Front Page Titles (by Subject) CHAPTER XII.: OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER XII.: OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.
We come now to treat of estates, with respect to the number and connections of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common.1
I. He that holds lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants.
**180]II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint-tenancy,(a) and sometimes an estate in jointure, which word as well as the other signifies a union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint-estate which, by virtue of the statute 27 Hen. VIII. c. 19, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman’s dower.(b)
In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed.
1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title: for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words,2 as if an estate be granted to A. and B. and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects.3 For,
2. The properties of a joint-estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession.
**181]First, they must have one and the same interest.4 One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life, and the other for years; one cannot be tenant in fee, and the other in tail.(c) But if land be limited to A. and B. for their lives, this makes them joint-tenants of the freehold; if to A. and B. and their heirs, it makes them joint-tenants of the inheritance.(d)5 If land be granted to A. and B. for their lives, and to the heirs of A.; here A. and B. are joint-tenants of the freehold during their respective lives, and A. has the remainder of the fee in severalty:6 or if land be given to A. and B., and the heirs of the body of A.; here both have a joint-estate for life, and A. hath a several remainder in tail.(e)7Secondly, joint-tenants must also have a unity of title; their estate must be created by one and the same act, whether legal or illegal; as by one and the same grant, or by one and the same disseisin.(f) Joint-tenancy cannot arise by descent or act of law; but merely by purchase or acquisition by the act of the party: and, unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be a unity of time; their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A. and B.; or a remainder in fee to A. and B. after a particular estate; in either case A. and B. are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A. and B.; and during the continuance of the particular estate A. dies, which vests the remainder of one moiety in his heir; and then B. dies, whereby the other moiety becomes vested in the heir of B.: now A.’s heir and B.’s heir are not joint-tenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at another.(g) *[*182Yet where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for term of their lives, and he afterwards married; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at different times:(h)8 because the use of the wife’s estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation.9 Lastly, in joint-tenancy there must be a unity of possession. Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire possession, as well of every parcel as of the whole.(i) They have not, one of them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety.(j) And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor.(k)10
Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant’s estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint-reversion.(l)11 If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate.(m) On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them:(n) and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both.(o) In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other.(p)12 But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either: because neither joint-tenant hath a several right of patronage, but each is seised of *[*183the whole; and if they do not both agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate.(q) Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land:(r) for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act which may tend to defeat or injure the estate of the other;13 as to let leases, or to grant copyholds:(s) and if any waste be done, which tends to the destruction of the inheritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2. c. 22.(t) So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver,(u) yet now by the statute 4 Anne, c. 16, joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy.14
From the same principle also arises the remaining grand incident of joint-estates; viz., the doctrine of survivorship: by which when two or more persons are seised of a joint estate, of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel-interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole estate, whatever it be, whether an inheritance, or a common freehold only, or even a less estate.(w)15 This is the natural and regular consequence of the union and entirety of their interest. The interest of two joint-tenants *[*184is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the other; but, if by any subsequent act (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and therefore on the death of his companion, the sole interest in the whole remains to the survivor. For the interest which the survivor originally had is clearly not devested by the death of his companion; and no other person can now claim to have a joint-estate with him, for no one can now have an interest in the whole, accruing by the same title and taking effect at the same time with his own; neither can any one claim a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all and every part. As therefore the survivor’s original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein; it follows, that his own interest must now be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant.16
This right of survivorship is called by our ancient authors(x) the jus accrescendi, because the right upon the death of one joint-tenant accumulates and increases to the survivors: or, as they themselves express it, “pars illa communis accrescit superstitibus, de persona in personam, usque ad ultimam superstitem.” And this jus accrescendi ought to be mutual; which I apprehend to be one reason why neither the king,(y) nor any corporation,(z) can be a joint-tenant with a private person. For here is no mutuality: the private person has not even the remotest chance of being seised of the entirety by benefit of survivorship; for the king and the corporation can never die.17
**185]3. We are, lastly, to inquire how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of its constituent unities. 1. That of time, which respects only the original commencement of the joint-estate, cannot indeed (being now past) be affected by any subsequent transactions. But, 2. The joint-tenant’s estate may be destroyed without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants: for they have now no joint-interest in the whole, but only a several interest respectively in the several parts. And for that reason also, the right of survivorship is by such separation destroyed.(a) By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do:(b) for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent. But now by the statutes 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32. joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their lands.(c) 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common;(d) for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor,) though, till partition made, the unity of possession continues.18 But a devise of one’s share by will *[*186is no severance of the jointure:19 for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other)(e) is already vested.(f)20 4. It may also be destroyed by destroying the unity of interest. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure;(g) though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates, (which is requisite in order to a merger,) but branches of one entire estate.(h) In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure:(i) for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship, or jus accrescendi, the same instant ceases with it.(k) Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship:(l) and if one of three joint-tenants release his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure;(m) for they still preserve their original constituent unities. But when, by an act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved.
**187]In general it is advantageous for the joint-tenants to dissolve the jointure; since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes, however, it is disadvantageous to dissolve the joint-estate: as if there be joint-tenants for life, and they make partition, this dissolves the jointure; and, though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and on the death of either, the reversioner shall enter on his moiety.(n) And therefore if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture:(o) for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another; which grant, by a tenant for his own life merely, is a forfeiture of his estate:(p) for it is creating an estate which may by possibility last longer than that which he is legally entitled to.
