The law of hotch-pot took place then only when the other lands descending from the ancestor were fee-simple; 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 women, or by way of marriage portion. (o) 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 titles 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 *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; [*192] 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. (20) 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; (g) 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 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 joint-tenants of the lifeestate, but they shall have several inheritances; (21) 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 (20) So in the United States tenancies in common exist where real estate descends to two or more persons as heirs at law; and generally by statute, estates which, at the common law, would have been estates in joint tenancy, are made estates in common. (21) [And the same is true of a limitation to two men or two women and their heirs generally. 4 Mee. and W. 229.] 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 [*193] 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 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-tenancy, as they must necessarily be upon a tenancy in common. 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: (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 joint-tenancy; (z) 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 [*194] created, to 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 jointtenants. 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. (22) 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. (ƒ) (23) 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 appli (w) Litt. § 298. (f) Ibid. 200. (u) Salk. 392. (x) Ibid. 299. (g) Litt. 311. (z) Poph. 52. (d) Pages 185 and 189. (22) [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. and S. 435.] See Hatton v. Finch, 4 Beav. 186; In re Drakeley's Estate, 19 id. 395; Turner v Whittaker, 23 id. 196. (23) See Sandford v. Ballard, 33 Beav. 401. As to what is an exclusion of a co-tenant from possession, see this case, and also Tyson v. Fairclough, 2 Sim. and S. 143. Chap. 13.] TITLE TO THINGS REAL. cable to tenants in common, whose interests are distinct, and whose titles are not joint but several. (24) 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 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. (a)1 Inst. 345. (24) [The rule which determines whether tenants in common should sue jointly or severally, 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. 3 Hen. Bla. 386; Sir Wm. Jones, Rep. 253.] A tenant in common may convey his interest in the whole estate so held without his co-tenant And the reason is that such conjoining, but he cannot convey his share in any particular part of the estate so held, by metes and bounds, so as thereby to bind his co-tenant without his assent. veyance might injuriously affect the right of the co-tenant to partition by compelling him to take his share out of several distinct parcels, instead of having it all assigned together as one parcel, as might otherwise have been done. But any such conveyance of a part is binding upon the grantor himself, and, it seems, can be questioned only by the co-tenant whose interests are injuriously affected by it. See 1 Washb. Real Prop. 417; and cases there cited; Campau v. Godfrey, 18 Mich. 27. And for the same reason it would seem that the share of one co-tenant in less than the whole, cannot be sold on execution against him, and thereby the co-tenants be bound. Great Falls Co. v. Worster, 15 N. H. 412; Soutter v. Porter, 27 Me. 405; Campau v. Godfrey, 18 Mich. 27. Tenants in common and other joint owners are held to the utmost good faith toward each other in respect to their joint interests, and neither will be allowed to take advantage of the relation to make a profit at the expense of the other. One of them cannot acquire a tax title of the other's interest. Brown v. Hogle, 30 Ill. 119; Page v. Webster, 8 Mich. 263; Butler v. Porter, 13 id. 292; Lloyd v. Lynch, 28 Penn. St. 419. Nor can he buy in an outstanding title and use it to the prejudice of his co-tenant if the latter is willing to contribute pro rata to the purchase. Van Horne v. Fonda, 5 Johns. Ch. 407; Venable v. Beauchamp, 3 Dana, 321; Owings v. McClain, 1 A. K. Marsh. 230; Brittin v. Handy, 20 Ark. 381; Rothwell v. Dewees, 2 Black, 613. One tenant in common may compel the other to share the expense of such repairs as are absolutely necessary to save the buildings on the common property going to decay. As to this see 1 Washb. Real Prop. 421. But he cannot compel the co-tenant to make improvements, or to contribute pro rata to those he may make himself; but in the event of partition, improvements one has made at his own expense may be taken into account, and the party making them may have them set off to him, if it can be done without affecting injuriously the rights of the other. Partition between tenants in common it has been held may be made by their voluntary action, followed by exclusive possession by each in accordance with the partition, without any deed. Jackson v. Harder, 4 Johns. 202; Wood v. Fleet, 36 N. Y. 499. But see 1 Washb. on Real Prop. 450, and cases cited. Whether such partition would affect the title or not, it would so far bind the possession as to give to each co-tenant the rights and incidents of an exclusive possession of the part set off to him. Washb. ubi supra. 