Thus much for such estates in expectancy, as are created by the express words of the parties themselves; the most intricate title in the law. There is yet another species, which is created by the act and operation of the law itself, and this is called a reversion. III. An estate in reversion is the residue of an estate left in the grantor, to commence in possession after the determination of some particular estate granted out by him. (q) Sir Edward Coke (r) describes a reversion to be the returning of land to the grantor or his heirs after the grant is over. As, if there be a gift in tail, the reversion of the fee is, without any special reservation, vested in the donor by act of law: and so also the reversion, after an estate for life, years, or at will, continues in the lessor. For the fee-simple of all lands must abide somewhere; and if he, who was before possessed of the whole, carves out of it any smaller estate, and grants it away, whatever is not so granted remains in him. A reversion is never therefore created by deed, or writing, but arises from construction of law; a remainder can never be limited, unless by either deed or devise. But both are equally transferable, when actually vested, being both estates in præsenti, though taking effect in futuro. The doctrine of reversions is plainly derived from the feudal constitution. For when a feud was granted to a man for life, or to him and his issue male, rendering either rent or other services; then, on his death or the failure of issue male, the feud was determined, and resulted back to the *lord or proprietor, to be again disposed of at his pleasure. And hence the usual incidents to reversions are said to be fealty and rent. When no rent is reserved on the particular estate, fealty, however, results of course, as an incident quite inseparable, and may be demanded as a badge of tenure, or acknowledgment of superiority; being frequently the only evidence that the lands are holden at all. Where rent is reserved, it is also incident, though not inseparably so, to the reversion. (s) The rent may be granted away, reserving the reversion; and the reversion may be granted away, reserving the rent; by special words; but by a general grant of the reversion, the rent will pass with it, as incident thereunto; though by the grant of the rent generally, the reversion will not pass. The incident passes by the grant of the principal, but not e converso: for the maxim of law is," accessorium non ducit, sed sequitur, suum principale." (t) These incidental rights of the reversioner, and the respective modes of descent, in which remainders very frequently differ from reversions, have occasioned the law to be careful in distinguishing the one from the other, however inaccurately the parties themselves may describe them. For if one seised of a paternal estate in fee makes a lease for life, with remainder to himself and his heirs, this is properly a mere reversion, (u) to which rent and fealty shall be incident; and which shall only descend to the heirs of his father's blood, and not to his heirs general, as a remainder limited to him by a third person would have done: (w) for it is the old estate, which was originally in him, and never yet was out of him. And so likewise, if a man grants a lease for life to A, reserving rent, with reversion to B, and his heirs, B hath a remainder descendible to his heirs general, and not a reversion to which the rent is incident; but the grantor shall be entitled to the rent, during the continuance of A's estate. (x) *In order to assist such persons as have any estate in remainder, reversion, or expectancy, after the death of others, against fraudulent [*177] concealments of their death, it is enacted by the statute 6 Ann. c. 18, that all persons on whose lives any lands or tenements are holden, shall (upon applica (g) Co. Litt. 22. (r) 1 Inst. 142. (8) Co. Litt. 143. (t) Ibid. 151, 152. words are such as would have given A an estate-tail in real property, in personal property the subsequent limitations are void, and A has the absolute interest; but if it appears from any clause or circumstance in the will, that the testator intended to give it over only in case A had no issue living at the time of his death, upon that event the subsequent limitation will be good as an executory devise. See Fearne, 371, and cases referred to in 3 Coxe's P. Wms. 262.] 449 VOL. I.