III. An estate held in coparcenary is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law: as where a person seised in fee-simple or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives: in this case they shall all inherit, as will be more fully shown when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners only.(q) Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c.(r) And, in either of these cases, all the parceners put together make but one heir, and have but one estate among them.(s)
**188]The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own lands;(t) and the entry of one of them shall in some cases enure as the entry of them all.(u) They cannot have an action of trespass against each other; but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste;(w) for coparceners could at all times put a stop to any waste by writ of partition, but till the statute of Henry the Eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points. 1. They always claim by descent; whereas joint-tenants always claim by purchase. Therefore, if two sisters purchased lands to hold to them and their heirs, they are not parceners, but joint-tenants;(x) and hence it likewise follows, that no lands can be held in coparcenary, but estates of inheritance, which are of a descendible nature; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man had two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs are still parceners;(y) the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title. 3. Parceners, though they have a unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety;(z) and of course there is no jus accrescendi, or survivorship between them: for each part descends severally to their respective heirs, though the unity of possession continues. And as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. But if **189]the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common.(a)21
Parceners are so called, saith Littleton,(b) because they may be constrained to make partition.22 And he mentions many methods of making it;(c) four of which are by consent, and one by compulsion. The first is, where they agree to divide the lands into equal parts in severalty, and that each shall have such a determinate part. The second is, when they agree to choose some friend to make partition for them, and then the sisters shall choose each of them her part according to seniority of age; or otherwise, as shall be agreed. The privilege of seniority is in this case personal; for if the eldest sister be dead, her issue shall not choose first, but the next sister. But, if an advowson descend in coparcenary, and the sisters cannot agree in the presentation, the eldest and her issue, nay, her husband, or her assigns, shall present alone, before the younger.(d)23 And the reason given is, that the former privilege, of priority in choice upon a division, arises from an act of her own, the agreement to make partition; and therefore is merely personal: the latter, of presenting to the living, arises from the act of the law, and is annexed not only to her person, but to her estate also. A third method of partition is, where the eldest divides, and then she shall choose last; for the rule of law is, cujus est divisio, alterius est electio. The fourth method is, where the sisters agree to cast lots for their shares. And these are the methods by consent. That by compulsion is, where one or more sue out a writ of partition against the others; whereupon the sheriff shall go to the lands, and make partition thereof by the verdict of a jury there impanelled, and assign to each of the parceners her part in severalty.(e) But there are some things *[*190which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any other common without stint, shall not be divided; but the eldest sister, if she pleases, shall have them, and make the others a reasonable satisfaction in other parts of the inheritance: or, if that cannot be, then they shall have the profits of the thing by turns, in the same manner as they take the advowson.(f)
There is yet another consideration attending the estate in coparcenary; that if one of the daughters has had an estate given with her in frankmarriage by her ancestor, (which we may remember was a species of estates-tail, freely given by a relation for advancement of his kinswoman in marriage,)(g) in this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage in equal proportion with the rest of the lands descending.(h) This mode of division was known in the law of the Lombards;(i) which directs the woman so preferred in marriage, and claiming her share of the inheritance, mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotch-pot:(k) which term I shall explain in the very words of Littleton:(l) “it seemeth that this word hotch-pot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together.” By this housewifely metaphor our ancestors meant to inform us(m) that the lands, both those given in frankmarriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frankmarriage: and if she did not choose to put her lands into hotch-pot, she was presumed to be sufficiently **191]provided for, and the rest of the inheritance was divided among her other sisters. The law of hotch-pot took place then only when the other lands descending from the ancestor were fee-simple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotch-pot.(n) And the reason is, because lands descending in fee-simple are distributed, by the policy of law, for the maintenance of all the daughters; and if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more: but lands, descending in tail, are not distributed by the operation of the law, but by the designation of the giver, per forman doni: it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotch-pot; for no others are looked upon in law as given for the advancement of the woman, or by way of marriage-portion.(o) And therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotch-pot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large.
The estate in coparcenary may be dissolved, either by partition, which disunites the possession; by alienation of one parcener, which disunites the title, and may disunite the interest; or by the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.
IV. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously.(p) This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. For if there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life; so that there is no **192]necessary unity of interest: one may hold by descent, the other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title; one’s estate may have been vested fifty years, the other’s but yesterday; so there is no unity of time. The only unity there is, is that of possession: and for this Littleton gives the true reason, because no man can certainly tell which part is his own: otherwise even this would be soon destroyed.
Tenancy in common may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest. As, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee by the new alienation;(q) and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances.(r) If one of two parceners alienes, the alienee and the remaining parcener are tenants in common;(s) because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the life-estate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten:(t) and in this, and the like cases, their issue shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by *[*193purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.
A tenancy in common may also be created by express limitation in a deed; but here care must be taken not to insert words which imply a joint-estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common;(u) because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily be upon a tenancy in common. Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common;(w) and, if one grants to another half his land, the grantor and grantee are also tenants in common:(x) because, as has been before(y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint-interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy;(z) because that is necessarily implied in the word “jointly,” the word “severally” perhaps only implying the power of partition: and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint-tenancy,(a)24 (for it implies no more than the law has annexed to that estate, viz., divisibility,)(b) yet in wills it is certainly a tenancy in common;(c) because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed.25 And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common *[*194is meant to be created, to add express words of exclusion as well as description, and limit the estate to A. and B., to hold as tenants in common, and not as joint-tenants.
