CHAPTER XII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, COPARCENARY, AND COMMON. We come now to treat of estates, with respect to the number and con nexions of their owners, the tenants who occupy and hold them. And, (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; in severalty, in joint-tenancy, in (1) coparcenary, and in common.) I. 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. This is the most common and usual way of holding an estate; and therefore we may make the same observations here, that we did upon estates in possession, as contradistinguished from those in expectancy, in the preceding chapter: that there is little or nothing peculiar to be remarked concerning it, since all estates are supposed to be of this sort, unless where they are expressly declared to be otherwise; and that in laying down general rules and doctrines, we usually apply them to such estates as are held in severalty. I shall therefore proceed to consider the other three species of estates, in which there are always a plurality of [*180] tenants. *II. An estate in (2) joint-tenancy is where lands or tenements tate, may be made as follows: if to commence on the creation of the estate out of which the profits are to come, then it must be for the benefit of one or more minors then in being, and terminate at the expiration of their minority. If to commence after the creation of - such estate, it must commence within the time limited for the vesting of future estates, and during the minority of the persons for whose benefit it is created, and terminate at the expiration of such minority. 1 R. S. 726. The accumulation of personal "property" (the act probably means to include "chattels") is governed by similar rules, except that it must commence within the time limited for the suspension of the absolute ownership of personal property. 1 R. S. 773, 774, § 1, 2. All other expectant estates than these mentioned in the said chapter are abolished, thus limiting cross remainders, if they are permit ted. (Id. 726. § 42.) This chapter also abolishes the rule in Shelly's case, makes all expectant estates descendible, devisable, and alienable, in the same manner as estates in possession, and adopts a new though reasonable rule, that where a remainder is to take effect on the death of a person without heirs, or heirs of his body, or issue, those words shall mean heirs or issue living at the death of the said person named as ancestor. 28, 35, 22 The effect of the Revised Statutes is to sanction these limitations of estates, by what. ever lawful conveyance they be made: trusts in such cases being abolished by 1 R. S. 727. The student will remember that the law, as contained in Blackstone, applies to all con veyances made prior to 1830. (1) The Revised Statute, 726, does not recognize an estate in coparcenary: but, as the statute of descents, id. 753, adopts the common law where that statute is silent, the estate in coparcenary might perhaps arise in such cases; such at least was the general understanding under the Act of 1786: but as the chapter on tenures does not recognize any estate in co parcenary, and as the chapter on descents directs the inheritance to descend according to the course of the common law where the sta tute is silent, and then directs an inheritance that descends to several persons under the provisions of that chapter to be held by them as tenants in common; even those claiming by descent under the common law, may pos sibly be considered as claiming under the pro visions of that chapter, and therefore as te nants in common. The former law, 1 R. L. 54, &c. was somewhat different. (2) As to joint-tenants in general, see 6 Cruise, ind. title Joint-tenancy; Bac Ab Joint-tenants and Tenants in Common, Com Dig. Estates, K. 1.; Chancery, 3 V. 1. De are granted to two or more persons, to hold in fee-simple, fee-tail, for life, for years, or at will (3). In consequence of such grants an estate is called an estate in joint-tenancy (a), and sometimes an estate in jointure. which word as well as the other signifies an union or conjunction of interest; though in common speech the term jointure is now usually confined to that joint-estate, which by virtue of the statute 27 Hen. VIII. c. 19. is frequently vested in the husband and wife before marriage, as a full satisfaction and bar of the woman's dower (b). In unfolding this title, and the two remaining ones, in the present chapter, we will first inquire how these estates may be created; next, their properties and respective incidents; and lastly, how they may be severed or destroyed. 1. 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. J Now, 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 therefore the grantor has thus united their names, the law gives them a thorough union in all other respects (4). For, (a) Litt. 277. vise, H. 7. N. 8.; Jacob's Dict. Joint-tenants; 2 Saunders, index, Joint-tenants; Preston on Estates. (3) In New-York, every estate granted or devised to two or more persons in their own right, is a tenancy in common, unless express ly declared to be in joint-tenancy; but every estate vested in executors or trustees, as such is a joint-tenancy. This does not apply to personal chattels, I presume. The same law has prevailed since 1782. See 1 R. L. p. 54. & 1 R. S. 727. 1 (b) See page 137. 