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but yesterday; so there is no unity of time. The only unity there is, is that of possession; and for this Littleton gives the true reason, because no man can certainly tell which part is his own: otherwise even this would be soon destroyed.

mon may be

dissolution or

an estate in

coparcenary,

no partition

Tenancy in common may be created, either by the de- Tenancy in comstruction of the two other estates, in joint-tenancy and co-created by the parcenary, or by special limitation in a deed. By the de- destruction of struction of the two other estates, I mean such destruction joint-tenancy or as does not sever the unity of possession, but only the unity where there is of title or interest: As, if one of two joint-tenants in fee made; alienes his estate for the life of the alienee, the alienee and the other joint-tenant are tenants in common; for they have now several titles, the other joint-tenant by the original grant, the alienee by the new alienation (q); and they also have several interests, the former joint-tenant in fee-simple, the alienee for his own life only. So, if one joint-tenant gives his part to A. in tail, and the other gives his to B. in tail, the donees are tenants in common, as holding by different titles and conveyances (r). If one of two parceners alienes, the alienee and the remaining parcener are tenants in common (s); because they hold by different titles, the parcener by descent, the alienee by purchase. So likewise, if there be a grant to two men, or two women, 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 been the case had the limitation been to a man and woman, and the heirs of their bodies begotten (t): and in this, and the like cases, their issues shall be tenants in common; because they must claim by different titles, one as heir of A., and the other as heir of B.; and those two not titles by *purchase, but descent. In short, whenever [ an estate in joint-tenancy 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.

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A tenancy in common may also be created by express or by express limitation in a deed: but here care must be taken not to deed,

limitation in a

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Or will.

insert words which imply a joint estate (22); and then if lands be given to two or more, and it be not joint-tenancy, it must be a tenancy in common. But the law is apt in its constructions to favour joint-tenancy rather than tenancy in common (u) (23); because the divisible services issuing from land (as rent, &c.) are not divided, nor the entire services (as fealty) multiplied, by joint-tenancy, as they must necessarily 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 (w); and, if one grants to another half his land, the grantor and grantee are also tenants in common (x): because, as has been before (y) observed, joint-tenants do not take by distinct halves or moieties; and by such grants the division and severalty of the estate is so plainly expressed that it is impossible they should take a joint-interest in the whole of the tenements. But a devise to two persons to hold jointly and severally, is said to be a joint-tenancy (z); because that is necessarily implied in the word "jointly," the word "severally" perhaps only implying the power of partition: and an estate given to A. and B., equally to be divided between them, though in deeds it hath been said to be a joint-tenancy (a), (for it implies no more than the law has annexed to that estate, viz. divisibility (b),) yet in wills it is certainly a tenancy in common (c); because the devisor may be presumed to have meant what is most beneficial to both the devisees, though his meaning is imperfectly expressed. And this nicety in the wording of grants makes it the most usual as well as the safest way, [* 194 ] 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.

Of the incidents attending a tenancy in com

mon.

As to the incidents attending a tenancy in common: tenants in common (like joint-tenants) are compellable by

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the statutes of Henry VIII. and William III., before mentioned (d), to make partition of their lands; 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 are therefore the same as appertain to jointtenants merely upon that account: such as being liable to reciprocal actions of waste, and of account, by the statutes of Westm. 2, c. 22, and 4 Ann. c. 16, § 27. For by the common law no tenant in common was liable to account with his companion for embezzling the profits of the estate (e); though, if one actually turns the other out of possession, an action of ejectment will lie against him (ƒ) (24). But, as (d) Pag. 185 and 189.

(e) Co. Litt. 199.

(24) In the case of Fairclaim v. Shackleton, (5 Burr. 2607, 2608,) it seems to have been considered that the perception of the whole profits of an estate, for any length of time, by one tenant in common, could never operate as a disseisin of the other tenant in common. But, not long afterwards, it was determined, in the case of Doe v. Prosser, (Cowp. 218,) that the term "actual ouster" did not necessarily imply some act accompanied with force; that a man might come in by rightful possession, yet hold over adversely without a title; and that, if he did so, such holding over might be equivalent to an actual ouster.

