The allegations of the complaint are found in the majority opinion; those of the answer and of the demurrer to the answer, from the ruling upon which the appeal is taken, may be stated to advantage a little more fully.
The answer admits that the judgment referred to was rendered as to the rights of the plaintiff minors, but alleges it had no reference to the rights of defendant as lessee of the other cotenants. The second defense alleges that Musante and Pastine were the owners of a building in Bridgeport, having a store on the first floor and three floors above; that Pastine died owning an undivided half interest in this property; that he left surviving a widow and eight children, including the plaintiffs; that Mrs. Myers was appointed and qualified as administratrix, and that the estate has been settled *Page 715 and an undivided one-half interest in the real estate has become by descent the property of the widow and eight children, and that the other half interest is owned by Musante, all owning the property in common; that during the pendency of the estate, Musante, and Mrs. Myers, administratrix, made a lease to one Rubenstein, of the second and third floors of this building, for one year, with a privilege of renewal; that Rubenstein died and defendant herein duly became administratrix on his estate; that Rubenstein, under the direction of Musante and Mrs. Myers, entered into possession of the premises with their consent and approval and that of all the Pastine heirs except plaintiffs, and occupied the same until the settlement of the estate; that Musante has since the making of the lease accepted the rent provided in the lease, and Mrs. Myers as administratrix and all the Pastine heirs up to the date of settlement of the estate of Pastine accepted the rent provided in the lease, and that the defendant Mrs. Altman, administratrix on estate of Rubenstein, is in possession of the premises by virtue of this lease and entry, and has the same rights in relation to the plaintiffs that her lessors Musante and the other Pastine heirs had.
A demurrer to the answer was sustained on the fourth ground thereof, viz.: "It appears from said answer that the lease under and by virtue of which the defendants claim the right to occupy said premises was a lease of a distinct and defined portion of the whole estate owned by the plaintiffs and the others referred to in said answer as tenants in common, and that therefore said lease as against the plaintiffs, who are minors, and therefore incapable of ratifying the same, was absolutely void."
The majority of the court find error in the ruling sustaining the demurrer, and in the judgment that plaintiffs are entitled to possession of the premises. Their *Page 716 opinion holds that the lease was good only during the settlement of the estate, and that thereafter it was voidable by any cotenant who had not assented to it. The opinion further holds that the lease, as against these plaintiffs, is void, and that they "are entitled to the use and possession of the whole estate as if the lease had never been executed"; and with this I agree. So that the opinion holds that although the lease is void against the plaintiff minors, cotenants in these premises, yet the defendant has a right of possession in these premises which the plaintiffs cannot disturb. I am unable to concur in this position.
The utmost claim of the defendants in their answer is that they are in possession by virtue of the lease and the entry made thereunder. The justification for this position, in the majority opinion, is (1) the suggested one that the lease was temporarily valid and the entry thereunder valid, and hence in some way, not specified, the defendant may continue in possession of a fractional part of those premises as against these plaintiff cotenants who have never authorized or ratified that possession; and (2) that Musante and the heirs of Pastine, other than the plaintiffs, had the right to put and keep Rubenstein in possession of the second and third floors of these premises, and to thereby vest him with all the rights of ownership in this fractional part which they as cotenants had.
To test the soundness of these positions it will be necessary to state briefly the underlying principles on which the law of cotenancy is builded. Tenants in common hold by several and distinct titles, perhaps unequal in shares and in mode of acquisition, but by a common unity of possession in the whole. Each tenant is entitled to occupy the whole estate in common, or to receive his share of the rents and profits, and no one of them is entitled to the exclusive possession of any particular *Page 717 part of the land. From the nature of the relation, it necessarily follows "that a deed by one tenant in common of a part of the common property by metes and bounds is inoperative as against the other tenants."Hartford Salisbury Ore Co. v. Miller, 41 Conn. 112,132; Adam v. Briggs Iron Co., 61 Mass. (7 Cush.) 361. "But," says JUDGE CARPENTER in the Connecticut case, "if the cotenants, then or subsequently, by a suitable conveyance confirm the grant, the grantee still holding under his deed, it becomes, in effect, operative and binding upon all concerned." As to these plaintiffs, the lease to Mrs. Altman's decedent has been adjudicated void. Upon a test I think the same holding must be had as to all of these cotenants except Musante, who ratified the lease by accepting rent after the settlement; the other cotenants did not accept rent after the settlement, and there are no facts in the answer showing ratification by them after the settlement. The opinion seems to hold the contrary, and further seems to hold that the possession under a lease valid until settlement, must be presumed valid until it affirmatively appear that the cotenants have disapproved. In neither position can I agree. The invalid lease remains invalid as to all cotenants who have not assented to it after the settlement, when they had the right to act and speak. The consent to the occupation under the lease given prior to the settlement, cannot be held to make the consent reach beyond the settlement for the term of the lease.
