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They cannot have an action of trefpafs against each other: but herein they differ from joint-tenants, that they are also , excluded from maintaining an action of wafte"; for copar

ceners could at all times put a stop to any waste by writ of partition, but till the ftatute of Henry the eighth jointtenants had no fuch power. Parceners alfo differ materially from joint-tenants in four other points: 1. They always claim by defcent, whereas joint-tenants always claim by purchase. Therefore if two fifters purchase lands, to hold to them and their heirs, they are not parceners, but jointtenants: and hence it likewife follows, that no lands can be held in coparcenary, but eftates of inheritance, which are of a defcendible nature; whereas not only eftates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time neceflary to an eftate in coparcenary. For if a man hath two daughters, to whom his eftate defcends in coparcenary, and one dies before the other; the furviving daughter and the heir of the other, or, when both are dead, their two heirs, are ftill parceners y; the eftates vefting in each of them at different times, though it be the fame quantity of intereft, and held by the fame title. 3. Parceners, though they have an unity, have not an entirety, of intereft. They are properly entitled each to the whole of a diftinct moiety 2; and of courfe there is no jus accrefcendi, or furvivorfhip between them: for each part defcends severally to their respective heirs, though the unity of poffeffion continues. And as long as the lands continue in a course of defcent, and united in poffeffion, fo long are the tenants therein, whether male or female, called parceners. But if the poffeffion be once fevered by partition, they are no longer [189] parceners, but tenants in feveralty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common (5).

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(5) And alfo all perfonal property. See page 399, poft.

PARCENERS

d

1

PARCENERS are fo called, faith Littleton, because they may be constrained to make partition. And he mentions many methods of making it; four of which are by confent, and one by compulfion. The firft is, where they agree to divide the lands into equal parts in feveralty, and that each fhall have fuch a determinate part. The fecond is, when they agree to chufe fome friend to make partition for them, and then the fifters fhall chufe each of them her part according to feniority of age; or otherwise, as shall be agreed. The privilege of feniority is in this cafe perfonal; for if the eldest sister be dead, her issue fhall not chufe firft, but the next fifter. But, if an advowfon defcend in coparcenary, and the fifters cannot agree in the prefentation, the eldest and her iffue, nay her husband, or her affigns, fhall prefent alone, before the younger (6). And the reafon given is, that the former privilege, of priority in choice upon a divifion, arifes from an act of her own, the agreement to make partition; and therefore is merely perfonal: the latter of presenting to the living, arifes from the act of the law, and is annexed not only to her perfon, but to her eftate also. A third method of partition is, where the eldeft divides, and then fhe fhall chufe laft; for the rule of law is, cujus eft divifio, alterius eft electio. The fourth method is where the fifters agree to caft lots for their fhares. And these are the methods by confent. That by compulfion is, where one or more fue out a writ of partition against the others; whereupon the sheriff fhall go to the lands, and make partition thereof by the ver dict of a jury there impanneled, and affign to each of the parçeners her part in feveralty (7).

b § 241.
§243 to 264.

But there are fome things

d Co. Litt. 166. 3 Rep. 22.
e By statute 8 & 9 W. III. c. 31. an
eafier

(6) It has been doubted whether the grantee of the eldest fifter shall have the first and fole presentation after her death. Harg. Co. Litt. 166. But it was exprefsly determined in favour of fuch a grantee in 1 Vef. 340.

(7) Another, and the moft ufual, mode of compulfion is by a decree of a court of equity. See page 183. n. z. ante.

which are in their nature impartible.

The manfion-house,

common of eftovers, common of pifcary uncertain, or any other common without ftint, fhall not be divided; but the eldeft fifter, if the pleases, fhall have them, and make the others a reasonable satisfaction in other parts of the inheritance: or, if that cannot be, then they fhall have the profits of the thing by turns, in the fame manner as they take the advowfon f.