A plaintiff's right to recover in ejectment, after twenty years, was taken away by the statute of limitations of Henry VIII. And courts of equity have, at all times, upon general principles of their own, even where there was no statutable bar, refused relief to stale demands, where the party had slept upon his rights for a great length of time: and where a bar had been fixed by statute to the remedy at common law, the remedy in a court of equity was, in analogous

(f) Ibid. 200.

cases, confined to the same period.
(Marquis of Cholmondeley v. Lord
Clinton, 2 Jac. & Walk. 151, in the
judgment upon which case all the
leading authorities are cited.) Even
in cases of fraud, courts of equity took
the statutes of limitation for their
guides in general. (Stackhouse v.
Barnston, 10 Ves. 467; Bonney v.
Ridgard, 1 Cox, 149; Beckford v.
Wade, 17 Ves. 97.) And the ob-
jection of length of time may be taken
by demurrer, when a bill is so framed
as to be open to that mode of defence;
but as the plaintiff's pleader will, of
course, generally take care this shall
not be the case, a plea is the more
usual mode of taking advantage of
length of time in bar of a plaintiff's
claim. (Foster v. Hodson, 19 Ves.
184; Lord Shipbrook v. Lord Hinch-
inbroke, 13 Ves. 397; Hodle v. Hea-
ley, 1 Ves. & Bea. 539.)

Since this note was first published,
the statute of 3 & 4 Gul. IV. c. 27,
has enacted that (with certain savings,
in cases of specified disabilities,) no
person shall make an entry or distress
or bring an action to recover any rent
or land but within twenty years next
after the right accrued; the 12th sec-

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for other incidents of joint-tenants, which arise from the privity of title, or the union and entirety of interest, (such as joining or being joined in actions (g), unless in the case where some entire or indivisible thing is to be recovered (h),) these are not applicable to tenants in common whose interests are distinct, and whose titles are not joint but several. Estates in common can only be dissolved two ways: 1. in common may 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. For indeed tenancies in common differ in nothing from sole estates but merely in the blending and unity of possession. And this finishes our inquiries with respect to the nature of

Of the modes
by which estates

be dissolved.

estates.

(g) Litt. s. 311.

tion of the act, as to the possession of
one tenant in common, has been al-
ready adverted to, in note 5 to p.
182; and the 24th section of the
act limits suits in equity, for the
recovery of rent or land, to the

(h) Co. Litt. 197.

same period within which an entry or distress might have been made, or an action brought to recover the land or rent, if the claimant's title had been a legal one.

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CHAPTER XIII.

OF THE TITLE TO THINGS REAL, IN GENERAL.

things real.

THE foregoing chapters having been principally employed of the title to in defining the nature of things real, in describing the tenures by which they may be holden, and in distinguishing the several kinds of estate or interest that may be had therein; I come now to consider, lastly, the title to things real, with the manner of acquiring and losing it.

"title."

A title is thus defined by Sir Edward Coke (a), titulus Definition of est justa causa possidendi id quod nostrum est; or, it is the means whereby the owner of lands hath the just possession

of his property.

to form a com

There are several stages or degrees requisite to form a of the requisites complete title to lands and tenements. We will consider plete title. them in a progressive order.

possession, or

tion of the es

I. The lowest and most imperfect degree of title consists 1. The naked in the mere naked possession, or actual occupation of the actual occupaestate; without any apparent right, or any shadow or pre- tate. tence of right, to hold and continue such possession. This may happen, when one man invades the possession 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 that actual seisin, or corporal freehold of the lands, which the tenant before enjoyed. Or it may happen, that after the death of the ancestor and before the entry of the heir, or after the death of a particular tenant and before [196] the entry of him in remainder or reversion, a stranger may contrive to get possession of the vacant land, and hold out

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