As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by the statutes of Henry VIII. and William III., before mentioned,(d) to make partition of their lands; which they were not at common law. They properly take by distinct moieties, and have no entirety of interest; and therefore there is no survivorship between tenants in common.26 Their other incidents are such as merely arise from the unity of possession; and are therefore the same as appertain to joint-tenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2, c. 22, and 4 Anne, c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate;(e) though, if one actually turns the other out of possession, an action of ejectment will lie against him.(f)27 But, as for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions,(g) unless in the case where some entire or indivisible thing is to be recovered,)(h) these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.28
Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty: 2. By making partitions between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.
[1 ] This is not true as to coparcenary. See post, p. 188.—Coleridge.
[(a) ] Litt. 277.
[(b) ] See page 137.
[2 ] For if an estate in fee be given to A. and B. and to the survivor of them and to the heirs of such survivor, they are not joint-tenants in fee. They have only a joint-estate of freehold during their joint lives, with a contingent remainder in fee to the survivor. Yet in the creation of an estate for life it is otherwise; for when an estate is given to A. and B. and to the survivor of them, this is a joint-tenancy for life, and the words “survivor of them” are but surplusage. See further upon this subject, Co. Litt. 191, a., n. 1.—Archbold.
Joint-tenancy is at this day so far from being favoured, that the courts think themselves justified in exercising their ingenuity against it. In most instances it operates contrary to the opinion and intent of the parties. Even in deeds, therefore, the inconvenience of joint-tenancy has induced the courts to seize on any expression which indicates an intention to give a separate interest to each. Galbraith vs. Galbraith, 3 S. & R. 392. Bambaugh vs. Bambaugh, 11 S. & R. 191.
Independently of the words creating the estate, there certainly are cases in which equity will consider joint-tenants as tenants in common; and one of these cases is where a purchase of land is made by two persons with a view of expending large sums in the improvement of it. Duncan vs. Forrer, 6 Binn. 193.—Sharswood.
[3 ] Joint-tenancies are now regarded with so little favour, both in courts of law and equity, that whenever the expressions will import an intention in favour of a tenancy in common, it will be given effect to. Fisher vs. Wigg, 1 P. Wms. 14 n., and id. 1 Ld. Raym. 622. 1 Salk. 392, note 8. Lord Cowper says that a joint-tenancy is in equity an odious thing. 1 Salk. 158. See also 2 Ves. Sen. 258. In wills the expressions “equally to be divided, share and share alike, respectively between and amongst them,” have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. The words equally to be divided make a tenancy in common in surrenders of copyholds, (1 Salk. 301. 2 Salk. 620,) and also in deeds which derive their operation from the statute of uses, (1 P. Wms. 14. 1 Wils. 341. Cowp. 660. 2 Ves. Sen. 257;) and though lord Holt and lord Hardwicke seem to be of opinion that these words in a common-law conveyance are not sufficient to create a tenancy in common, (same cases, and 1 Ves. Sen. 165. 2 Ves. Sen. 257; and see Bac. Abr. Joint-Tenants, F.,) yet from the notes to some of those cases, and 4 Cruise Dig. 1 ed. 455 to 459. 2 Bla. C. 193, 194, Mr. Christian’s note, it may be collected that the same words in a common-law conveyance would now create a tenancy in common. In a joint-tenancy for life to A. and B., the words and the survivor of them are merely words of surplusage, as without them the lands upon the death of one joint-tenant go to the survivor. But in the creation of a joint-tenancy in fee particular care must be taken not to insert these words. For the grant of an estate to two and the survivor of them, and the heirs of the survivor, does not make them joint-tenants in fee, but gives them an estate of freehold during their joint lives, with a contingent remainder in fee to the survivor. Harg. & Butl. Co. Litt. 191, a., n. 1. Where there was a devise to three sisters for and during their joint lives and the life of the survivor, to take as tenants in common, and not as joint-tenants, remainder to trustees during the respective lives of the sisters, and the life of the survivor, to preserve contingent remainders, and from and after their respective deceases and the decease of the survivor, remainder over; it was held that the sisters took the estate as joint-tenants, to be regulated in its enjoyment as a tenancy in common or as tenants in common, with benefit of survivorship. 1 M. & S. 428. Where testator devised the residue of his property to his daughters as tenants in common, and afterwards made a codicil expressly for a particular purpose, but thereby also re-devised the residue to his daughters, omitting the words of severance, the codicil was construed by the will, and they took as tenants in common. 3 Anstr. 727. Where the devise was to the use and behoof of the testator’s niece A. and his nieces B. and C., and the survivor and survivors of them, and the heirs of the body of such survivors, as tenants in common and not as joint-tenants, it was held that under this devise A., B., and C. took as tenants in common. 1 New Rep. 82. When two or more purchase lands and pay in equal proportions, a conveyance being made to them and their heirs, this is a joint-tenancy. But if they advance the money in unequal proportions, they are considered in equity in the nature of partners; and if one of them die, the others have not his share by survivorship, but are considered as trustees for the deceased’s representatives. 1 Eq. Ca. Abr. 291.—Chitty.
