CHAPTER X.

ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON.

We come now to treat of Estates with respect to the number and connections of their owners, and the tenants who occupy and hold them. 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, viz.:-1. In Severalty.-2. In Joint-Tenancy. -3. In Coparcenary.-4. In Common.

Explain the Nature of these Estates; how created; next, their Properties and respective Incidents; and lastly, how they may be Severed or Destroyed.

He that holds 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.

An estate in joint-tenancy is where an estate is acquired by two or more persons in the same land, by the same title; and, at the same time, whether to hold in fee-simple, fee-tail, for life, for years, or at will.

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 of law. Thus 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 the grantor has thus united their names, the law gives them a thorough union in all other respects.

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. While they all live, each tenant is said to be seised per my et per tout; when any die, the survivor or survivors have the same estate; and the heir of the survivor is the person who alone will be entitled to inherit.

Joint-tenancy may be severed by destroying any of its unities; by partition, by alienation, and by an accession of interest; for each joint-tenant possesses an absolute power to dispose in his life-time of his own share of. the lands, by any of the usual modes of alienation.

A joint-tenant may make a valid lease of his share, a dealing of this kind being a severance pro tanto; the Court of Chancery will, if satisfied with the application, compel a partition,* or order a sale and distribution of the proceeds.

A demise, however, of one's share by will is no severance of the jointure; for no testament takes effect till after the death of the testator, and by such death the right of the survivor is already vested.

An estate held in coparcenary 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 fee-simple 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 shall all inherit, and these co-heirs or co-heiresses are then called coparceners; or, for brevity, parceners. Parceners by particular custom are

* See Jointure Acts, 27 Hen. VIII., c. 10; amended by 26 & 27 Vict., c. 125.

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where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. And, in either of these cases, all the parceners put together make but one heir, and have but one estate among them.

An estate in coparcenary resembles that of joint-tenancy in unity of interest, title, and possession; but differs materially in many points:-Parceners claim by descent, whereas joint-tenants always claim by purchase. So if two sisters purchase lands, to hold to them and their heirs, they are not coparceners, but joint-tenants; and hence it likewise follows, that no lands can be held in coparcenary but estates of inheritance, which are of a descendible nature. There is no unity of time necessary to an estate in coparcenary; for if a man has two daughters, to whom his estate descends in coparcenary, and one dies before the other, the surviving daughter and the heir of the other are parceners; the estates vesting in each of them at different times, though it be the same quantity of interest, and held by the same title.

Parceners, though they have an unity, have not an entirety, of interest. They are properly entitled each to the whole of a distinct share; and of course there is no jus accrescendi, or survivorship between them; for each part descends severally to their respective heirs, though the unity of possession continues; and as long as the lands continue in a course of descent, and united in possession, so long are the tenants therein, whether male or female, called parceners. Though persons related in equal degree to the ancestor are entitled in equal shares; yet, as their heirs will represent them or stand in their place, there is no equality of interest amongst the parceners. Thus, if a man dies, leaving four granddaughters, three of them the issue of an elder daughter, and one of a younger daughter; all four shall inherit, but the daughter of the younger shall take as much as all the other three; that is, her mother's share.

An estate in coparcenary may be destroyed. 1. By partition, which disunites the possession, converting the estate into two or more estates in severalty. 2. By alienation, which disunites the title, and may disunite the interest, changing the estate into a tenancy-in-common. 3. By the whole at last descending to and vesting in one single person, which brings it to an estate in severalty.

Formerly parceners of a copyhold could not make partition without the consent of the lord, but such consent is no longer necessary.*

Tenants-in-common are such as hold by several and distinct titles, but by unity of possession; because no one knows his own severalty, and therefore they all occupy promiscuously. This tenancy therefore happens where there is a unity of possession merely, but perhaps an entire disunion of interest, of title, and of time. If there be two tenants in common of lands, one may hold his part in fee-simple, the other in tail, or for life; so that there is no necessary unity of interest. One may hold by descent, the other by purchase; or the one by purchase from A., the other by purchase from B.; so that there is no unity of title. One's estate may have been vested fifty years, the other's but yesterday; so there is no unity of time. The only unity is that of possession.

Tenancy in common may be created, either by the destruction of estates in joint-tenancy and coparcenary, or by special limitation in a deed. Thus, if one of two joint-tenants in fee alienes his estate for the life of the alienee, the alienee and the other jointtenant are tenants in common; for they then have several titles, the other joint-tenant by the original grant, the alienee by the new alienation; and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only.

Another illustration of a tenancy in common is this:-Where lands are given to two persons in different capacities, without words of division, they will take as tenants in common. Thus, if the donees be one a corporation and the other a natural person, the tenancy is not joint, but common.

A tenancy in common may be dissolved by uniting all the titles and interests in one tenant by purchase or otherwise, which brings the whole to one severalty; or by making partition between the several tenants in common, which gives them all respective severalties.

* See 4 & 5 Vict., c. 35, as to the partition of copyhold and customary estates. See 8 & 9 Vict., c. 106, as to the amendment of the law of Real Property; and 31 & 32 Vict., c. 40, as to the power of the court to order a sale and distribution of the proceeds, instead of a division of the property.

CHAPTER XI.

TITLE TO THINGS REAL.

Hitherto we have been principally engaged in defining the nature of Things Real, in describing the Tenures by which they may be holden, and in distinguishing the several kinds of Estate or Interest that may be had therein; let us now consider the Title to Things Real, with the manner of acquiring and losing it.

Define a "Title," and explain the several stages or degrees requisite to form a complete Title to Lands and Tenements?

A title is thus defined by Sir Edward Coke, "titulus est justa causa possidendi id quod nostrum est:" in other words, it is the means whereby the owner of lands has the just possession of his property. A complete title involves two elements-the fact of possession and the right to the possession.

The lowest and most imperfect degree of title consists in 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. This may happen when 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 disseisin, being a deprivation of that actual seisin, or corporal freehold of the lands which the tenant before enjoyed. Or, it may happen that after the death of the ancestor, and before the entry of the heir; or, after the death of a particular tenant and before the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land and hold out him that had a right to enter. In all such cases the wrong

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