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or is sole tenant thereof, holds them in his own right only, without any one being joined or connected with him in interest, during his estate therein. This is the usual way of holding an estate, hence but little about it is peculiar or to be remarked.
Defined. This is where lands or tenements are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will. In consequence of such grants, an estate is termed an estate in joint-tenancy, or in jointure, which words signify a union or conjunction of interest, though in common parlance, jointure is now usually confined to that joint estate, frequently vested in the husband and wife before marriage, as a full satisfaction and bar of dower.
1. How Created. 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 it is by the act of the parties, and never by the mere act of the law. 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.
2. Its Properties. 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. In other words, the 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.
Unity of Interest. One joint-tenant cannot be entitled to one period of duration or quantity of interest in lands, and the other to a different; one cannot be tenant for life and the other for years, nor one in fee, and the other in tail. If land be limited to A and B for their lives, this makes them joint tenants of the
Joint-tenancy is regarded with disfavor by the courts, and every effort is made in favor of construing the intent to be to form a tenancy in common.
freehold; if to A and B and their heirs, it makes them joint tenants of the inheritance.
Unity of Title. The estate of joint tenants 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, otherwise the tenants would have different titles, one of which might be good, and the other bad, which would destroy the jointure. Joint-tenancy cannot arise by descent or act of law, but merely by purchase or acquisition by the act of the party.
Unity of Time. Their estates must be vested at one and the same period. As in case of a present estate made to A and B, or a remainder to them in fee, after a particular estate; in either case, they are joint tenants of the 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 pending 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 his heir; now A's heir and B's heir are not joint tenants of this remainder, but tenants in common, because one moiety vested at one time, and the other moiety at another.
Extreme Example. Yet where a feoffment was made to the use of a man, and such wife as he should afterwards marry, for the term of their lives, and he afterwards married, it seems to have been held, that the husband and wife had a joint estate, though vested at different times, because the use of the wife's estate was in abeyance till the intermarriage, and being then awakened, had relation back, and took effect from the original time of creation.
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. They have not one of them a seisin of a moiety or one-half, and the other of the other moiety, but each has an undivided moiety of the whole, and not the whole of an undivided moiety.
Husband and Wife. Estate in Entirety. 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.1
Other Incidents to Joint-tenancy. Other consequences and incidents to the joint-tenant's estate depend upon the intimate union of interest and possession. If two such tenants let their land by verbal lease, reserving rent to be paid to one, it shall enure to both, in respect of the joint-reversion. The same result follows on a surrender of the lease. Livery of seisin, made to one joint-tenant, shall enure to both of them, and the entry or re-entry of one joint-tenant is the act of both. One joint-tenant cannot sue or be sued in relation to the joint estate, without joining the other.?
Suits between Joint-tenants. It is held, that one joint tenant cannot have an action against another for trespass, in respect of the land, for each has an equal right of entry. But one joint-tenant can do no act, which may tend to defeat or injure the estate of the other, as to execute leases, or to grant copyholds. One tenant may have an action of waste against the other, for an act tending to the destruction of the inheritance, and also an action of account, where one tenant is apparently receiving more than his share of the profits of the tenements held in joint-tenancy.
Survivorship of Joint-tenant. This is 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 autre 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, who shall be entitled to the entire estate, whatever it may be. This is the natural sequence of the union and entirety of their interest, the interest of the tenants being one and the same. 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.
1 Where an estate is conveyed to a husband and wife and to a third party. such third party takes a moiety of the estate. The statutes of the various United States, abolishing joint tenancies and converting the estates into tenancies in common, have no bearing on estates in entirety.
2 Until the statute of William III, the possession by one joint-tenant was the possession of the other.
But while it continues, each joint-tenant has a concurrent interest in the whole.
Result of Death of Tenant. On the death of one, the sole interest in the whole remains in the survivor, for no one can now claim a joint estate with him, nor a separate interest in any part of the tenements. As the survivor's original 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 alone shall be entitled to the estate.
Accumulation to the Survivor. This right of survivorship is called by our ancient authors, the jus accrescendi, because the right, upon the death of one joint-tenant, accumulates and increases to the survivors. This jus accrescendi should be mutual, which is probably a reason, why neither the king nor any corporation can be a joint-tenant with a private person, for here is no mutuality, as a king and the corporation can never die.
3. How a Joint-tenancy may be Destroyed. This may be done by destroying any of its constituent unities :
(1) Question of Time. That of time, which respects only the original commencement of the joint estate, and hence cannot be affected by any subsequent transactions.
(2) Disuniting their possession, The joint-tenants' estate may be destroyed, without any alienation, by merely disuniting their possession. Joint tenants being seised per my et per tout, everything that tends to narrow that interest is a severance of the jointure. Hence if two joint-tenants agree to divide their lands, and hold them in severalty, they are no longer jointtenants, and the right of survivorship is destroyed. By common law, they could make partition of their lands, but only by the consent of all; but by statute of Henry VIII, one can compel the other by writ of partition to divide the lands.
(3) Destroying the Unity of Title. The jointure may be ended by destroying the unity of title. As if one joint-tenant conveys his estate to a third person; here the joint-tenancy is severed and turned into tenancy in common, for the grantee and the remaining tenant hold by different titles, one only being from the original grantor, though till partition made, the unity of possession continues. But a devise of one's share by will is no severance of jointure, for no testament takes effect, before the death of the testator, and by such death the right of the survivor is already vested.
(4.) Destroying the Unity of Interest, Hence, 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. Also if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure, for it destroys the unity both of title and of interest. Whenever the jointure ceases or is severed, the right of survivorship ceases with it. Yet, if one of three tenants alienes his part, the two remaining tenants still hold their portions by joint-tenancy and survivorship, and if one joint-tenant releases his share to one of his companions, though the jointtenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure, for they preserve their original constituent unities.
Summary of Causes of Destruction. 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 the above four indispensable requisites, a sameness of interest and undivided possession, a title vesting at one and the same time, and by the same act or grant, the jointure is instantly dissolved.
Advantages of Dissolving the Jointure. Generally it is advantageous for the joint-tenants to dissolve the jointure, since thereby the right of survivorship is taken away, and each may transmit his own part to his heirs. Sometimes however it is disadvantageous, as if there be joint-tenants for life, and they make partition, this dissolves the jointure, and while before they each 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. If there be two joint-tenants for life, and one grants his part for the life of his companion, it is a forfeiture, for it is creating an estate, which may by possibility last longer than that to which he is legally entitled. III. COPARCENARY ESTATES.
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 com