alienee and the remaining parcener are tenants in common; (s) because they hold by different titles, the parcener by descent, the 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 jointtenants of the life-estate, 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 [*193] 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 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 favor joint-tenancy rather than tenancy in common; (u) because the divisible services issuing from land (as rent, etc.) are not divided, nor the entire services (as fealty) multiplied by joint-tenancy, as they must necessarily be upon a tenancy in common. Land (s) Ibid. 309. (t) Ibid. 283. (u) Salk. 392. 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: (x) 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 jointtenancy; (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), (b) 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. 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 [*194] 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: (w) Litt. § 298. (x) Ibid. 299. (y) See p. 182. (a) 1 Eq. Cas. Abr. 291. (c) 3 Rep. 39. 1 Vent. 32. 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. 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 Ann. 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, (g) 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. 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 partition between the several (d) Pages 185 and 189. (f) Ibid. 200. (e) Co. Litt. 199. (g) Litt. § 311. (h) Co. Litt. 197. 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 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 disseisin, being a deprivation of that actual seisin, or |