461 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 corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or after the death of a particular [ *196 ] 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 might be here suggested, the wrong-doer has only a mere naked possession, which the rightful owner may put an end to by a variety of legal remedies, as will more 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. (1) 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 wrong-doer, dies possessed of the land whereof he so became seised by his own unlawful act, and the same descends to his heir; now by the common law the heir hath 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) (2) for, until the contrary be proved by legal demonstration, the law will rather presume the right to reside in the heir, whose ancestor died seised, than in one [*197] who has no such presumptive evidence to urge in his own behalf. Which doctrine in some measure arose from the principles of the feudal 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 feudal 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 feudal court. But if he, who has the actual right of possession, puts in (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 id., 488; 3 M. and 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. R. 634; 7 id. 47.] (2) [That is to say, a real action. Real actions (with some few exceptions) having been abolished by the statute 3 and 4 Wm. IV, c. 27, this effect of a descent from a disseisor, called a descent cast, was also taken away by the same statute, sec. 39.] his claim, and brings his action within a reasonable time, and can prove by what unlawful means the ancestor became seised, he will then by sentence of law recover that possession, to which he hath such actual right. Yet, if he omits to bring this his possessory action within a competent time, his adversary may imperceptibly gain an actual right of possession, in consequence of the other's negligence. And by this, and certain other means, the party kept out of possession may have nothing left in him, but what we are next to speak of, viz.: III. The mere right of property, the jus proprietatis, without either possession or even the right of possession. This is frequently spoken of in our books under the name of the mere right, jus merum; and the estate of the owner is in such cases said to be totally divested, and put to a right. (d) A person in this situation may have the true ultimate property of the lands in himself: but by the intervention of certain circumstances, either by his own negligence, the solemn act of his ancestor, or the determination of a court of justice, the presumptive evidence of that right is strongly in favour of his antagonist; who has thereby obtained the absolute right of possession. As, in the first place, if a person disseised, or turned out of possession of his estate, neglects to pursue his remedy within the time limited by law: by this means the disseisor or his heirs gain the actual right of possession: *for the law presumes that either he had a good right originally, in virtue of which he entered on the [*198] lands in question, or that since such his entry he has procured a sufficient title; and, therefore, after so long an acquiescence, the law will not suffer his possession to be disturbed without inquiring into the absolute right of property. Yet, still, if the person disseised or his heir hath the true right of property remaining in himself, his estate is indeed said to be turned into a mere right; but, by proving such his better right, he may at length recover the lands. Again, if a tenant in tail discontinues his estate-tail, by alienating the lands to a stranger in fee, and dies; here the issue in tail hath no right of possession, independent of the right of property: for the law presumes prima facie that the ancestor would not disinherit, or attempt to disinherit, his heirs, unless he had power to do so; and therefore, as the ancestor had in himself the right of possession, and has transferred the same to a stranger, the law will not permit that possession now to be disturbed, unless by showing the absolute right of property to reside in another person. The heir, therefore, in this case has only a mere right, and must be strictly held to the proof of it, in order to recover the lands. Lastly, if by accident, neglect, or otherwise, judgment is given for either party in any possessory action (that is, such wherein the right of possession only, and not that of property, is contested,) and the other party hath indeed in himself the right of property, this is now turned to a mere right; and upon proof thereof in a subsequent action denominated a writ of right, he shall recover his seisin of the lands. (3) Thus, if a disseisor turns me out of possession of my lands, he thereby gains a mere naked possession, and I still retain the right of possession, and right of property. If the disseisor dies, and the land descend to his son, the son gains an apparent right of possession; but I still retain the actual right both of possession and property. If I acquiesce for thirty years, (4) without bringing any action to recover possession of the lands, the son gains the actual right of possession, and I retain *nothing but the mere right of property. And even [ *199] this right of property will fail, or at least it will be without a remedy, (d) Co. Litt. 345. (3) [This right of property, as distinguished from the right of possession, has been abolished in almost every case by the abolition of those real actions in which alone it could have been vindicated. Stat. 3 and 4 Wm. IV, c. 27.] (4) The term is now twenty years; see the statute of 3 and 4 Wm. IV, c. 27, s. 2. And by that statute it is provided that the right and title of the person who might, within the time limited, have had the proper remedy, but who has failed to resort to it, shall be extinguished. In general twenty years, after the right accrues, will be found to be the period limited by statute in the American states, within which the owner must bring action for recovery of real estate. Exceptions are generally made in these statutes in favor of infants, married women, insane persons, persons beyond the seas, and sometimes other classes. |