TENANCY IN COMMON.

Timaru Herald, Volume XIIIC, Issue 14325, 15 October 1910, Page 3

TENANCY IN COMMON.

OK A JOINT TEXAXCYE SUPREME COrPT DECISION IN A HOOK CASE. In the Magistrate's Court yesterday tnorning the Deputy-Registrar read the judgment of His Honour Mr Justice Sim. in ;i case Rupert Cameron and Alexander White (Mr J. AY. White) v. Jane Patton Smith (Mr Kinnerney), heard at the Timaru Supreme Court on September Oth. The judgment was as follows: — In the year 1575 Thomas Smith and John Millar were the respective owners of neighbouring farms in the Hook Jistriett. In that year they purchased from the Crown, rural section No. 23510, containing about 20 acres for £4O. There is no evidence as to the shares in which the prchase money was paid by the parties, or as to the agreement between them in connection with tile purchase. The land, which was covered with hush, was acquired for ihe purpose of supplying firewood and timber to the two farms, and it iias been used only for that purpose. in the year IS3M a certificate of Hit* title under the Land Transfer Act was issued to Smith and Millar for _ the land, and under this they held as joint tenants. In the year 1892 Millar was declared a lunatic. ;md his son George Millar was appointed committee of his estate. Smith died in Anril 1902, and Millar in January 1908. The plaintiffs are executors of Millar's will. They claim that Smith and Millar were joint tenants of the land in question, and that as Millar survived Smith, Millar became entitled by survivorship t:> the entirety of the' land. This claim is resisted by the defendant, who is the administrator of Smith's estate. Prima facie Smith and Millar were joint tenants, and the plaintiffs tie entitled to succeed in tlieir claim unless there is anything in the circumstances from which the Court can conclude that a joint tenancy was not in contemplation when the ourcliase was made (Aveling v. Knipe, 19 Yes. 44J, 444) or that, if a joint tenancv was originally intended, the parties !wd severed it subsequently. In his judgment in the case of Williams v. lient- : man, 1 J. and H. 540, Yive-Cham-el-lor Page Wood specifies the three ways in which a juint tenancv mav be severed. "In these question's of joint tenancy" said the Vice Chancellor, "tho Court lias frequently been driven to rely on minute grounds for holding a severance to have taken place, by the unfortunate circumstance that the Legislature has not thought tit to interpose by introducing the rule that express words shall bo required to create a joint tenancy in place of the contrary rale which is established that words pointing to -severalty of interest are neccssai-v to constitute'a tenancy in common. * ; The question then in the present I case is whether it lias been proved that there was an intention on the part of Smith and Millar to hold the land in severalty. In dealing with the question the Court is entitled to accept parol evidence of surroundiii4 circumstances and subsequent dealings as proof of such an intention:—Jackson v. Jackson, 9 Yes. 591: Harrison v. Barton, 1 J. and H. 257. It is probable, I think, that neither Smith nor Millar bad any idea that the land was held by them as joint tenants, and that neither of them had any knowledge of the difference between such a tenancy and a tenancy in common, /n the absence of any d'irect evidence of an intention on tlieir part to acquire and hold the land as joint tenants the Court ought, I think, to find in favour of a tenancy in common, if there is anv evidence to justify such a finding. In my opinion there is such evidence Tn the first place there is the fact that the land was acquired and used for many years for the purpose of supp'ymg firewood and timber to the two .arms. This appears to bo inconsistent with the idea that anv right of survivorship was contemplated bv Smith and Millar when they made the purchase. Notwithstanding the death of one tenant his farm would still require to he supplied with firewood : -nd i timber. In the next place there is Hie tact that irom the year 18S3 no to and inclusive or the year 1896 Smith and Millar were each entered in the Waimate County Council rate book as the owner and occupier of half of the land, ami each paid the County rates in respect thereof. It is true that a change was made in 1597, but this the County Clerk thinks was done bv mistake and the practice of treating i>ach as the owner of half of the land was afterwards reverted to, and was continued up to the death of the n,rties fins practice of treating each as the owner of one half of the laud must have been adopted with the consent of both parties, if not at ih-ir request, ami with the other fact -V ierred to, is sufficient in mv opinion "° rnnelusion that Smith and Millar intended to acquire and hold the land as tenants in "common and not as joint tenants I make an order, therefore declar ■ ntr that Smith and Millar were mtitled to the land as tenants in com mou ,„ equal shares. 1 make no nrdor as to costs The plaintiffs ],ave failed to establish their ckim. The -'o endr-iit has failed, also, to establish Hie claim sot up by her counter-claim Jiat s!» was entitled to the entirety or i,le land. In these circumstance's the proper course is to leave each partv to pay their own costs.