Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Twelfth : Of Estates in Severalty, Joint-Tenancy, Coparcenary, and Common
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Ch. 12.
Chapter the twelfth.
Of ESTATES in SEVERALTY, JOINT-
TENANCY, COPARCENARY, and
COMMON.
We come now to treat of eftate, with refpect to the number and connexions of their owners, the tenants who occupy and hold them. And, confidered in this view, eftates of any quantity or length of duration, and whether they be in actual poffeffion or expectancy, may be held in four different ways ; in feveralty, in joint-tenancy, in coparcenary, and in common.
1. He that holds lands or tenements in feveralty, or is fole tenant thereof, is he that holds them in his own right only, without any other perfon being joined or connected with him in point of intereft, during his eftate therein. This is the moft common and ufual way of holding an eftate ; and therefore we may make the fame obfervations here, that we did upon eftates in poffeffion, as contradiftinguifhed from thofe in expectancy, in the preceding chapter : that there is little or nothing peculiar to be remarked concerning it, fince all eftates are fuppofed to be of this fort, unlefs where they are expreffly declared to be otherwife ; and that, in laying down general rules and doctrines, we ufually apply them to fuch eftates as are held in feveralty. I fhall therefore proceed to confider the other three fpecies of eftates, in which there are always a plurality of tenants.
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II. A n eftate in joint-tenancy is where lands of tenements are granted to two or more perfons, to hold in fee-fimple, fee-tail, for life, for years, or at will. In confequence of fuch grants the eftate is called an eftate in joint-tenancy
a, and fometimes an eftate in jointure, which word as well as the other fignifies a union or conjunction of intereft ; though in common fpeech the term, jointure, is now ufually confined to the joint eftate, which by virtue of the ftatute 27 Hen. VIII. c. 10. is frequently vefted in the hufband and wife before marriage, as a full fatisfaction and bar of the woman's dower
b.
In unfolding this title, and the two remaining ones in the prefent chapter, we will firft enquire, how thefe eftates may be created ; next, their properties and refpective incidents ; and laftly, how they may be fevered or deftroyed.
I. The K creation of an eftate in joint-tenancy depends on the wording of the deed or devife, by which the tenants claim title ; for this eftate can only arife by purchafe or grant, that is, by the act of the parties, and never by the mere act of law. Now, if an eftate be given to a plurality of perfons, without adding any reftrictive, exclufive, or explanatory words, as if an eftate be granted to A and B and their heirs, this makes them immediately joint-tenants in fee of the lands. For the law interprets the grant fo as to make all parts of it take effect, which can only be done by creating an equal eftate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other refpects. For,
- The properties of a joint eftate are derived from it's unity, which is fourfold ; the unity of intereft, the unity of title, the unity of time, and the unity of poffeffion : or, in other words, joint-tenants have one and the fame intereft, accruing by one and the fame conveyance, commencing at one and the fame time, and held by one and the fame undivided poffeffion.
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a Litt. §. 277.
b See pag. 137.
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First,
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First, they muft have one and the fame intereft. One joint-tenant cannot be entitledto one period of duration or quantity of intereft in lands, and the other to a different : one cannot be tenant for life, and the other for years : 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. 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 refpective lives, and A has the remainder of the fee in feveralty : or, if land be given to A and B, and the heirs of the body of A ; here both have a joint eftate for life, and A hath a feveral remainder in tail
e. Secondly, joint-tenants muft alfo have an unity of title : their eftate muft be created by one and the fame act, whether legal or illegal ; as by one and the fame grant, or by one and the fame diffeifin
f. Joint-tenancy cannot arife by defcent or act of law ; but merely by purchafe, or ac-quifition by the act of the party : and, unlefs that act be one and the fame, the two tenants would have different titles ; and if they had different titles, one might prove good, and the other bad, which would abfolutely deftroy the jointure. Thirdly, there muft alfo be an unity of time : their eftates muft be vefted at one and the fame period, as well as by one and the fame title. As in café of a prefent eftate made to A and B ; or a remainder in fee to A and B after a particular eftate ; in either café A and B are joint tenants of this prefent eftate, or this vefted remainder. But if, after a leafe for life, the remainder be limited to the heirs of A and B ; and during the continuance of the particular eftate A dies, which vefts the remainder of one moiety in his heir ; and then B dies, whereby the other moiety becomes vefted 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 vefted at one time, and the other moiety vefted at another
g. Yet, where
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c Co. Litt. 188.
d Litt. §. 277.
e Ibid. §. 285.
f Ibid. §. 278.
g Co. Litt. 188.
