« SebelumnyaLanjutkan »
mon law, as where a person, seised in fee-simple or in fee-tail, dies, and his next heirs are two or more females, or their representatives. In this case, they shall all inherit, and these co-heirs are called coparceners, or for brevity, parceners. Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree. In either of these cases, all the parceners together constitute but one heir, and have but one estate among them.
Property of Parceners. In some respects the properties of parceners resemble those of joint-tenants, having the same unities of interest, title and possession. They may sue and be sued jointly for matters relating to their lands; and the entry of one is the entry of all in some cases. They cannot maintain trespass against each other; and they differ from joint-tenants in being excluded from maintaining an action of waste, for coparceners could at all times stop waste by writ of partition, but till the statute of Henry VIII, joint-tenants had no such power.
Differ from Joint-tenants. (1) They always claim by descent, whereas joint-tenants claim by purchase. No lands can be held in coparcenary, but estates of inheritance; whereas not only estates in fee and in tail, but also for life and for years may be held in joint tenancy.
(2) There is no unity of time necessary to an estate in coparcenary. For if a man's two daughters held an estate of this description, and one daughter died, the surviving daughter and the heir of the deceased one are still parceners.
(3) Parceners, though they have an unity, have not an entirety of interest. They are properly entitled each to 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 remains. And as long as the lands continue in course of descent and united in possession, so long are the tenants therein, whether male or female, 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 is made, then the lands are no longer held in coparcenary, but in common.
Partition by Parceners. Parceners are so called, says Littleton, because they may be constrained to make partition.
(1) They may agree to divide the lands in severalty in equal parts, each to take a portion.
(2) They may choose a friend to make partition for them, and then the sisters shall each choose her part according to seniority of age, or otherwise, as shall be agreed. The privilege of seniority is personal, for if the eldest sister be dead, her issue shall not choosc, but the second sister shall have precedence. !
(3) Where the eldest divides, she shall choose last, for by the rule of law, cujus est divisio, alterius est electio.
(4) Where the sisters agree to cast lots for their shares.
(5) Where one or more sue out a writ of partition against the others. Thereupon the sheriff shall visit the lands, and make partition thereof by the verdict of a jury, there impanelled, and assign to each of the parceners her part in severalty. Some property is not divisible, as the mansion house, common of estovers or other common, but the eldest sister, if she desire, may have them, making the others a reasonable satisfaction out of other parts of the inheritance, otherwise they shall have the profits thereof in turn.
Frankmarriage. Another consideration attends an estate in coparcenary, where one of the daughters has had an estate given with her in frankmarriage by her ancestor, which is a species of estate-tail. In this case, if lands descend from the same ancestor to her and her sisters in fee-simple, she or her heirs shall have no share of them, unless they will agree to divide the lands so given in frankmarriage, in equal proportion with the rest of the lands descending.
Hotch-pot. This is termed, bringing the lands into hotchpot, or into a pudding, where many things are presumably mixed. This means, that the lands given in frankmarriage, and those descending in fee-simple, should be blended and divided in equal portions among the daughters. But this was left to the choice of the donee in frankmarriage. If she refused to so act, the remaining lands were divided equally among her sisters. But if instead of descending in fee-simple, they descended in fee-tail, the donee in frankmarriage obtained her share in them, without resorting to the hotch-pot. The reason of this distinction is, that lands descending in fee-simple are distributed, by the policy of law, for the maintenance of all the daughters, while lands descending in tail are distributed by the designation of the giver, per formam doni, and hence may be unequal. No lands, but such as are given in frankmarriage, shall be brought into hotch-pot, and this species of gift is now in disuse.
Dissolved. Estates in coparcenary may be dissolved either by partition, which disunites the possession, by alienation of one parcener, which disunites the title and may disunite the interest, or by the whole descending to and vesting in one single person, in severalty. IV. TENANCY IN COMMON.
Defined. Tenants in common are such as hold by several and distinct titles, but by unity of possession, because no one knows his own severalty, hence all occupy promiscuously. The tenancy happens, where there is an unity of possession merely, but perhaps an entire disunion of interest, title and time. For 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 there is no necessary unity of interest; one may hold by descent, the other by purchase, or the one by purchase from A, and the other by purchase from B, so there is no unity of title; one's estate may have been vested fifty years, another but yesterday, so there is no unity of time. The only unity is that of possession, because no man can tell which part is his own.
