McCullough's Petition , 275 Pa. 456 ( 1923 )

Opinion by

Me. Justice Schaffer,

The question propounded to us on this appeal is: Proceeding under the Act of April 20, 1905, P. L. 239, providing the method of obtaining possession of property by purchasers at judicial sales: can a purchaser of property at partition sale obtain possession against a tenant, claiming under a lease, for a term of years antedating the decree in partition, made by the owners of a three-fourths’ interest therein?

It is true, we said, in Albert v. National Outfitting Co., 270 Pa. 183 (a proceeding under this act), “The possession of a tenant for years is paramount to an owner claiming possession under a decree in partition if the letting to him shall precede, in point of date, the entry of the order or decree, on which such sale was had.” We were there referring to the rights of a tenant under a lease from all the owners of a property; here, we are dealing with a lessee of a fractional interest.

In Caveny v. Curtis, 257 Pa. 575, speaking through Mr. Justice Feazeb¡, we laid down the broad principle that “One tenant in common is without authority to bind his cotenants by an agreement concerning the use or control, or affecting the title, of the joint property.” Reed v. Fidelity Ins. Co., 113 Pa. 574, holds that the right of tenants in common to make partition and enjoy all its incidents is paramount to the right of a lien creditor against' any one of the tenants, and, where a proceeding for partition results in a judicial sale of the land, a lien created by one of the tenants in common is divested from the land but continues on the money raised by the sale.

While the precise question we are considering does not appear to have been decided, McKinley v. Peters, 111 Pa. 283, determines that one tenant in common has no power to bind his cotenant by am, agreement to lease their land. An actual letting must necessarily stand on the same footing as an agreement to let. The rule is general that one tenant in common cannot, as against his cotenants, convey a specific right or easement in the common property by which the rights of his cotenant will be affected: 7 Buling Case Law, section 79, p. 884; 17 Am. & Eng. Enc. of Law 684; 38 Cyc. 101, 104; Washburn on Easements (4th ed.), p. 46.

The principle which would prevent' one tenant in common from binding the land to the disadvantage of his cotenants by lien or by the creation of a right or easement in the common property would likewise prevent him from granting a leasehold interest in it which would prevent partition with all its resulting incidents, including possession.

The authorities cited answer the question propounded in favor of the petitioner and the court below properly entered judgment in his favor.

The judgment is affirmed.