[4 ] But two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. Litt. sect. 283, 284. 1 Inst. 184, a. Cook vs. Cook, 2 Vern. 545. Cray vs. Willis, 2 P. Wms. 530. This is the case where an estate is granted in joint-tenancy to persons and the heirs of their bodies, which persons cannot intermarry. See post, p. 192. But in this case there is no division between the estate for lives and the several inheritances, and the joint-tenants cannot convey away their inheritances after their decease. See post, note 7. The estate for lives and the inheritance are divided only in supposition and consideration of law, and to some purposes the inheritance is executed. 1 Inst. 182, b.—Chitty.
[(c) ] Co. Litt. 188.
[(d) ] Litt. 277.
[5 ] Lord Coke says that if a rent-charge of 10l. be granted to A. and B., to have and to hold to them two, viz., to A. till he be married, and to B. till he be advanced to a benefice, they are joint-tenants in the mean time, notwithstanding the limitations; and if A. die before marriage, the rent shall survive to B.; but if A. had married, the rent should have ceased for a moiety, et sic e converso, on the other side. Co. Litt. 180, b. 2 Cruise Digest, 498.—Chitty.
[6 ] Lord Coke observes, “When land is given to two, and to the heirs of one of them, he in the remainder cannot grant away his fee-simple, as hath been said.” 1 Inst. 184, b.; and see ante, note 5. Mr. Hargrave, in his note upon this passage, remarks that there is a seeming difficulty in it; but he conceives lord Coke’s meaning to be, that though for some purposes the estate for life of the joint-tenant having the fee is distinct from, and unmerged in, his greater estate, yet for granting it is not so, but both estates are in that respect consolidated, notwithstanding the estate of the other joint-tenant; and therefore that the fee cannot, in strictness of law, be granted as a remainder, eo nomine, and as an interest distinct from the estate for life. See the last note. But lord Coke never meant that the joint-tenant having the fee could not in any form pass away the fee subject to the estate of the other joint-tenant: that would be a doctrine not only contrary to the power of alienation necessarily incident to a fee-simple, but would be inconsistent with lord Coke’s own statement in another part of his commentary. See Co. Litt. 367, b. The true signification of the passage cited at the commencement of this note may be illustrated by what the same great lawyer lays down in Wiscot’s case, (2 Rep. 61, a.,) namely, that when an estate is made to several persons, and to the heirs of one of them, he who hath the fee cannot grant over his remainder and continue in himself an estate for life.—Chitty.
[(e) ] Ibid. 285.
[7 ] Blackstone’s expression is that “A. has the remainder in severalty in these cases.” But, Littleton says, “one hath a freehold and the other a fee-simple;” and lord Coke, that “they are joint-tenants for life, and the fee-simple or estate-tail is in one of them;” and, though he afterwards speaks of “him in remainder,” his remarks show that it is not a remainder properly so called, and that though a joint-tenancy for life subsists with all the usual incidents, yet the estate of the joint-tenant who has the fee is for many purposes (particularly that of alienation) an entire inheritance, not broken into a particular estate and remainder thereon. Vide Co. Litt. 184, b., and note 2 by Hargr.; et vide Wiscot’s case, 2 Rep. 50, b.—Stephen.
[(f) ] Ibid. 278.
[(g) ] Co. Litt. 188.
[(h) ] Dyer, 340. 1 Rep. 101.
[8 ] The reason assigned in Gilbert’s Treat. on Uses and Trusts (p. 71 of the original work, or p. 134 of Mr. Sugden’s greatly-improved edition) is as follows:—“Here the husband has no property in the land, neither jus in re nor ad rem, but the feoffee has the whole property, at first to the use of the husband only, and upon the contingency of marriage to the use of them both entirely. And this is the only rule of equity to support the trust in the same manner the parties have limited it; and now it is executed by the statute in the same form as it was governed in equity.” Mr. Sugden, in his note upon this passage, observes that the point so laid down was not established without difficulty, and that it seems questionable whether the ground of decision was not that the use resulted to the feoffor till the marriage, and that upon the marriage the use declared arose, in which case the husband and wife took the use limited to them at the same time, and not at different periods. Mutton’s case, 2 Leon. 223. Mr. Sugden adds, it is clear at this day that persons may take as joint-tenants by way of use, although at different times. Thus, suppose in a marriage settlement an estate to be limited to the children of the marriage as joint-tenants in fee, on the birth of one child the whole vests in him, on the birth of another, that child takes jointly with the former; and so on, if there are twenty children. Stratton vs. Best, 2 Br. 240.
And that it is a joint-claim by the same conveyance which makes joint-tenants, not the time of vesting, has been held in various other cases. See Blamforde vs. Blamforde, 3 Bulstr. 101. Earl of Sussex vs. Temple, 1 Lord Raym. 312. Aylor vs. Chep, Cro. Jac. 259. S. C. Yelv. 183. Oates vs. Jackson, 2 Str. 1172. Hales vs. Risley, Pollexf. 373.
