of A; here both have a joint estate for life, and A hath a several remainder in tail. (e) Secondly, joint-tenants 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. (ƒ) 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 [182] wife as he should afterwards marry for term of their lives, and he

afterwards married; in this case it seems to have been held that the husband and wife had a joint-estate, though vested at different times: (h) because the use of the wife's estate was in abeyance and dormant till the intermarriage; and, being then awakened, had relation back, and took effect from the original time of creation. Lastly, in joint-tenancy, there must be an unity of possession. Joint-tenants are said to be seised per my et per tout, by the half or moiety, and by all: that is, they each of them have the entire possession, as well of every parcel as of the whole. (i) They have not, one of them a seisin of one half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety. (j) And therefore, if an estate in fee be given to a man and his wife, they are neither properly joint-tenants, nor tenants in common: for husband and wife being considered as one person in law, they cannot take the estate by moieties, but both are seised of the entirety, per tout, et non per my: the consequence of which is, that neither the husband nor the wife can dispose of any part without the assent of the other, but the whole must remain to the survivor. (k) 5 e Ibid, § 285. f Ibid. § 278. g Co. Litt. 188. h Dyer, S40. 1 Rep. 101, i Litt. § 288. 5 Rep. 10. jQuilibit totum tenet et nihil tenet: scilicet, totum in communi, et nihil separatim per se. Bract. 1. 5. tr 5. c. 26. k Litt. § 665. Co. Litt. 187. Bro. Abr. t. cui in vita, 2. 2 Vern. 120, 2 Lev. 59.

(4) Where lands were devised to a woman and her children, begotten or to be begotten by W. A. and their heirs for ever, it was held that she and all her children took as joint tenants, and it was no objection that by this means the several estates might commence at different times. 2 Stra. 1172. 2 Cruise, 503. See also 2 Bro. Rep. 233. Chitty

(5) 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 noieties after the marriage. 1 Inst. 187. b. Moody v. Moody. Amb. 649. 2 Cru. Dig. 511. 5 ib. 448.

6

Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the joint-tenant's estate. If two joint-tenants let a verbal lease of their land, reserving rent to be paid to one of them, it shall enure to both, in respect of the joint-reversion. (1) If their lessee surrenders his lease to one of them, it shall also enure to both, because of the privity, or relation of their estate. (m) On the same reason, livery of seisin, made to one joint-tenant, shall enure to both of them: (n) and the entry, or re-entry, of one jointtenant is as effectual in law as if it were the act of both. (0) In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other. (p) But if two or more joint-tenants be seised of an advowson, and they present different clerks, the bishop may refuse to admit either because neither joint-tenant hath a several right of patronage, but each is seised of the whole; and if they do not both [183] agree within six months, the right of presentation shall lapse. But the ordinary may, if he pleases, admit a clerk presented by either, for the good of the church, that divine service may be regularly performed; which is no more than he otherwise would be entitled to do, in case their disagreement continued, so as to incur a lapse: and, if the clerk of one joint-tenant be so admitted, this shall keep up the title in both of them; in respect of the privity and union of their estate. (9) Upon the same ground it is held, that one joint-tenant cannot have an action against another for trespass, in respect of his land; (r) for each has an equal right to enter on any part of it. But one joint-tenant is not capable by himself to do any act, which may tend to defeat or injure the estate of the other; as to let leases, or to grant copyholds: (s) and if any waste be done, which tends to the destruction of the inheritance, one joint-tenant may have an action of waste against the other, by construction of the statute Westm. 2. c. 22. (t) So too, though at common law no action of account lay for one joint-tenant against another, unless he had constituted him his bailiff or receiver, (u) yet now by the statute 4 Ann. c. 16. joint-tenants may have actions of account against each other, for receiving more than their due share of the profits of the tenements held in joint-tenancy.

3

From the same principle also arises the remaining grand incident of joint-estates; viz. the doctrine of survivorship: by which when two or more persons are seised of a joint-estate, of inheritance, for their own lives, or pur auter vie, or are jointly possessed of any chattel interest, the entire tenancy upon the decease of any of them remains to the survivors, and at length to the last survivor; and he shall be entitled to the whole es

(6) Per Abbott, C. J. "It is clear that if there be a joint lease by two tenants in common, reserving an entire rent, the two may join in an action to recover the same; but if there be a separate reservation to each, then there must be separate actions. 5 B. & A. 851. If there were originally a joint letting by parol, and afterwards one of the two give notice to the tenant to pay him separately, and his share be paid accordingly, this is evidence of a fresh separate demise of his share, and he must sue separately. Id. ibid.

(7) See last note. If four joint-tenants jointly demise from year to year, such of them as give notice to quit, may recover their several shares in ejectment on their several demises. 3 Taunt. 120.