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a feoffment
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a feoffment was made to the ufe of a man, and fuch wife as he fhould afferwards marry, for term of their lives, and he after-wards married ; in this café it feems to have been held that the hufband and wife had a join eftate, though vefted at different times
h : becaufe the ufe of the wife's eftate was in abeyance and dormant till the intermarriage ; and, being then awakened, had relation back, and took effect from the original time of creation. Laftly, in join-tenancy, there muft be an unity of poffeffion. Joint-tenants are faid to be feifed per my et per tout, by the half or moiety, and by all ; that is they each of them have the entire poffeffion, as well of every parcel as of the whole
i. They have not, one of them a feifin of one half or moiety, and the other of the other moiety ; neither can one be exclufively feifed 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
k.
Upon thefe principles, of a thorough and intimate union of intereft and poffeffion, depend many other confequences and incidents to the joint-tenant's eftate. If two joint-tenants let a verbal leafe of their land, referving rent to be paid to one of them, it fhall enure to both, in refpect of the joint reverfion
l. If their leffee furrenders his leafe to one of them, it fhall alfo enure to both, becaufe of the privity, or relation of their eftate
m. One the fame reafon, livery of feifin, made to one joint-tenant, fhall 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
o. In all actions alfo relating to their joint eftate, one joint-tenant cannot fue or be fued without joining the other
p. But if two or more joint-tenants be feifed of an advowfon, and they prefent different clerks, the bifhop may refufe to admit either ; becaufe neither joint-tenant hath a feveral right of patronage, but each is feifed of the
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h Dyer. 340. 1 Rep. 101.
i Litt. §. 288. 5 Rep. 10.
k Luilibet totum tenet et nihil tenet ; fcilicet, totum in communi, et nihil feparatim per fe. Bract. 1. 5. tr. C. 26.
l Co. Litt. 214.
m Ibid. 192.
n Ibid. 49.
o Ibid. 319. 364.
p Ibid. 195.
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whole :
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Whole : and, if they do not both agree within fix months, the right of prefentation fhall lapfe. But the ordinary may, if he pleafes, admit a clerk prefented by either, for the good of the church, that divine fervice may be regularly performed ; which is no more than he otherwife would be entitled to do, in café their difagreement continued ; fo as to incur a lapfe : and, if the clerk of one joint-tenant be fo admitted, this fhall keep up the title in both of them ; in refpect of the privity and union of their eftate q. Upon the fame ground it is held, that one joint-tenant cannot have an action againft another for trefpafs, in refpect 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 himfelf to do any act, which may tend to defeat or injure the eftate of the other ; as to let leafes, or to grant copyholds
s : and, if any wafte be done, which tends to the deftruction of the inheritance, one joint-tenant may have an action of wafte againft the other, by conftruction of the ftatute Weftm. 2. c. 22
t. So too, tough at common law no action of account lay for one joint-tenant againft another, unlefs he had conftituted him his bailiff or receiver
u, yet now by the ftatute 4 Ann. c. 16. joint-tenant may have actions of account againft each other, for receiving more than their due fhare of the profits of the tenements held in joint-tenant.
From the fame principle alfo arifes the remaining grand incidentof joint eftates ; viz. the doctrine of furvivorfhip : by which, when two or more perfons are feifed of a joint eftate of inheritance, for their own lives, or pur auter vie, or are jointly poffeffed of any chattel intereft, the entire tenancy upon the deceafe of any of them remains to the furvivors, and at length to the laft furvivor ; and he fhall be entitled to the whole eftate, whatever it be, whether an inheritance or a common freehold only, or even a lefs eftate
w. This is the natural andregular confequence of the union and entirely of their intereft. The intereft of two joint-
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q Co. Litt. 185.
r 3 Leon. 262.
s 1 Leon. 234.
t 2 Inft. 403.
u Co. Litt. 200.
w Litt. §. 280. 281.
