ture may be destroyed by destroying the unity of title. As not be effectually had, if the parties be not competent to execute the conveyances: (Whaley v. Dawson, 2 Sch. & Lef. 372; Lord Brook v. Lord and Lady Hertford, 2 P. Wms. 518) for this reason, it is necessary to have the legal title before the Court; (Miller V. Warmington, 1 Jac. & Walk. 493;) and, although an infant may be either plaintiff or defendant in a suit for partition, yet, in such a case, the conveyances of all parties must be respited till the infant comes of age. (Tuckfield v. Buller, 1 Dick. 243.) But, the form of completing a partition at law is essentially different;-there it is effected by the judgment of the Court, and the delivering up possession in pursuance thereof; which concludes all the parties to the judgment. (Whaley v. Dawson, 2 Sch. & Lef. 372.) In the progress of a suit for partition, it is the practice of the Court of Exchequer, on the return of the certificate of the commissioners, to set the cause down for further directions. (Dean and Chapter of Hereford v. Hullett, 6 Pr. 332.) In the case just cited, it was intimated to be the course of the Court of Chancery, to require an order nisi for the confirmation of the certificate to be moved for, before the cause was set down for further directions; in order that any party aggrieved might have an opportunity of taking exceptions. In point of fact, however, the practice of the Court of Chancery is not, as was assumed, to examine the correctness of the commissioners' return upon exceptions, but, on motion made, to suppress such return. (Jones v. Totty, 1 Sim. 136; Corbet v. Davenant, 2 Br. 252.) It has been said, obiter, that partition can only be decreed between jointtenants, tenants in common, or copartners; (Miller v. Warmington, 1 Jac. & Walk. 493; and see post, chap. 20, p. 323;) but, under certain circumstances, the jurisdiction has, for a length of time, been exercised upon bills for dower: and the inconvenience of a temporary partition will not sustain a demurrer to a bill brought by a plaintiff having a quantity of interest which would entitle him to the writ. (Baring v. Nash, 1 Ves. & Bea. 555.) That the writ is demandable between tenants for life, or for years, appears expressly from the stat. 32 Hen. VIII. c. 32; and partition may be enforced by such parties, as between themselves, although the owner of the inheritance does not choose, and cannot, at the instance of the termors, be compelled, to join in the object of the suit. (Baring v. Nash, ubi supra.) Upon similar principle, it is no objection to a partition, that parties may subsequently come in esse, who will be entitled to a share, in which event the whole process will have to be commenced over again. (Wills v. Slade, 6 Ves. 498.) And difficulty, or inconvenience, or the minuteness of a party's interest, cannot in any case prevail as an objection to a commission for the purpose of making partition. (Parker v. Gerrard, Ambl. 236; Turner v. Morgan, 8 Ves. 145, and 11 Ves. 157, n; Warner v. Baynes, Ambl. 589.) A bill will lie for partition of tithes ; (Baxter v. Knollys, 1 Ves. sen. 495 ;) or of an advowson. (Matthews v. Bishop of Bath and Wells, 2 Dick. 652; Bodicoate v. Steers, 1 Dick. 69.) And joint-tenants of an equity of redemption may have a partition, as between themselves, to which the mortgagee will not be a necessary party. (Swan v. Swan, 8 Price, 519.) A mere partition is no revocation of a previous devise by a tenant in common, because partition is an incident adherent to his estate, and the title if one joint-tenant aliens and conveys (11) his estate to a third person here the joint-tenancy is severed, and turned into tenancy in common (d); for the grantee and the remaining joint-tenant hold by different titles, (one derived from the original, the other from the subsequent, grantor,) though, till partition made, the unity of possession continues. But * 186 ] a devise of one's share by will *is no severance of the jointure (12): for no testament takes effect till after the death of the testator, and by such death the right of the survivor (which accrued at the original creation of the estate, and (d) Litt. s. 292. remains the same. (Attorney General v. Vigor, 8 Ves. 281.) But, any qualified conveyance of the legal fee, or the slightest addition to the mere object of partition, would