(8) This action is now scarcely ever brought; but the established practice is to apply to a court of equity to compel an account; which is also the jurisdiction generally resorted to in order to obtain a partition between joint-tenants, and tenants in common. Com. Dig. Chanc. 3 V. 6. & 4 E. Mitf. 109. Christian.

same.

fate, whatever it be, whether an inheritance or a common freehold only, or even a less estate. (w) This is the natural and regular conse[184] quence of the union and entirety of their interest. The interest of two joint-tenants is not only equal or similar, but also is one and the One has not originally a distinct moiety from the other; but, if by any subsequent act, (as by alienation or forfeiture of either) the interest becomes separate and distinct, the joint-tenancy instantly ceases. But, while it continues, each of two joint-tenants has a concurrent interest in the whole; and therefore, on the death of his companion, the sole interest in the whole remains to the survivor. For the interest which the survivor originally had is clearly not devested by the death of his companion; and no other person can now claim to have a joint estate with him, for no one can now have an interest in the whole, accruing by the same title, and taking effect at the same time with his own; neither can any one clain a separate interest in any part of the tenements; for that would be to deprive the survivor of the right which he has in all, and every part. As therefore the survivor's original interest in the whole still remains; and as no one can now be admitted, either jointly or severally, to any share with him therein; it follows, that his own interest must now be entire and several, and that he shall alone be entitled to the whole estate (whatever it be) that was created by the original grant.

This right of survivorship is called by our ancient authors (x) the jus accrescendi, because the right upon the death of one joint-tenant, accumulates and increases to the survivors: or, as they themselves express it, "pars illa communis accrescit superstitibus, de persona in personam, usque "ad ultimam superstitem." And this jus accrescendi ought to be mutual; which I apprehend to be one reason why neither the king, (y) nor any corporation, (2) can be a joint-tenant with a private person. For here is no mutuality: the private person has not even the remotest chance of being seised of the entirety, by benefit of survivorship; for the king and the corporation can never die."

3. We are, lastly, to inquire how an estate in joint-tenancy may be severed and destroyed. And this may be done by destroying any of its constitu

ent unities. 1. That of time, which respects only the original com[185] mencement of the joint-estate, cannot indeed (being now past) be af

fected by any subsequent transactions. But, 2. The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. For joint-tenants being seised per my et per tout, every thing that tends to narrow that interest, so that they shall not be seised throughout the whole, and throughout every part, is a severance or destruction of the jointure. And therefore, if two joint-tenants agree to part their lands, and hold them in severalty, they are no longer joint-tenants: for they have now no joint-interest in the whole, but only a several interest respectively in the x Bracton, l. 4. tr. 3. c. 9. § S. Fleta, l. 3. c. 4. z 2 Lev. 12.

*w Litt. § 290, 281.

y Co. Litt, 190. Finch. L. 83.

(9) Mr. Christian quotes lord Coke, who says, "there may be joint-tenants, though there be not equal benefit of survivorship; as if a man let lands to A. and B. during the life of A.; if B. die, A. shall have all by survivorship; but if A. die, B. shall have nothing." Co. Litt. 181. And remarks, the mutuality of survivorship does not therefore appear to be the reason why a corporation cannot be a joint-tenant with a private person; for two corporations cannot be jointtenants together; but whenever a joint-estate is granted to them, they take as tenants in common. Co. Litt. 190. But there is no survivorship of a capital, or a stock in trade, among merchants and traders: for this would be ruinous to the family of the deceased partner; and it is a legal maxim, jus accrescendi inter mercatores pro beneficio commercii locum non kabet. Co. Litt. 182. See p..399. post

several parts. And for that reason also, the right of survivorship is by such separation destroyed. (") By common law all the joint-tenants might agree to make partition of the lands, but one of them could not compel the other so to do: (b) for this being an estate originally created by the act and agreement of the parties, the law would not permit any one or more of them to destroy the united possession without a similar universal consent. But now by the statues 31 Hen. VIII. c. 1. and 32 Hen. VIII. c. 32. joint-tenants, either of inheritances or other less estates, are compellable by writ of partition to divide their lands. (c) 10 3. The jointure may be destroyed by destroying the unity of title. As if one joint-tenant alienes and conveys his estate to a third person: here the joint-tenancy is severed, and turned into tenancy in common; (d) for the grantee and the remaining joint-tenant hold by different titles (one derived from the original, the other from the subsequent grantor), though, till partition made, the unity of possession con

tinues. 11 But a devise of one's share by will is no severance of [186] the jointure for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and has therefore a priority to the other) (e) is already vested. (f) 13 4. It may also be destroyed by destroying the unity

a Co. Litt. 188. 193.

b Litt. § 290.

c Thus, by the civil law, nemo invitus compellitur ad communionem, (Ff. 12. 6. 26. 34) And again; sí non omnes qui rem communem habent, sed certi ez his, dividere desiderant ; hoc judicium inter eos accipi potest. (Ff. 10. 3. 8.) d Litt. § 292.

e Jus accrescendi praefertur ultimae voluntati. "Co. Litt. 185.

f Litt. § 287.

