interests, the former joint-tenant in fee-simple, the alienee for his own life [* 363] 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 (t). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common (u); 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 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 (x): and in this, and the like cases, their issues 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 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. The law was formerly apt in its cona joint-tenancy structions to favour joint-tenancy rather than tenancy in common (y); because the divisable 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. These reasons have, however, long ceased to be of any validity, and now the ten The law favoured formerly. But not now. dency is quite the other way (z). Land given to two, to be holden the one moiety to one, and the other moiety to the other, [* 364] is an estate in * common (a); and, if one grants to another half his land, the grantor and grantee are also tenants in common (b); because, as has been before (c) 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. Again, where lands are given to two persons in different capacities, without words of division, they will take as tenants in common, for they cannot take as joint-tenants. Thus, if the donees be one a corporation and the other a natural person, or one by the king in his royal capacity, and a subject, the tenancy is not joint, but in common (d). In a will, the construction of which is less strict than that of a deed, any gift, imputing a division or distribution (e), or containing words denoting equality of interest, will confer a tenancy in common (f). The meaning will (e) Phillips v. Phillips, 2 Vern. 430; s. c. 1 P. W. 34; 1 Eq. Ca. Abr. 292, pl. 6; Barker v. Giles, 2 P. W. 280; Ettricke v. Ettricke, Amb. 656; Chapman v. Peat, 1 Ves. 542; Ackerman v. Burrows, 3 V. & B. 54. (f) Lewen v. Dodd, Cro. El. 443; s. c. sub. var. nom. Moo. 558; 2 and 17; Toth. 143; Harrison v. Foreman, 5 Ves. 206. The cases where this question has occurred are very numerous. be gathered from the whole will, and the words immediately constituting the gift may be controlled by the context (g). In deeds operating under the Statute of Uses, a similar liberality of interpretation has been allowed as in wills (h); and, as most deeds conveying estates to various persons are of this character, it may be said to be the general rule, and probably a common law conveyance would now be construed in a like manner (i), but it is the most * usual as well as the safest way, [* 365 ] when a tenancy in common is meant to be 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 joint-tenants. As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable in equity to make partition of their lands (k). (314) They properly take by distinct moieties, and Incidents. have no entirety of interest: and therefore there is no survivorship between tenants in common. For, though a tenancy in common for life may be created and the benefit of survivorship may, by a devise over, be added, yet this will not create a joint-tenancy, but the devise over gives a contingent interest to the survivor. "Survivorship is not the only characteristic of a joint-tenancy" (1). The 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. (315) For by the common law no tenant in common was liable to account with his companion for imbezzling the profits of the estate, or for trespass if he carried off the profits (m); though, if one actually turns the other out of possession, an action of ejectment (n) or trespass (0) will lie against him. (316) (g) Armstrong v. Eldridge, 3 B. C. C. 215; Doe d. Calkin v. Tomlinson, 2 M. & Sel. 165; Tuckerman v. Jeffries, 3 Bac. Abr. Joint-Ten. (F.) 681; Begley v. Cook, 3 Drew. 662. (h) Rigden v. Vallier, 2 Ves. S. 252. (i) See Harg. Co. Litt. 190 b: Goodtitle v. Stokes, 1 Wils. 341. Words importing equality of distribution contained in a surrender of copyholds, always have been held to create a tenancy in common. Fisher v. Wigg, 1 P. W. 14; Goodtitle v. Stokes, ubi. sup.; Rigden v. Vallier, 2 Ves. 257. (k) The law of partition as applicable to tenants in common, is the same as that already (314) See Ante, 646, note 313, as to partition. discussed as to joint tenancy, and the previous history of it is also identical. (1) Per Bayley, J., in Doe d. Borwell v. Abey, 1 M. & Sei. 428. See Hatton v. Finch, 4 Beav. 186. In Re Drakeley's Estate, 19 Beav. 395; Turner v. Whittaker, 23 Beav. 196; Sarel v. Sarcl, ib. 87. The distinction is important as regards the power of compelling a partition of the lands in fee simple. (m) Co. Litt. 199; see Jacobs v. Steward, L. R. 4 C. P. 328. (n) Co. Litt. 200. (0) Murray v. Hall, 7 C. B. 441. (315) One of the incidents of such a tenancy is, that each is bound to contribute his proportion of the necessary expenses of keeping the buildings in proper repair. And where one tenant is willing to do this, and the other is not, the latter may be compelled to discharge this duty, and to pay his share of such reasonable expenses of repair. But