One cotenant may convey his undivided interest in whole, or a part of the whole, or act in relation to it as its owner, so long as he does not prejudice the rights of his cotenants in the premises, but he may not convey a designated part. If he does, the transfer will only be binding upon cotenants who ratify. In speaking of a conveyance by a cotenant, we said in Humphrey v. *Page 718 Gerard, 83 Conn. 346, 359, 77 A. 65: "He did not undertake to convey a part in severalty, thus seeking to accomplish a division by his own unaided act, and deprive his cotenants of their interest in the part conveyed. His action was not, to use the language of the cases, against his cotenants, and did not purport to affect their rights as cotenants of the whole." All the instances of transfers of a part of the property by a cotenant which we have had before us have been, as I understand, those where a ratification had occurred. So that the immediate question here is of first instance.
The transfer by one cotenant of a specific part of the common property, if it places the grantee in the place of the cotenant, subjects every cotenant to having the common property divided into any number of parts, and besides subjecting the common property to a multiplied ownership it subjects it to an ownership of every degree and grade. Divergent interests must bring divergent views. How is the property to be cared for? How are the expenses to be met? How is the income to be collected and divided? These are eminently practical questions and may develop difficulties many and varied. Such a condition cannot help but prejudice the rights of every non-granting cotenant. And when we approach a case such as this, where the cotenant assumes to lease by metes and bounds a part of a building, the difficulties increase. Every cotenant might exercise a similar right over a part of the building. The building in question is a business building in the heart of the business section of Bridgeport. There must be a concerted management, or the property will not be wisely rented or used. Ordinarily one cotenant cannot set up a business occupying an entire floor of a business building, for his possession denies to the other cotenants the right to occupy the premises for a business. If it be held that the defendant stands in the rights of James *Page 719 Musante, a cotenant, as to the second and third floor of this building, what obligation rests upon her to pay any part of the expense of this building, taxes, repairs or insurance? It is futile to say that she only holds subject to the like possession of the other cotenants. All of them cannot do business in the same rooms at the same time. If one cotenant could by his own act make such a transfer operative, he would not only prejudice the rights of his cotenants but destroy the relation of cotenancy. There could be no such thing as unity of possession under these conditions. Some would be denied their right to the occupation of the whole, and some would gain the exclusive possession of particular parts.
Cases where such transfers have been sustained are those where ratification by other cotenants has taken place. Our own decisions, as I read them, necessarily lead to these conclusions. And authority elsewhere is almost universally against the right of one cotenant, by a conveyance of an aliquot part of premises, to substitute his grantor in place of himself in those premises in which he is a cotenant. To give this defendant possession, she or her decedent must have succeeded to the particular rights of one of the cotenants in these two floors. Musante was without authority to make such a transfer and have it carry with it a right to the use and possession of these floors, hence he could not by a ratification of an unauthorized transfer convey a right to such use and possession. His ratification may operate to divest him in equity of his interest in that part of the property so transferred, and upon sale or partition equity may protect the grantee, but there the grantee's rights end. To hold otherwise would permit one cotenant to act against his cotenants and to their prejudice, and "to accomplish a division by his own unaided act." Humphrey v. Gerard, 83 Conn. 346, 359, *Page 720 77 A. 65; Hartford Salisbury Ore Co. v. Miller,41 Conn. 112, 129.
The majority opinion holds that after the settlement defendant did not hold under a lease, which is her only claim, but by a mere permission to stand in the shoes of Musante and of the other heirs of Pastine. If this means that one cotenant may transfer an aliquot part of his share in the common estate and substitute his grantee in his stead and vest him with all of his rights of possession, I think this is the only logical position which can be taken in support of defendant's right of possession. Such a position is, I believe, at variance with our own law, with the fundamental principles of cotenancy, and with the great weight of authority the country over; and it is for this reason mainly that I dissent. The plaintiff cotenants, in my opinion, are clearly entitled to the possession as against the defendant, who is wholly without the right of possession.
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