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tenants
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Tenants is not only equal or fimilar, but alfo is one and the fame, One has not originally a diftinct moiety from the other ; but, if by any fubfequent act ( as by alienation or forfeiture of either 0 the intereft become feparate and diftinct, the joint-tenancy inftantly ceafes. But, while it continues, each of two joint-tenants has a concurrent intereft in the whole ; and therefore, on the death of his companion, the fole intereft in the whole remains to the furvivor. For the intereft, which the furvivor originally had, is clearlynot devefted by the death of his companion ; and no other perfon can now claim to have a joint eftate with him, for no one can now have an intereft in the whole, accruing by the fame title, and taking effect at the fame time with his own ; neither can any one claim a feparate intereft in any part of tenements ; for that would be to deprive the furvivor of the right which he has in all, and every part. As therefore the furvivor's original intereft in the whole ftill remains ; and as no one can now be admitted, either jointly or feverally, to any fhare with him therein ; it follows, that his own intereft muft now be entire and feveral, and that he fhall alone be entitled to the whole eftate ( whatever it be) that was created by the original grant.
This right of furvivorfhip is calledby our antient authors
x the jus accrefcendi, becaufe the right, upon the death of one joint-tenant, accumulates and increafes to the furvivors ; or, as they themfelves exprefs it, “ pars illa communis accrefcit fuperftitibus, “ deperfona in perfonam, ufque ad ultimum fuperftitem.” And this jus accrefcendi ougt to be mutual ; which I apprehend to be the reafon why neither the king
y, nor any corporation
z, can be a joint-tenant with a private perfon. For here is no mutuality : the private perfon has not even the remoteft chance of being feifed of the entirety, by benefit of furvivorfhip, for the king and the corporation can never die.
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x Braction, 1. 4. ir. 3. c. 9. §. 3. Fleta. 1. 3. c. 4.
y Co. Litt. 190. Finch L. 83.
z 2 Lev. 12.
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3. We
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3. We are, laftly, to enquire, how an eftate in joint-tenancy may be fevered and deftroyed. And this may be done by deftroying any of it's conftituent unities.1.That of time, which refpects only the original commencement of the joint eftate, cannon indeed (being now paft) by affected by any fubfequent tranf-actions. But,2.the joint-tenants' eftate may be deftroyed, without any alienation, by merely difuniting their poffeffion. For joint-tenants being feifed per may et per tout, every thing that tends to narrow that intereft, fo that they fhall not be feifed throughout the whole, and throughout every part, is a feverance or deftruction of the jointure. And therefore, if two join-tenants agree to part their lands, and hold them in feveralty, they are no longer joint-tenants ; for they have now no joint intereft in the whole, but only a feveral intereft refpectively in the feveral parts. And, for that reafon alfo, the right of furvivorfhip is by fuch feparation deftroyed
a. By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the others fo to do
b : for, this being an eftate originally created by the act and agreement of the parties, the law would not permit any one or more of them to deftroy the united poffeffion without a fimilar univerfal confent. But now by the ftatutes 31 Hen. VIII. c. i. and32 Hen. VIII. c. 32. Joint-tenants, either of inheritances or other lefs eftates, are compellable by writ of partition to divide their lands.3.The jointure may be deftroyed, by deftroying the unity of title. As if one joint-tenant alienes and conveys his eftate to a third perfon : here the joint-tenancy is fevered, 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 fubfequent, grantor) though, till partition made, the unity of poffeffion conti-
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aCo. Litt. 188. 193.
b§. 290.
cThus, by the civil law, nemo invitus compellitur ad communionem. (Ff. 12. 6. 26. §. 4.) And again : fi non omnes qui rem communem babent, fed certi ex is, dividere defiderant ; boc judicium inter eos accipe poteft. (Ff. 10.3.8.)
dLitt. §. 292.
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Z
neus.
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nues. But a devife of one's fhare by will is no feverance of the jointure : for no teftament takes effect till after the death of the teftator, and by fuch death the right fo the furvivor ( which accrued at the other
e) is already vefted
f. 4. It may alfo be deftroyed, by deftroying the unity of intereft. And therefore, if there by or defcends upon either, it is a feverance of the jointure
g : though, if an eftate is originally limited to two for life, and after to the heirs of one of them, the freehold fhall remain in jointure, without merging in the inheritance, they are not feparate eftates, (which is requifite in order to a merger) but branches of one in-tire eftate
h. In like manner, if a joint-tenant in fee makes a leafe for life of his fhare, this defeats the jointure
i ; for it deftroys the unity both of title and of intereft. And, whenever or by whatever means the jointure ceafes or is fevered, the right of furvivorfhip or jus accrefcendi the fame inftant ceafes with it
w. Yet, if one of theree joint-tenants alienes his fhare, the two remaining tenants ftill hold their parts by joint-tenancy and furvivorfhip
l : and, if one of three joint-tenants releafes his fhare to one of his companions, though the joint-tenancy is deftroyed with regard to that part, yet the two remaining parts are ftill held in jointure
m ; for they ftill preferve their original conftituent unities. But when, by any act or event, different interefts are created in the feveral parts of the eftate, or they are held by different titles, or if merely the poffeffion is feparated ; fo that the tenants have no longer thefe four indifpenfable properties, a famenefs of intereft, an undivided poffeffion, a title vefting at one and the fame time, and by one and the fame act or grant ; the jointure is inftantly diffolved.
