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share of the inheritance, mittere in confusum cum sororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotch-pot :(k) which term I shall explain in the very words of Littleton :(1) "it seemeth that this word hotch-pot, is in English a pudding; for in a pudding is not commonly put one thing alone, but one thing with other things together.” By this housewifely metaphor our ancestors meant to inform us(m) that the lands, both those given in frankmarriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice of the donee in frankmarriage : and if she did not choose to put her lands into hotch-pot, she *191]

was presumed to be sufficiently *provided for, and the rest of the inherit

ance was divided among her other sisters. The law of hotch-pot took place then only when the other lands descending from the ancestor were feesimple; for if they descended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands so given into hotch-pot.(n) And the reason is, because lands descending in fee-simple are distributed, by the policy of law, for the maintenance of all the daughters; and if one has a sufficient provision out of the same inheritance, equal to the rest, it is not reasonable that she should have more: but lands, descending in tail, are not distributed by the operation of the law, but by the designation of the giver, per formam doni : it matters not therefore how unequal this distribution may be. Also no lands, but such as are given in frankmarriage, shall be brought into hotch-pot; for no others are looked

upon

in law as given for the advancement of the woman, or by way of marriage-portion. And therefore, as gifts in frankmarriage are fallen into disuse, I should hardly have mentioned the law of hotch-pot, had not this method of division been revived and copied by the statute for distribution of personal estates, which we shall hereafter consider at large.

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.(p) 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 *192]

*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 vested 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, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, I mean such destruction as does not sever the unity of possession, but only the unity of title or interest. As, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee by the new alienation ;(q) and they also have several interests, the former jointtenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances.(r) If one of two parceners alienes, the alienee and the remaining parcener are tenants in (k) Britton, c. 72

() Ibid. & 276. & 267.

(**) Litt. & 268.

Ibid. 274.

() Ibid. 292.

Ibid. 293. () Ibid. 295

common ;(s) because they hold by different titles, the parcener by descent, thu alienee by purchase. So likewise, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees shall be joint-tenants of the lifeestate, but they shall have several inheritances; because they cannot possibly have one heir of their two bodies, as might have been the case had the limitation been to a man and woman, and the heirs of their bodies begotten :(t) and in this, and the like cases, their issue shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by *purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no

[*193 partition made, but the unity of possession continues, 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 jointtenancy rather than tenancy in common ;(u) because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenanoy, as they must necessarily be upon a tenancy in

Land given to two, to be holden the one moiety to one, and the other moiety to the other, is an estate in common;(w) and, if one grants to another half his land, the grantor and grantee are also tenants in common (2) because, as has been before(y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed, that it is impossible they should take a joint-interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy;(2) because that is necessarily implied in the word "jointly,” the word “severally” perhaps only implying the power of partition: and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint-tenancy, (a)" (for it implies no more than the law has annexed to that estate, viz., divisibility,)() yet in wills it is certainly a tenancy in common ;(C) because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed.25 And this nicety in the wording of grants makes it the most 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

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24 In Gaskin vs. Gaskin, M. 18 Geo. III., as reported in Cowper, Aston, J., said that tho words "equally to be divided between them" had been adjudged a tenancy in common even in A deed - ARCHBOLD.

25 In ancient times joint-tenancy was favoured by the courts of law, because it was more convenient to the lord and more consistent with feudal principles; but these reasons have long ceased, and a joint-tenancy is now everywhere regarded, as lord Cowper says it is in equity, as an odious thing. 1 Salk. 158. In wills, the expressions equally to be divided, share and share alike, respectively, between and amongst, have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. 1 Cox's P. Wms. 14. I should have but little doubt but the same construction would now be put upon the word severally, which seems peculiarly to denote separation or division. But these words are only evidence of intention, and will not create a tenancy in common when the contrary from other parts of the will appears to be the manifest intention of the testator. 3 Bro. 215.

The words equally to be divided make a tenancy in common in surrenders of copyholds, and also in deeds, which derive their operation from the statute of uses. 1. P. Wms. 14. 1 Wils. 341. 2 Ves. 257. And though lord Hardwicke seems to be of opinion, in 1 Ves. 165, 2 Ves. 257, that these words are not sufficient to create a tenancy in common-law conveyances, yet I am inclined to think that in such a case nothing but invincible authority would now induce the courts to adopt that opinion and to decide in favour of a joint-tenancy.-CHRISTIAN.

description, and limit the estate to A. and B., to hold as ienants 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 mentioned,(d) 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.26 Their 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 of account, by the statutes of Westm. 2, c. 22, and 4 Anne, c. 16. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate ;(e) though, if one actually turns the other out of possession, an action of ejectment will lie against him.(f) 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,(9) unless in the case where some entire 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.28

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28 But a tenancy in common with benefit of survivorship may exist without being a joint-tenancy, because survivorship is not the only characteristic of a joint-tenancy. Per Bayley, J., 1 M. & S. 435.-Chitty.