So, although some of the persons to whom an estate is limited are in by the common law, and others by the statute of uses, yet they will take in joint-tenancy. Watts vs. Lee, Noy, 124. Sammes’s case, 13 Rep. 54. And lord Thurlow held that whether a settlement was to be considered as a conveyance of a legal estate or a deed to uses would make no difference, and that in either case the vesting at different times would not necessarily prevent the settled estate from being taken in joint-tenancy. Stratton vs. Best, 2 Br. 240.—Chitty.
[9 ] But a grant to (not to the use of) a man and to such wife as he should afterwards marry vests the whole in the man; and when he afterwards marries, no estate whatever vests in the wife. 1 Rep. 101. 1 And. 42, 316. 5 Dy. 190, pl. 17, 18.—Archbold.
[(i) ] Litt. 238. 5 Rep. 10.
[(j) ]Quilibet totum tenet et nihil tenet: scilicet, totum in communi, et nihil separatim per se. Bract. l. 5, tr. 5, c. 26.
[(k) ] Litt. 665. Co. Litt. 187. Bro. Abr. t. cui in vita, 8. 2 Vern. 120. 2 Lev. 39.
[10 ] 5 Term Rep. 654. And if a grant is made of a joint-estate to husband and wife and a third person, the husband and wife shall have one moiety, and the third person the other moiety, in the same manner as if it had been granted only to two persons. So, if the grant is to husband and wife and two others, the husband and wife take one-third in joint-tenancy. Litt. 231. But where an estate is conveyed to a man and a woman who are not married together, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage. 1 Inst. 187, b. Moody vs. Moody, Amb. 649. 2 Cru. Dig. 511. 5 ib. 448.—Chitty.
According to Mr. Preston’s definition, tenancy by entireties is where husband and wife take an estate to themselves jointly by grant, or devise, or limitation of use made to them during coverture, or by a grant, &c. which is in fieri at the time of the marriage and completed by livery of seisin or attornment during the coverture. 1 Preston on Estates, 131. So, if an estate be conveyed to husband and wife and a stranger, the husband and wife will only take one moiety between them, and the stranger will take the other moiety. Litt. s. 291. Johnson vs. Hart, 6 W. & S. 319. This estate has several peculiarities. Says C. J. Montague, in Plowd. 58, “The husband has the entire use and the wife the entire use; for there are no moieties between husband and wife.” Hence it is termed tenancy by entireties. The husband cannot forfeit or alien so as to sever the tenancy. They are seised per tout and not per my. Neither can sever the jointure, but the whole must accrue to the survivor. As the husband and wife cannot sue each other, they are not compellable to make partition. But where an estate is conveyed to a man and woman who are not married together, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage. There is nothing, therefore, in the relation of husband and wife which prevents them from being tenants in common. There are great opinions in favour of the position that husband and wife may by express words be made tenants in common by a gift to them during coverture. 2 Prest. on Abstr. 41. 1 Prest. on Estates, 132. 4 Kent, 363. 1 Reed’s Blackst. 470. The case of Stuckey vs. Keefe’s Exrs., 2 Casey, 397, holds a contrary doctrine.
The acts of the legislatures of the various States abolishing joint-tenancies and converting them into tenancies in common have been construed not to extend to tenancies by entireties. Shaw et al. vs. Hearney et al., 5 Mass. 521. Jackson vs. Stevens, 16 Johns. 110. Den d. Hardenbergh vs. Hardenbergh, 5 Halst. 42. Thornton vs. Thornton, 3 Rand. 179.—Sharswood.
[(l) ] Co. Litt. 214.
[11 ] Per Abbott, C. J. “It is clear that if there be a joint-lease by two tenants in common, reserving an entire rent, the two may join in an action to recover the same; but if there be a separate reservation to each, then there must be separate actions.” 5 B. & A. 851. “If there were originally a joint letting by parol, and afterwards one of the two give notice to the tenant to pay him separately, and his share be paid accordingly, this is evidence of a fresh separate demise of his share, and he must sue separately.” Id. ibid.—Chitty.
[(m) ] Ibid. 192.
[(n) ] Ibid. 49.
[(o) ] Ibid. 319, 364.
[(p) ] Ibid. 195.
[12 ] See last note. If four joint-tenants jointly demise from year to year, such of them as give notice to quit may recover their several shares in ejectment on their several demises. 3 Taunt. 120.—Chitty.
Until very recently, the possession of one joint-tenant was the possession of the other or others; but this is altered by the 3 & 4 W. IV. c. 27, s. 12, by which it is enacted that where one or more of several persons entitled to any land or rents as joint-tenants have been in possession or receipt of the entirety, or more than his or their undivided share or shares of such land or of the profits thereof, or of such rent, for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to be the possession or receipt of or by such person or persons or any of them.—Stewart.
[(q) ] Co. Litt. 185.
[(r) ] 3 Leon. 262.
[13 ] In consequence of the right of survivorship among joint-tenants, all charges made by a joint-tenant on the estate determine by his death, and do not affect the survivor; for it is a maxim of law that jus accrescendi præfertur oneribus. 1 Inst. 185, a. Litt. sect. 286. But if the grantor of the charge survives, of course, it is good. Co. Litt. 184, b. So, if one joint-tenant suffers a judgment in an action of debt to be entered up against him, and dies before execution had, it will not be executed afterwards; but if execution be sued in the life of the cognizor, it will bind the survivor. Lord Abergavenny’s case, 6 Rep. 79. 1 Inst. 184, a.
