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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 the statutes of Henry VIII and William III, before-menti. oned", 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. Their other incidents are such as merely arise from the unity of posses. fion; 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 Ann. c. 16. For by the common law no tenant in common was liable to account to his companion for embezzling the profits of the estate e ; though, if one actually turns the other out of poffeffion, 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 intire 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.
Estates in common can only be disolved two ways: I. By uniting all the titles and interests in one tenant, by purchase or otherwise ; which brings the whole to one feveralty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from fole eftates, but merely in the blending and unity of poffeffion. And this finishes our inquiries with respect to the nature of estates.
d pag. 185, & 189. c Co. Litt, 199.
8 Litt. $. 311.
CHAPTER THE THIRTEENTH.
Of The TITLE TO THINGS REAL,
T HE foregoing chapters having been principally em
1 ployed in defining the nature of things real, in dem scribing 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.
A TITLE is thus defined by sir Edward Coke', titulus eft jufta caufa poffidendi id quod nostrum eft; or, it is the means whereby the owner of lands hath the just possession of his property.
There are several stages or degrees requisite to form a complete title to lands and tenements. We will consider them in a progressive order.
I. The lowest and most imperfect degree of title consists in the mere naked polellion, or actual occupation of the eftate; without any apparent right, or any shadow or pretence, of right, to hold and continue such possession. This may happen, when one man invades the possession of another, and by force or surprize turns him out of the occupation of his lands; which is termed a disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that 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 may contrive to get possession of the vacant land, and hold out him that had a right to enter. In all which cases, and many others that might be here suggested, the wrongdoer has only a mere naked poffefsion, which the rightful owner may put an end to, by a variety of legal remedies, as will more fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to deveft this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the poffeffor; and it may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title. And, at all events, without such actual poffeffion no title can be completely good.
II. The next step to a good and perfect title is the right of pollelion, which may reside in one man, while the actual possession is not in himself but in another. For if a man be diffeised, or otherwise kept out of poffeffion, by any of the means before-mentioned, though the actual poffeffion be lost, yet he has still remaining in him the right of poffeffion; and may exert it whenever he thinks proper, by entering upon the diffeisor, and turning him out of that occupancy which he has fo illegally gained. Buť this right of poffelfion is of two forts : an apparent right of poffeffion, which may be defeated by proving a better; and an actual right of possession, which will stand the test against all opponents, Thus if the diffeisor, or other wrongdoer, dies poffefsed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now by the common law the heir hath obtained an apparent right, though the actual right of possession resides in the person diffeised ; and it shall not be lawful for the person disleifed to devest this apparent right by mere entry or other act of his own, but only by an action at law b. For, until the contrary be proved by legal demonstration, the law will rather presume the right to Litt. §. 385.
reside reside in the heir, whose ancestor died seised, than in one who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feodal law, which, after feuds became hereditary, much favoured the right of descent; in order that there might be a person always on the spot to perform the feodal duties and services C: and therefore, when a feudatory died in battle, or otherwise, it presumed always that his children were entitled to the feud, till the right was otherwise determined by his fellow-soldiers and fellow-tenants, the peers of the feodal court. But if he, who has the actual right of poffeffion, puts in his claim and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his poffeffory action within a competent time, his adversary may imperceptibly gain an actual right of poffeffion, in consequence of the other's negligence. And by this, and certain other means, the party kept out of poffeffion may have nothing left in him, but what we are next to speak of; viz.
III. The mere right of property, the jus proprietatis, without either poffeffion or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum ; and the estate of the owner is in such cases said to be totally devested, and put to a right d. A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of poffeffion. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law: by this means the disseisor or his heirs gain the actual right of possession : c Gilb. Ten. 18.
Co. Litt. 345
for to be disturk quiescend
feised or ne right of
fee, and is eftate-tailands. Again.
for the law presumes that either he had a good right origin nally, in virtue of which he entered on the lands in question, or that since such his entry he has procured a sufficient title ; and, therefore, after so long an acquiescence, the law will not suffer his poffeffion to be disturbed without inquiring into the absolute right of property. Yet, still, if the person disfeised or his heir hath the true right of property remaining in himself, his eftate is indeed said to be turned into a mere right; but, by proving such his better right, he may at length recover the lands. Again ; if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies; here the issue in tail hath no right of posesion, independent of the right of property : for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heir, unless he had power so to do; and therefore, as the ancestor had in himself the right of pofseffion, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by thewing the absolute right of property to reside in another person. The heir therefore in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any polesory action, (that is, such wherein the right of poffeffion only, and not that of property, is contested) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action, denominated a writ of right, he shall recover his seisin of the lands.
Thus, if a diffeisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of polleffion, and right of property. If the diffeisor dies, and the lands descend to his son, the son gains an apparent right of pollefion; but I still retain the actual right both of podelion and property. If I acquiesce for thirty years, without bringing any action to recover possession of the lands, the son gains the actual right of pollefion, and I retain no