before one tenant can maintain an action against his co-tenant, there must have been a request to join in the reparation, and a refusal, and the expenditures must have been made before suit brought. Doane v. Badger, 12 Mass. 65; Mumford v. Brown, 6 Cow. 475. It has also been held that one tenant in common cannot make improvements, erect buildings, and the like, on the common property, and make his co-tenaut liable there for. Taylor v. Baldwin, 10 Barb. 582; Stevens v. Thompson, 17 N. H. 109; Crest v. Jack, 3 Watts, 239. (316) The same rule prevails in this country. Erwin v. Olmstead, 7 Cow. 229; Booth v. Adams, 11 Vt. 156; McGill v. Ash, 7 Penn. St. 397; Bennett v. Clemence, 6 Allen, 18; Wood [*366] *Yet mere occupation by one tenant in common, if unaccompanied by exclusion of his co-tenants, does not render him liable for rent to them (p); but if there be exclusion this is otherwise (q). (317) Those incidents of joint-tenants which arise from the privity of title and entirety of interests, are not for the most part applicable to tenants in common: thus tenants in common need not generally sue jointly, since they have several titles (r); though for injuries to their common property as trespass quare clausum fregit, or a nuisance, or similar wrongs done to the property of all, they should all be parties to the action (s): and so if the object be the recovery of a common right, as for rent reserved by them, or waste upon a lease for years. But if waste be committed where there is no lease by them all, the action by one alone is good (t). Tenancy in common can only be put an end to in 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 tenancies in common differ in nothing from sole estates, except in having the peculiarity of unity of possession. (p) M'Mahon v. Burchell, 2 Ph. 127; Sandford v. Ballard, 30 Beav. 109; Griffies v. Griffies, 8 L. T. 758; Teasdale v. Sanderson, 33 Beav. 534; where the court held where one had been in personal occupation, that he should not be allowed for lasting improve. ments unless he were charged with an occupation rent. (q) Sandford v. Ballard, 33 Beav. 401. As to what is exclusion, see, in addition to this case, Tyson v. Fairclough, 2 Sim. & S. 143. If a lessee after notice to pay the rent to two tenants in common in equal moieties pays the whole to one of them, the other (if the notice proceeded from him) may distrain for his moiety. Harrison v. Barnby, 5 T. R. 246; 5 B. & Ald. 851. See also Denys v. Shackburgh, 4 Y. & C. C. C. 42. In Re Peat's Trusts, L. R. 7 Eq. 302. (7) Litt. s. 311. (8) Co. Litt. 197; Com. Dig. Abatement, E. 10. (t) Curtis v. Bourn, 2 Mod. 62. v. Phillips, 43 N. Y. (4 Hand) 152, 156; Wait v. Richardson, 33 Vt. 190; Small v. Clifford, 38 Me. 213; Young v. Adams, 14 R. Monr. 127; Challefoux v. Ducharme, 4 Wis. 554; Goewey v. Urig, 18 Ill. 238; Manchester v. Doddridge, 3 Ind. 360, Corbin v. Cannon, 31 Miss. 570; Hannon v. Hannah, 9 Gratt. 146. It is, however, a very general rule that one tenant in common cannot maintain trespass quare clausum against the other, unless the party charged has done something which is inconsistent with the rights of his co-tenant. Lawton v. Adams, 29 Ga. 273; McPherson v. Seguine, 3 Dev. 153; Jones v. Chiles, 8 Dana, 163; Filbert v. Hoff, 42 Penn. St. 97; see Hast ings v. Hastings, 110 Mass. 280. (317) It is not easy to determine precisely what acts of a tenant in common shall, as a settled rule, constitute a disseisin of his co-tenant. If such co-tenant is actually ousted and held out of possession under a claim of exclusive right of possession by the tenant so turning him out, and there is also a denial of the co-tenant's right, and this is known by the latter, expressly or by implication, this will amount to a disseisin. Brackett v. Norcross, 1 Greenl. 89; Dexter v. Arnold, 3 Sumn. 152; Harpending v. Dutch Church, 16 Pet. 455; Gray v. Givens, Riley's Ch. (S. C.) 41; Jackson v. Tibbits, 9 Cow. 241; Wright v. Saddler, 20 N. Y. (6 Smith) 320, 330; Wood v. Phillips, 43 N. Y. (4 Hand) 152. It is a general rule that the possession of one tenant in common is the possession of all, unless there has been an actual ouster, or an exclusive taking of the profits by one of such tenants, against the will of the other co-tenants. Small v. Clifford, 38 Me. 213; Roberts v. Morgan, 30 Vt. 319; Munroe v. Luke, 1 Met. 570; Forward v. Deetz, 32 Penn. St. 69; Hoff. stetter v. Blattner, 8 Mo. 276; Meredith v. Andres, 7 Ired. Law, 5; Abercrombie v. Baldwin, 15 Ala. 763; Owen v. Morton, 27 Cal. 524, 560. * CHAPTER XIII. THE TITLE TO THINGS REAL, IN GENERAL. [* 367] 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; we come next to consider, lastly, the title to things real, with the manner of acquiring and losing it. Title to things real. 