179 CHAPTER XII. OF ESTATES IN SEVERALTY, JOINT-TENANCY, regard to the connexions of WE come now to treat of estates, with respect to the num- of the nature and properties ber and connexions of their owners, the tenants who occupy of estates, with and hold them. And, considered in this view, estates of number and any quantity or length of duration, and whether they be in the tenants. actual possession or expectancy, may be held in four different ways in severalty, in joint-tenancy, in coparcenary, and in common. severalty. I. He that holds lands or tenements in severalty, or is I. Of estates in 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 tenants. II. Of estates in *II. An estate in joint-tenancy is where lands or tene-[180] ments are granted to two or more persons, to hold in fee- joint-tenancy. simple, fee-tail, for life, for years, or at will. In consequence of such grants an estate is called an estate in joint 1. The creation of this estate depends on the wording of the der which the tenant claims. 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. 10, 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 instrument un- 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. 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. For, 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 possession. *First, they must have one and the same interest (1). One (a) Litt. s. 277. (1) But, two persons may have an estate in joint-tenancy for their lives, and yet have several inheritances. (Litt. sect. 283, 284; 1 Inst. 184 a; Cook v. Cook, 2 Vern. 545; Cray v. Willis, 2 P. Wms. 530.) This is the case, where an estate is granted in joint-tenancy to persons and the heirs (b) See pag. 137. 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 jointtenants cannot convey away their respective inheritances so as to take effect immediately after their decease, 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 jointtenants of the freehold; if to A. and B. and their heirs, it makes them joint-tenants of the inheritance (d). 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 (2): 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- unity of title; 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 dis (c) Co. Litt. 188. (d) Litt. s. 277. and thus defeat the interests of the surviving joint-tenants; (see the next note;) the estate for lives and the inheritance are divided only in supposition and consideration of law, and though to some purposes the inheritance is executed, it is not as to all. (1 Inst. 182 b.) (2) 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 the last note.) 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 granting, it is not so, but both estates are in that respect consolidated, notwithstanding the estate 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 (e) Litt. s. 285. from the estate for life. (See the last unity of time; and seisin (f). Joint-tenancy cannot arise by descent or act of law; but 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 jointtenants of this remainder, but tenants in common; for one moiety vested at one time, and the other moiety vested at [* 182] another (g). *Yet where a feoffment 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) (3): be (f) Litt. s. 278. (3) 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 (h) Dyer, 340; 1 Rep. 101. 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 use 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 is clear, at this day, that persons may take as joint-tenants, by way of use, although at different times. Thus, suppose in a marriage 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 sion. cause 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 unity of possespossession. 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 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 sent of the other, but the whole must remain to the survivor (k) (4). (i) Litt. s. 288; 5 Rep. 10. (j) Quilibet totum tenet et nihil tenet; scilicet, totum in communi, et nihil separatim per se. Bract. 1. 5, 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 jointtenants, not the time of vesting, has been held in various other cases. (See Blamfordev. Blamforde, 3 Bulstr. 101; Earl of Sussexv. 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, tr. 5, c. 26. (k) Litt. s. 665; Co. Litt. 187; Bro. Abr. t. Cui in vita, 8; 2 Vern. 120; 2 Lev. 39. 124; Sammes' case, 13 Rep. 54:) and (4) A man purchased a copyhold |