Baldwin v. Baldwin , 81 N.Y. Sup. Ct. 415 ( 1893 )

PARKER, J.

This appeal brings up for review a judgment in partition of certain premises conveyed to the plaintiff and defendants as joint tenants, the deed declaring that the estate was conveyed to them “as joint tenants, and not as tenants in common.” The joint tenants other than the plaintiff deny his- right to maintains an action of partition, and insisted upon the trial, and again upon this appeal, that compulsory partition of lands owned and possessed by joint tenants cannot be made; and their contention is founded on the doctrine of survivorship, which is the distinguishing incident of title by joint tenancy. That, as the whole estate or interest held in joint tenancy may pass to the last survivor, and become vested in him absolutely, there is secured to him a right to such interest as-may accrue to the survivor,—a right which cannot be taken away from him without his consent. A serious consideration of the appellants’ contention is embarrassed by the fact that section 1532 of the Code of Civil Procedure expressly authorizes partition of such an estate as was conveyed to these parties as joint tenants. It reads as follows:

“Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an-estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made, without great prejudice to the owners.”

It is suggested by the appellants that a joint tenant cannot be deprived of his right of survivorship by statute. If that suggestion be seriously made, it certainly requires no other answer than that prior to the execution and delivery of the deed by which the joint tenancy in question was created a statute was enacted providing, that, in case an estate of inheritance or for life or for years should be vested in two or more persons as joint tenants, any one of them may maintain partition. Thus the parties to the conveyance were-apprised at the time of its making and execution that the right of survivorship would depend upon the consent of the joint tenants, and their conveyance will be deemed to have been made with reference and in subordination to this provision of the statute. The right to maintain such an action has been recently considered in Cloos v. Cloos, 55 Hun, 450, 8 N. Y. Supp. 660. The conveyance was-to the husband and wife, “as joint tenants, and not as tenants in common.” The wife subsequently commenced an action of partition, and the special term, reaching the conclusion that the action was not maintainable, dismissed the complaint. This judgment the general term reversed, holding that where husband and wife hold lands as joint tenants, an action of partition will lie at the suit of either. In Jooss v. Fey, 129 N. Y. 23, 29 N. E. 136, the premises in controversy were conveyed to husband and wife as joint tenants. Subsequently the wife conveyed her interest to the plaintiff, who brought an action of partition. The court held that the interest acquired by the wife was alienable by her, and, plaintiff having acquired title through her conveyance to him, he was entitled to maintain partition under section 1532 of the Code, quoted supra. But the authority to partition lands held by joint tenants is not by any means-of modern creation, as its discussion at this time would seem to suggest. At common law it was the rule that neither joint tenants-nor tenants in common could compel partition. Alln. Partit. p. 55. To remedy this evil, in 1540 the statute of Henry VIH. c. 1, was enacted, providing for the partition of estates of inheritance vested in joint tenants or tenants in common; and the year following, by chapter 32, the provisions of the first act were extended so as to include estates for life or for years. The precedure provided by those acts was simplified by St. 8 & 9 Wm. III. c. 31. “At the close of the Revolution, and in 1788, the above-mentioned English statutes were re-enacted. 2 Greenl. Comp. 13. These statutes put the right to compel partition between tenants in common and joint tenants upon the same footing as coparceners.” Will. Eq. Jur. 699, 700; Kent, Comm. (6th Ed.) p. 364. The inadequacy and inefficiency of the statutory remedies led courts of chancery to assume jurisdiction in partition. 17 Amer. & Eng. Enc. Law, 679; Story, Eq. Jur. § 651. An investigation of the subsequent development of the subject of partition fully bears out the statement in 11 Amer. & Eng. Enc. Law, 1144, in which the matter is accurately summed as follows:

“Through the medium of equity, and by means of statutory enactment, the Tight to have partition made has become an incident to ownership in joint tenancy and tenancy in common in all the United States and in England.”

The judgment should be affirmed, with costs.