There is, however, one exception to the rule that joint-tenants cannot charge the estate in any way so as to affect the interests of the survivors; for instance, if there are two joint-tenants in fee, and one of them makes a lease for years to a stranger, it will be good against the survivor, even though such lease is not made to commence till after the death of the joint-tenant who executed it, because the grant of a lease is a disposition of the land, made at the time of such grant, though possession is not then given. Co. Litt. 185, a. Litt. s. 289. Whittock vs. Horton, Cro. Jac. 91. Clerk vs. Turner, 2 Vern. 323.—Chitty.
[(s) ] 1 Leon. 234.
[(t) ] 2 Inst. 403.
[(u) ] Co. Litt. 200.
[14 ] This action is now scarcely ever brought; but the established practice is to apply to a court of equity to compel an account,—which is also the jurisdiction generally resorted to in order to obtain a partition between joint-tenants and tenants in common. Com. Dig. Chanc. 3 V. 6 and 4 E. Mitf. 109.—Christian.
[(w) ] Litt. 280, 281.
[15 ] Our author, however, will instruct us, in a subsequent part of this book, (ch. 25, p. 399,) that, “for the encouragement of husbandry and trade, it is held that stock on a farm, though occupied jointly, and also a stock used in a joint undertaking, by way of partnership in trade, shall always be considered as common and not as joint property; and there shall be no survivorship therein.” See Jackson vs. Jackson, 9 Ves. 596.—Chitty.
[16 ] It is very well settled that real estate may, by special agreement between partners in trade, be brought into the common stock and considered as personal property, so far as concerns themselves and their heirs and personal representatives. McDermot vs. Lawrence, 7 S. & R. 438. In partnership, the jus accrescendi never existed in equity as between the partners. The legal title is still held to vest in the survivor. He is entitled to the possession of all the property of the partnership, is alone entitled to sue for and recover choses in action belonging to the partnership; yet he is a trustee for the estate of his deceased partner as to his share, and may be compelled to account. Deloney vs. Hutcheson, 2 Randolph, 183. McAllister vs. Montgomery, 3 Heyw. 94.—Sharswood.
[(x) ] Bracton, l. 4, t. 3, c. 9, 3. Fleta, l. 3, c. 4.
[(y) ] Co. Litt. 190. Finch, L. 83.
[(z) ] 2 Lev. 12.
[17 ] Mr. Christian quotes lord Coke, who says, “There may be joint-tenants, though there be not equal benefit of survivorship: as, if a man let lands to A. and B. during the life of A., if B. die, A. shall have all by survivorship; but if A. die, B. shall have nothing,” (Co. Litt. 181;) and remarks, “The mutuality of survivorship does not therefore appear to be the reason why a corporation cannot be a joint-tenant with a private person; for two corporations cannot be joint-tenants together; but whenever a joint-estate is granted to them, they take as tenants in common.” Co. Litt. 190. But there is no survivorship of a capital or a stock in trade among merchants and traders, for this would be ruinous to the family of the deceased partner; and it is a legal maxim, jus accrescendi inter mensa tores pro beneficio commercii locum non habet. Co. Litt. 182. See p. 399, post.—Chitty.
[(a) ] Co. Litt. 188, 193.
[(b) ] Litt. 290.
[(c) ] Thus, by the civil law, nemo invitus compellitur ad communionem. Ff. 12, 6, 26, 4. And again, Si non omnes qui rem communem habent, sed certi ex his, dividere desiderant; hoc judicium inter eos accipi potest. Ff. 10, 3, 8.
[(d) ] Litt. 292.
[18 ] When an estate is devised to A. and B., who are strangers to, and have no connection with, each other, the conveyance by one of them severs the joint-tenancy and passes a moiety; but per Kenyon, Ch. J., it has been settled for ages that, when the devise is to husband and wife, they take by entireties and not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, devest the estate of the wife. 5 T. R. 654. If five trustees be joint-tenants, and if three execute a conveyance, it will sever the joint-estate and create a tenancy in common, and the person to whom the conveyance was made may recover three-fifths in ejectment. 11 East, 288.—Chitty.
[19 ] A covenant by a joint-tenant to sell, though it does not sever the joint-tenancy at law, will do so in equity, (Browne vs. Raindle, 3 Ves. 257. Hinton vs. Hinton, 2 Ves. Sr. 639;) provided the agreement for sale be one of which a specific performance could be enforced. Patriche vs. Powlett, 2 Atk. 54. Hinton vs. Hinton, 2 Ves. Sr. 634.—Chitty.
[(e) ]Jus accrescendi præfertur ultimæ voluntati. Co. Litt. 185.
[(f) ] Litt. 287.
[20 ] A joint-tenant wishing to devise his estate must first sever it, which may be done by a commission, upon bill filed, from the lord chancellor, in the nature of the common-law writ. And if a joint-tenant of real property devises his interest in premises, and after execution of the will there is a partition of the estate, the testator’s share cannot pass by the devise unless there is a republication of the will subsequent to the partition, (3 Burr. 1488. Amb. 617;) for a joint-tenant is not enabled to devise his estate by the statute of wills, 32 Hen. VIII. c. 1, explained by 34 & 35 Hen. VIII. c. 5 as tenants in common and coparceners. But if a tenant in common devises his estate, a subsequent partition is not a revocation of the will. 3 P. Wms. 169.—Chitty.