-57 tion to the court of chancery, and order made thereupon), once in every year, if required, be produced to the court, or its commissioners; or, upon neglect or refusal, they shall be taken to be actually dead, and the person entitled to such expectant estate may enter upon and hold the lands and tenements, till the party shall appear to be living. (15) Before we conclude the doctrine of remainders and reversions, it may be proper to observe, that whenever a greater estate and a less coincide and meet in one and the same person, without any intermediate estate, (y) the less is immediately annihilated; or, in the law phrase, it is said to be merged, (16) that is, sunk or drowned in the greater. Thus, if there be tenant for years, and the reversion in fee-simple descends to or is purchased by him, the term of years is merged in the inheritance, and shall never exist any more. But they must come to one and the same person in one and the same right; else, if the freehold be in his own right, and he has a term in right of another (en auter droit), there is no merger. Therefore, if tenant for years dies, and makes him who hath the reversion in fee his executor, whereby the term of years vests also in him, the term shall not merge; for he hath the fee in his own right, and the term of years in the right of the testator, and subject to his debts and legacies. So also, if he who hath the reversion in fee marries the tenant for years, there is no merger; for he hath the inheritance in his own right, the lease in the right of his wife. (z) An estate-tail is an exception to this rule: for a man may have in his own right both an estate-tail and a reversion in fee: and the estate-tail, though a less estate, shall not merge in the fee. (a) For estates-tail are pro (y) 3 Lev. 437. (z) Plowd. 418. Cro. Jac. 275. Co. Litt. 338. (a) 2 Rep. 61. 8 Rep. 74. (15) As to this order see Ex-parte Grant, 6 Ves. 512; Ex-parte Whalley, 4 Russ. 561; Re Isaac, 4 M. and Cr. 11. In most cases a person is presumed dead who has not been heard of for seven years, and the bigamy acts allow parties to act on that presumption. See Thorne v. Rolffe, Dyer, 185; Nepean v. Doe, 2 M. and W. 910; 1 Phil. Ev. by Edwards, 640. (16) [Even if there be an intermediate contingent estate, it will be destroyed by the union and coalition of the greater estate and the less, (unless the greater estate is subjoined to the less by the same conveyance), when such coalition takes place by the conveyance or act of the parties. Purefoy v. Rogers, 2 Saund. 387. But the reports of adjudged cases apparently differ with respect to the destruction of an intermediate contingent estate, in cases where the greater estate becomes united to the less by descent; these differences, however, may be reconciled, by distinguishing between those cases where the descent of the greater estate is immediate from the person by whose will the less estate, as well as the intermediate contingent estate, were limited; and the cases where the less estate and the contingent remainders were not created by the will of the ancestor from whom the greater estate immediately descends on the less estate. In the first set of cases, the descent of the greater estate does not merge and drown the intermediate contingent remainders: Boothley v. Vernon, 9 Mod. 147; Plunkett v. Holmes, 1 Lev. 12; Archer's Case, 1 Rep. 66; in the second class of cases, it does merge them. Hartpole v. Kent, T. Jones 77; S. C., 1 Ventr. 307; Hooker v. Hooker, Rep. temp. Hardw. 13; Doe v. Scudamore, 2 Bos. and Pull. 294; and see Fearne, p. 343, 6th ed., with Serjt. Williams' note to 2 Saund. 382, a. A distinction (as already has been intimated), must be made between the cases where a par ticular estate is limited, with a contingent remainder over, and afterwards the inheritance is subjoined to the particular estate by the same conveyance; and those cases wherein the accession of the inheritance is by a conveyance, accident or circumstance, distinct from that conveyance which created the particular estate. In the latter cases, we have seen, the contingent remainder is generally destroyed; in the former it is otherwise. For, where by the same conveyance a particular estate is first limited to a person, with contingent remainder over to another, and with such a reversion or remainder to the first person as would, in its own nature, drown the particular estate first given him; this last limitation shall be considered as executed only sub modo; that is, upon such condition as to open and separate itself from the first estate, when the condition happens; and by no means to destroy the contingent estate. Lewis Bowles' Case, 11 Rep. 80: Fearne, 346, 6th ed. A court of equity will in some cases relieve against the merger of a term, and make it answer the purposes for which it was created. Thus, in Powell v. Morgan, 2 Vern. 90, a portion was directed to be raised out of a term for years, for the testator's daughter. The fee afterwards descended on her, and she, being under age, devised the portion. The court of chancery relieved against the merger of the term; and decreed the portion to go according to the will of the daughter. See also, Thomas v. Kemish, 2 Freem. 