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e Jus accrefcendi prefertur ultimoe voluntati. Co. Litt. 185.
f Litt. §. 287.
g Cro. Eliz. 470.
h 2 Rep. 60. Co. Litt. 182.
i Litt. §. 302. 303.
k Nihil de re accrefcit gi, qui nihil in re quando jus accrefceret habet. Co. Litt. 188.
l Litt. §. 294.
m Ibid. §. 304.
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In
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In general it is advantageous for the joint-tenants to diffolve the jointure ; fince thereby the right of furvivorfhip is taken away, and each may tranfmit his own part to his own heirs. Sometimes however it is difadvantageous to diffolve the joint eftate : as if there be joint-tenants for life, and they make partition, this diffolves the jointure ; and, though before they each of them had an eftate in the whole for their own lives and the life of their companion, now they have an eftate in a moiety only for their own lives merely ; and, on the death of either, the reverfioner fhall 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
o : for, in the firft place, by the feverance of the jointure he has given himfelf in his own moiety only an eftate for his own life ; and then he grants the fame land for the life of another : which grant, by a tenant for his own life merely, is a forfeiture of his eftate
p ; for it is creating an eftate which may by poffibility laft longer then that which he is legally entitled to.
III. An eftate held in coparcenary is where lands of inheritance defcend from the anceftor to two or more perfons. It arifes either by common law, or particular cuftom. By common law : as where a perfon feifed in fee-fimple or in fee-tail dies, and his next heirs are two or more females, his daughters, fifters, aunts, coufins, or their reprefentatives ; in this café they fhall all inherit, as will be more fully fhewn, when we treat of defcents hereafter : and thefe co-heirs are then called coparceners ; or, for brevity, parceners only
q . Parceners by particular cuftom are where lands defcend, as in gavelkind, to all the males in equal degree, as fons, brothers, uncles, &c
r. And, in either of thefe cafes, all the parceners put together make but one heir ; and have but one eftate among them
s.
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n 1 Jones. 55.
o4 Leon. 237.
p Co. Litt. 252.
q Litt. §. 241. 242.
r Ibid. §. 265.
s Co. Litt. 163.
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Z2
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The properties of parceners are in fome refpects like thofe of joint-tenants ; they having the fame unities of intereft, title, and poffeffion. They may fue and be fued jointly for matters relating to their own lands
t : and the entry of one of them fhall in fome cafes enure as the entry of them all
u. They cannot have an action of wafte
w ; for coparceners could at all times put a ftop to any wafte by a writ of partition, but till the ftatute of Henry the eighth joint-tenants 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 purchafe. Therefore if two fifters purchafe lands, to hold to them and their heirs, they are not parceners, but joint-tenants
x : and hence it likewife follows, that no lands can be held in coparcenary, but for life or years, may be held in joint-tenants.2.There is no unity of time neceffary to an eftate in coparcenary. For if a man hath two daughters, to whom his eftate defcends 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 a unity, have not an entirety, of intereft. They are properly intitled each to the whole of a diftinct moiety
z ; and of courfe there is no jus accrefcendi, or furvivorfhip between them : for each part defcends feverally to their refpective heirs, though the unity of poffeffion continues. And as long as the lands continue in a courfe of defcent, and united in poffeffion, fo long are the tenants thereof, whether male or female, called parceners. But if the poffeffion be once fevered
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tCo. Litt. 164.
uIbid. 188.
w2 Inft.403.
xLitt. §. 254.
yCo. Litt. 164. 174.
zIbid. 163, 164.
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by
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by partition, they are no longer parceners, but tenants in feveralty ; or if one parcener aliens her fhare, though no partition be made, then are the lands no longer held in coparcenary, but in common
a.
