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may refuse to admit eith.r: because neither joint-tenant hath a several right of patronage, but each is seised of *the whole; and if they do not
[*183 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, 80 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.g) 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 jointtenant 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."
From the same principle also arises the remaining grand incident of jointestates; 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 tho natural and regular consequence of the union and entirety of their interest. The interest of two joint-tenants *is not only equal or similar, but also is one and the same. One has not originally a distinct moiety from the
[*184 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
() 2 Inst. 403. ( 1 Leon. 234.
(*) Litt. & 280, 281.
(6) Co. Litt. 185.
(") Co. Litt. 200.
13 In consequence of the right of survivorship among joint-tenants, all charges mados 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. 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. 8. 289. Whittock vs. Horton, Cro. Jac. 91. Clerk vs. Turner, 2 Vern. 323.--CAITTY.
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.
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.
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. Ťhat 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 jointtenants 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:(6) 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, (*) Bracton, l. 4, t. 3, c. 9, 23. Fleta, l. 3, c. 4.
(a) Co. Litt. 188, 193. () Co. Litt. 190. Finch, L. 83.
() Litt. & 290. (") 2 Lev. 12.
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 Hey, 94.-SHARSWOOD.
17 Mr. Christian quotes lord Coke, who says, “There may be joint-tenants, though there le 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 mercawies pro veneficio commercii locum non habet. Co. Litt. 182. See p. 399, post.—CHITTY,
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 *is no severance of the jointure :19for no testament takes effect till after the death of the testator, and by such death
[*186 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.($)%0 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 ;(9) 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.(b) In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure: 0) 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 :(1) and if one of three jointtenants release ňis 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.
(9) Thus, by the civil law, nemo invitus compellitur ad communionem. Ff. 12, 6, 26, 84. And again, Si non omnes qui rem communem habent, sed certi ex his, dividere deside Litt. 302, 303. rant ; hoc judicium inter eos accipi potest. Ff. 10, 3, 8. (6) Nihil de re accrescit si, qui nihil in re quando jus (4) Litt. & 292. ) Jus accrescendi præfertur ultimæ voluntati. Co. Litt. (9) Litt. 2 294.
(*) Ibid. 304. () Litt. 2 287.
(6) Cro. Eliz. 470.
accresceret habet, Co. Litt. 188.
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; bụt 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.Сніттү.
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.
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 hy 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 partitior is not a revocation of the will. 3 P. Wms. 169,-Cutty.
*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:(0) 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. Ăn 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 caheirs are then called coparceners; or, for brevity, parceners only (9) 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 estaté among them.(8) *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;(2) 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 *189]
parceners. But if *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)a.
Parceners are so called, saith Littleton,(6) because they may be constrained to make partition. And he mentions many methods of making it;(C) four of which are by consent, and one by compulsion. The first is, where they agreo 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) 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 *which are in their nature impartible. The mansion-house, common of estovers, common of piscary uncertain, or any
[*190 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,)(9) 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 divido 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 (*) Litt. 309.
held either in joint-tenancy, parcenary, or common, than
was used at the common law, is chalked out and provided. 243 to 261.
Co. Litt. 164, 165. (d) Co. Litt. 166. 3 Rep. 22.
See page 115. (By statute 8 & 9 W. III. c. 31, an easier method of car () Bracton, l. 2, c. 34. Litt. & 266 to 273. rying on the proceedings on a writ of partition, of lands (0) L. 2, t. 14, c. 15.
By the 3 & 4 W. IV. c. 27, ở 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 jointtenant. Ante, p. 182, n.-STEWART.
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.
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.