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common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interest in them, and bath full power
time to defeat, destroy, or surrender them to him that hath the reversion; therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate.(b) But, in an estatetail, the case is otherwise ; the tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like :(c) it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee.
OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND
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.'
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 othertrise; 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 jointtenancy,(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.(6)
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 “espective 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
(b) Cro. Eliz. 302.
() See page 116.
() Litt. 277.
1 This is not true as to coparcenary. See post, p. 188.–COLERIDGE.
? 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 free
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. 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 pos session; 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.
hold 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. ---ARCH
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.
$ 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 jointtenancy 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 sur vivor 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 jointtenancy. 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
*First, they may have one and the same interest. One joint-tenant *181]
cannot be entitled to one period of duration or quantity of interest in lands, a'd the other to a different; one cannot be tenant for life, and the other for yeai s; 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)s 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:8 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) Secondly, 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 (6) Co. Litt. 188.
() Ibid. 285. 14) Litt. & 277.
Ibid. 278. share by survivorship, but are considered as trustees for the deceased's representatives. 1 Eq. Ca. Abr. 291.-Cutty.
* But two persons may have an estate in joint-tenancy for their lives, and yet hare several inheritances. Litt. sect. 283, 284. í 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 jointtenancy 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.
5 Lord Coke says that if a rent-charge of 101. 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.
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 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.
? 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 ly Hargr.; et vide Wiscot's case, 2 Rep. 50, b.-STEPIEN.
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 estato 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) *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
[*182 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)e 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 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. 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.(1). 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)0
(1Quilibet totum tenet et nihil tenet: scilicet, totum in () Dyer, 340. 1 Rep. 101.
communi, et nihil separatim per se. Bract. 1. 6, tr. 5, c. 26. Litt. 288. 5 Rep. 10.
(*) Litt. 2 665. Co. Litt. 187. Bro. Abr. t. cui in vita, 8.
() Co. Litt. 188.
2 Vern. 120. 2 Lev. 39.
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 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 maka 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.
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, 10 5 Term Rep. 654. "And if a grant is made of a joint-estate to husband and wife
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.(0,4 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.(0) In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other.(P)2 But if two or more jointtenants be seised of an advowson, and they present different clerks, the bishop
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.
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.
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 nny of them. STEWART.