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Swartzbaugh v. Sampson
54 P.2d 73
Court of Appeal of California, 1936

MARKS, J. This is an action to cancel two leases executed by John Josiah Swartzbaugh, as lessor, to Sam A. Sampson, as lessee, of two adjoining parcels of land in Orange County. A motion for nonsuit was granted at the close of plaintiff's case and this appeal followed.

Defendant Swartzbaugh and plaintiff are husband and wife. They owned, as joint tenants with the right of survivorship, sixty acres of land in Orange County planted to bearing walnuts. In December, 1933, defendant Sampson started negotiations with plaintiff and her husband for the leasing of a small fraction of this land fronting on Highway 101 for a site for a boxing pavilion. Plaintiff at all times objected to making the lease and it is thoroughly established that Sampson knew she would not join in any lease to him.

The negotiations resulted in the execution of an option for a lease, dated January 5, 1934, signed by Swartzbaugh and Sampson. The lease, dated February 2, 1934, was executed by the same parties. A second lease of property adjoining the site of the boxing pavilion was signed by Swartzbaugh and Sampson. This was also dated February 2, 1934, but probably was signed after that date. Plaintiff's name does not appear in any of the three documents and Sampson was advised that she would not sign any of them.

The walnut trees were removed from the leased premises. Sampson went into possession, erected his boxing pavilion and placed other improvements on the property.

Plaintiff was injured in February, 1934, and was confined to her bed for some time. This action was started on June 20, 1934. Up to the time of the trial plaintiff had received no part of the rental of the leased property. Sampson was in possession of all of it under the leases to the exclusion of plaintiff.

There is but one question to be decided in this case which may be stated as follows: Can one joint tenant who has not joined in the leases executed by her cotenant and another maintain an action to cancel the leases where the lessee is in exclusive possession of the leased property? This question does not seem to have been decided in California and there is not an entire uniformity of decision in other jurisdictions. In decisions on analogous questions where courts reached like conclusions they did not always use the same course of reasoning in reaching them. It seems necessary, therefore, that we consider briefly the nature of the estate in joint tenancy and the rights of the joint tenants in it.

A clear definition of the estate is contained in Siberell v. Siberell, as follows: "Respecting joint tenancy, it is only necessary to amplify the definition quoted from section by a quotation from the case of DeWitt v. San Francisco, opinion rendered in 1852, defining joint tenancy as follows: 'Joint tenancy is a technical feudal estate, founded, like the laws of primogeniture, on the principle of the aggregation of landed estates in the hands of a few, and opposed to their division among many persons. For the creation of a joint tenancy, four unities are required, namely, unity of interest, unity of title, unity of time, unity of possession. But the distinguishing incident is a right of survivorship. These four characteristics are the acknowledged elements of a joint tenancy. It is at once evident that there is thereby created but one estate and that each of the four elements, unity of interest, unity of title, unity of time and unity of possession, must be present and an absence of any one would change the nature of the estate."

For a proper understanding of some of the cases we will cite, it should be borne in mind that, at the common law, estates in joint tenancy were favored over those in common and that "to create a tenancy in common it was necessary to add restrictive and explanatory words, so as to expressly limit the estate to the grantees to hold as tenants in common and not as joint tenants" (Thompson on Real Property) and that this rule has been abrogated by statute in California and many other states.

An estate in joint tenancy can be severed by destroying one or more of the necessary unities, either by operation of law, by death, by voluntary or certain involuntary acts of the joint tenants, or by certain acts or omissions of one joint tenant without the consent of the other. It seems to be the rule in England that a lease by one joint tenant for a term of years will effect a severance, at least during the term of the lease. We have found no case in the United States where this rule has been applied. From the reasoning used and conclusions reached in many of the American cases its adoption in this country seems doubtful.

