-owner may sue to recover his proportion of the price. Wright v. Searles, 59 How. (N. Y.) Pr. 176. The co-owner who is wronged may either repudiate the

sale and sue for conversion, or he may ratify it and sue for his share of the proceeds. Perry v. Granger, 21 Neb. 579.

The sale by one co-owner without leave of the other, is an ouster and conversion, and the co-tenant may follow the chattel into the hands of a purchaser, or recover its value from the wrong-doer. Coursin's Appeal, 79 Penn. St. 220.

2 Neary v. Cahill, 20 Ill. 214; White v. Morton, 22 Vt. 15; Sheppard v. Shelton, 34 Ala. 652; Hayden v. Binney, 7 Gray, 416.

8 See Bryant v. Clifford, 13 Met. 138; Boobier v. Boobier, 39 Me. 406; Goell v. Morse, 126 Mass. 480.

4 Newton v. Howe, 29 Wis. 531; Boylston Ins. Co. v. Davis, 68 N. C. 17.