operate as a revocation. (Brydges v. Duchess of Chandos, 2 Ves. jun. 429; Ward v. Moore, 4 Mad. 372; Knollys v. Alcock, 7 Ves. 564; Rawlins v. Burgess, 2 Ves. & Bea. 387; Maundrell, v. Maundrell, 10 Ves. 249.) In the report of Ward v. Moore, (4 Mad. 372,) it seems to be intimated, that a joint-tenant may devise his estate before partition, and that the partition will not revoke the devise. This, however, could hardly have been meant. In the case of Swift v. Roberts, (3 Burr. 1496, and Ambl. 618,) it was held clear, that although subsequent events may affect the operation of a will, the party must have a devising power at the time of making the will, or it cannot be made valid by matter ex post facto. Now, a joint-tenant, whilst he continues such, clearly has not a devisable estate; (Doe v. Tomkinson, 2 Mau. & Sel. 166;) and after partition he acquires a several estate, attended with different qualities, as to the actions and remedies which may be had by or against him in respect thereof, from those belonging to or affecting the estate in joint-tenancy. A republication of the will, indeed, after the partition, would give it validity; for the will, in such case, will be considered as if originally made at the date of republication, when the devising power of the party could not be questioned. The costs of issuing, executing, and confirming, a commission of partition, must be borne by the parties in proportion to the value of their respective interests; (Agar v. Fairfax, 17 Ves. 558;) but no costs are given up to the hearing of the bill; (Baring v. Nash, 1 Ves. & Bea. 554 ;) for there would be no equity in saddling one party with any portion of the charges in respect of previous collateral questions raised by the other. (Whaley v. Dawson, 2 Sch. & Lef. 371.) Great part of this note is extracted from Hovenden's Supplem. to Ves. jun. Vol. i. p. 236. (11) A covenant by a joint-tenant to sell, though it does not sever the joint-tenancy at law, will do so in equity; (Browne v. Raindle, 3 Ves. 257; Hinton v. Hinton, 2 Ves. sen. 639;) provided the agreement for sale be one of which a specific performance could be enforced. (Partriche v. Powlett, 2 Atk. 54; Hinton v. Hinton, 2 Ves. sen. 634.) (12) See ante, the last note but one. terest. has therefore a priority to the other (e)) is already vested (ƒ). 4. It may also be destroyed by destroying the unity of inAnd therefore, 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 (g); though, if an estate is originally limited to two for life, and after to the heirs of one of them, the freehold shall remain in jointure, without merging in the inheritance; because, being created by one and the same conveyance, they are not separate estates (which is requisite in order to a merger), but branches of one entire estate (h). In like manner, if a joint-tenant in fee makes a lease for life of his share, this defeats the jointure (i) (13): for it destroys the unity both of title and of interest. And whenever or by whatever means the jointure ceases or is severed, the right of survivorship or jus accrescendi the same instant ceases with it (k). Yet, if one of three joint-tenants alienes his share, the two remaining tenants still hold their parts by joint-tenancy and survivorship (1): and, if one of three joint-tenants releases his share to one of his companions, though the joint-tenancy is destroyed with regard to that part, yet the two remaining parts are still held in jointure (m); for they still preserve their original constituent unities. But when, by any 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 these four indispensable properties, a sameness of interest, and undivided possession, a title vesting at one and the same time, and by one and the same act or grant; the jointure is instantly dissolved. *In general, it is advantageous for the joint-tenants to dissolve the jointure (14): since thereby the right of survivorship is taken away, and each may transmit his own part to his own heirs. Sometimes however it is disadvantageous to dissolve the joint-estate (15): as if there be joint-tenants (14) And the leaning of courts, in modern times, is in favour of tenancy in common, rather than joint-tenaney, where that question is open to construction. (Rigden v. Vallier, 2 Ves. sen. 258; see post, p. 193.) Thus, when a purchase agreement has been entered into by two