One of the essential unities of a joint tenancy is that of possession. Each tenant owns an equal interest in all of the fee and each has an equal right to possession of the whole. Possession by one is possession by all. Ordinarily one joint tenant out of possession cannot recover exclusive possession of the joint property from his cotenant. He can only recover the right to be let into joint possession of the property with his cotenant. He cannot eject his cotenant in possession.

Ordinarily one joint tenant cannot maintain an action against his cotenant for rent for occupancy of the property or for profits derived from his own labor. He may, however, compel the tenant in possession to account for rents collected from third parties.

The case of Stark v. Barrett, discusses the rights of a grantee of one cotenant of a specific parcel of property. It is there said: "The case has been argued as though the question presented was to be determined by the rules of the common law, and in that view we have examined it. For its determination, considered by the common law, it is immaterial whether the grantees took the land embraced in their grant as joint tenants or as tenants in common. During the lives of the tenants, the rules regulating the transfer of their interest are substantially the same, whether they hold in joint tenancy or in common. Neither a joint tenant nor a tenant in common can do any act to the prejudice of his cotenants in their estate. This is the settled law, and hence a conveyance by one tenant of a parcel of a general tract, owned by several, is inoperative to impair any of the rights of his cotenants. The conveyance must be subject to the ultimate determination of their rights, and upon obvious grounds. One tenant cannot appropriate to himself any particular parcel of the general tract; as, upon a partition, which may be claimed by the cotenants at any time, the parcel may be entirely set apart in severalty to a cotenant. He cannot defeat this possible result whilst retaining his interest, nor can he defeat it by the transfer of his interest. He cannot, of course, invest his grantee with rights greater than he possesses. The grantee must take, therefore, subject to the contingency of the loss of the premises, if, upon the partition of the general tract, they should not be allotted to the grantor. Subject to this contingency, the conveyance is valid, and passes the interest of the grantor. And this, we consider the result of the several cases cited by the counsel of the appellants. They go to the extent that the conveyance can have no legal effect to the prejudice of the cotenant, not that it is absolutely void, that it is ineffectual against the assertion of his interest in a suit for partition of the general tract, but is good against all others. Until such partition, the grantee will be entitled to the use and possession as cotenant, in the parcel conveyed, with the other owners. . . .

It is a general rule that the act of one joint tenant without express or implied authority from or the consent of his cotenant cannot bind or prejudicially affect the rights of the latter.

In the application of the foregoing rule the courts have imposed a limitation upon it which, in effect, is a qualification of its broad language. This perhaps is due to the nature of the estate which is universally held to be joint in enjoyment and several upon severance. This limitation arises in cases where one joint tenant in possession leases all of the joint property without the consent of his cotenant and places the lessee in possession. It seems to be based upon the theory that the joint tenant in possession is entitled to the possession of the entire property and by his lease merely gives to his lessee a right he, the lessor, had been enjoying, puts the lessee in the enjoyment of a right of possession which he, the lessor, already had and by so doing does not prejudicially affect the rights of the cotenant out of possession, it being conceded that the joint tenant not joining in the lease is not bound by its terms and that he can recover from the tenant of his cotenant the reasonable value of the use and enjoyment of his share of the estate, if the tenant under the lease refuses him the right to enjoy his moiety of the estate.

It has been held that each joint tenant, during the existence of the joint estate has the right to convey, mortgage or subject to a mechanic's lien an equal share of the joint property. It has also been held that one joint tenant in possession of personal property may pledge his interest in the property to another; that the pledgee's rights are valid to the extent of the pledgor's interest; that each joint tenant has an equal right of possession and so the pledgee has the same right of possession that the pledgor had; that the joint tenant out of possession can maintain no action against the pledgee that he could not maintain against the pledgor. It was held in Johnson v. Nourse and Cram v. Cram that one joint tenant cannot maintain trover against another except where the joint tenant in possession has completely ousted the other and deprived him of the benefit of the property and that mere refusal of possession is not such ouster.

