be more fully shown hereafter; and these coheirs are then called coparceners, or, for brevity, parceners only. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree. And, in either of these cases, all the parceners put together make but one heir, and have but one estate among them.

The properties of parceners are in some respects like those of jointtenants, they having the same unities of interest, title, and possession. They may sue and be sued jointly for matters relating to their own lands, and they cannot have an action of trespass against each other. But they differ from joint-tenants, in that they are excluded from maintaining an action of waste. Parceners also differ from jointtenants in four other points:-1. They always claim by descent, whereas joint-tenants always claim by purchase. 2. There is no unity of time necessary; for if a man has two daughters, to whom his estate descends, 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. 3. Parceners, though they have an unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety, 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 the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener aliens her share, though no partition be made, then are the lands no longer held in coparcenary, but in

common.

Parceners are so called because they were always obliged to make partition, which joint-tenants were not; and if this was not done voluntarily, it might be compulsorily, as it, is now often effected, by a bill in equity. There are some things, however, in their nature impartible. The mansion-house and common of estovers 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, and in the same manner they take an advowson.

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. 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 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 veşted 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 by the destruction of the two other estates, joint-tenancy and coparcenary, or by special limitation in a deed. By destruction, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest: as, if one of the two joint-tenants in fee aliens his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they now have several titles, the other joint-tenant by the original grant, the alienee by the new alienation; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one of two parceners aliens, the alienee and the remaining parcener are tenants in common, because they hold by different titles, the parcener by descent, the alienee by purchase. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, 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, because the 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 com❤ mon; and therefore it is the usual as well as the safest way, when a tenancy in common is 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 bill in equity to make partition of their lands; yet there is no survivorship between them, as properly they take distinct moieties of the estate. The 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 to account for the property; and if one actually turns the other out of possession, an action of ejectment will lie against him. 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, unless in the case where some entire or indivisible thing is to be recovered, these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several. It follows that tenancies in common can only be dissolved two ways: 1. By uniting all the interests in one tenant, which brings the whole to one severalty. 2. By making partition between the several tenants in common, which gives them all respective severalties. And this finishes our inquiries with respect to the nature of estates.

CHAPTER X.

OF THE TITLE TO THINGS REAL.

Effect of possession-Right of possession-Source of title-Statute of limitations

-Advowsons.

THE foregoing chapters having been principally employed in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein, I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

The lowest kind of title consists in the mere naked possession, or actual occupation of the estate, without any apparent right to hold and continue such possession. This may happen when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; or it may happen when, after the death of the ancestor and before the entry of the heir, or after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger contrives to get possession, and keeps out him that had a right to enter. In all which cases, and many others that might be suggested, the wrongdoer has a mere possession, which the rightful owner may put an end to, by the appropriate legal remedies. But till some act be done by the rightful owner to assert his title, such actual possession is primâ facie evidence of a legal title in the possessor.

To constitute a good and perfect title something more is necessary, namely, the right of possession, which may reside in one man, while the actual possession is in another. For if a man be kept out of possession, though the actual possession be lost, yet he has still remaining in him the right of possession; and this right he may exert whenever he thinks proper, by turning the intruder out of that occupancy which he has so illegally gained. Yet if he omit to do so within the time fixed by law, the intruder may imperceptibly gain an actual right of possession, which is in itself perfect and complete, so that no further remedy remains.

By our old law, if a man was turned out of possession, the intruder thereby gained what was called a mere naked possession, and the owner still retained the right of possession and right of property. If the intruder died, and the lands descended to his son, the son gained an apparent right of possession, but the owner still retained the actual right both of possession and property. If he acquiesced, however, for thirty years without bringing any action to recover possession of the land, the son gained the actual right of possession, and the owner retained nothing but the mere right of property. And even this right of property failed, or at least became without remedy, unless pursued within the space of sixty years. And hence it followed that one man might have the possession, another the right of possession, and a third the right of property. But the law now recognises only the possession, and right of possession, ignoring altogether any right of property, as distinct from these symbols of ownership. To an explanation of this modern law, I shall accordingly, as much as possible, confine myself; and the student will, I think, consider me fully justified in this course, when he observes that the great change I allude to, was effected upwards of forty years ago by the statute 3 & 4 Will. IV. c. 27. This statute provides that, at the determination of the period which it limits, the right and title of the person, who might within that time have pursued his remedy for the recovery of his property, shall be extinguished; and its great feature and chief effect therefore is, to make right dependent on possession, by limiting the period within which that right can be asserted to twenty years from the time at which the right of the claimant first accrued.

This right is deemed to have first accrued when the person who claims the land, or some person through whom he claims, was dispossessed, or discontinued his possession or receipt of rent, in case he was previously in possession; but as this limitation might produce hardship in cases where the person entitled laboured under disability at the time of his right accruing, infants, women under coverture, idiots, lunatics or persons of unsound mind, and those who were abroad beyond seas, have ten years further allowed them, from the time

of their ceasing to be under their several disabilities. To prevent, however, the title of an actual possessor being thereby held too long in suspense, the extreme period of forty years is fixed, beyond which no person, whether under disability or no, is permitted to have any remedy; so that if a right accrue to a person under disability, who continues so during the whole forty years from the time of such accruer, he is wholly barred.

As to advowsons, being a pecular species of property, a longer period is fixed, during which the right to them may be recovered; namely, either sixty years, or the duration of three successive incumbencies. But here also the extreme period of a hundred years is fixed, beyond which, although the time may have been covered by less than three incumbencies, as may very possibly happen, no remedy remains to the person claiming.

As a general rule, then, the possession of land for a period of twenty years, without payment of rent, or acknowledgment of the title of any other person, for such acknowledgment, if given in writing, converts the possession of the tenant into the possession of the person to whom the acknowledgment is given, constitutes a sure and sufficient title. And, therefore, where the overseer of a parish let a person into possession of a cottage, a part of the parish property, at the rent of 1s. 6d. a-week, to quit at a month's notice, and the tenant remained for twenty years without paying rent or making any acknowledgment, his title was held to be unassailable. In this case bare possession had, by effluxion of time, matured into a right of property, which constituted a complete title against all the world.

CHAPTER XI.

OF TITLE BY DESCENT.

Heirs apparent and presumptive.-Lineal descent-Male succession-Female succession Succession per stirpes-Collateral succession-Half-bloodCanons of descent.

WE are next to consider the several manners in which real property may be lost and acquired; and these are, by our law, reduced to two: descent, where the title is vested in a man by the single operation of law; and purchase, where the title is vested in him by his own act or agreement.