Parceners are fo called, faith Littleton
b, becaufe they may be conftrained to make partition. And he mentions many methods of making it
c ; 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 otherwife, as fhall be agreed. But this privilege of feniority is then perfonal ; for if the eldeft fifter be dead, her iffue fhall not chufe firft, but the next fifter. But, if an advowfon defcend in coparcenary, and the fifters cannot agree in the prefentation, the eldeft and her iffue, nay her hufband, or her affigns, fhall prefent alone, before the younger
d. 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 prefenting to the living, arifes from the act of the law, and is annexed not only to her perfon, but to her eftate alfo. A third method of partition is, where the eldeft divides, and then fhe fhall chufe laft ; for the rule of law is, cujus eft divifion, alterius eft electio. The fourth method is where the fifters agree to caft lots for their fhares. And thefe are the methods by confent. That by compulfion is, where one or more fue out a writ of partition againft the others, whereupon the fheriff fhall go to the lands, and make partition thereof by the verdict of a jury there impanneled,and affign to each of the parceners her part in feveralty
e. But there are fome things which
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aLitt. §. 309.
b§. 241.
c§. 243 to 264.
dCo. Litt. 166. 3 Rep. 22.
eBy ftatute 8 & 9 W. III. c. 3. An eafier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenants, parcenary, or common, than was ufed at the common law, is chalked out and provided.
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are
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are in their nature impartible. The manfion-houfe, common of eftovers, common of pifcary uncertain, or any other common without ftint, fhall not be divided ; but the eldeft fifter, if fhe pleafes, fhall have them, and make the others a reafonable fatisfaction 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 eftate in coparcenary ; that if one of the daughters has had an eftate given with her in frankmarriage by her anceftor (which we may remember was fpecies of eftates-tail, freely given by a relation for advancement of his kinfwoman in marriage
g) in this café, if lands defcend from the fame anceftor to her and her fifters in fee-fimple, fhe or her heirs fhall have no fhare of them, unlefs they will agree to divide the lands fo given in frankmarriage in equal proportion with the reft of the lands defcending
h. This general divifion was known in the law of the Lombards
I, which direct the woman fo preferred in marriage, and claiming her fhare of the inheritance, mittere in confufum cum fororibus, quantum pater aut frater ei dederit, quando ambulaverit ad maritum. With us it is denominated bringing thofe lands into botchpot
k; which term I fhall explain in the very words of Littleton
l: “it “ feemeth that this word, hotchpot, is in Englifh, 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 anceftors meant to inform us
m, 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 of the donee in frankmarriage, and if fhe did not chufe to put her lands in hotchpot, fhe was prefumed to be fufficiently provi-
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fCo. Litt. 164, 165.
gSee pag. 115.
hBracton. l. 2. c. 34.Litt. §. 266 to 273.
Il. 2. t. 14. c. 15.
kBritton. c. 72.
l§. 267.
mLitt. §. 268.
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ded
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ded for, and the reft of the inheritance was divided 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 fhare, without bringing her lands fo given into hotchpot
n. And the reafon is, becaufe 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 provifion out of the fame inheritance, equal to the reft, it is not reafonable that fhe fhould have more : but lands, defcending in tail, are not diftributed by the operation of law, fo properly as per formam doni ; it matters not therefore how unequal this diftribution may be. Alfo no lands, but fuch 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
o. And therefore, as gifts in frankmarriage are fallen into difufe, I fhould hardly have mentioned the law of hotchpot, had not this method of divifion been revived and copied by the ftatute for diftribution of perfonal eftates, which we fhall hereafter confider at large.
The eftate in coparcenary may be diffolved, either by partition ; which difunites the poffeffion ; by alienation of one parcener, which difunites the title, and may difunite the intereft ; or by the whole at laft defcending to and vefting in one fingle perfon, which brings it to an eftate in feveralty.
IV. Tenants in common are fuch as hold by feveral and diftinct titles, but by unity of poffeffion ; becaufe none knoweth his own feveralty, and therefore they all occupy promifcuoufly
p. This tenancy therefore happens, where there is an unity of poffeffion merely, but perhaps an entire difunion of intereft, of title, and of time. For, if there be two tenants in common of lands, one may hold is part in fee-fimple, the other in tail, or for life ;
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nLitt. §. 274.
oIbid. 275.
pIbid. 292.
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fo
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fo that there is no neceffary unity of intereft : one may hold by defcent, the other by purchafe ; or the one by purchafe from A, the other by purchafe 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, becaufe no man can certainly tell which part is his own : otherwife even this would be foon deftroyed.
