Sergeant v. Steinberger

2 Ohio 305 | Ohio | 1826

By the Court :

It has more than once been decided, by the Supreme Court, on the circuit, that estates in joint tenancy do not exist under the laws of Ohio. The reasons which gave rise to this description of estate in England, never existed with us. The jus accreseendi is not founded in principles of natural justice, nor in any reasons of policy applicable to our society or institutions. But, on the contrary, it is adverse to the understandings, habits, and feelings of the people.

We have no statute recognizing the existence of any such principle as the right of suvivorship. But we have various statutory provisions inconsistent with it. The laws passed, both during the territorial government and since, authorize joint tenants, tenants in common, and coparceners, and, in some cases, the executors, administrators, or guardians of such persons, to demand and have partition. It is from this evident that the legislature have treated a joint tenancy as a tenancy in common.

*It is well settled that the joint tenancy of husband and wife varies in many principles from other joint tenancies. The estate could not be severed, which resulted, most probably, from the fact that the wife could do no act separate from her husband. The conviction of one of the parties of treason did not work a forfeiture of the other’s right. And this was, we may fairly infer, a principle introduced to lessen the number of forfeitures, which were always odious. But the right of survivorship was the same as in other cases of joint tenancy, and in the case of husband and wife, is as much at variance with our laws and usages, as in the common case. Upon the death of Mrs. Steinberger, her undivided half of the land devised, descended to her children, who became tenants in common with their father. The complainants show a good title to one-fifth of their mother’s part, constituting one-tenth of the whole tract, and appear to be entitled to have that tenth set off to them.

The decree of the court of common pleas is reversed, and the cause sent back to be further proceeded in.^†

† Note by the Editob. — No joint tenancy in Ohio, x. 1.