193, 4. Mr. Christian's note, it may be collected that the same words in a common law conveyance would now create a tenancy in common. In a joint-tenancy for life to A. and B. the words and the survivor of them, are merely words of surplusage, as without them the lands upon the death of one joint-tenant go to the survivor. But in the creation of a joint-tenancy in fee, particular care must be taken not to insert these words. For the grant of an estate to two and the survivor of them, and the heirs of the survivor, does not make them joint-tenants in fee, but gives them an estate of freehold during their joint lives, with a contingent remainder in fee to the survivor. Harg. and Butl. Co. Litt. 191. a. n. I. Where there was a devise to three sisters for, and during their joint lives, and the life of the sur vivor, to take as tenants in common, and not as joint-tenants, remainder to trustees during the respective lives of the sisters, and the life of the survivor, to preserve contingent remainders, and from and after their respective deceases and the decease of the survivor, remainder over; it was held that the sisters took the estate as joint-tenants, to be regulated in its enjoyment as a tenancy in common, or as tenants in common, with benefit of survivorship. 1 M. & S. 428. Where testator devised the residue of his property to his daughters as tenants in common, and afterwards made a codicil expressly for a particular purpose, but thereby also re-devised the residue to his daughters, omitting the words of seve rance, the codicil was construed by the will, and they took us tenants in common 3 Anstr. 727. Where the devise was to the use and behoof of the testator's niece A. and his nieces 74 (4) Joint-tenancies are now regarded with so little favour, both in courts of law and equity, that whenever the expressions will import an intention in favour of a tenancy in common, it will be given effect to, Fisher v. Wigg. 1 P. Wms. 14. n. and id. 1 Ld. Raym. 622. Salk. 392. note 8. Lord Cowper says, that a joint-tenancy is in equity an odious thing. 1 Salk. 158. See also 2 Ves. Sen. 258. In wills the expressions "equally to be divided, share and share alike, respectively between and amongst them," have been held to create a tenancy in common. 2 Atk. 121. 4 Bro. 15. The words equally to be divided make a tenaney in common in surrenders of copyholds, 1 Salk. 391. 2 Salk. 620; and also in deeda which derive their operation from the statute of uses, 1 P. Wms. 14. 1 Wils. 341. Cowp. 360. 2 Ves. Sen. 257; and though Ld. Holt and Ld. Hardwicke seem to be of opinion that these words in a common law conveyance are not sufficient to create a tenancy in common, 'same cases, and 1 Ves. Sen. 165. 2 Ves. Sen. 257. and see Bac. Ab. Joint-tenants, F.) yet from the netes to some of those cases, and 4 Cruise Dig 1 ed. 455 to 459. 2 Bls. C. VOL. I. 2. 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 session. ров [*181] / *First, they must have one and the same interest (5). 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; one cannot be tenant in fee, and the other in tail (c).) But if land be limited to A and B for their lives, this makes them joint-tenants of the freehold; if to A and B and their heirs, it makes them joint-tenants of the inheritance (d) (6). If land be granted to A and B for their lives, and to the heirs of A; here A and B are joint-tenants of the freehold during their respective lives, and A has the remainder of the fee in severalty (7): or if land be given to A and B, and the heirs of the body 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 (f). Joint-tenancy cannot arise by descent or act of law; but B. and C. and the survivor and survivors of them, and the heirs of the body of such sur vivors, as tenants in common and not as jointtenants, it was held, that under this devise A., B., and C. took as tenants in common. (1 New. Rep. 82.) When two or more purchase lands, and pay in equal proportions, a conveyance being made to them and their heirs, this is a joint-tenancy. But if they advance the money in unequal proportions, they are considered in equity in the nature of partners; and if one of them die, the others have not his share by survivorship, but are considered as trustees for the deceased's representatives. (1 Eq. Ca. Abr. 291.) (5) But, two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. (Litt. sect. 283, 284. I Inst. 184 a. Cook v. Cook, 2 Vern. 545. Cray . Willis, 2 P. Wms. 530). This is the case, where an estate is granted in joint-tenancy to persons and the heirs of their bodies, which persons cannot intermarry. (See post, p. 192). But in this case, there is no division between the estate for lives and the several inheritances, and the joint-tenants cannot convey away their inheritances after their decease; (see post, note 7); the estate for lives and the inheritance are divided only in supposition and consideration of law, and to some pur poses the inheritance is executed. (1 Inst. 182 h). (6) Lord Coke says, that if a rent-charge of 101. be granted to A. and B. to have and to hold to them two, viz. to A. till he be married, and to B till he be advanced to a benefice, they are joint-tenants in the mean time, not withstanding the limitations; and if A. die before marriage, the rent shall survive to B. (e) Ibid. 285. But if A. had married, the rent should have ceased for a moiety, et sic e converso, on the other side. Co. Lit. 180. b. 2 Cruise Digest, 498. (7) Lord Coke observes, "when land is given to two, and to the heirs of one of them, he in the remainder cannot grant away his fee simple, as hath been said." (1 Inst. 184 b. and see ante, note 5). Mr. Hargrave, in his note upon this passage, remarks, that there is a seeming difficulty in it; but he conceives Lord Coke's meaning to be, that though for some purposes the estate for life of the joint tenant having the fee, is distinct from, and unmerged in, his greater estate; yet, for grant ing, it is not so, but both estates are in that respect consolidated, notwithstanding the es tate of the other joint-tenant: and therefore, that