CHAPTER III.

PARCENARY.

LIT., § 241. Parceners are of two sorts, to wit, parceners according to the course of the common law, and parceners according to the custome. Parceners after the course of the common law are where a man or woman, seised of certain lands or tenements in fee simple or in taile, hath no issue but daughters and dieth, and the tenements descend to the issues, and the daughters enter into the lands or tenements so descended to them, then they are called parceners, and be but one heire to their ancestour. And they are called parceners, because by the writ which is called breve de participatione facienda the law will constraine them that partition shall be made among them. And if there be two daughters to whom the land descendeth, then they bee called two parceners, and if there be three daughters they bee called three parceners, and four daughters four parceners, and so forth.

§ 242. Also, if a man seised of tenements in fee simple or in fee tayle dieth without issue of his bodie begotten, and the tenements descend to his sisters, they are parceners, as is aforesaid. And in the same manner, where he hath no sisters but the lands descend to his aunts, they are parceners, &c. But if a man hath but one daughter, she shal not be called parcener, but shee is called daughter and heir, &c.

§ 243. And it is to bee understood that partition may be made in divers maners. One is when they agree to make partition and do make partition of the tenements; as if there bee two parceners to divide between them the tenements in two parts, each part by it selfe in severalty and of equall

value; and if there bee three parceners, to divide the tenements in three parts by it selfe in severalty, &c.

§ 247. Also, there is another partition. As if there bee foure parceners, and they will not agree to a partition to be made betweene them, then the one may have a writ of partitione facienda against the other three, or two of them may have a writ of partitione facienda against the other two, or three of them may have a writ of partitione facienda against the fourth, at their election.

§ 250. And note, that partition by agreement betweene parceners may bee made by law betweene them, as well by parol without deed as by deed.

$254. And note that none are called parceners by the common law but females or the heirs of females which come to lands or tenements by descent; for if sisters purchase lands or tenements, of this they are called joint tenants and not parceners.

§ 265. Parceners by the custom are where a man seised in fee simple or in fee tail of lands or tenements which are of the tenure called gavelkind within the county of Kent hath issue divers sons and die, such lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lieth in this case as between females. But it behoveth in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales.

2 BL. COM., 188. The properties of parceners are in some respects like those of joint-tenants; they having the same unities of interest, title and possession. They may sue and be sued jointly for matters relating to their own lands; and the entry of one of them shall in some cases enure as the entry of them all. They cannot have an action of trespass against each other; but herein they differ from joint-tenants, that they are also excluded from maintaining an action of waste; for coparceners could at all times put a stop to any

waste by writ of partition, but till the statute of Henry the Eighth joint-tenants had no such power. Parceners also differ materially from joint-tenants in four other points. 1. They always claim by descent; whereas joint-tenants always claim by purchase. Therefore, if two sisters purchased lands to hold to them and their heirs, they are not parceners, 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; whereas not only estates in fee and in tail, but for life or years, may be held in joint-tenancy. 2. There is no unity of time necessary to an estate in coparcenary. For if a man had two daughters, to whom his estate descends in coparcenary, and one dies before the other; the surviving daughter and the heir of the other, or when both are dead, their two heirs are still 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. 3. Parceners, though they have a unity, have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety; 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. But if the possession be once severed by partition, they are no longer parceners, but tenants in severalty; or if one parcener alienes her share, though no partition be made, then are the lands no longer held in coparcenary, but in common.

4 KENT. COM., 367. By the New York Revised Statutes,1 persons who take by descent under the statute, if there be more than one person entitled, take as tenants in common, in proportion to their respective rights; and it is only in very remote cases, which can scarcely ever arise, that the rules of 12 R. S., 753, sec. 17.

the common law doctrine of descent can apply. As estates descend in every State to all the children equally, there is no substantial difference left between coparceners and tenants in common. The title inherited by more persons than one, is, in some of the States, expressly declared to be tenancy in common, as in New York and New Jersey; and where it is not so declared the effect is the same; and the technical distinction between coparcenary and estates in common may be considered as essentially extinguished in. the United States.

CHAPTER IV.

TENANCY BY ENTIRETIES.

2 BL. COM. 182. 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.

ID., 182, n. According to Mr. Preston's definition, tenancy by entireties is where husband and wife take an estate to themselves jointly by grant, or devise, or limitation of use made to them, during coverture, or by a grant, etc., which is in fieri at the time of the marriage, and completed by livery of seisin or attornment during the coverture. I Preston on Estates, 131. So if an estate be conveyed to husband and wife and a stranger, the husband and wife will only take one moiety between them, and the stranger will take the other moiety. Litt., s. 291; Johnson v. Hart, 6 W. & S. 319. This estate has several peculiarities. Says C. J. Montague, in Plowd. 58: "The husband has the entire use and the wife the entire use; for there are no moieties between husband and wife." Hence it is termed tenancy by entireties. The husband cannot forfeit or alien so as to sever the tenancy. They are seised per tout and not per my. Neither can sever the jointure, but the whole must accrue to the survivor. As the husband and wife cannot sue each other, they are not compellable to make partition. But where an estate is conveyed to a man and woman who are not married together, and who afterwards intermarry, as