Hills v. Doe

6 N.H. 328

• Court: Superior Court of New Hampshire
• Decided: December 15, 1833
• Status: Published

Opinion

Richardson, C. J.

delivered the opinion of the court.

It is objected, in this case, that the action cannot be maintained because the demandants are now tenants in common. But we are of opinion that this objection cannot, under the circumstances of the case, prevail.

It has been held, that when lands are conveyed to two or more persons in mortgage, they are joint tenants until the right to redeem is foreclosed, and that then they become tenants in common. 7 Mass. Rep. 131, Appleton v. Boyd; 11 ditto, 469, Goodwin v. Richardson.

The interest in the land is held t® follow the interest in the debt, until the conveyance becomes absolute, and the debt thus extinguished.

And when two creditors obtain a judgment and execution against their debtor, and cause the execution to be extended upon the land of the debtor, we are of opinion that while the debtor has a right to redeem, their interest in the land is joint ; but as soon as their estate becomes absolute, they are tenants in common.

But we are also of opinion that this action is not affected by the circumstance that the demandants have now become tenants in common.

Tenants in common cannot join in a real action because their freeholds are in general several and their estates different, and depending upon different titles. But in this case, when the demandants were disseized, and when this action was commenced they were joint tenants. And no sound reason is perceived why the suit should fail because by mere operation of law they have now become tenants in common.

Judgment on the verdict-