In Thompson on Real Property, it is said: "One joint tenant may make a lease of the joint property, but this will bind only his share of it." The same rule is thus stated in Landlord and Tenant, Tiffany: "One of two or more joint tenants cannot, by making a lease of the whole, vest in the lessee more than his own share, since that is all to which he has an exclusive right. Such a lease is, however, valid as to his share."

The foregoing authorities support the conclusion that a lease to all of the joint property by one joint tenant is not a nullity but is a valid and supportable contract in so far as the interest of the lessor in the joint property is concerned.

While the qualities of estates of joint tenancy and a tenancy in common differ, the rights of possession are quite similar. . . . In the case of Lee Chuck v. Quan Wo Chong & Co, the plaintiff, a tenant in common, brought an action to oust defendant who was holding under a lease from another tenant in common, the Supreme Court reversed the judgment in favor of plaintiff and said: "The evidence does not support the judgment. It is expressly alleged in the complaint that 'this plaintiff and one Chay Yune are successors in interest of said E. L. Goldstein, and to said building on the northwest corner of Dupont and Clay Streets, and in and to said lease executed to Pee Han, and that they hold title to the same as tenants in common'. The uncontradicted evidence shows that the defendant was in possession of the property with the consent of Chay Yune. All that the plaintiff was entitled to, therefore, was to be let into possession with the defendant, -- to enjoy his moiety.

"One tenant in common may, 'by either lease or license, . . . confer upon another person the right to occupy and use the property of the co-tenancy as fully as such lessor or licensor himself might have used or occupied it if such lease or license had not been granted. If either co-tenant expel such licensee or lessee, he is guilty of a trespass. If the lessee has the exclusive possession of the premises, he is not liable to any one but his lessor for the rent, unless the other cotenants attempt to enter and he resists or forbids their entry, or unless, being in possession with them, he ousts or excludes some or all of them.' (Freeman on Cotenancy and Partition) There is no evidence tending to show that the defendant ever refused to allow the plaintiff to enjoy the use of the premises with him. The judgment does not confine the plaintiff's right of recovery to his own moiety, but provides that the plaintiff shall have and recover from defendant the restitution and possession of the premises described in the complaint." . . .

Tiffany, in Real Property, says that the effect of a lease by one cotenant is to give the lessee the right to share in the possession of the leased property for the term of the lease. This coincides with statements made in Lee Chuck v. Quan Wo Chong & Co., supra, and in Noble v. Manatt, supra, that all a cotenant out of possession is entitled to is to be let into possession with the lessee of his cotenant to enjoy his moiety. This rule has not been uniformly adopted and its application in this state has not been directly decided.

As far as the evidence before us in this case is concerned, the foregoing authorities force the conclusion that the leases from Swartzbaugh to Sampson are not null and void but valid and existing contracts giving to Sampson the same right to the possession of the leased property that Swartzbaugh had. It follows they cannot be cancelled by plaintiff in this action.

As we have remarked, the courts are not in entire accord on the rules we have set forth nor in the reasoning used in arriving at the conclusions announced.

Plaintiff expresses the fear that as one of the leases runs for five years, with an option for an additional five years, she may lose her interest in the leased premises by prescription. It is a general rule that a lessee in possession of real property under a lease cannot dispute his landlord's title nor can he hold adversely to him while holding under the lease. If, as held in numerous cases, the lessee of one cotenant holds the possession of his lessor and that a cotenant in possession holds for the other cotenant and not adversely, Sampson would have great difficulty in establishing any holding adverse to plaintiff without a complete and definite ouster. As a general rule an adverse possessor must claim the property in fee and a lessee holding under a lease cannot avail himself of the claim of adverse possession. There are certain exceptions to this rule which do not seem to be applicable to this case. There is no showing that plaintiff ever demanded that Sampson let her into possession of her moiety of the estate nor is there anything to indicate that he is holding adversely to her.

Judgment affirmed.

Barnard, P. J., and Jennings, J., concurred.

This case is in these books

• Property
• Dukeminier, Krier, Alexander, Schill
• 6th Edition