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 deftruction as does not fever the unity of poffeffion, but only the unity of title or intereft. 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 feveral titles, the other joint-tenant by the original grant, the alienee by the new alienation
q ; and they alfo have feveral interefts, the former joint-tenant in fm fee-fimple, the alienee for his own life only. So, if one joint-tenant give his part to A in tail, and the other gives is 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 common
s ; becaufe they hold by different titles, the parcener by defcent, the alienee by purchafe. 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-eftate, but they fhall have feveral inheritances ; becaufe they cannot poffibly have one heir of their two bodies, as might have been the café had the limitation been to a man and woman, and the heirs of their bodies begotten
t : and in this, and the like cafes, their iffues fhall be tenants in common ; becaufe they muft claim by different titles, one as heir of A, and the other as heir of B ; and thofe too not titles by
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qLitt. §. 293.
rIbid. 295.
sIbid. 309.
tIbid. 283.
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purchafe,
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purchafe, but defcent. In fhort, whenever an eftate in joint-tenancy or coparcenary is diffolved, fo that there be no partition made, but the unity of poffeffion continues, it is turned into a tenancy in common.
A tenancy in common may alfo be created by exprefs limitation in a deed : but here care muft be taken not to infert words which imply a joint eftate ; and then if lands be give to two or more, and it be not joint-tenancy, it muft be a tenancy in common. But the law is pat in it's conftructions to favour joint-tenancy rather than tenancy in common
u ; becaufe the divifible fervices iffuing from land (as rent, &c) are not divided, nor the entire fervices (as fealty) multiplied, by joint-tenancy, as they muft neceffarily be upon a tenancy in common. Land given to two, to be holden the one, and the other moiety to the other, is an eftate in common
w ; and, if one grants to another half his land, the grantor and grantee are alfo tenants in common
x : becaufe, as has been before
y obferved, joint-tenants do not take by diftinct halves or moieties ; and by fuch grants the divifion and feveralty of the eftate is fo plainly expreffed, that it is impoffible they fhould take a joint intereft in the whole of the tenements. But a devife to two perfons, to hold jointly and feverally, is a joint-tenancy ; becaufe that is implied in the word “jointly,” even though the word “feverally” feems to imply the direct reverfe
z : and an eftate given a A and B, equally to be divided between then, though in deeds it hath been faid to be a joint-tenancy
a, (for it implies no more than the law has annexed to that eftate, viz. divifibility
b) yet in wills it is certainly a tenancy in common
c ; becaufe the devifor may be prefumed to have meant what is moft beneficial to both the devifees, though his meaning is imperfectly expreffed. And this nicety in the wording of grant makes it the moft ufual as well as the fafeft
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uSalk. 392.
wLitt. §. 298.
xIbid. 299.
ySee pag. 182
zPoph. 52.
a1 Equ. Caf. Abr. 291.
b1. P. w
ms. 17.
c3 Rep. 39.1 Ventr. 32.
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way, when a tenancy in common is meant to be created, to add exprefs words of exclufion as well as defcription, and limit the eftate to A and B, to hold as tenants 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 ftatutes 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 diftinct moieties, and have no entirety of intereft ; and therefore there is no furvivorfhip between tenants in common. Their other incidents are fuch as merely arife from the unity of poffeffion ; and are therefore the fame as appertain to joint-tenants merely upon the account : fuch as being liable to reciprocal actions of wafte, and of account, by the ftatutes of Weftm. 2. c. 22. and 4 Ann. c. 16. For by the common law no tenant in common was liable to account to his companion for embezzling the profits of the eftate
e ; though, if one actually turns the other out of poffeffion, an action of ejectment will lie againft him
f. But, as for other incidents of joint-tenants, which arife from the privity of title, or the union and entirety of intereft, (fuch as joining or being joined in actions
g, unlefs in the café where fome intire or indivifible thing is to be recovered
h) thefe are not applicable to tenants in common, whofe interefts are diftinct, and whofe titles are not joint but feveral.
Estates in common can only be diffolved two ways :1.By uniting all the titles and interefts in one tenant, by purchafe or otherwife ; which brings the whole to one feveralty :2.By making partition between the feveral tenants in common, which gives them all refpective feveralties. For indeed tenancies in common differ in nothing from fole eftates, but merely in the blending and unity of poffeffion. And this finifhes our enquiries with refpect to the nature of eftates.
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dpag. 185, & 186.
ECo. Litt. 199.
FIbid. 200.
GLitt §. 311.
H
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