How Created. It may be created, either by the destruction of the two other estates, in joint-tenancy and coparcenary, or by special limitation in a deed. By the destruction of the two other estates, we mean destruction, which severs only the unity of title and interest, but not that of possession.
Examples. As 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 have now several titles and interests. If one of two parceners alienes, the alienee and the remaining parcener are tenants in common, because the parcener holds by descent, and the alienee by purchase.
So if a grant be made to two men, and the heirs of their bodies, here the grantees shall be joint-tenants of the life estate, but they shall have several inheritances, because they cannot possibly have one heir of their two bodies, as might have occurred, if the grant had been to a man and woman, and the heirs of their bodies begotten. The issue in these cases will be tenants in common, because they must claim by different titles, one as heir of A, the other as heir of B.
Change of Estate. In short, whenever an estate in jointtenancy'or coparcenary is dissolved, so that there be no partition made, but the unity of possession continues, it is turned into a tenancy in common.
Created by Limitation in a Deed. A tenancy in common may also be created by express limitation in a deed, but care must be taken not to insert words, which imply a joint estate. Then if lands be given to two or more, and it be not joint tenancy, it is a tenancy in common. The law at one time favored joint-tenancy rather than tenancy in common, because the services issuing from the land, as rent, etc., are not divided, nor the entire services, as fealty, multiplied by joint-tenancy, as they necessarily must be upon a tenancy in common. Land given to two, to be holden, the one moiety to one, and the other moiety to the other, is an estate in common, as also if one grants to another half his land, because joint-tenants do not take by distinct moieties, and by such grants the division and severalty of the estate are plainly expressed.
Construction of Devises. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy, as an estate given to A and B, equally to be divided between them. In deeds, this has been said to be a joint-tenancy, yet in wills it is certainly a tenancy in common, because the devisor evidently meant what is most beneficial to the devisees, though his meaning have been imperfectly expressed.
Careful Description Necessary. And this nicety in the wording of grants, makes it the more usual and the safer way, when a tenancy in common is meant to be created, to add express words of exclusion as well as description, and limit the estate to A and B, to hold as tenants in common, and not as joint-tenants.
Incidents to a Tenancy in Common. By statute, tenants in common are compellable to make partition, which they were not at common law. They properly take by distinct moieties, and have no entirety of interest, and therefore there is no survivorship between tenants in common.
Their other incidents are such as merely arise from the unity of possession, and the same as appertain to joint-tenants, such as being liable to reciprocal actions of waste and of account. By the common law, no tenant in common was liable to account to his companion for embezzling the profits of the estate, though if one actually turn the other out of possession, an action of ejectment will lie against him. There are other incidents of joint-tenants, which arise from the privilege of title, or the union and entirety of interest, such as joining in actions, unless in the case, where some entire or indivisible thing is to be recovered. These are not applicable to tenants in common, whose interests are distinct, and whose titles are not joint but several.
How Dissolved. Estates in common can only be dissolved
in two ways:
(1) By uniting all the titles and interests in one tenant, by purchase or otherwise, which brings the whole to one severalty.
(2) By making partition between the several tenants in common, which gives them all respective severalties. These estates differ in nothing from sole estates, but merely in the blending and unity of possession.
CHAPTER XIII.-TITLE TO THINGS REAL, IN GENERAL.
Definition of Title. Coke defines a title, to be the means, whereby the owner of lands has the just possession of his property. There are several stages or degrees requisite to form a complete title to lands and tenements, as follows: I. NAKED POSSESSION.
Defined. This is the actual occupation of the estate, without any apparent right or pretence of right to hold and continue such possession. This may happen, when one man invades the possessions 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 the corporal freehold of the lands, which the tenant before enjoyed.
Illegal Entry. Or it may happen, that after the death of the ancestor, and before the entry of the heir, or after the death of the particular tenant, and before the entry of him in remainder or reversion, a stranger may take possession of the land, to the exclusion of the rightful owner. The wrong doer in such case, has only a mere naked possession, which the rightful owner may put an end to by a variety of legal remedies.
Rights of a Mere Possessor. Meanwhile, till some act be