[(g) ] Cro. Eliz. 470.
[(h) ] 2 Rep. 60. Co. Litt. 182.
[(i) ] Litt. 302, 303.
[(k) ]Nihil de re accrescit ei, qui nihil in re quando fus accresceret habet. Co. Litt. 188.
[(l) ] Litt. 294.
[(m) ] Ibid. 304.
[(n) ] 1 Jones, 55.
[(o) ] 4 Leon. 237.
[(p) ] Co. Litt. 252.
[(q) ] Litt. 241, 242.
[(r) ] Ibid. 265.
[(s) ] Co. Litt. 163.
[(t) ] Ibid. 164.
[(u) ] Ibid. 188, 243.
[(w) ] 2 Inst. 403.
[(x) ] Litt. 254.
[(y) ] Co. Litt. 164, 174.
[(z) ] Ibid. 163, 164.
[(a) ] Litt. 309.
[21 ] By the 3 & 4 W. IV. c. 27, 12, the same provision is made with respect to the possession of one coparcener as has already been mentioned with respect to that of a joint-tenant. Ante, p. 182, n.—Stewart.
[(b) ] 241.
[22 ]Coparceners may convey to each other both by feoffment and by release, because their seisin to some intents is joint, and to some several. Co. Litt. 200, b. Whereas joint-tenants can release to but not enfeoff each other, because the freehold is joint. Ibid. And one tenant in common may enfeoff his companion, but not release, because the freehold is several. Ibid.
Such partitions are now usually made by means of a bill in chancery, in the same manner as partitions between joint-tenants. And it is said, in a modern case, that it was probably in consequence of the stat. 31 Hen. VIII. c. 1 that the court of chancery assumed this jurisdiction. 2 Ves. Jr. 125. Cruise’s Dig. 2 vol. 547. See page 183, n. Parceners of a copyhold cannot make partition without the sanction of the lord. P. 41 Eliz. B. R. Fuller, Hal. MSS.—Chitty.
[(c) ] 243 to 264.
[(d) ] Co. Litt. 166. 3 Rep. 22.
[23 ] It has been doubted whether the grantee of the eldest sister shall have the first and sole presentation after death, (Harg. Co. Litt. 266;) but it was expressly determined in favour of such a grantee in 1 Ves. 340. See Burn’s Ec. Law, 2 vol. 15.—Chitty.
[(e) ] By statute 8 & 9 W. III. c. 31, an easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenancy, parcenary, or common, than was used at the common law, is chalked out and provided.
[(f) ] Co. Litt. 164, 165.
[(g) ] See page 115.
[(h) ] Bracton, l. 2, c. 34. Litt. 266 to 273.
[(i) ]L. 2, t. 14, c. 15.
[(k) ] Britton, c. 72.
[(l) ] 267.
[(m) ] Litt. 268.
[(n) ] Ibid. 274.
[(o) ] Ibid. 275.
[(p) ] Ibid. 292.
[(q) ] Ibid. 293.
[(r) ] Ibid. 295.
[(s) ] Litt. 309.
[(t) ] Ibid. 283.
[(u) ] Salk. 392.
[(w) ] Litt. 298.
[(x) ] Ibid. 299.
[(y) ] See page 182.
[(z) ] Poph. 52.
[(a) ] 1 Eq. Ca. Abr. 291.
[24 ] In Gaskin vs. Gaskin, M. 18 Geo. III., as reported in Cowper, Aston, J., said that the words “equally to be divided between them” had been adjudged a tenancy in common even in a deed.—Archbold.
[(b) ] 1 P. Wms. 17.
[(c) ] 3 Rep. 39. 1 Ventr. 32.
[25 ] In ancient times joint-tenancy was favoured by the courts of law, because it was more convenient to the lord and more consistent with feudal principles; but these reasons have long ceased, and a joint-tenancy is now everywhere regarded, as lord Cowper says it is in equity, as an odious thing. 1 Salk. 158. In wills, the expressions equally to be divided, share and share alike, respectively, between and amongst, have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. 1 Cox’s P. Wms. 14. I should have but little doubt but the same construction would now be put upon the word severally, which seems peculiarly to denote separation or division. But these words are only evidence of intention, and will not create a tenancy in common when the contrary from other parts of the will appears to be the manifest intention of the testator. 3 Bro. 215.
The words equally to be divided make a tenancy in common in surrenders of copyholds, and also in deeds, which derive their operation from the statute of uses. 1 P. Wms. 14. 1 Wils. 341. 2 Ves. 257. And though lord Hardwicke seems to be of opinion, in 1 Ves. 165, 2 Ves. 257, that these words are not sufficient to create a tenancy in common-law conveyances, yet I am inclined to think that in such a case nothing but invincible authority would now induce the courts to adopt that opinion and to decide in favour of a joint-tenancy.—Christian.
[(d) ] Pages 185 and 189.
[26 ] But a tenancy in common with benefit of survivorship may exist without being a joint-tenancy, because survivorship is not the only characteristic of a joint-tenancy. Per Bayley, J., 1 M. & S. 435.—Chitty.