208; S. C., 2 Vern. 352; Saunders v. Bournford, Finch, 424.] [*178] tected and preserved from merger by the *operation and construction, though not by the express words, of the statute de donis: which operation and construction have probably arisen upon this consideration; that in the common cases of merger of estates for life or years by uniting with the inheritance, the particular tenant hath the sole interests in them, and hath full power at any time to defeat, destroy, or surrender them to him that hath the reversion: therefore, when such an estate unites with the reversion in fee, the law considers it in the light of a virtual surrender of the inferior estate. (b) But, in an estate-tail, the case is otherwise: the tenant for a long time had no power at all over it, so as to bar or destroy it, and now can only do it by certain special modes, by a fine, a recovery, and the like: (c) it would therefore have been strangely improvident to have permitted the tenant in tail, by purchasing the reversion in fee, to merge his particular estate, and defeat the inheritance of his issue; and hence it has become a maxim, that a tenancy in tail, which cannot be surrendered, cannot also be merged in the fee. CHAPTER XII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON. WE come now to treat of estates, with respect to the number and connexions of their owners, the tenants who occupy and hold them. And, considered in this view, estates of any quantity or length of duration, and whether they be in actual possession or expectancy, may be held in four different ways; in severalty, in joint-tenancy, in coparcenary, and in common. 1. He that hold lands or tenements in severalty, or is sole tenant thereof, is he that holds them in his own right only, without any other person being joined or connected with him in point of interest, during his estate therein. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of tenants. [*180] *II. An estate in joint-tenancy is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years or at will. In consequence of such grants an estate is called an estate in jointtenancy, (a) and sometimes an estate in jointure, which word as well as the other signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint-estate, which by virtue of the statute 27 Hen VIII, c. 10, is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower. (b) In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed. 1. The creation of an estate in joint-tenancy depends on the wording of the deed or devise, by which the tenants claim title: for this estate can only arise by purchase or grant, that is, by the act of the parties, and never by the mere act (b) Cro. Eliz. 302. (c) See page 116. (a) Litt. 277. (b) See page 137. of law. Now if an estate be given to a plurality of persons, without adding any restrictive, exclusive, or explanatory words, as if an estate 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 so as to make all parts of it take effect, which can only be done by creating an equal estate in them both. As therefore the grantor has thus united their names, the law gives them a thorough union in all other respects. (1) For, 2. The properties of a joint estate are derived from its unity, which is fourfold; the unity of interest, the unity of title, the unity of time, and the unity of possession; or, in other words, joint-tenants have one and the same interest, accruing by one and the same conveyance, commencing at one and the same time, and held by one and the same undivided possession. (2) [*181] *First, they must have one and the same interest. (3) One joint-tenant cannot be entitled to one period of duration or quantity of interest 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) (4) 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 respective lives, and A has the remainder of the fee in severalty: or if land be given to A and B, and the heirs of the body of A; here both have a joint estate for life, and A hath a several remainder in tail. (e) Secondly, joint-tenants (1) [Joint-tenancies are now regarded with so little favor, both in courts of law and equity, that whenever the expressions will import an intention in favour of a tenancy in common, it will be given effect to. Fisher v. Wigg, 1 P. Wms. 14 n., and id., 1 Ld. Raym. 622; 1 Salk. 392, note 8. Lord Cowper says, that a joint tenancy is in equity an odious thing. 1 Salk. 158. See also 2 Ves. Sen. 258. In wills the expressions “equally to be divided, share and share alike, respectively between and amongst them," have been held to create a tenancy in common. 2 Atk. 121; 4 Bro. 15. The words equally to be divided make a tenancy in common in surrenders of copyholds: 1 Salk. 391; 2 Salk. 620; and also in deeds which derive their operation from the statute of uses: 1 P. Wms. 14; 1 Wils. 341; Cowp. 660; 2 Ves. Sen. 257; and it is believed that the same words in a common law conveyance would now create a tenancy in common. When two or more purchase lands, and pay in equal proportions, a conveyance being made to them and their heirs, this is a joint-tenancy. But if they advance the money in unequal proportions, they are considered in equity in the nature of partners; and if one of them die, the others have not his share by survivorship, but are considered as trustees for the deceased's representatives. 