PART II. T. 7, CH. 3. No unity necessary, except unity of tenants in common (a). As where so much of a sum of money or residue is given to A., and so much to B., or to them "in equal shares," or "share and share alike"; or where a distinct "share" of either of the legatees is referred to; or where the legacy is given to two or more, "to be divided equally amongst them," or merely " to be divided amongst them, or to them jointly and equally," or "to and amongst them," or "to them respectively" (b). But where the devise or bequest to the co-devisees or legatees is only for life, and it appears that an ulterior devisee or legatee is not intended to take until the decease of the survivor of the co-devisees or co-legatees, they either take a joint tenaney with its incidental right of survivorship, or a tenancy in common, with an implied gift to the survivors and survivor for life (c). 648. In this tenancy, the only unity which is essential is that of possession. There either may or may not be a unity possession. of interest, title, and time. So that one tenant in common may hold his part in fee simple, and another in fee tail. One may take by descent from A. at one time, another by purchase from B. at a different time (d). And if a class of persons, as children, are to take as tenants in common, when one takes in esse, he may take the entirety; and when others are born, the estate will open and admit them to their shares. But if they are to take by way of remainder, they must be capable during the particular estate (e). 649. No entirety of interest. Conse. quences as Tenants in common have no entirety of interest, but take by distinct moieties, having distinct undivided freeholds in every part of the lands. (a) 6 Cruise T. 38, c. 15, § 10; 2 Rop. Leg. by White, 1367; 2 Jarm. Wills, 2nd ed. 211. (b) 2 Rop. Leg. by White, 1367; 2 Jarm. Wills, 2nd ed. 211; Hodges v. Grant, L. R. 4 Eq. 140; Att. Hence, 1. There is no Gen. v. Fletcher, L. R. 13 Eq. 128. (c) 2 Jarm. Wills, 2nd ed. 213, 215: Begley v. Cook, 3 Drewry 662. (d) 2 Bl. Com. 191, 192: 2 Cruise T. 20, § 2. (e) 2 Pres. Shep. T. 235. T. 7, CH. 3. regards ship and alienation. survivors hip between them. 2. Under the old law, one of PART II. them could not transfer any part to the other without livery of seisin, or what was equivalent to it (a). So that survivorthey could not release to each other the immediate freehold of lands without previously creating an estate capable of enlargement by release, as by a bargain and sale for a year (b). But now, in consequence of the statutes 4 Vict. c. 21, s. 1, and 7 & 8 Vict. c. 76, s. 2, and 8 & 9 Vict. c. 106, s. 2, a release is sufficient without any prior lease, and, indeed, the immediate freehold will pass by a mere grant (c). 650. life of an share of land, under Land Act, [It is enacted by stat. 45 & 46 Vict. c. 38, s. 19 (Appendix), Tenant for that "where the settled land comprises an undivided share undivided in land, or under the settlement, the settled land has come the Settled to be held in undivided shares, the tenant for life of an 1882. undivided share may join or concur, in any manner and to any extent necessary or proper for any purpose of this Act, with any person entitled to or having power or right of disposition of or over another undivided share."] 650a. Estates held in common are subject to dower and cur- Curtesy and tesy (d). 651. Estates in common can only be destroyed in two ways : Destruction 1. By uniting all the interests in one tenant, by purchase in common. or otherwise, which brings the whole to one estate in severalty. 2. By making partition among the several tenants in common, which gives them estates in severalty (e). 652. dower. of estates In consequence of the Statute of Frauds (29 Car. 2, c. 3), Partition. no legal partition could be made between tenants in common without a writing. And, by the stat. 7 & 8 Vict. c. 76, (a) 2 Bl. Com. 194; Co. Litt. 188 b; 6 Jarm. & Byth. by Sweet, 589; 2 Cruise T. 23, § 8; and 4 Cruise T. 32, c. 6, § 25. (b) 6 Jarm, & Byth. by Sweet, 589; 4 Cruise T. 32. c. 6, § 25; Watk. Conv. 3rd ed. by Prest. (c) See infra, Part III. T. 12, (d) 2 Cruise T. 20, § 21, 23. PART II. T. 7, CH. 3. s. 3, and 8 & 9 Vict. c. 106, s. 3, a deed is necessary to the partition of freehold or leasehold hereditaments. But an agreement in writing to make partition will have the same effect in equity as an actual partition at law (a). 653. A tenant in common can compel a partition by an application to the [Chancery Division of the High Court of Justice] or to the County Court (b). [A tenant of his share by the curtesy, or a tenant for life of a share of land, even if such life estate be determinable on his marrying again is entitled to bring an action for sale or partition (e) ] 654. (a) 2 Cruise T. 20, § 26; 6 Jarm. & Byth. by Sweet, 588; and see infra, Part III. T. 12, Ch. 2, s. 7. (b) See Story's Eq. Jur. § 650– 657; 31 & 32 Vict. c. 40, s. 12. (c) Hobson v. Sherwood, 4 Betv. 184. TITLE VIII. OF LEGAL AND EQUITABLE INTERESTS. TITLE VIII. INTERESTS may be, I. Merely Legal; II. Merely Equita- PART II. ble; III. Both Legal and Equitable. 655. Division. I. A merely legal interest is such an interest in or Definitions, ownership of real or personal property, as is not of a beneficial, but simply of a possessory and fiduciary character. 656. II. A merely equitable interest is a beneficial interest in or a beneficial ownership of real or personal property, unattended with the possessory and legal ownership thereof. 657. III. An interest both legal and equitable is an interest in or ownership of real or personal property, which confers a right both to the possession and to the beneficial enjoyment of such property, as well at law as in equity. 658. kinds of The possession spoken of here and in many other places, Different may be either personal or by substitute, as by one's termor possession. for years, whose interest, though not connected in title with our own, is not inconsistent with it. Or it may be either actual, where the land is occupied by one's self or one's bailiff, or virtual, where it is occupied by one's tenant for years, or by a termor for years whose title is consistent with our own. Or it may be either executed, as where the land is occupied by one's self or one's bailiff, or executory, as in the case of a remainderman or reversioner during the continuance of the particular estate of freehold, or of the heir before entry (a). 659. (a) Smith's Executory Interests annexed to Fearne, § 49. CHAPTER I. OF LEGAL INTERESTS; AND HEREIN OF USES. PART II. LEGAL interests, which we have already defined, may be T. 8, CH. 1. created in various ways, of which we propose to treat in interests are the Third Part of this work. One of these ways is by limitation of uses. 660. How legal created. "Use" and "trust." Origin of uses and trusts. Originally, the terms use and trust were perfectly synonymous; uses at common law being in most respects what trusts are now; and the terms use and trust are both employed in the Statute of Uses to denote the same thing (a). But, in consequence of that statute operating so as to execute or convert some uses into legal interests, but not others, an essential distinction now exists between uses and trusts. Those which the statute executes, and sometimes also some of those uses which it does not execute, and which are in reality trusts, are still called uses; while the term trusts is applied to those uses which the statute does not execute, and is never properly applied to those which the statute does execute. A use executed by the statute is a legal estate or interest. A use before the Statute of Uses was, and a trust, as distinguished from a use, now is, an equitable estate or interest. These distinctions will be more fully unfolded by the observations which follow in this and the next chapter. 661. At the common law, the beneficial ownership (that is, the right to the rents and profits, and the power of dispos ing of the estate) was inseparably annexed to the possessory and legal seisin or ownership (b). But the ecclesiastics, (a) 1 Cruise T. 12, c. 1, § 2; Co. (b) See 1 Cruise T. 11, c. 1, § 1. Litt. 271 b, n. (1), II. |