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The incidents to joint eftates are, that the act of each tenant, in many cafes is confidered as the act of the whole. A verbal leate, by one, referving rent to hinfelf, fhall enure to the benefit of all. The furrender of a leafe to one, that was given by all, shall enure to the benefit of all. Delivery of poffeflion to one, or an entry or re-entry by one, has the fame operation, the poffeffion of one, is the poffeffion of all, fo as to prevent either from gaining a title by the poffeffion of fifteen years. So if either of the joint-tenants come within the defcriptions of the faving claufe of the ftatute, refpecting the poffeffion of lands, he faves the estate for all. They cannot fue or be fued without joining or being joined in the fuit, in all actions that relate to the joint eftate. One joint-tenant, cannot maintain an action of trefpafs against another, in refpect of the land, for each has an equal right to enter upon any part of it. But one joint-tenant, has not the power by himself, to do any act which may defeat the eftate of the other, as to leafe the land, fo as to prevent the other from poffeffing and improving. If one jointtenant commit wafte which tends to the defruction of the inheritance, no action lies at common law. No action of account lies at common law in favour of one joint-tenant, against another, unless he had conftituted him his bailiff and receiver. But now by ftatute, an action of account lies in favour of one joint-tenant, his executors or adminiflrators, against another, and his executors and adminiftrators, as bailiffs and receivers, to render their reasonable account, for the ufe and profits of the joint eftate, that have been taken, more than their proportion.

In England on the death of either of the joint-tenants, his right remains, and goes to the furviving tenants. But in this flate we have never adopted this odious and unjust doctrine of furvivorship, but on the deceafe of one of the joint-tenants, his fhare defcends to his heirs.

Thefe eftates may be fevered, or destroyed by the act of the parties in making a voluntary partition of the land. By the common law one joint-tenant cannot compel his fellows to make partition, but by ftatute partition can be enforced by an action, er writ of partition where the partners cannot agree among themfelves

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felves. The death or alienation of one of the tenants fever the joint-estate, and reduce it to a tenancy in common.

III. An estate in coparcenary is where lands of inheritance defcend from the ancestor, to two, or more females his daughters, fifters, aunts, coufins, or their reprefentatives in equal shares, there being no male heirs in fuch cafes they are called co-parceners, or for brevity's fake parceners. This fpecies of eftate feems to have been introduced into England on this account. The general law there is, that if there be fons, the eldelt fhall inherit the whole lands but if there be daughters they fhall inherit equally, and to diftinguish this fpecies of eftates they have called female heirs, parceners. But in this ftate we have not in reality any occafion to make this diftinction, for by our laws all male, and female heirs in the fame degree inherit alike, and if there be male and female or female heirs only, the ftatute law has provided for the diftribution of the eftate by the order of the court of probate. In all cafes where lands defcend to a number of heirs, fuch heirs may be confidered as joint tenants, or tenants in common till the diftribution, of the estate takes place, and in cafe of a number of female heirs, if they do not proceed to a distribution, pursuant to the ftatute, they may be called parceners, but have the fame effential relation to each other as joint-tenants; there being only a nominal distinction, as they inherit the eftate, and it may veft in them at different periods, but cannot be done in joint-estates.

Parceners have the fame unity of interest, title, and poffeffion as joint-tenants. They muft fue and be fued jointly in all matters refpecting their own lands; and the entry and poffeffion of one, enures to the benefit of all, in the fame manner as in the cafe of joint-tenants. They cannot maintain actions of trefpaís or waste against each other. In England the doctrine of furvivorship is not admitted, because they are not confidered as poffeffed of an entirety, but a distinct moiety of the estate. At the common law, account will not lie in favor of one parcener against another, but by our statute law this action lies in favor of one parcener, her executors and administrators against another parcener, and her executors and administrators, as bailiffs, and receivers for VOL. I. N n Black. Com. 187. Co. Lit. 163.

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the rents, and profits of the land, where they have received more than their juft proportion.

By the common law, and also by the ftatute law, parceners may compel a partition of their eftates by action of partition. They may diffolve the estate by voluntary partition, alienation, or by vefting the whole in one perfon, which reduces it to an eftate in feveralty.

JV. S Eftates in common are where feveral perfons hold by several and distinct titles, but by unity of poffeffion, for the feperate eftate of each, not being afcertained they must all improve together. Unity of poffeffion is effential to constitute this eftate. But the quantity of intereft, the manner in which the title is deri. ved, and the time of enjoyment may be totally different, one may have a freehold interest, another an estate for years, one may derive his title by defcent, and another by purchase, and if there be a unity of poffeffion, it conftitutes an estate in common.

