(dissenting). I dissent from the opinion
and judgment in this case for the reasons stated in my dissent in Quinlan v. Green County. Every one of the objections to the judgment in that case apply here, including particularly the direction for a judgment upon the bonds in suit and upon the coupons sued upon. I think a new trial should be directed if the judgment in favor of the county is reversed, because the findings are not definite enough to justify and do not cover all the issues presented by the county. Neither do I agree that the plaintiffs were joint tenants of the bonds and coupons in suit. Joint tenancies are regarded with little favor, and in cases of doubt the construction favored is that the parties were tenants in common. See the authorities cited in 23 Cyc. 485. By statute, in many of the states, joint tenancies have been legislated against, and in the state of Indiana, where the owners of these bonds resided and where their alleged joint tenancy was created, it is provided that “the survivors of persons holding personal property in joint tenancy shall have the same rights only as the survivors of tenants in common unless otherwise expressed in the instrument.” The same statute, in substance, exists in Kentucky. The effect of this Indiana statute is to abolish survivorship unless otherwise provided for. This is the practical concession of the majority, for, upon that ground, they say that a corporation may be a joint tenant with natural persons, a thing unknown at the common law. There was no agreement in respect to survivorship. Therefore this suit must abate as to deceased persons where there has been no revival. The distinguishing feature of a joint tenancy is that the tenants hold by one title and one right. Then the survivors take the whole title and right. In such a tenancy there need be no revivor in the name of the representative of a deceased joint tenant. And so section 956, Rev. St., provides that a suit started in the name of a number of joint tenants shall not abate by the death of one, but that upon “the death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff.”
Under the regulation of the practice by statute there was no authority to proceed with the case by making a finding of facts until there was placed upon the record a suggestion of the death of such of the original joint tenants as had died, and the county of Green ought not to be concluded by a finding of facts made without compliance with this practice. In view of the fact that these findings do not cover some of the issues made by the defendant below, and are vague and insufficient in others, I think it a great injustice that a new trial is not awarded instead of a peremptory direction for a judgment against the county in opposition to the judgment for the county made by the trial judge.