THERE is yet another confideration 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 kinfwoman in marriage) in this case, if lands defcend from the fame ancestor to her and her fifters in fee-fimple, fhe or her heirs fhall have no share of them, unless they will agree to divide the lands fo given in frankmarriage in equal proportion with the rest of the lands defcending". This mode of divifion was known in the law of the Lombards; which directs the woman fo preferred in marriage, and claiming her share of the inheritance, mittere in confufum cum fororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing those lands into hotchpark: which term I fhall explain in the very words of Littleton: "it seemeth that this word,

hotchpot, 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 houfewifely metaphor our ancestors meant to inform us", that the lands, both thofe given in frankmarriage and thofe defcending in fee-fimple, fhould be mixed and blended together, and then divided in equal portions among all the daughters. But this was left to the choice

cafier method of carrying on the proceed-
ings on a writ of partition, of lands held
either in joint-tenancy, parcenary, or
common, than was used at the common
Jaw, is chalked out and provided.
f Co. Litt. 164, 165.

8 See pag. 115.

h Bracton. 7. 2. c. 34. Litt. § 266.

to 273.

1 /. 2. f. 14. c. 15.

k Britton. c. 72.

1 § 267.

Litt. § 268.

of the donee in frankmarriage: and if fhe did not chufe to put her lands into hotchpot, fhe was prefumed to be fufficiently provided for, and the rest of the inheritance was divided [ 191 ] among her other fifters. The law of hotchpot took place then only, when the other lands defcending from the anceftor were fee-fimple; for if they defcended in tail, the donee in frankmarriage was entitled to her share, without bringing her lands fo given into hotchpot ". And the reafon is, because lands defcending in fee-fimple are diftributed by the policy of law, for the maintenance of all the daughters; and, if one has a fufficient provision out of the fame inheritance, equal to the reft, it is not reasonable that she should have more but lands, defcending in tail, are not diftributed by the operation of the law, but by the defignation of the giver, per formam doni; it matters not therefore how unequal this diftribution may be. Alfo no lands, but such as are given in frankmarriage, fhall be brought into hotchpot; 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 difufe, I should hardly have mentioned the law of hotchpot, had not this method of divifion been revived and copied by the statute for diftribution of perfonal eftates, which we shall hereafter consider at large.

THE eftate in coparcenary may be diffolved, either by partition, which disunites the poffeffion; by alienation of one parcener, which difunites the title, and may difunite the intereft; or by the whole at last descending to and vesting in one fingle perfon, which brings it to an estate in severalty.

IV. TENANTS in common are fuch as hold by several and diftinct titles, but by unity of poffeffion; because none knoweth his own feveralty, and therefore they all occupy promiscuously P. This tenancy therefore happens, where here is a unity of poffeffion merely, but perhaps an entire

n Lith $274.

• Ibid. 275.

Ibid. 292.

difunion

difunion of intereft, of title, and of time. For, if there be two tenants in common of lands, one may hold his part in fee-fimple, the other in tail, or for life; fo that there is no [192] neceffary unity of intereft: one may hold by defcent, the other by purchafe; or the one by purchafe from A, the other by purchase from B; fo that there is no unity of title: one's eftate may have been vefted fifty years, the other's but yefterday; fo there is no unity of time. The only unity there is, is that of poffeffion: and for this Littleton gives the true reafon, because no man can certainly tell which part is his own otherwife even this would be foon destroyed.

TENANCY in common may be created, either by the deftruction of the two other eftates, in joint-tenancy and coparcenary, or by fpecial limitation in a deed. By the deftruction of the two other eftates, I mean fuch destruction as does not fever the unity of poffeffion, but only the unity of title or interest: As, if one of two joint-tenants in fee alienes his eftate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they now have fe veral titles, the other joint-tenant by the original grant, the alienee by the new alienation; and they also have several interefts, the former joint-tenant in fee-fimple, 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. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common; because they hold by different titles, the parcener by defcent, the alienee by purchase. So likewife, if there be a grant to two men, or two women, and the heirs of their bodies, here the grantees fhall be joint-tenants of the life-eflate, but they fhall have several inheritances; because they cannot poffibly have one heir of their two bodies, as might have been the cafe had the limitation been to a man and woman, and the heirs of their bodies begotten: and in this, and

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