the fee cannot, in strictness of law, be granted as a remainder, eo nomine, and as an interest distinct from the estate for life. (See the last note). But, Lord Coke never meant that the joint-tenant, having the fee, could not in any form pass away the fee, subject to the estate of the other joint-tenant: that would be a doctrine not only contrary to the power of alienation, necessarily incident to a feesimple, but would be inconsistent with Lord Coke's own statement in another part of his commentary. (See Co. Litt. 367 b). The true signification of the passage cited at the commencement of this note, may be illustrated by what the same great lawyer lays down in Wiscot's case, (2 Rep. 61 a), namely, that when an estate is made to several persons, and to the heirs of one of them, he who hath the fee cannot grant over his remainder, and continue in himself an estate for life. 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 [*182] was made to the use of a man, and such 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) (8): 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 com (g) Co. Litt, 188. (h) Dyer, 340. 1 Rep. 101 (i) Litt. 288. 5 Rep. 10. (8) The reason assigned in Gilbert's Treat. on Uses and Trusts, (p. 71 of the original work, or p. 134 of Mr. Sugden's greatly improved edition), is as follows: "here the husband has no property in the land, neither jus in re, nor ad rem, but the feoffee has the whole property, at first to the use of the husband only, and upon the contingency of marriage to the use of them both entirely. And this is the only rule of equity to support the trust in the same manner the parties have limited it, and now it is executed by the statute in the same form as it was governed in equity." Mr. Sugden, in his note upon this passage, observes, that the point so laid down was not established without difficulty, and that it seems questionable, whether the ground of decision was not that the use resulted to the feoffor till the marriage, and that upon the marriage the ise declared arose, in which case the husband and wife took the use limited to them at the same time, and not at different periods. (Mutton's case, 2 Leon. 223). Mr. Sugden adds, it : clear, at this day, that persons may take as oint-tenants, by way of use, although at different times. Thus, suppose in a marriage (j) Quilibet totum tenet et nihil tenet: scilicet, totum in communi, et nihil separatim per se. Bract 1. 5, tr. 5, c. 26. settlement an estate to be limited to the children of the marriage, as joint-tenants in fee, on the birth of one child the whole vests in him; on the birth of another, that child takes jointly with the former; and so on if there are twenty children. (Stratton v. Best, 2 Br. 240). And that it is a joint claim by the same conveyance which makes joint-tenants, not the time of vesting, has been held in various other cases. (See Blamforde v. Blamforde, 3 Bulstr. 101. Earl of Sussex v. Temple, 1 Lord Raym. 312. Aylor v. Chep, Cro. Jac. 259. S. C. Yelv. 183. Oates v. Jackson, 2 Str. 1172. Hales v. Risley, Pollexf. 373). So, although some of the persons to whom an estate is limited, are in by the common law, and others by the statute of uses, yet they will take in joint-tenancy: (Watts v. Lee, Noy, 124. Sammes' case, 13 Rep. 54); and Lord Thurlow held, that whether a settlement was to be considered is a conveyance of a legal estate, or a deed to uses, would make no dif ference, and that in either case, the vesting at different times would not necessarily prevent the settled estate from being taken in jointtenancy. (Stratton v. Best, 2 br. 240) inon (9): 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) (10). Upon these principles, of a thorough and intimate union of interest and possession, depend many other consequences and incidents to the jointtenant'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 (2) (11). 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 ().20 In all actions also relating to their joint-estate, one joint-tenant cannot sue or be sued without joining the other (p) (12). 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 seve[*183] ral right of patronage, but each is seised of the whole; and if they do not both 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 (13); as to let leases, or to grant copyholds (s): and (9) This peculiar estate was recognized as still subsisting in 16 Johns. R. 115, notwithstanding the Acts of 1782 and 1786 (1 R. L. 52, &c.) it probably was not intended to be affected by the Revised Statutes. 1 R. S. 727. (10) 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 moieties after the marriage. 1 Inst. 187. b. Moody v. Moody. Amb. 649. 2 Cru. Dig. 511. 5 ib. 448. (0) Ibid. 319. 364. join in an action to recover the same; but it 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 evi dence of a fresh separate demise of his share, and he must sue separately. Id. ibid., (12) See last note. If four joint-tenants jointly demise from year to year, such of them as give notice to quit, may recover their seve ral shares in ejectment on their several demises. 3 Taunt. 120. (13) In consequence of the right of survi vorship among joint-tenants, all charges made by a joint tenant on the estate determine by his death, and do not affect the survivor. For, it is a maxim of law, that jus accrescenda præfertur oneribus. (1 Inst. 185 a. Litt. sect 286). But, if the grantor of the charge sur vives, of course, it is good. (Co. Litt. 184 So, if one joint-tenant suffers a judgmen is (20) See Hov. n. (20) at the end of the Vol. B. IL (1) Per Abbott, C. J. "It is clear that if there be a joint lease by two tenants in common, rescrving an entire rent, the two may |