[(e) ] Co. Litt. 199.
[(f) ] Ibid. 200.
[27 ] But adverse possession, or the uninterrupted receipt of the rents and profits,—no demand being made by co-tenant, or, if made, refused, and his title denied,—is now held to be evidence of an actual ouster. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the co-tenant the jury will be directed to presume an actual ouster, and consequently to find a verdict for the defendant, the plaintiff’s right to recover in ejectment after twenty years being taken away by the statute of limitations. Cowp. 217. But the statute always receives a strict construction in favour of the claimant: therefore presumptions are against adverse possession, as between privies. 2 Bos. & Pul. 542. If a lessee of two tenants in common pay the whole of the rent to one after notice from the other to pay them each a moiety, the tenant in common who gave such notice may distrein for his share. Harrison vs. Ornby, 5 T. R. 246. 5 Bar. & Ald. 851.
An action of ejectment is maintainable by one of two tenants in common who had agreed to divide their property, if after such agreement the defendant who held under both as occupier pay rent under a distress to such co-tenant alone; and it is no defence to such action that the deed of partition between the co-tenants had not been executed. 3 Moore, 229. Brod. & B. 11 S. C.; and see 5 Bar. & Ald. 851.—Chitty.
[(g) ] Litt. 311.
[(h) ] Co. Litt. 197.
[28 ] The rule which determines whether tenants in common should sue jointly or severally is founded upon the nature of their interest in the matter or thing which is the cause of action. For injuries to their common property, as trespass quare clausum fregit, or a nuisance, &c., or the recovery of any thing in which they have a common right, as for rent reserved by them, or waste upon a lease for years, they should all be a party to the action; but they must sue severally in a real action generally, for they have several titles. Com. Dig. Abatement, E. 10. Co. Litt. 197. But if waste be committed where there is no lease by them all, the action by one alone is good. 2 Mod. 62. But one tenant in common cannot avow alone for taking cattle damage feasant, but he ought also to make cognizance as bailiff of his companion. 2 Hen. Bla. 386. Sir Wm. Jones Rep. 253.—Chitty.
By the 3 & 4 W. IV. c. 27, s. 12, the same provision is made with respect to the possession of one tenant in common as has already been mentioned with respect to that of a joint-tenant. Ante, p. 182, n.; and see as to the construction of this clause Doe d. Calley vs. Taylorson, 3 Per. & Dav. 539.—Stewart.
An entry or possession by one tenant in common enures to the benefit of his co-tenants, not only as concerns themselves, but as concerns strangers. Caruthers vs. Dunning, 3 S. & R. 381. There may be cases, however, in which the entry or possession of one tenant in common may amount to an ouster, so as to give him on the one hand the advantage of an adverse holding, and, on the other hand, entitle his co-tenant to treat him as a stranger and trespasser. What, then, amounts to such an ouster? It must be by some clear, positive, and unequivocal act, amounting to an open denial of their right and putting them out of the seisin. Such ouster will not be presumed merely from his taking the rents and profits, (unless after the lapse of a very great length of time,) but must be proved by decisive acts of a hostile character. Watson vs. Gregg, 10 Watts, 289. Mere declarations will not answer the purpose. Hall vs. Matthias, 4 W. & S. 331. A mere entry by one co-heir into the land of his ancestor, claiming it all, and taking the rents and profits for twenty-one years, is no disseisin of the other heirs: to make it such, there must be some plain, decisive, and unequivocal act or conduct on the part of the heir so entering amounting to an adverse and wrongful possession in himself and disseisin of the others. Hart vs. Gregg, 10 Watts, 185. Batton vs. Hamilton, 2 W. & S. 294. Lloyd vs. Gordon, 2 Har. & McHen. 254. Jackson vs. Tibbitts, 9 Cowen, 241. McClung vs. Ross, 5 Wheat. 116. Where land is devised by their common ancestor to several persons in common, and one of them purchases an outstanding or adverse title, such purchase will enure to the common benefit, subject to a ratable contribution to the expense. Van Horne vs. Fonda, 5 Johns. C. R. 388. Lee vs. Fox, 6 Dana, 171. Thurston vs. Masterson, 9 Dana, 228. One joint-tenant or tenant in common cannot erect buildings or make improvements on the common property without the consent of the rest, and then claim to hold until reimbursed a proportion of the moneys expended; nor can he authorize this to be done by a third person. This is the rule at law. There are, however, cases in which an owner of land standing by and permitting another to spend his money in improving it has in equity been deemed a delinquent, and has been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right. Crest vs. Jack, 3 Watts, 238. Green vs. Putnam, 1 Barbour, 500. As between tenants in common or joint-tenants of a house or mill which falls into decay, and the one is willing to repair but the other is not, he that is willing shall have a writ de reparatione facienda; and the writ saith ad reparationem et sustentationem ejusdem domus tenetur; whereby it appeareth, as Sir Edward Coke saith, that owners are in that case bound pro bono publico to maintain houses and mills which are for the use and habitation of men. But it is only to houses and mills already erected and in being that this right extends, and not to woodland or arable lands; for there the one has no remedy against the other to make enclosure or reparation for the safeguard of the wood or corn. Gregg vs. Patterson, 9 W. & S. 197.—Sharswood.