by descent, the other by purchase; or the one by purchase from A., the other by purchase from B.; 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. 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; and they also have several interests, the former joint-tenant 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. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common; 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: and in this, and the like cases, their issue shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by purchase, but descent. In short, whenever an estate in joint-tenancy or coparcenary is dissolved, so that there be no partition made,

but the unity of possession continues, it is turned into a tenancy in common.

A tenancy in common may also be created by express limitation in a deed; but here care must be taken not to insert words which imply a joint-estate; and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common; 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; and, if one grants to another half his land, the grantor and grantee are also tenants in common; because, as has been before 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; 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 (for it implies no more than the law has annexed to that estate, viz., divisibility), yet in wills it is certainly a tenancy in common; because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, when a tenancy in common is meant to be created, to 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 by the

statutes of Henry VIII. and William III., before mentioned, 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.1 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; though, if one actually turns the other out of possession, an action of ejectment will lie against him. 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, unless in the case where some entire or indivisible thing is to be recovered), these are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.

Estates in common can only be dissolved two ways: I. 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.

'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. & S. 435.-Chitty.

CHAPTER III.

PARCENARY.

LIT., § 241. Parceners are of two sorts, to wit, parceners according to the course of the common law, and parceners according to the custome. Parceners after the course of the common law are where a man or woman, seised of certain lands or tenements in fee simple or in taile, hath no issue but daughters and dieth, and the tenements descend to the issues, and the daughters enter into the lands or tenements so descended to them, then they are called parceners, and be but one heire to their ancestour. And they are called parceners, because by the writ which is called breve de participatione facienda the law will constraine them that partition shall be made among them. And if there be two daughters to whom the land descendeth, then they bee called two parceners, and if there be three daughters they bee called three parceners, and four daughters four parceners, and so forth.

§ 242. Also, if a man seised of tenements in fee simple or in fee tayle dieth without issue of his bodie begotten, and the tenements descend to his sisters, they are parceners, as is aforesaid. And in the same manner, where he hath no sisters but the lands descend to his aunts, they are parceners, &c. But if a man hath but one daughter, she shal not be called parcener, but shee is called daughter and heir, &c.

§ 243. And it is to bee understood that partition may be made in divers maners. One is when they agree to make partition and do make partition of the tenements; as if there bee two parceners to divide between them the tenements in two parts, each part by it selfe in severalty and of equall

value; and if there bee three parceners, to divide the tenements in three parts by it selfe in severalty, &c.

§ 247. Also, there is another partition. As if there bee foure parceners, and they will not agree to a partition to be made betweene them, then the one may have a writ of partitione facienda against the other three, or two of them may have a writ of partitione facienda against the other two, or three of them may have a writ of partitione facienda against the fourth, at their election.

§ 250. And note, that partition by agreement betweene parceners may bee made by law betweene them, as well by parol without deed as by deed.

§ 254. And note that none are called parceners by the X common law but females or the heirs of females which come to lands or tenements by descent; for if sisters purchase lands or tenements, of this they are called joint tenants and not parceners.

§ 265. Parceners by the custom are where a man seised in fee simple or in fee tail of lands or tenements which are of the tenure called gavelkind within the county of Kent hath issue divers sons and die, such lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lieth in this case as between females. But it behoveth in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales.

2 BL. COм., 188. The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title and possession. They may sue and be sued jointly for matters relating to their own lands; and the entry of one of them shall in some cases enure as the entry of them all. 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; for coparceners could at all times put a stop to any