** But adverse possession, or the uninterrupted receipt of the rents and profits,-no demand being made by co-tenant, or, if made, refused, and his title denied,--is now held to be evidence of an actual ouster. And where one tenant in common has been in undisturbed possession for twenty years, in an ejectment brought against him by the cotenant the jury will be directed to presume an actual ouster, and consequently to find a verdict for the defendant, the plaintiff's right to recover in ejectment after twenty years being taken away by the statute of limitations. Cowp. 217. But the statute always receives a strict construction in favour of the claimant: therefore presumptions are against adverse possession, as between privies. 2 Bos. & Pul. 542. If a lessee of two tenants in common pay the whole of the rent to one after notice from the other to pay them each a moiety, the tenant in common who gave such notice may distrein for his share. Harrison vs. Ornby, 5 T. R. 246. 5 Bar. & Ald. 851.

An action of ejectment is maintainable by one of two tenants in common who had agreed to divide their property, if after such agreement the defendant who held under both as occupier pay rent under a distress to such co-tenant alone; and it is no defence to such action that the deed of partition between the co-tenants had not been executed. 3 Moore, 229. Brod. & B. 11 S. C.; and see 5 Bar.& Ald. 851.-Chitty.

28 The rule which determines whether tenants in common should sue jointly or sererally is founded upon the nature of their interest in the matter or thing which is the cause of action. For injuries to their common property, as trespass quare clausum fregit, or a nuisance, &c., or the recovery of any thing in which they have a common right, as for rent reserved by them, or waste upon a lease for years, they should all be a party to the action ; but they must sue severally in a real action generally, for they have several titles. Com. Dig. Abatement, E. 10. Co. Litt. 197. But if waste be committed where there is no lease by them all, the action by one alone is good. 2 Mod. 62. But one tenant in common cannot avow alone for taking cattle damage feasant, but he ought also to make cognizance as bailiff of his companion. 2 Hen. Bla. 386. Sir Wm. Jones Rep. 253.-Chitty.

By the 3 & 4 W. IV. c. 27, s. 12, the same provision is made with respect to the possession of one tenant in common as has already been mentioned with respect to that of a joint-tenant. Ante, p. 182, n.; and see as to the construction of this clause Doe d. Calley vs. Taylorson, 3 Per. & Dav. 539.-STEWART.

An entry or possession by one tenant in common enures to the benefit of his cotenants, not only as concerns themselves, but as concerns strangers. Caruthers us. Dunning, 3 S. & R. 381. There may be cases, however, in which the entry or possession of one tenant in common may amount to an ouster, so as to give him on the one hand the advantage of an adverse holding, and, on the other hand, entitle his co-tenant to treat hini as a stranger and trespasser. What, then, amounts to such an ouster? It must be by some clear, positive, and unequivocal act, amounting to an open denial of their right

Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty: 2. By making partitions between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of estates.

CHAPTER XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

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 now come 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:(a)-Titulus est justa causa possidendi id quod nostrum est: 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 possession, or actual occupation of the estate, without any apparent right, or any shadow or pretence of right, to hold and continue such possession. This

() 1 Inst. 345.