Where an estate by our law defcends to a number of heirs in equal fhares, (as is the cafe in all defcents of lands, the owner dying inteftate leaving a number of children,) the heirs have an eftate attended with all the properties of a joint-tenancy; for there is unity of time, intereft, title, and poffeffion, but as they derive their title by defcent, which is repugnant to the nature of a joint eftate, they must be confidered as tenants in common, and by our law an estate in common, in fuch cafes, may contain all the unities of a joint eftate.

Estates in common may be created by a diffolution of eftates in joint-tenancy and coparcenary, where the unity of poffeffion is left. Thus if there be two joint-tenants or parceners, and one aliens his right, the other joint-tenant, or parcener and the alienee are tenants in common. This destroys that unity which confti. tates the former eftates, and of courfe they are changed into estates in common. Estates in common may be expressly created by deed. Thus where an eftate is given to two, to be holden one moiety by one, and the other moiety by the other, it is a tenancy in common, becaufe joint-tenants do not have diflinct moieties. A devife to

fa Black. Com. 191. - Ce. Lit. 188.

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two perfons to hold jointly and feverally, is a joint estate. An eftate granted to two perfons, to be equally to be holden between them, in deeds, is faid to be a joint eftate, and in wills a common eftate; but the fafeft method is to declare by exprefs words in the deeds or wills, the kind of estate intended to be created.

By the law of England, the right of survivorship, does not take place in eftates in common. By the common law, tenants in common must join in all perfonal actions, where the profits of the land or fome entire indivifible things are in queftion, as in actions of trespass against strangers : but in all real actions where the realty, or title of the land is concerned, they must bring feveral actions, as in cafes of diffeifin-because the poffeffion only is joint, and not the title. If an action be brought by a tenant in common, when all ought to join, the defendant can take advantage only by a plea in abatement. Actions of wafte and account do not at common law lie in favour of one tenant in common, against another, but account lies by the ftatute law. If one tenant in common diffeife, or eject another, the tenant fo diffeifed, may have an action of diffeifin against the ejector. But then it must be an actual diffeifin, as turning him out, and hindering him from entering, and a bare perception of the profits will not be enough.

Estates in common may be diffolved by uniting all the titles and interefts in one tenant, by purchase or otherwife, or by voluntary partition. The ftatute law authorifes a compulfory partition by action or writ of partition.

CHAPTER FOURTEENTH,

OF TITLE TO THINGS REAL IN GENERAL.

IN the preceding part of this book, we have confidered the na

ture of things real, the manner of holding them, and the dif ferent kinds of eftates that may be had in them. We come now to confider the title to things real, with the manner of acquring and lofing it.

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The nature of our general title to things was explained in the first chapter of this book. We are now to contemplate the title of individuals to lands in virtue of pofitive laws. A title may be defined to be a just right, which a certain man has according to the rules of pofitive law, to enter upon, poffefs, occupy, and take the benefit of a particular tract of land, in preference to, and in exclufion of the rest of mankind. There are however several degrees in which fundry persons may have a kind of right to lands, which must be confidered to form an idea of a compleat title to lands.

The naked poffeffion, or actual occupation of lands without any color of right, is the lowest degree of title. Such is the cafe with all diffeifors, who by force, or furprise turn the owners out of the poffeffion of their lands, and obtain the poffeffion; or who by any method whatever, obtain the actual occupation of lands, which are owned by other perfons. In all these inftances, the diffeifor has nothing but the naked poffeffion, is a trespaffer, and may be removed by the proprietor, at any time within fifteen years but if he neglect to make his entry, keep up his claim, or bring his action within fifteen years, the diffeisor acquires an abfolute indefeasible title. Such diffeifor may hold poffeffion of the lands against all perfons, but the lawful proprietor.

2. While the diffeifor has the actual poffeffion of the lands, the diffèifor has the right of poffeffion, and the right of property, between which there is no diftinction by our law. The lawful proprietor may at any time within fifteen years, maintain an action of trespass against the diffeifor, may enter upon, and take poffeffion of the lands, or may remove him by an action of diffeifin, and thus extinguifh his poffeffory title. When the person who has the right of poffeffion and property, obtains the actual poffeffion of the lands, he establishes a compleat title.

3.

For by our law to conftitute a perfect title to lands, it is effential, that there be a conjunction of the right of poffeffion and property, with the actual poffeffion. When this union is compleated, the title is firm, permanent and established, and the proprietor

2 Black. Com. 195.

u Ibid. 196.

w Ibid. 199.

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