purchasers, in terms prima facie joint, but there are circumstances from which it can be collected, that a joint-tenancy was not in contemplation; a court of equity will not execute the agreement by directing a conveyance in joint-tenancy; the intention, however, to make the purchase as tenants in common will not be assumed as of necessity. (Aveling v. Knipe, 19 Ves. 444.) If two persons advance money on a mortgage, though the mortgage deed may be joint, yet the interest will not be subject to survivorship, when it clearly appears the intention of the lenders was, that each should receive his own money again. (Petty v. Styward, 1 Cha. Rep. 58; and see ante, note, p. 183.) But, where a devise, or bequest, is made in terms creating a joint-tenancy, without any other words or circumstances which, either expressly or by implication, create a severance; there, no room is left for construction, and the devisees, or legatees, must take as joint-tenants. (Whitmorev. Trelawney, 6 Ves. 134; Morley v. Bird, 3 Ves. 631; Davenport v. Hanbury, 3 Ves. 260; Perry v. Woods, 3 Ves. 206; Swaine v. Burton, 15 Ves. 371; Crooke v. De Vandes, 9 Ves. 204.) On the other hand, when a will contains words importing the testator's intention, that the interests he has devised shall be taken by the objects of his bounty as tenants in common; but, in the same will, he has used other words, which, in their ordinary construction, would be inconsistent with that intention; those inconsistent words will, if possible, be moulded so as not to destroy the effect of the words importing a tenancy in com mon. Great doubts have been entertained by judges, both at law and in equity, as to words creating a joint-tenancy, or a tenancy in common; (Fisher v. Wigg, 1 P. Wms. 14 ;) but it is settled, that in equity, at all events, the words "equally to be divided, equally, among, between, respectively, share and share alike," create a tenancy in common. (Perry v. Woods, 3 Ves. 206; Morley v. Bird, 3 Ves. 631; Jenour v. Jenour, 10 Ves. 569; Lashbrook v. Cock, 2 Meriv. 70; Rigden v. Vallier, 2 Ves. sen. 256; Heathe v. Heathe, 2 Atk. 122; Denn v. Gaskin, Cowp. 660. And see post, p. 193.) (15) So, there are cases in which a joint form of gift may be the only, or at any rate the best, mode of causing a bequest to go in the course intended by the testator; as, for instance, where a bequest is made to infant natural children, who, in the event of the death of any, could not succeed to each other. (Stuart v. Bruce, 3 Ves. 363.) for life, and they make partition, this dissolves the jointure; and, though before they each of them 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 (n). And therefore, if there be two joint-tenants for life, and one grants away his part for the life of his companion, it is a forfeiture (o): for, in the first place, by the severance of the jointure he has given himself in his own moiety only an estate for his own life; and then he grants the same land for the life of another; which grant by a tenant for his own life merely, is a forfeiture of his estate (p): for it is creating an estate which may by possibility last longer than that which he is legally entitled to. III. An estate held in coparcenary is where lands of in- III. Of estates heritance descend from the ancestor to two or more persons. It arises either by common law or particular custom. By common law: as where a person seised in fee-simple, or in fee-tail dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they shall all inherit, as will be more fully shown, when we treat of descents hereafter; and these coheirs are then called coparceners; or, for brevity, parceners only (q). Parceners by particular custom are where lands descend, as in gavelkind, to all the males in equal degree, as sons, brothers, uncles, &c. (r). And, in either of these cases, all the parceners put together make but one heir; and have but one estate among them (s). in coparcenary. and properties *The properties of parceners are in some respects like of the nature those of joint-tenants; they having the same unities of inte- of these estates. rest, title, and possession. They may sue and be sued jointly [188] for matters relating to their own lands (t); and the entry of one of them shall in some cases enure as the entry of them all (u) (16). They cannot have an action of trespass against |