Shepherd v. Jernigan

• Decision Date: 02 March 1889
• Citation: 10 S.W. 765
• Parties: SHEPHERD <I>v.</I> JERNIGAN.
• Court: Arkansas Supreme Court

Page 765

10 S.W. 765

SHEPHERD

v. JERNIGAN.

Supreme Court of Arkansas.

March 2, 1889.

Appeal from circuit court, Carroll county; J. M. PITTMAN, Judge.

Crump & Watkins, for appellant. Appellee, pro se.

COCKRILL, C. J.

This is an action of ejectment. The plaintiff and defendant were in fact tenants in common, though the deed of each to the town lot in controversy purported to convey the entire interest. The lot was a part of an 80-acre tract which had been patented to one Evans, who sold an undivided interest in it to D. B. Jernigan. It was then laid off into town lots by them, and D. B. Jernigan conveyed his interest in the lot in suit by deed, as mentioned above, to the plaintiff. The Eureka Improvement Company afterwards obtained conveyance from D. B. Jernigan and the other grantees of Evans to the entire interest in the 80 acres. The defendant is the grantee of the Eureka Improvement Company. The plaintiff's deed was recorded when D. B. Jernigan made the second transfer. The cause was submitted to the court without a jury. The defendant asked the court to declare the deed of D. B. Jernigan to the plaintiff of no effect, upon the ground that it was an attempt by one tenant in common to convey a part of a larger tract owned in common by him and others, but the court refused the request, and ruled that, the common estate having been divided into lots by the consent of the owners, a conveyance by one tenant of any lot carried the title to his entire interest therein.

The evidence tended to show that the defendant had entered into possession and made valuable improvements upon the land under the belief that he was the sole owner, but the court refused to allow him the benefit of the betterment act, upon the ground that the plaintiff's deed was of record when the defendant's grantor obtained its title. These two propositions present the questions raised by the appeal. The judgment was for the plaintiff for an undivided one-fifth of the lot.

Whether one tenant in common can convey his share of a specific portion of a larger joint estate is a question upon which the authorities are not harmonious. See Freem. Co-Tenancy, § 199 et seq.; 3 Washb. Real Prop. * 565, § 25a; 1 Washb. Real Prop. * 417; Tied. Real Prop. § 258. But where several parcels of land are held in common by the same parties, the rule is that either may convey his interest in a separate parcel. This is true even in jurisdictions which deny the right of the tenant to made a valid conveyance to a several part of a larger joint estate; and where the subject of the tenancy is a single tract of land, the co-tenants may, by agreement, convert it into several smaller tracts, as by laying it off into town lots, and so become co-tenants of each lot, and each is thereafter capable of conveying his interest in any of the several parcels. Freem. Co-Tenancy, § 208. The authorities are reviewed, and the question ably presented, in the case of Butler v. Roys, 25 Mich. 54. See, also, Primm v. Walker, 38 Mo. 99; Barnhart v. Campbell, 50 Mo. 597; Markoe v. Wakeman, 107 Ill. 262; Green v. Arnold, 11 R. I. 364.

The objection urged to the legality of the...