1 Eq. Ca, Abr. 291.] (2) The principal distinguishing characteristic of estates in joint-tenancy is, that on the death of one the right in the estate survives to the other to the exclusion of the heirs and representatives of the deceased joint-tenant. The law of joint tenancy is based upon a supposed intention of a grantor, in conveying an estate as a unity to two or more persons, that it should not be severed; and therefore if a conveyance be of separate undivided halves of the same land to two different persons, an estate in joint-tenancy will not be created, even though the two halves be conveyed by the same instrument. The doctrine of survivorship is not regarded with favor in the United States, and statutes have been passed in many of the states, either abolishing it, or changing joint tenancies into tenancies in common, except in the case of conveyances in trust, or by way of mortgage, or to husband and wife, and in cases where the instruments creating them expressly declare that they shall be estates in joint-tenancy. (3) [But two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. Litt. Sec. 283, 284; 1 Inst. 184, a; Cook v. Cook, 2 Vern. 545; Cray v. Willis, 2 P. Wms. 530. This is the case, where an estate is granted in joint-tenancy to persons and the heirs of their bodies, which persons cannot intermarry. See post, p. 192. But in this case, there is no division between the estate for lives and the several inheritances, and the joint tenants cannot convey away their inheritances after their decease; the estate for lives and the inheritance are divided only in supposition and consideration of law, and to some purposes the inheritance is executed. 1 Inst. 182, b.] (4) [Lord Coke says, that if a rent charge of 107. be granted to A and B, to have and to hold to them two, viz: to A till he be married, and to B till he be advanced to a benefice, they are joint-tenants in the mean time, notwithstanding the limitations; and if A die before marriage, the rent shall survive to B. But if A had married, the rent should have ceased for a moiety, et sic e converso, on the other side. Co. Litt. 180, b; 2 Cruise Digest, 198.] must also have an unity of title; their estate must be created by one and the same act, whether legal or illegal: as by one and the same grant, or by one and the same disseisin. (f) Joint-tenancy cannot arise by descent or act of law; but merely by purchase or acquisition by the act of the party: and unless that act be one and the same, the two tenants would have different titles; and if they had different titles, one might prove good and the other bad, which would absolutely destroy the jointure. Thirdly, there must also be an unity of time; their estates must be vested at one and the same period, as well as by one and the same title. As in case of a present estate made to A and B; or a remainder in fee to A and B after a particular estate; in either case A and B are joint-tenants of this present estate, or this vested remainder. But if, after a lease for life, the remainder be limited to the heirs of A and B; and during the continuance of the particular estate A dies, which vests the remainder of one moiety in his heir; and then B dies, whereby the other moiety becomes vested 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 vested at one time, and the other moiety vested at another. (g) *Yet where a feoffment was made to the use of a man, and such wife as he should afterwards marry for term of their [*182] lives, and he afterwards married; in this case it seems to have been held that the 5 c. 26. (5)[That it is a joint claim by the same conveyance which makes joint-tenants, not the time of vesting, has been held in various other cases. See Blamforde v. Blamforde, 3 Bulstr. 101; Earl of Sussex v. Temple, 1 Lord Raym. 312; Aylor v. Chep, Cro. Jac. 259; S. C. Yelv. 183; Oates v. Jackson, 2 Str. 1172; Hales v. Risley, Pollexf, 373. So, although some of the persons to whom an estate is limited, are in by the common law, and others by the statute of uses, yet they will take in joint-tenancy: Watts v. Lee, Noy. 124, Sammes' Case, 13 Rep. 54; and Lord Thurlow held, that whether a settlement was to be considered as a conveyance of a legal estate, or a deed to uses, would make no difference, and that in either case, the vesting at different times would not necessarily prevent the settled estate from being taken in joint-tenancy. Stratton v. Best, 2 Br. 240. (6) [5 Term Rep. 654. And if a grant is made of a joint-estate to husband and wife, and a third person, the husband and wife shall have one moiety, and the third person the other moiety, in the same manner as if it had been granted only to two persons. So if the grant is to husband and wife and two others, the husband and wife take one-third in joint-tenancy. Litt. 291. But where an estate is conveyed to a man and a woman, who are not married together, and who afterwards intermarry, as they took originally by moieties, they will continue to hold by moieties after the marriage. 1 Inst. 187, b; Moody v. Moody, Amb. 649; 2 Cru. Dig. 511; 5 id. 448.] This peculiar estate is recognized by the American decisions, and is generally left unaffected by statutes. See Jackson v. Stevens, 16 Johns, 110; Ross v. Garrison, 1 Dana, 35; Taul v. Campbell, 7 Yerg. 319; Fairchild v. Chastelleaux, 1 Penn. St. 176; Den v. Whitemore, 2 Dev. and Bat. 537; Brownson v. Hull, 16 Vt. 309; Bomar v. Mullins, 4 Rich. Eq. 80; Gibson v. Zimmerman, 12 Mo. 385; 1 Wasb. Real Prop. 278. |