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marriage and those descending in fee-simple, should be mixed and blended together, and then divided in equal portions among the daughters. But this was left to the choice of the donee in frankmarriage. 25. Who are tenants in common ?-191.
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.
26. Is unity of interest, of title, and of time, necessary to tenancy in common?-191.
No; unity of possession, only, is necessary to it. 27. Horo may tenancy in common be created ?-192, 193.
Either by the destruction of the two other estates, jointtenancy and coparcenary, or by special limitation in a deed.
28. Does the lar, in its constructions, favor joint-tenancy, or tenancy in common?—193.
It is apt to favor joint-tenancy rather than tenancy in common.
29. What are the incidents attending tenancy in common 8–194.
Tenants in common (like joint-tenants) are compellable, by the statutes of Henry VIII. and William III. 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. Their other incidents are such as merely arise from unity of possession ; and are, therefore, the same as appertain to jointtenants.
30. Horo can estates in common be dissolved ?-194.
In two ways : 1. By uniting all the interests and titles in une tenant, by purchase or otherwise. 2. By making partition between the several tenants in common.
31. In what do tenancies in common differ from sole estates ? -195.
In nothing, but merely the blending and unity of posses sion.
OF THE TITLE TO THINGS REAL, IN GENERAL.
1. What is a title ?-195.
A title is the means whereby the owner of lands hath the just possession of his property.
2. What are the several stages or degrees necessary to form a con. plete title to lands and tenements ?–195–199.
They are, progressively : 1st. Naked possession ; 2d. Right of possession ; 3d. Right of property ; 4th. A complete title.
3. What is the lowest and most imperfect degree of title?-195.
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.
4. Does actual possession confer title ?–196.
No; it is only prima facie evidence of a legal title in the possessor.
5. When may naked possession of lands happen?–195.
When, for instance, 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 dis-seizin.
6. May actual possession ripen into title?–196.
It may, by length of time, and negligence of him who hath the right, by degrees ripen into a perfect and indefeasible title.
7. Of what sorts is the right of possession ?-196.
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. 8. What is the right of property ?-197.
The mere right of property, jus proprietatis, without either possession, or even the right of possession, is frequently spoked of under the name of the mere right, jus merum. A person with this mere right, 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 favor of his antagonist, who has thereby obtained the absolute right of possession. By proving such better right, he may at length recover the lands. 9. When is title complete ?-199.
No title is completely good, unless the right of possession be joined with the right of property. When to this double right the actual possession also is united, then is the title completely legal.
OF TITLE BY DESCENT.
1. What are the methods of acquiring on the one hand, and of losing on the other, the title to estates in things real ?-201.
They may be acquired by descent, where the title is vested in a man by the single operation of the law; and by purchase, where the title is vested in him by his own act or agreement.
2. What is title by descent ?–201.
Title by descent, or hereditary succession, is where a man, on the death of his ancestor, acquires his estate by right of representation, as his heir at law. An heir, therefore, is he upon whom the law casts the estate immediately on the death of the ancestor ; and an estate, so descending to the heir, is in law called the inheritance.
3. What is to be said as to the importance of the doctrine of descents ?-201.
That it is the principal object of the laws of real property, in England.
4. Upon what does descent at common law depend ?—202.
It depends, not a little, on the nature of the kindred, and the several degrees of consanguinity. 5. What is consanguinity ?—202.
It is the connection or relation of persons descended from the same stock, or common ancestor. This consanguinity is either lineal or.collateral. 6. What is lineal consanguinity ?-206, 207.
Lineal consanguinity is that which subsists between persons, of whom one is descended in a direct line from the other; as betiveen John Stiles and his father, grandfather, great-grandfather, and so upward in the direct ascending line ; or between Stiles and his son, grandson, great-grandson, and so downward in the direct descending line. Collateral relations agree with the lineal in this, that they descend from the same stock or ancestor ; but differ in this, that they do not descend one from the other.
7. In what does the very being of collateral consanguinity consist 2-205.
In this descent from one and the same common ancestor.
8. What is the method of computing the degrees of collateral con sanguinity ?—205–207.
We begin at the common ancestor, and reckon downwards ; and in whatsoever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other. Thus Titius and his brother are related in the first degree ; for from the father of each of them is counted only one. Titius and his nephew are related in the second degree ; for the nephew is two degrees removed from the common ancestor, viz., his own grandfather, the father of Titius. Collateral kinsmen are such, then, as lineally spring from one and the same ancestor, who is the stirps, or root, the trunk, or common stock, from whence these relations are branched out. As if John Stiles hath two sons, who have each a numer ous issue ; both these issues are lineally descended from John Stiles as their common ancestor; and they are collateral kins
men to each other, because they are all descended from this common ancestor, and all have a portion of his blood in their veins, which denominates them consanguineous.
9. What is the first rule, or canon of descent ?—208–210.
The first rule is that inheritances shall lineally descend to the issue of the person who last died actually seized, in infinitum, but shall never lineally ascend.
10. What is the difference between heirs apparent and heirs presumptive ?—208.
Heirs apparent are such whose right of inheritance is indefeasible, provided they outlive the ancestor ; as the eldest son or his issue, who must be heir to the father whenever be happens to die.
Heirs presumptive are such who, if the ancestor should die immediately, would, in the present circumstances of things, be his heirs ; but whose right of inheritance may be defeated by the contingency of some nearer heir being born ; as a brother, or nephew, whose presumptive succession may be destroyed by the birth of a child ; or a daughter, whose hopes may be cut off by the birth of a son.
11. Who cannot properly be an ancestor ?—209.
No person can be properly such an ancestor, as that an inheritance of lands or tenements can be derived from him, unless he hath bad actual seizin of such lands, either by his own entry, or by the possession of his own or his ancestor's lessee for years, or by receiving rent from a lessee of the freehold ; or unless he hath bad what is equivalent to corporeal seizin in hereditaments that are incorporeal.
12. Is the lineal ascent excluded ?—210.
Yes ; the land shall never ascend, but shall rather escheat.
13. What is the second rule, or canon of descents ?—212, 213.
It is, that the male issue shall be admitted before the female.