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 has the just possession of his property. A complete title involves the two elements, the fact of possession, and the right to the Title defined. possession. When the subject matter is such that there is no possession applicable, as when the title to an estate in lands, in reversion or remainder, is spoken of, an undisputed and indisputable right to it constitutes all that is involved in the name title; but in such a case we do not say that the title to the lands is complete until the estate falls into possession and the owner of the estate obtains legal possession, either by personal occupation, or that of his bailiff, or of his tenant at sufferance, will, or for years. We may consider thus shortly the parts of our definition, and then proceed to discuss the several manners in which title may be acquired and lost. Disseisin. The lowest and most imperfect degree of title consists in the mere naked possession, or actual occupation of the estate; without [*368] any right to hold and continue such possession beyond that which Mere possession. the fact of such possession affords. 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 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 wrongdoer has only a mere naked possession, which the rightful owner may put an end to by those remedies which the law provides, as will more fully appear in the third book of these commentaries. But, in the meantime, till some act be done by the rightful owner to divest this possession and assert his title, such actual possession is, prima facie, evidence of a legal title in the possessor, so that, speaking generally, the burden of proof of title is thrown upon any one who claims to oust him: this possessory title, moreover, may, by length of time and negligence of him who had the right, by degrees ripen into a perfect and indefeasible title. And at all events, with out such actual possession, no title can be completely good. (a) Co. Litt. 345. Right of sion. posses The other part of 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, [*369] and turning him out of that occupancy which he has so illegally gained, or by bringing a suitable action (b). If he neglects to bring an action or make an entry, within the period which the law has laid down (which, where no infancy or other disability exists, is limited to twenty years after the right to bring such action has accrued (c)) his right of doing so is extinguished (d); no mere claims, even though continually made, will preserve the right (e). When, therefore, the period in question has elapsed, the title of him in possession becomes indefeasible. Suits in equity must be brought within the same period as actions at law (f), except where the land is vested in a trustee upon an express trust for the claimant, or in a person claiming through such a trustee, and not a purchaser for valuable consideration, for time is no bar to a cestui que trust recovering the land (g). Where the trustee has sold the land for a valuable consideration the right first accrues at the time of the sale, and may be barred by lapse of time subsequently. Negative condi tions to be com plied with. No trust im [* 370] To complete the account of a perfect title, it is necessary that certain negative conditions should be complied with, as that no duty of the nature of a trust accompanies the right of possession so as to render it a *mere barren right, unproductive of beneficial enjoyment. In other words the right of possession must be pressed on the equally indisputable in a court of equity as a court of law. This legal estate. beneficial ownership or freedom from any binding trust, may be described as the right of property, although it is not the sense in which that phrase was formerly used (h). Next, the land must be free from any incumbrance or other claim; the nature of which, when, like mortgages, they depend upon contract, has been sufficiently discussed; and their character, when arising in invitum by process of law on the part of a creditor, will be presently treated. As to claims, generally, we need here only add that a purchaser, buying with an apparently good title, is not bound by those of which he (b) There is sometimes a difficulty in determining whether a rightful claimant is justified in re-entering without bringing an action of ejectment. Formerly, if the person in possession were so as heir of the original disseisor or other wrong doer, the right of entry was taken away or tolled, and an action was absolutely necessary, but this effect of a descent from a disseisor, called a descent cast, was taken away by the stat. 3 & 4 Will. 4, c. 27, s. 39. (Vide infra, vol. iii. p. 5.) (c) As to the time when the right is to be deemed to have accrued, and the periods within which action to recover land or other real property may be brought, see 3 & 4 Will. 4, c. 27, ss. 2—9.' As to the further periods allowed for disabilities, s. 16. Forty years is the maximum time even where disabilities (h) Co. Litt. 266; Bract. 1. 5, tr. 3, c. 5, s. 2. Formerly the right of possession and the right of property were held distinct in courts of law by reason of the different kinds of real action which existed, in some of which the right of possession was determined without fully determining the right of property. All these real actions, with a very few exceptions, of which ejectment is the chief, have been, as already remarked, abolished. |