(10) The proceedings upon a writ of partition were further regulated, with a view to render them less dilatory and more effectual, by the 8 & 9. W. 3. c. 31. made perpetual by 3 & 4 Ann. c. 18. This statute enacts, that after pone or attachment returned upon a writ of partition, affidavit being made of due notice of the said writ having been given to the tenant or tenants in the action, and a copy thereof being left with the occupier, or tenant, &c. of the lands, &c. whereof partition is demanded, at least forty days before the return day; if the tenant, &c. to the writ, or the true tenant to the lands, &c. do not in such case, within fifteen days after the return of such writ, cause an appearance to be entered in the court where the writ is returna. ble, the demandant having entered his declaration, the court may proceed to examine his title, &c. and give judgment thereon by default, and award a writ to make partition, which being exe'cuted after eight day's notice, and returned and thereupon final judgment entered, the same shall be good and conclusive against all persons whatsoever. But if tenant or other person concerned, shall in one year after judgment entered, &c., shew a good matter in bar of such partition, &c., the court may set aside such judgment. s. 2. Upon award of the writ of partition by the court, a judicial writ issues to the sheriff, commanding him to go to the spot (which may be done by his under-sheriff), and there by the oath of twelve lawful men of his bailiwick, in the presence of the parties (if they choose to attend on summons for that purpose), make partition between them. See H. and B. Co. Litt. 167. b. 169. notes. If the titles of the parties are in any degree complicated, the difficulties which have occurred in proceeding at the common law have led to applications to courts of equity for partitions, which are effected by first ascertaining the rights of the several persons interested, and then issuing a commission to make the partition required, and upon return of that commission, and confirmation of that return by the court, the partition is finally completed by mutual conveyances of the allotments made to the several parties. But if the infancy of any of the parties, or other circumstances prevent such mutual conveyan ces, the decree can only extend to give possession and enjoyment until conveyances can be made. An infant must have a day to shew cause against a decree after attaining twenty-one, and if cause be not shewn, or being shewn is not allowed, the decree may then be extended to compel mutual conveyances. Mitford's Pleading, 97. Bac. Ab. Joint-tenants, I. 7. Chitty. (11) When an estate is devised to A. and B. who are strangers to, and have no connexion with, each other, the conveyance by one of them severs the joint-tenancy, and passes a moiety; but per Kenyon, Ch. J., it has been settled for ages, that when the devise is to husband and wife, they take by entireties and not by moieties, and the husband alone cannot by his own conveyance, without joining his wife, devest the estate of the wife. 5 T. R. 654. If five trustees be jointtenants, and if three execute a conveyance, it will sever the joint estate, and create a tenancy in common, and the person to whom the conveyance was made may recover three-fifths in ejectment. 11 East, 283. Chitty.

(12) A joint-tenant wishing to devise his estate must first sever it, which may be done by a commission, upon bill filed, from the lord chancellor in the nature of the coinmon law writ. And if a joint-tenant of real property, devises his interest in premises, and after execution of the will there is a partition of the estate, the testator's share cannot pass by the devise unless

of interest. And therefore, if there be two joint-tenants for life, and the inheritance is purchased by or descends upon either, it is a severance of the jointure; (g) though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate. (h) In like manner, if a jointtenant in fee makes a lease for life of his share, this defeats the jointure: (i) for it destroys the unity both of title and of interest. And, whenever or by whatever means the jointure ceases or is severed, the right of survivorship, or jus accrescendi, the same instant ceases with it. (k) Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship: () and if one of three joint-tenants release his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure; (m) for they still preserve their original constituent unities. But when, by an act or event, different interests are created in the several parts of the estate, or they are held by different titles, or if merely the possession is separated; so that the tenants have no longer these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved.

In general it is advantageous for the joint-tenants to dissolve the [187] jointure; since thereby the right of survivorship is taken away, and

each may transmit his own part to his own heirs. Sometimes, however, it is disadvantageous to dissolve the joint-estate: as if there be jointtenants for life, and they make partition, this dissolves the jointure; and though before they each of them had an estate in the whole for their own lives and the life of their companion, now they have an estate in a moiety only for their own lives merely; and, on the death of either, the reversioner shall enter on his moiety. (n) And therefore if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture: (o) for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another; which grant, by a tenant for his own life merely, is a forfeiture of his estate: (p) for it is creating an estate which may by possibility last longer than that which he is legally entitled to. III. An estate held in coparcenary13 is where lands of inheritance descend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law: as where a person seised in feesimple or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives: in this case they

g Cro. Eliz. 470.

h 2 Rep 60. Co. Litt. 182.

k Nihil de re accrescit ei, qui nihil in re quando jus accresceret habet.
I Litt. § 291.
n1 Jones, 55.

o 4 Leon 287.

i Litt. § 302, 303.
Co. Litt. 188.

m Ibid. & 304.
p Co. Litt. 252.

there is a republication of the will subsequent to the partition. 3 Burr. 1488. Amb. 617. For a joint-tenant is not enabled to devise his estate by the statute of wills 32 Hen. VIII. c. 1. explained by 34 & 35 Hen. VIII. c. 5. as tenants in common and coparceners. But if a tenant in common devises his estate, a subsequent partition is not a revocation of the will. 3 P. Wms. 169. Christian.

(13) As to coparceners in general, 6 Cruise, ind. Coparcenary; Bac. Ab. Coparceners; Com. Dig. Parceners; and Preston on Estates; 2 Saund. index, tit. Parcener.