Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant's estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint reversion. (7) (7) If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate. (m) On the same reason, livery of seisin, made to one joint-tenant, shall 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) (8) In all actions also relating to their joint-estate, one jointtenant cannot sue or be sued without joining the other. (p) (9) But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either; because neither joint-tenant hath a [*183] several right of patronage, but each is seised of *the whole; and if they do not 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, so 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; (10) as to let leases, or to grant copyholds: (8) 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 joint-tenant against another, unless he had constituted him his bailiff or receiver, (u) yet now by the statute 4 Ann. 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. (11) From the same principle also arises the remaining grand incident of jointestates; viz.: the doctrine of survivorship: by which when two or more per (1) Co. Litt. 214. (q) Ibid. 185. (m) Ibid. 192. (r) 3 Leon. 262. (n) Ibid. 49. (0) Ibid. 319, 364. (p) Ibid. 195. (u) Co. Litt. 200. (7) [Per Abbott, C. J.; 5 B. and A. 851. If there were originally a joint letting by parol, and afterwards one of the two give notice to the tenant to pay him separately, and his share be paid accordingly, this is evidence of a fresh, separate demise of his share, and he must sue separately. Id.] (8) In ejectment the possession of one joint-tenant was formerly the possession of the other, so as to prevent the statute of limitations from running against him. Ford v. Lord Grey, 6 Mod. 44; S. C. 1 Salk. 285. But now by the 12th section of the statute 3 and 4 Geo. IV, c. 27, it is enacted that the possession of one coparcener, joint-tenant or tenant in common, shall not be deemed the possession of the others, unless their shares of the profits of the land were received for their benefit by the party in possession.] (9) [See last note. If four joint-tenants jointly demise from year to year, such of them as give notice to quit, may recover their several shares in ejectment on their several demises. 3 Taunt. 120.] (10) [In consequence of the right of survivorship among joint-tenants, all charges made 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. § 286. But, if the grantor of the charge survives, of course, it is good. Co. Litt. 184, b. So, if 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. § 289; Whittock v. Horton, Cro. Jac. 91; Clerk v. Turner, 2 Vern. 323.] (11) This action is now obsolete, and a bill in equity for an account is substituted. sons 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) (12) This is the 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 other; [*184] 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 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 divested 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. This right of survivorship is called by our ancient authors (2) 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, (2) 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. 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 [*185] constituent unities. 1. That 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-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants 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 jointtenants 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: (b) 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, joint-tenants, either of inheritances or other less estates, are compellable by writ (w) Litt. 280, 281. (b) Litt. § 290. (12) [And that free from any claim of dower or curtesy on account of the inheritance that was in the deceased joint-tenant. Co. Litt. 37.] of partition to divide their lands. (c) (13) 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. (14) But a devise of one's share by will *is no severance of the jointure: (15) [*186] for no testament takes effect till after the death of the testator, and by such death 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. (f) (16) 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; (g) 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. (h) In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure: (i) 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: (7) and if one of three jointtenants release his 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 any 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. [*187] *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 (e) Thus, by the civil law, nemo invitus compellitur ad communionem. (Ff. 12, 6, 26, § 4. And again, si non omnes qui rem communem habent, sed certi ex his, dividere desiderant; hoc judicium inter eos accipi potest. (Ff. 10, 3, 8.) (e) Jus accrescendi præfertur ultima voluntati. Co. Litt. 185. (h) 2 Rep. 60. Co. Litt. 182. (i) Litt. § 302, 303. (d) Litt. 292. (g) Cro. Eliz. 470. () Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet. Co. Litt. 188. (1) Litt. § 294. (m) Ibid. § 304. (f) Litt. § 287. (13) This writ is abolished, and a bill in equity for partition is now the remedy in these cases. By statute 31 and 32 Vic. c. 40, the court may order a sale, instead of partition, where that course appears proper. (14) [When an estate is devised to A and B, who are strangers to, and have no connexion with, each other, the conveyance by one of them severs the joint-tenancy, and passes a moiety; but 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, divest 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.] (15) [A covenant by a joint-tenant to sell, though it does not sever the joint-tenancy at law, will do so in equity; Browne v. Raindle, 3 Ves. 257; Hinton v. Hinton, 2 Ves. Sen. 639; provided the agreement for sale be one of which a specific performance could be enforced. Pateriche v. Powlett, 2 Atk. 54; Hinton v. Hinton, 2 Ves. Sen. 634.] (16) A joint-tenant wishing to devise his estate must first cause partition thereof to be made, as otherwise the right of survivorship will exclude the devise. 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: (o) 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. An estate held in coparcenary (17) 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 seized 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 co-heirs are then called co-parceners; or, for brevity, parceners only. (q) 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 estate among them.(s) *The properties of parceners are in some respects like those of jointtenants; they having the same unities of interest, title and possession. [*188] 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 coparcenars 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 of coparcenary. For if a man had two daughters, to whom his estate descends in coparcenary, and one died 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 an 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 parceners. But if *the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes [*189] her share, though no partition be made, then are the lands no longer held in coparcenary, but in common. (a) Parceners are so called, saith Littleton, (b) because they may be constrained to make partition. (18) And he mentions many methods of making it; (c) four (n) 1 Jones. 55. (r) Ibid. § 265. (w) 3 Inst. 403. (a) Litt. 309. (0) 4 Leon. 237. (p) Co. Litt. 252. (t) Ibid. 164. (c) 243 to 264. (q) Litt. 241, 242. (17) The distinction between estates in common and estates in coparcenary can scarcely be said to exist in America. See 4 Kent, 367; 1 Washb. Real Prop. 415. (18) Coparceners may convey to each other, both by feoffment and by release, because their seisin to some interests is joint, and to some several. Co. Litt. 200, b. Whereas joint-tenants Vol. I-58 457 of which are by consent, and one by compulsion. The first is where they agree 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) (19) 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 impanneled, and assign to each of the parceners her part in severalty.(e) But there are some things *which are in their nature impartible. The [*190] mansion-house, common of estovers, common of piscary uncertain, or any 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.(ƒ) 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),(g) 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 divide 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 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: (?) "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 housewifery 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 was presumed to be sufficiently *provided for, [*191 ] and the rest of the inheritance was divided among her other sisters. (d) Co. Litt. 166. 3 Rep. 22. (e) By statute 8 and 9 Ŵm. III. c. 31, an easier method of carrying on the proceedings on a writ of partition, of lands held either in joint-tenancy, parcenary, or common, than was used at the common law, is chalked out and provided. (f) Co. Litt. 164, 165. (i) l. 2 t. 14, c. 15. (g) See page 115. (k) Britton, c. 72. (h) Bracton, 1. 2. c. 34. Litt. § 266 to 273. can release to, but not enfeoff each other, because the freehold is joint. Ib. And one tenant in common may enfeoff his companion, but not release, because the freehold is several. Ib. Such partitions are now usually made by means of a bill in chancery in the same manner as partition between joint tenants.] (19) [See 1 Ves. Sen. 340; Burn. Eccl. Law, vol. 1, p. 15; 7 Sim. 257.] |