and putting them out of the seisin. Such ouster will not be presumed merely from his taking the rents and profits, (unless after the lapse of a very great length of time,) but must be proved by decisive acts of a hostile character. Watson vs. Gregg, 10 Watts, 289. Mere declarations will not answer the purpose. Hall vs. Matthias, 4 W. & 8. 331. A mere entry by one co-heir into the land of his ancestor, claiming it all, and taking the rents and profits for twenty-one years, is no disseisin of the other heirs: to make it such, there must be some plain, decisive, and unequivocal act or conduct on the part of the heir so entering amounting to an adverse and wrongful possession in himself and disseisin of the others. Hart vs. Gregg, 10 Watts, 185. Batton vs. Hamilton, 2 W. & S. 294. Lloyd vs. Gordon, 2 Har. & McHen. 254. Jackson vs. Tibbitts, 9 Cowen, 241. McClung vs. Ross, 5 Wheat. 116. Where land is devised by their common ancestor to several persons in common, and one of them purchases an outstanding or adverse title, such purchase will enure to the common benefit, subject to a ratable contribution to the expense. Van Horne vs. Fonda, 5 Johns. C. R. 388. Lee vs. Fox, 6 Dana, 171. Thurston vs. Masterson, 9 Dana, 228. One joint-tenant or tenant in common cannot erect buildings or make improvements on the common property without the consent of the rest, and then claim to hold until reimbursed a proportion of the moneys expended; nor can he authorize this to be done by a third person. This is the rule at Law. There are, however, cases in which an owner of land standing by and permitting another to spend his money in improving it has in equity been deemed a delinquent, and has been compelled to surrender his right on receiving compensation, or else to pay for the improvement. But in these cases there is always some ingredient which would make it a fraud in the owner of the land to insist on his legal right. Crest vs. Jack, 3 Watts, 238. Green vs. Putnam, 1 Barbour, 500. As between tenants in common or joint-tenants of a house or mill which falls into decay, and the one is willing to repair but the other is not, he that is willing shall have a writ de reparatione facienda; and the writ saith ad reparationem et sustentationem ejusdem domus tenetur ; whereby it appeareth, as Sir Edward Coke saith, that owners are in that case bound pro bono publico to maintain houses and mills which are for the use and habitation of men. But it is only to houses and mills already erected and in being that this right extends, and not to woodland or arable lands; for there the one has no remedy against the other to make enclosure or reparation for the safeguard of the wood or corn. Gregg vs. Patterson, 9 W. & S. 197. SHARSWOOD. VOL. 1-35

545

may happen, when one man invades the possession of another, and by force or surprise turns him out of the occupation of his lands; which is termed a dis seisin, 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 *196]

ancestor and before the entry of *the heir, or after the death of a par

ticular 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 migbt be here suggested, the wrongdoer has only a mere naked possession, which the rightful owner may put an end to, by a variety of legal remedies, as will moro fully appear in the third book of these commentaries. But in the mean time, till some act be done by the rightful owner to devest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor; 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 possession no title can be completely good.

II. The next step to a good and perfect title is the right of possession, which may reside in one man, while the actual possession is not in himself, but in another. For if a man be disseised, or otherwise kept out of possession, by any of the means before mentioned, though the actual possession be lost, yet he has still remaining in him the right of possession; and may exert it whenever he thinks proper, by entering upon the disseisor, and turning him out of that occupancy which he has so illegally gained. But this right of possession is of two sorts: an apparent right of possession, 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 disseisor, or other wrongdoer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descenus to his heir; now, by the common law the heir bath obtained an apparent right, though the actual right of possession resides in the person disseised; and it shall not be lawful for the person disseised 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 *197]

right to *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 upon 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 possession, puts in his claim, and brings his action within a reasonable time, and can prove by what unlawful (6) Litt. & 385.

(9) Gilb. Ten. 18. 1 In general, a person in actual possession of real property cannot be ousted, unless the party claiming can establish some well-founded title; for it is a general rule, governing in all actions of ejectment, (the proper proceeding to recover possession of an estate,) that the plaintiff must recover on the strength of his own title, and of course he cannot in general found his claim upon the insufficiency of the defendant's, (5 T. R. 110, n. 1. 1 East, 246. 11 East, 488. 3 M. & S. 516 ;) for possession gives the defendant a right against every person who cannot show a sufficient title, and the party who would change the possession must therefore first establish a legal title. Id. ibid. 4 Burr. 2487. 2 T. Ř. 634.7 T. R. 47. And this rule, it is said, prevails even if a stranger who has no colour of title should evict a person who has been in possession short of twenty years but who has not a strict legal title. 2 T. R. 749. 1 Ēast, 246. 2 East, 469. 13 Ves. Jr. 119. But, according to Allan vs. Rivington, 2 Saund. 111, a., and 6 Taunt. 548, n. a., a prior occupancy is a sufficient title against a wrongdoer; but it is observed in a note to the first case that this is contrary to the general use, and it is suggested that there is a mistake in terms. At all events, a person who is let into possession by a landlord cannot after the expiration of the tenancy put the plaintiff to prove nis title in an action of pjectment, or dispute the same. 2 Bla. R. 1250. 7 T. R. 488. 4 M. &S 347.–CHITTY.

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