Even though cotenants of real property are in actual possession, a joint tenant, by reason of his record title, has a right to possession which entitles him to maintain a partition action.
The husband conveyed a parcel of real estate, which he had exclusively owned, to himself, his wife, and their son "jointly and not as tenants in common." Sometime thereafter, the parties had a falling out and the wife obtained an order from the family court that ordered the husband to stay away from the wife and the property. The husband filed an action to partition the property. The parties filed cross-motions for judgment.
May a husband who was ordered by a court to stay away from the property, and does not have actual possession, ask for partition?
The court granted the husband's motion. The court held that the family court order did not decide the question of ownership of the property because that court did not have jurisdiction to decide the issue. The court also held that the language of the deed clearly showed that the parties held the property as joint tenants, which could be subject to partition. Though defendants as cotenants are in actual possession plaintiff, by reason of his record title, has a right to possession which entitles him to maintain a partition action.