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CHAPTER THE TWELFTH.
Op ESTATES IN SEVERALTY,
JOINT-TENANCY, COPARCENARY, AND COMMON.
W E come now to treat of estates, with respect to the
W number and connexions 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 coparcenáry, and in common.
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 poffeffion, as contradistinguished from those in expectancy, in the preceding chapter : that there is little or nothing peculiar to be remarked concerning it, fince all estates are supposed to be of this fort, 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 fall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants. M 2
II. An estate in joint-tenancy is where lands or tenements áre 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 the estate is called an estate in joint-tenancy, and sometimes an estate in jointure, which word as well as the other signifies an 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. 10. 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 enquire, 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, 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 eftate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. For,
2. The properties of a joint estate are derived from it's unity, which is fourfold ; the unity of interest, the unity of title, the unity of time, and the unity of polellion : or, in other words, joint-tenants have one and the same interest, accruing by one and the fame conveyance, commencing at one and the same time, and held by one and the fame undivided possession. • Litt. §. 277.
See pag. 138
First, they must have one and the same intereft. 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 . 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". 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 : 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 feveral remainder in tail e Secondly, joint-tenants must also have an 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 disleisinf. 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 an 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 eftate 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 remiander. 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 vefted at another 8.
Yet, 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 timesh: 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. Lastly, in joint-tenancy, there must be an unity of pofleffion. Joint-tenants ate faid 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 feised 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 k.
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'. If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their eftatem. On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them”: and the entry, or re-entry, of one joint-tenant is as effectual in law as if it were the act of both°. In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other P. But if two or more joint-tenants be feised of an advowson, and they present different clerks, the bishop may refuse to admit either : because neither jointtenant hath a several right of patronage, but each is seised of
h Dyer. 340. Rep. 101. i Litt. $. 288. 5 Rep. 10.
k Quilibet totum tenet et nibil tener ; fcilicet, totum in communi, et nibil separa. tim per je. Bract. 1. 5. tr. 5. 6. 26.
1 Co. Litt. 214.
the 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 lapfe : and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them ; in refpect of the privity and union of their eftate 9. Upon the fame ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land'; 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; as to let leafes, or to grant copyholdss: 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'. 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", yet now by the statute 4 Ann. 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.
From the fame principle also arises the remaining grand incident of joint estates; viz. the doctrine of survivorship: by which, when two or more persons are feised of a joint estate, of inheritance, for their own lives, or pur auter vie, or are jointly poffefsed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survi, vors, 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 ". This is the natural and regular consequence of the union and entirety of their interest. "The interest of two joint-tenants 9 Co Litt. 185..
2 Inft. 403.
1 s 3 Leon. 262.
• Co. Litt. 200. i si Leon, 234,
w Litt. 5. 280, 281,